title: Case C-444/05: Judgment of the Court (Second Chamber) of 19 April 2007 (reference for a preliminary ruling from the Diikitiko Protodikio Athinon — Greece) — Aikaterini Stamatelaki v NPDD Organismos Asfaliseos Eleftheron Epangelmation (OAEE) (Restrictions on the freedom to provide services — Reimbursement of the cost of treatment in private hospitals — Justification for, and proportionality of, the exclusion)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/14

         Judgment of the Court (Second Chamber) of 19 April 2007 (reference for a preliminary ruling from the Diikitiko Protodikio Athinon — Greece) — Aikaterini Stamatelaki v NPDD Organismos Asfaliseos Eleftheron Epangelmation (OAEE)
   (Case C-444/05) (1)

   (Restrictions on the freedom to provide services - Reimbursement of the cost of treatment in private hospitals - Justification for, and proportionality of, the exclusion)
   (2007/C 96/22)
   Language of the case: Greek
   Referring court
   Diikitiko Protodikio Athinon
   Parties to the main proceedings

      Applicant: Aikaterini Stamatelaki

      Defendant: NPDD Organismos Asfaliseos Eleftheron Epangelmation (OAEE)
   Re:
   Reference for a preliminary ruling — Diikitiko Protodikio Athinon — Interpretation of Articles 49 and 50 EC — Conditions governing the reimbursement of medical expenses incurred in another Member State — National legislation allowing medical expenses incurred in a private hospital in another Member State to be reimbursed only in the case of treatment of minors under the age of 14 whereas, when treatment takes place in a public hospital, the only condition imposed by the national legislation for reimbursement is that prior authorisation be obtained.
   Operative part of the judgment
   Article 49 EC precludes legislation of a Member State, such as that at issue in the main proceedings, which excludes all reimbursement by a national social security institution of the costs occasioned by treatment of persons insured with it in private hospitals in another Member State, except those relating to treatment provided to children under 14 years of age.

      (1)  OJ C 60, 11.3.2006.


C 299/10              EN                  Official Journal of the European Communities                                       26.9.98
2. Article 7(1) of Directive 89/104/EEC cannot be                        organisms, the Portuguese Republic has failed to fulfil
     interpreted as meaning that the proprietor of a trade               its obligations under Article 2 of that Directive;
     mark is entitled, on the basis of that provision alone,
     to obtain an order restraining a third party from using
     his trade mark for products which have been put on              2. orders the Portuguese Republic to pay the costs.
     the market outside the European Economic Area
     under that mark by the proprietor or with his consent.          (1) OJ C 295, 27.9.1997.
                                                                     (2) OJ L 297, 18.11.1994, p. 29.
(1) OJ C 388, 21.12.1996.
(2) OJ L 40, 11.12.1989, p. 1.
(3) OJ L 1, 3.1.1994, p. 3.
                                                                     Action brought on 9 July 1998 by the Hellenic Republic
                                                                        against the Commission of the European Communities
                                                                                (Case C-247/98)
                                                                                (98/C 299/18)
               JUDGMENT OF THE COURT
                        (Sixth Chamber)
                                                                     An action against the Commission of the European
                         of 16 July 1998                             Communities was brought before the Court of Justice of
in    Case   C-285/97: Commission of the European                    the European Communities on 9 July 1998 by the Hellenic
           Communities v. Portuguese Republic (1)                    Republic, represented by Dimitrios Papageorgopoulos,
                                                                     State Legal Adviser, and Ioannis-Konstantinos Khalkias,
(Failure of a Member State to fulfil its obligations Ð               Member of the State Legal Service, with an address for
Failure to transpose Directive 94/51/EC within the                   service in Luxembourg at the Greek Embassy, 117 Val
                       prescribed period)                            Sainte-Croix.
                          (98/C 299/17)
                                                                     The applicant claims that the Court should:
              (Language of the case: Portuguese)                     Ð hold the application admissible,
                                                                     Ð annul, or otherwise modify, Commission Decision 98/
  (Provisional translation; the definitive translation will be           358/EC of 6 May 1998 on the clearance of the
          published in the European Court Reports)                       accounts presented by the Member States in respect of
                                                                         the expenditure for 1994 of the Guarantee Section of
                                                                         the European Agricultural Guidance and Guarantee
In Case C-285/97: Commission of the European                             Fund (notified under document number C(1998)
Communities (Agent: Francisco de Sousa Fialho) v.                        1124) (1).
Portuguese Republic (Agents: Luís Fernandes and Pedro
Portugal) Ð application for a declaration that, by failing
                                                                     Pleas in law and main arguments adduced in support:
to adopt within the prescribed period the laws, regulations
and administrative provisions necessary to comply with
Commission Directive 94/51/EC of 7 November 1994                     By its contested decision, the Commission, in clearing
adapting to technical progress Council Directive 90/219/             accounts for the 1994 financial year, did not recognise
EEC on the contained use of genetically modified micro-              various items of expenditure amounting to GRD
organisms (2) the Portuguese Republic has failed to fulfil           8 093 595 532 which relate to the beef and veal, fruit and
its obligations under the third paragraph of Article 189 of          vegetable, and wine sectors.
the EC Treaty and Article 2 of Directive 94/51/EC Ð the
Court (Sixth Chamber), composed of: H. Ragnemalm
(Rapporteur), Presidents of Chambers, G. F. Mancini, J. L.           The Hellenic Republic maintains that that decision of the
Murray, G. Hirsch and K. M. Ioannou, Judges; A. La                   Commission should be annulled because it is based on a
Pergola, Advocate General; R. Grass, Registrar, has given            misapprehension of the facts and on an incorrect, or
a judgment on 16 July 1998, in which it:                             otherwise insufficient, statement of reasons. In adopting
                                                                     that decision, the Commission exceeded the limits of its
                                                                     discretion, while, in particular in the compulsory
                                                                     distillation sector, it relied on a non-existent legal basis for
1. declares that, by failing to adopt within the prescribed          imposing the correction.
     period the laws, regulations and administrative
     provisions necessary to comply with Commission
     Directive 94/51/EC of 7 November 1994 adapting to               (1) OJ L 163, 6.6.1998, p. 28.
     technical progress Council Directive 90/219/EEC on
     the contained use of genetically modified micro-


title: Case T-462/17: Action brought on 25 July 2017 — TO v EEA

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/32

         Action brought on 25 July 2017 — TO v EEA
   (Case T-462/17)
   (2017/C 347/41)
   Language of the case: French

      Parties

      Applicant: TO (represented by: N. Lhoëst, lawyer)

      Defendant: European Environment Agency

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Environment Agency (EEA) of 22 September 2016 terminating the applicant’s employment as a member of contract staff;

               —

               annul the EEA’s decision of 20 April 2017 rejecting the complaint brought by the applicant on 21 December 2016;

               —

               order the EEA to pay the applicant compensation calculated on the basis of the loss of 4 years’ salary, subject to deduction of any unemployment benefit received by her during that period;

               —

               order the EEA to pay the applicant a sum of EUR 3 500 by way of compensation for the fees connected with the early termination of her rental contract in Copenhagen, subject to any increase where relevant;

               —

               annul the applicant’s payslip for September 2016, particularly in so far as it does not include her salary for 22 September 2016;

               —

               order the EEA to pay the applicant EUR 50 000 by way of compensation for the non-material damage resulting from the dismissal decision of 22 September 2016;

               —

               order the EEA to pay the applicant EUR 5 000 by way of compensation for the non-material damage resulting from the EEA’s infringement of Article 26 of the Staff Regulations of Officials of the European Union;

               —

               order the EEA to pay the applicant EUR 10 000 by way of compensation for the non-material damage resulting from the psychological pressure exerted on her by the EEA during her incapacity to work;

               —

               in the alternative, order the EEA to pay the applicant one month’s notice and compensation equal to one third of her basic salary per month of probation completed in accordance with Article 84 of the CEOS;

               —

               order the EEA to pay the costs in their entirety.

      Pleas in law and main arguments

   In support of the action, the applicant relies on eight pleas in law.

               1.

               First plea in law, alleging that Article 48(b) of the CEOS does not apply.

               2.

               Second plea in law, alleging infringement of Article 48(b) and the second paragraph of Article 16 of the CEOS.

               3.

               Third plea in law, based on a plea of illegality on the ground of discrimination with regard to Article 48(b) of the CEOS.

               4.

               Fourth plea in law, alleging infringement of Article 26 of the Staff Regulations and infringement of the rights of defence.

               5.

               Fifth plea in law, alleging infringement of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1) and of Article 8 of the Charter of Fundamental Rights of the European Union.

               6.

               Sixth plea in law, alleging infringement of Article 84 of the CEOS and of Article 41 of the Charter of Fundamental Rights of the European Union, and breach of the duty to have regard for the welfare of staff.

               7.

               Seventh plea in law, alleging a manifest error of assessment.

               8.

               Eighth plea in law, alleging a misuse of powers.


title: Removal from the register of C-393/97

text:
C 184/8               EN                Official Journal of the European Communities                                       13.6.98
Commission of the European Communities, was brought                     (b) was entitled to substitute its own reasoning for
before the Court of Justice of the European Communities                       one of the two reasons stated in the contested
on 27 April 1998 by D.I.R. International Film S.r.l.                          decision, the Court of First Instance's reasoning
(D.I.R.'), of Via Leonardo Fibonacci 43, 00166 Rome,                         was in any event irreconcilable with Article 85 of
Italy, Nostradamus Enterprises Limited (Nostradamus                          the EC Treaty, read in conjunction with Council
Enterprises'), of The Glassworks, 3Ð4 Ashland Place,                          Regulation 17/62.
London W1M 3JH, United Kingdom, Union P.N. S.r.l.
(Union'), of Via Margutta 33, 00187 Rome, Italy, United           (1) OJ C 137, 3.6.1995, p. 32.
International Pictures B.V. (UIP'), of Rijswijkstraat 175,        (2) Council Regulation 17/62 of 6 February 1962, First
1062 EV Amsterdam, Netherlands, United International                   Regulation implementing Articles 85 and 86 of the Treaty (OJ
Pictures AB (UIP AB'), of Hornsbruksgatan 19, 10274                   13, 21.2.1962, p. 204 [SE SER1 (59Ð62) p. 87]).
                                                                   (3) Council Decision 90/685/EEC of 21 December 1990
Stockholm, Sweden, United International Pictures APS
                                                                       concerning the implementation of an action programme to
(UIP APS'), of Hauchsvej 13, 1825 Frederiksberg C,                    promote the development of the European audiovisual
Copenhagen, Denmark, United International Pictures A/S                 industry (Media) (1991 to 1995) (OJ L 380, 31.12.1990,
(UIP A/S'), of Hegdehaugsveien 27, 0352 Oslo 3,                       p. 37).
Norway, United International Pictures EPE (UIP EPE'), of
4 Gambetta Street, Athens Gr. 106 78, Greece, United
International Pictures OY (UIP OY'), of Kaisaniemenkatu
1 C, 00100 Helsinki, Finland and United International
Pictures y Cia SRC (UIP y Cia SRC'), of Plaza del Callao
4Ð6o, Madrid 28013, Spain, represented by Alexandre                          Removal from the register of C-331/97 (1)
Vandencasteele and Olivier Speltdoorn, of the Brussels                                      (98/C 184/11)
Bar, of Liedekerke SimeÂon Wessing Houthoff, Brussels,
with an address for service in Luxembourg at the
Chambers of Ernest Arendt, 8Ð10 Rue Mathias Hardt.                 By order of 25 March 1998 the President of the Court of
                                                                   Justice of the European Communities has ordered the
                                                                   removal from the register of Case C-331/97: Commission
The Appellant claims that the Court should:                        of the European Communities v. Federal Republic of
                                                                   Germany.
Set aside the contested judgment and accordingly
                                                                   (1) OJ C 331, 1.11.1997.
Ð give final judgment on the case, grant the Appellants
     the order sought before the Court of First Instance and
     order the Commission to pay the costs of the
     proceedings both before the Court of First Instance
     and the Court of Justice;
                                                                             Removal from the register of C-393/97 (1)
Ð or, in the alternative, refer the case back to the Court                                  (98/C 184/12)
     of First Instance for judgment and reserve the costs.
                                                                   By order of 25 March 1998 the President of the Court of
Pleas in law and main arguments adduced in support:                Justice of the European Communities has ordered the
                                                                   removal from the register of Case C-393/97 (reference
The Appellants rely on three grounds of appeal based on            for a preliminary ruling from the Verwaltungsgericht
an infringement of Community law by the Court of First             Halle): Lidl-Fleischwerk Handelshof GmbH & Co. KG v.
Instance, in particular of Articles 85, 173 and 190 of the         Landkreis Burgenlandkreis.
EC Treaty, of Council Regulation 17/62 (2), of Council
Decision 90/685/EEC (3), of the EFDO Guidelines and of             (1) OJ C 41, 7.2.1998.
the general principles of legal certainty and legitimate
expectations.
The Court of First Instance:
                                                                             Removal from the register of C-302/96 (1)
1) wrongly considered that the Commission enjoyed                                           (98/C 184/13)
     discretionary power to assess the eligibility of EFDO
     funding applications;
                                                                   By order of 26 March 1998 the President of the Court of
                                                                   Justice of the European Communities has ordered the
2) illegally substituted its own reasoning for one of the          removal from the register of Case C-302/96: Commission
     two reasons stated in the contested decision, and;            of the European Communities, supported by Kingdom of
                                                                   Great Britain and Northern Ireland, v. Federal Republic of
3) even if the Court of First Instance                             Germany.
     (a) rightly considered that the Commission enjoyed            (1) OJ C 336, 9.11.1996.
          discretionary power to assess the eligibility of
          EFDO funding applications and


title: Case T-33/12: Action brought on 23 January 2012 — Piotrowski v OHIM (MEDIGYM)

text:
               17.3.2012

               EN

               Official Journal of the European Union

               C 80/24

         Action brought on 23 January 2012 — Piotrowski v OHIM (MEDIGYM)
   (Case T-33/12)
   2012/C 80/40
   Language of the case: German

      Parties

      Applicant: Elke Piotrowski (Viernheim, Germany) (represented by J. Albrecht, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 November 2011 in Case R 734/2011-4;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: the word mark ‘MEDIGYM’ for goods in Class 10

      Decision of the Examiner: the application was rejected

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: Infringement of Article 75 of Regulation No 207/2009 as the Board of Appeal’s decision was based on reasons on which the applicant had had no opportunity to present her comments and infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the Community trade mark at issue was refused protection pursuant to Article 154(3) and Article 37(1) of Regulation No 207/2009 even though the mark was not ineligible for registration either under Article 7(1)(b) or Article 7(1)(c) of Regulation No 207/2009


title: Case T-434/16: Action brought on 29 July 2016 — Sensi Vigne & Vini v EUIPO — El Grifo (CONTADO DEL GRIFO)

text:
               26.9.2016

               EN

               Official Journal of the European Union

               C 350/24

         Action brought on 29 July 2016 — Sensi Vigne & Vini v EUIPO — El Grifo (CONTADO DEL GRIFO)
   (Case T-434/16)
   (2016/C 350/30)
   Language in which the application was lodged: Italian

      Parties

      Applicant: Sensi Vigne & Vini Srl (Lamporecchio, Italy) (represented by: F. Caricato, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: El Grifo, SA (San Bartolomé de Lanzarote, Spain)

      Details of the proceedings before EUIPO

      Applicant for the trade mark at issue: Applicant

      Trade mark at issue: European Union figurative mark containing the word elements ‘CONTADO DEL GRIFO’ — Application for registration No 12 097 416

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of EUIPO of 25 May 2016 in Case R 2218/2015-2

      Form of order sought

   The applicant claims that the Court should:

               —

               set aside EUIPO’s decision of 25 May 2016 in its entirety;

               —

               uphold the present action, ruling on the substance of the case in favour of registration of EU Trade Mark No 12 097 416, filed on 28 August 2013 in Class 33;

               —

               order EUIPO to pay the costs of the present proceedings and of those before EUIPO.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 10 December 1998 in Joined Cases C-127/96, C-229/96 and C-74/97 (references for a preliminary ruling from the Tribunal Superior de Justicia de Murcia, the Arbeitsgericht Frankfurt am Main and the Juzgado de lo Social No 1 de Pontevedra): Francisco Hernández Vidal SA v Prudencia Gómez Pérez, María Gómez Pérez, Contratas y Limpiezas SL (C-127/96), Friedrich Santner v Hoechst AG (C-229/96) and Mercedes Gómez Montaña v Claro Sol SA, Red Nacional de Ferrocarriles Españoles (Renfe) (C-74/97) (Safeguarding of employees' rights in the event of transfers of undertakings)

text:
13.3.1999            EN                  Official Journal of the European Communities                                     C 71/1
                                                                 I
                                                           (Information)
                                             COURT OF JUSTICE
                                                       COURT OF JUSTICE
              JUDGMENT OF THE COURT                                  (C-74/97) Ð on the interpretation of Council Directive
                      (Fifth Chamber)                                77/187/EEC of 14 February 1977 on the approximation of
                                                                     the laws of the Member States relating to the safeguarding
                   of 10 December 1998                               of employees' rights in the event of transfers of
                                                                     undertakings, businesses or parts of businesses (OJ L 61,
in Joined Cases C-127/96, C-229/96 and C-74/97
                                                                     5.3.1977, p. 26) Ð the Court (Fifth Chamber), composed
(references for a preliminary ruling from the Tribunal
                                                                     of: J.-P. Puissochet (Rapporteur), President of Chamber,
Superior de Justicia de Murcia, the Arbeitsgericht Frank-
                                                                     P. Jann, J. C. Moitinho de Almeida, C. Gulmann and
furt am Main and the Juzgado de lo Social No 1 de
                                                                     D. A. O. Edward, Judges; G. Cosmas, Advocate General;
Pontevedra): Francisco HernaÂndez Vidal SA v Prudencia
                                                                     H. von Holstein, Administrator, for the Registrar, has
Gómez PeÂrez, María Gómez PeÂrez, Contratas y Limpiezas
                                                                     given a judgment on, in which it has ruled:
SL (C-127/96), Friedrich Santner v Hoechst AG
(C-229/96) and Mercedes Gómez MontanÄa v Claro Sol
SA, Red Nacional de Ferrocarriles EspanÄoles (Renfe)                 Article 1(1) of Council Directive 77/187/EEC of
                         (C-74/97) (1)                               14 February 1977 on the approximation of the laws of the
(Safeguarding of employees' rights in the event of transfers         Member States relating to the safeguarding of employees'
                      of undertakings)                               rights in the event of transfers of undertakings, businesses
                                                                     or parts of businesses is to be interpreted as meaning that
                       (1999/C 71/01)                                the directive applies to a situation in which an
                                                                     undertaking which used to entrust the cleaning of its
        (Language of the case: Spanish and German)                   premises to another undertaking decides to terminate the
                                                                     contract which it had with that other undertaking and in
                                                                     future to carry out that cleaning work itself, provided that
 (Provisional translation; the definitive translation will be        the operation is accompanied by the transfer of an
         published in the European Court Reports)                    economic entity between the two undertakings. The term
                                                                     economic entity refers to an organised grouping of persons
                                                                     and assets enabling an economic activity which pursues a
In Joined Cases C-127/96, C-229/96 and C-74/97:                      specific objective to be exercised. The mere fact that the
references to the Court under Article 177 of the EC Treaty           maintenance work carried out first by the cleaning firm
from the Tribunal Superior de Justicia de Murcia (Spain)             and then by the undertaking owning the premises is
(C-127/96), by the Arbeitsgericht Frankfurt am Main                  similar does not justify the conclusion that a transfer of
(Germany) (C-229/96) and by the Juzgado de lo Social                 such an entity has occurred.
No 1 de Pontevedra (Spain) (C-74/97) for a preliminary
ruling in the proceedings pending before those courts in
                                                                     (1) OJ C 180, 22.6.1996.
the cases of Francisco HernaÂndez Vidal SA v Prudencia                   OJ C 269, 14.9.1996.
Gómez PeÂrez, María Gómez PeÂrez, Contratas y Limpiezas                  OJ C 131, 26.4.1997.
SL (C-127/96), Friedrich Santner v Hoechst AG
(C-229/96) and Mercedes Gómez MontanÄa v Claro Sol
SA, Red Nacional de Ferrocarriles EspanÄoles (Renfe)


title: Case C-467/11 P: Appeal brought on 9 September 2011 by Audi AG and Volkswagen AG against the judgment of the General Court (Third Chamber) delivered on 6 July 2011 in Case T-318/09 Audi AG, Volkswagen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/12

         Appeal brought on 9 September 2011 by Audi AG and Volkswagen AG against the judgment of the General Court (Third Chamber) delivered on 6 July 2011 in Case T-318/09 Audi AG, Volkswagen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-467/11 P)
   2011/C 347/18
   Language of the case: German

      Parties

      Appellants: Audi AG, Volkswagen AG (represented by: P. Kather, Rechtsanwalt)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

               —

               Set aside the judgment of the General Court of 6 July 2011 in Case T-318/09;

               —

               Annul the decision of the First Board of Appeal of OHIM of 14 May 2009 in Case R 226/2007-1;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

   The judgment under appeal infringes Article 7(1)(c) of the Regulation on the Community trade mark (‘Regulation No 207/2009’) (1) as substantive Community law was applied incorrectly. The sign TDI is not descriptive. The General Court incorrectly proceeded on the basis that the public concerned would immediately and without further thought assume that the sign TDI is an abbreviation of a technical characteristic. That is incorrect as TDI is, on the one hand, not an abbreviation and there is, on the other hand, a multitude of expansions for such an abbreviation. Therefore the requirement of understanding ‘immediately and without further thought’ is not fulfilled. Furthermore, the appellants take the view that there is infringement of the principle in the first part of the first sentence of Article 76(1) of Regulation No 207/2009, which provides that OHIM is to examine the facts of its own motion, as OHIM neglected to prove that an absolute ground for refusal exists.
   In addition, there is infringement of the principle of equal treatment as there is a direct and specific relationship between the sign TDI and the registered signs CDI and HDI which demands that they be treated equally. No such equal treatment exists here as TDI is not registered.
   The judgment under appeal also infringes Article 7(3) of Regulation No 207/2009 because, on the one hand, evidence that the mark has been accepted throughout the Community is not required and, on the other hand, the General Court erred in law in its assessment of the underlying facts. Evidence is not required because the case-law of the Court in Pago
       (2) in respect of Article 9 of Regulation No 207/2009 is applicable to Article 7 of that regulation. Over and above that, relevant evidence of the acceptance of the mark was adduced, in the assessment of which the General Court erred in law. In particular, the General Court failed to appreciate the evidential value of national registrations. In addition, the General Court did not take into account the large market shares and high sales figures in respect of TDI vehicles and it therefore overlooked the associated advertising effect in its legal assessment.
   Lastly, the General Court erred in law by stating that the sign TDI is not used as a mark. That is incorrect and infringes Community law as the sign TDI is used as a mark in every form of use.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

      (2)  Judgment of the Court of 6 October 2009 in Case C-301/07 PAGO International [2009] ECR I-9429.


               5.3.2005

               EN

               Official Journal of the European Union

               C 57/23

         Removal from the register of Case C-10/04 (1)

   (2005/C 57/39)

      (Language of the case: German)

   By order of 1 December 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-10/04: Commission of the European Communities v Republic of Austria.

      (1)  OJ C 47 of 21.02.2004.


title: Case C-284/03: Reference for a preliminary ruling by the Cour d'Appel de Bruxelles by judgment of that Court of 19 June 2003 in the proceedings between the Belgian State and Temco Europe S.A.

text:
C 213/16               EN                        Official Journal of the European Union                                           6.9.2003
Reference for a preliminary ruling by the College van                    Bruxelles (Court of Appeal, Brussels) of 19 June 2003, received
Beroep voor het Bedrijfsleven by judgment of that Court                  at the Court Registry on 2 July 2003, for a preliminary ruling
of 27 June 2003 in the proceedings between A.H. Kuipers                  in the proceedings between the Belgian State and Temco
                  and the Productschap Zuivel                            Europe S.A. on the following question:
                         (Case C-283/03)
                                                                         May Article 13B(b) of the Sixth Directive be interpreted to
                                                                         mean that transactions, corresponding in Belgian law to a
                         (2003/C 213/26)
                                                                         contract of indefinite duration by which one company, by a
                                                                         number of contracts with associated companies, simul-
                                                                         taneously grants a licence to occupy a single property in return
                                                                         for a payment set partially but essentially on the basis of the
Reference has been made to the Court of Justice of the                   area occupied, where the inherent insecurity of a licence is
European Communities by judgment of the College van Beroep               absent owing to the fact that the transferees and the transferor
voor het Bedrijfsleven (Administrative Court for Trade and               are under common management, constitute a letting of
Industry) of 27 June 2003, received at the Court Registry on             immovable property within the meaning of Community law,
30 June 2003, for a preliminary ruling in the proceedings                or, in other words, does the independent Community law
between A.H. Kuipers and the Productschap Zuivel on the                  concept of the ‘letting of immovable property’ in Article 13B(b)
following questions:                                                     of the Sixth Directive (1) cover use, for consideration, of an
                                                                         immovable asset for purposes other than those of the tax-
1.    Is a national system of quality deductions and sup-                payer’s business — which definition is adopted in
      plements for raw milk delivered to the dairy, such as that         Article 44(3)(2) in fine of the Belgian Code de la TVA — that
      at issue, consistent with Regulation (EEC) No 804/68 (1)           is to say, the grant under a licence of indefinite duration of a
      on the common organisation of the market in milk and               non-exclusive right of occupation in return for a monthly
      milk products and in particular with the prohibition of            payment, albeit fluctuating and partly dependent on the profits
      ‘equalisation between the prices’ in Article 24(2) (now,           of one of the contracting parties, where the inherent insecurity
      after consolidation of amendments to the text,                     of a licence is absent owing to the fact that the transferees and
      Article 38(2) of Regulation (EC) No 1255/99)?                      the transferor are under common management?
2.    Is a national system of quality supplements for raw milk
      delivered to the dairy, such as that at issue, consistent          (1 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
      with the prohibition of aids in Article 24(1) of Regulation             harmonization of the laws of the Member States relating to
      (EEC) No 804/68?                                                        turnover taxes — Common system of value added tax: uniform
                                                                              basis of assessment (OJ L 145 of 13.06.1977, p. 1).
3.    If Question 2 is answered in the affirmative, is such a
      national system to be regarded as aid the grant of which
      must be notified beforehand to the Commission under
      Article 93(3) of the EC Treaty (now Article 88(3) EC)?
( 1) OJ L 148 of 28.06.1968, p. 13.
                                                                         Action brought on 2 July 2003 by the Hellenic Republic
                                                                            against the Commission of the European Communities
Reference for a preliminary ruling by the Cour d’Appel                                              (Case C-285/03)
de Bruxelles by judgment of that Court of 19 June 2003
in the proceedings between the Belgian State and Temco
                           Europe S.A.                                                              (2003/C 213/28)
                         (Case C-284/03)
                         (2003/C 213/27)                                 An action against the Commission of the European Communi-
                                                                         ties was brought on 2 July 2003 by the Hellenic Republic,
                                                                         represented by Vasilios Kondolaimos, state legal adviser, and
                                                                         by Yoannis Xhalkias, of the state legal service, with an address
Reference has been made to the Court of Justice of the                   for service in Luxembourg at the Greek Embassy, 27 Rue
European Communities by judgment of the Cour d’Appel de                  Marie-Adélaïde.


title: Case T-224/01: Action brought on 24 September 2001 by Houghton Durferrit GmbH against the Office for Harmonisation in the Internal Market

text:
5.1.2002               EN                     Official Journal of the European Communities                                           C 3/33
Pleas in law and main arguments                                          Action brought on 24 September 2001 by Houghton
                                                                         Durferrit GmbH against the Office for Harmonisation in
                                                                                the Internal Market
The Applicants are the owner and the licensee of the trade
                                                                                (Case T-224/01)
mark ‘MILD SEVEN’, used as a cigarette brand worldwide and
protected as intellectual property. The Applicants fear that the
prohibition, against using descriptors indicating that a tobacco                                   (2002/C 3/58)
product is less harmful than others, contained in Article 7 of
Directive 2001/37, will deprive the Applicants of the possi-
bility of marketing their brand ‘MILD SEVEN’ in the European                               (Language of the case: English)
Union.
                                                                         An action against the Office for Harmonisation in the Internal
In support of their application, the Applicants claim that there         Market was brought before the Court of First Instance of the
is no sufficient legal basis for the adaptation of Article 7 of the      European Communities on 24 September 2001 by Houghton
Directive. The Directive in question is based on Articles 95             Durferrit GmbH, represented by Ms Patricia Koch Moreno of
and 133 of the EC Treaty. Neither of them provides, according            Madrid (Spain). Kolone Corporation was also a party to the
to the Applicants, a sufficient basis for Article 7 of this              proceedings before the Board of Appeal
Directive. Article 133 does not apply since the common
commercial policy has no relevance to Article 7. Article 95 EC
Treaty does not provide a legal basis either since there is no           The applicant claims that the Court should:
need to harmonise legislation on this point for the establish-
ment of the internal market. According to the Applicants,                —     declare invalid the Decision no. 949/1999 dated 15 Octo-
there is no barrier to trade that needs to be removed. Further,                ber 1999 of the Opposition Division of the Office for
the Applicants claim that Article 7 of the Directive violates                  Harmonisation in the Internal Market in opposition
Article 152(4)(c) EC Treaty. According to the Applicants,                      procedure B4905, and the decision of the First Board of
Article 95 EC Treaty is being used as a legal basis for the                    Appeal dated 6 July 2001 that dismissed the remedy
circumvention of the prohibition contained in Article 152(4)(c)                of Appeal filed by the applicant against the previous
EC Treaty to harmonise legislation designed to protect and                     resolution
improve human health.
                                                                         —     declare incompatible the Community trade mark filed by
                                                                               Kolene Corporation, no. 40.568 NU-TRIDE, in classes 1
                                                                               and 40, on the grounds of its incompatibility with the
The Applicants also claim that Article 7 of the Directive                      earlier trade mark belonging to the applicant,
violates their right to property and the principle of pro-                     no. 764.560, in classes 1, 7 and 11
portionality since it would deprive the Applicants of the use
of their trade mark in the European market. According to the             —     refuse the registration of Community trade mark
Applicants, Article 7 is not an appropriate means by which to                  no. 40.568 NU-TRIDE in classes 1 and 40
attain the objective of this Article, which is to promote health
and consumer protection. The Applicants claim that the use               —     order payment of the costs of these proceedings by
of descriptors provides the consumer with information that                     the holder of the foregoing Community trade mark
allows him to choose to smoke cigarettes with a lower tar and                  application, Kolene Corporation.
nicotine content. Article 7 is in any event not the least
restrictive method, since provision could have been made for
the protection of existing trade marks.
                                                                         Pleas in law and main arguments
The Applicants claim further that Article 7 of the Directive             Applicant for the Com-         Kolone Corporation
violates the principle of equal treatment. The Applicants make           munity trade mark:
clear that they are the only tobacco producers in the European
Union who would be deprived of the use of a brand as a                   The Community trade            Verbal mark ‘NU-TRIDE’ —
consequence of Article 7 of the Directive.                               mark concerned:                Application no. 40.568, relating
                                                                                to goods in classes 1 and 40
                                                                                (chemicals for use in the treatment
                                                                                of metals and metal treatment)
Finally, the Applicants submit that the grounds upon which
Article 7 of the Directive is based are insufficient.                    Proprietor of the right to     The Applicant
                                                                         the trade mark or sign
                                                                         asserted by way of oppo-
                                                                         sition in the opposition
                                                                         proceedings:
 ---pagebreak--- C 3/34                 EN                     Official Journal of the European Communities                                        5.1.2002
Trade mark or sign             Registered German trade mark              by the authorities in the USA had ended inter alia with the
asserted by way of oppo-       ‘TUFFTRIDE’ in classes 1, 7 and 11        imposition of a fine on the applicant.
sition in the opposition
proceedings:
                                                                         In response to the statement of objections the applicant stated
Decision of the Oppo-          rejection of the Opposition               to the defendant that it expressly did not contest the facts set
sition Division:                                                         out by the defendant. At the same time it submitted that the
                                                                         fine imposed in the USA should be credited when the
Decision of the Board of       rejection of the Appeal by the            defendant calculated the fines or at least be appropriately taken
Appeal:                        applicant                                 into account.
Grounds of claim:              Articles 8(1)(b) and 7(1)(f) of
                                                                         In the contested decision the defendant alleged that the
                               Regulation (EC) no. 40/94 (1)
                                                                         applicant had participated in a cartel and, when it calculated
                                                                         the fine, assumed that there was a world market in graphite
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the          electrodes. A fine of Euro 80,2 million was imposed on the
    Community trade mark (OJ L 11, p. 1).                                applicant.
                                                                         The applicant contests the decision has a whole in law. It
                                                                         submits that the defendant did not take into account the
                                                                         fact that the applicant had already been penalised in other
                                                                         jurisdictions for the same act. In particular, it gave no credit at
                                                                         all for the fines already imposed in other States and did not
Action brought on 2 October 2001 by SGL Carbon AG                        take account of the applicability of the rule against double
  against the Commission of the European Communities                     punishment (‘ne bis im idem’). As a separate matter, the
                                                                         defendant infringed Article 253 EC and Article 15(2) of
                                                                         Regulation No 17/62 because it wrongly calculated the fine in
                         (Case T-239/01)                                 the light of the application of the guidelines on the method of
                                                                         setting fines (1) and the notice on the non-imposition or
                           (2002/C 3/59)                                 reduction of fines in cartel cases (2). It infringed central
                                                                         principles of equal treatment and proportionality and commit-
                                                                         ted errors of law and of assessment to the detriment of the
                   (Language of the case: German)                        applicant at each stage of calculating the fine. Moreover, the
                                                                         defendant misassessed inter alia the extent of the applicant’s
                                                                         cooperation.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               (1) OJ C 9 of 14.1.1998,p. 3.
European Communities on 2 October 2001 by SGL Carbon                     (2) OJ C 207 of 18.7.1996, p. 4.
AG, Wiesbaden (Germany), represented by M. Klusmann,
F. Wiemer and C. Canenbley, lawyers.
The applicant claims that the Court should:
—     annul decision C(2001) 1986 final of 18 July 2001;                 Action brought on 3 October 2001 by Rica Foods (Free
                                                                         Zone) N.V. against the Commission of the European
—     in the alternative, reduce appropriately the amount of the                                   Communities
      fine imposed on the applicant in the contested decision;
                                                                                (Case T-242/01)
—     order the defendant to pay the costs of the proceedings.
                                                                                (2002/C 3/60)
Pleas in law and main arguments                                                             (Language of the case: Dutch)
The applicant manufactures various carbon and graphite
products, including graphite electrodes. In the course of a              An action against the Commission of the European Communi-
procedure seeking information under Article 11 of Regulation             ties was brought before the Court of First Instance of the
No 17/62 concerning suspected anti-competitive agreements                European Communities on 3 October 2001 by Rica Foods
between undertakings on the market for graphite electrodes,              (Free Zone) N.V., established in Oranjestad (Aruba), represent-
the applicant stated to the defendant that it was willing to             ed by G. van der Wal, with an address for service in
cooperate in the investigation of the case. A similar procedure          Luxembourg.


title: Reference for a preliminary ruling from the Juzgado de Primera Instancia No 22 de Valencia, by order of that court of 11 November 1997 in the case of Travel Vac, SL v. Manuel José Antelm Sanchís (Case C-423/97)

text:
C 41/16               EN                  Official Journal of the European Communities                                         7.2.98
Ð Is the progression coefficient existing between the tax                 matters relating exclusively to the fulfilment of
     band covering an imported vehicle of more than 18 hp                 obligations (clause 3) which account for the greater
     and the tax band covering a similar vehicle of 15 to                 part of the consideration payable (inasmuch as the
     16 hp discriminatory or not?                                         value of the immovable property itself amounts to Pta
                                                                          285 000 out of the sum of Pta 1 090 000 representing
                                                                          the total value of the contract)?
Ð Do the circulars of 28 December 1956, 23 December
     1977, 24 June 1987, 12 January 1988 and
     20 September 1991, as retroactively validated by                3. Is the complex of holiday time-share flats offered to
     Article 35 of the Finance (Amendment) Law of 22 June                 consumers in the town of Denia covered by the first
     1993, have the effect of making the tax discriminatory               indent of Article 1(1) of Directive 85/577/EEC, having
     in regard to owners of vehicles for which type-                      regard to the fact that the premises of Travel Vac, SL
     approval has not been granted in France, that is to say,             are located at 5Ð6o Calle Profesor BeltraÂn BaÂguena,
     vehicles approved on an individual basis?                            Valencia?
                                                                     4. Is the right of renunciation granted to the consumer by
Ð If the answer is yes, can the owner of a standard                       Article 5(1) of the Directive based on a presumption
     vehicle with a power rating in excess of 100 kW rely                 that the exercise of his free will has been affected or
     on that answer in order to plead, by application of the              manipulated as a result of the circumstances referred
     general principles of Community law such as equality                 to in Article 1 of the Directive; if so, to what extent is
     in regard to public charges and the provisions of the                that right of renunciation, as guaranteed by the
     European Convention on Human Rights and the                          Directive, founded on a connection with deceit
     Protocols thereto, that the tax is not payable on the                generally on the part of the vendor, in the form of the
     ground that it is discriminatory and inequitable?                    use by one of the contracting parties of insidious
                                                                          words or machinations which induce the other to
                                                                          enter into a contract which would not otherwise have
                                                                          been concluded' (Article 1269 of the Spanish Civil
                                                                          Code) and, generally, with the freely given consent
                                                                          which necessarily forms part of any contract (Articles
                                                                          1254, 1258, 1261 et seq. of the Spanish Civil Code)?
Reference for a preliminary ruling from the Juzgado de
Primera Instancia No 22 de Valencia, by order of that
court of 11 November 1997 in the case of Travel Vac, SL              5. Must the notice provided for by Article 5(1) of the
                v. Manuel JoseÂ Antelm Sanchís                            Directive be given expressly, or can it, where
                                                                          appropriate, take the form of specific unequivocal acts
                        (Case C-423/97)                                   such as, in the present case, the non-appearance of the
                                                                          consumer at the time stipulated and agreed for
                          (98/C 41/32)                                    signature of ratification on the Bank's premises, on
                                                                          17 September 1996, three days after signature of the
                                                                          contract appearing on page 76 in the case file, the
                                                                          consumer's position being evidenced and made clear
Reference has been made to the Court of Justice of the
                                                                          by his appearance in the vendor's premises in Valencia
European Communities by order of the Juzgado de
                                                                          on the same day, 17 September 1996, when he stated
Primera Instancia (Court of First Instance) No 22,
                                                                          orally that it was all off and that the documents
Valencia, of 11 November 1997, which was received at
                                                                          which he had signed were to be returned to him'?
the Court Registry on 15 December 1997, for a
preliminary ruling in the case of Travel Vac, SL v. Manuel
JoseÂ Antelm Sanchís on the following questions:
                                                                     6. Are the provisions of Article 7 of the Directive
                                                                          concerning the reimbursement of payments, the return
                                                                          of goods and other effects arising in favour of the
1. Are time-share contracts generally, and the contract at                vendor upon the exercise by the consumer of his right
     issue in the present case (page 76 in the case file) in              of renunciation pursuant to Article 5 compatible with
     particular, to be regarded as falling within the scope of            an agreement to pay compensation for damage caused
     Article 3(2)(a) of Directive 85/577/EEC (1), which                   to the vendor' in the form of a lump sum quantified at
     contains provisions excluding the application of that                25 % of the total price of the transaction, as laid down
     Directive?                                                           in clause 4 of the contract (on the reverse of page 76
                                                                          in the case file)?
2. Even if, by virtue of that Article, the contract at issue         (1) Council Directive 85/577/EEC of 20 December 1985 to
     in the present case, being a time-share contract, is                protect the consumer in respect of contracts negotiated away
     excluded from the application of that Directive, could              from business premises (OJ L 372, 13.12.1985, p. 31).
     such exclusion be negated by the fact that the contract
     is not concerned solely with immovable property but
     also involves the provision of services and other


title: Judgment of the Court (Sixth Chamber) of 13 July 2000 in Case C-243/97: Hellenic Republic v Commission of the European Communities (Clearance of EAGGF accounts — 1993 financial year)

text:
25.11.2000              EN                      Official Journal of the European Communities                                              C 335/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                         (Sixth Chamber)
                                                                                of 13 July 2000
                           of 13 July 2000
                                                                             in Case C-210/98 P: Salzgitter AG v Commission of the
                                                                                European Communities (1)
in Case C-243/97: Hellenic Republic v Commission of the
                   European Communities (1)
                                                                             (Appeal — Decision 3855/91/ECSC (Fifth Steel Aid Code)
                                                                             — Notification of planned aid after expiry of the prescribed
   (Clearance of EAGGF accounts — 1993 financial year)                                                period — Effects)
                                                                                (2000/C 335/02)
                          (2000/C 335/01)
                                                                                (Language of the case: German)
                    (Language of the case: Greek)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                            In Case C-210/98 P: Salzgitter AG, formerly Preussag Stahl
                                                                             AG, established in Salzgitter (Germany), represented by
                                                                             J. Sedemund, Rechtsanwalt, Berlin, with an address for service
In Case C-243/97, Hellenic Republic (Agents: M.I. Chalkias and
                                                                             in Luxembourg at the Chambers of A. May, 398 Route d’Esch
E.-M. Mamouna) v Commission of the European Communities
                                                                             — appeal against the judgment of the Court of First Instance
(Agent: M. Condou-Durande), application for the partial annul-
                                                                             of the European Communities (Third Chamber, Extended
ment of Commission Decision 97/333/EC of 23 April 1997
                                                                             Composition) of 31 March 1998 in Case T-129/96 Preussag
on the clearance of the accounts presented by the Member
                                                                             Stahl v Commission [1998] ECR II-609, seeking to have that
States in respect of the expenditure for 1993 on the Guarantee
                                                                             judgment set aside, the other parties to the proceedings
Section of the European Agricultural Guidance and Guarantee
                                                                             being: Commission of the European Communities (Agents:
Fund (EAGGF) (OJ 1997 L 139, p. 30), in the part relating
                                                                             D. Triantafyllou and P. Nemitz) and Federal Republic of
to Greece — the Court (Sixth Chamber), composed of:
                                                                             Germany (Agent C.-D. Quassowski assisted by H. Wissel —
R. Schintgen, President of the Second Chamber, acting as
                                                                             the Court (Sixth Chamber), composed of: J.C. Moitinho de
President of the Sixth Chamber, P.J.G. Kapteyn, G. Hirsch
                                                                             Almeida, President of the Chamber, C. Gulmann, J.-P. Puissoch-
(Rapporteur), H. Ragnemalm and V. Skouris, Judges, P. Léger,
                                                                             et (Rapporteur), G. Hirsch and F. Macken, Judges; F.G. Jacobs,
Advocate General; L. Hewlet, Administrator, for the Registrar,
                                                                             Advocate General; H.A. Rühl, Principal Administrator, for the
has given a judgment on 13 July 2000, in which it:
                                                                             Registrar, has given a judgment on 13 July 2000, in which it:
1.    Dismisses the application;                                             1.    Dismisses the appeal;
2.    Orders the Hellenic Republic to pay the costs.                         2.    Orders Salzgitter AG to pay the costs;
                                                                             3.    Orders the Federal Republic of Germany to bear its own costs.
(1) OJ C 318 of 18.10.1997.
                                                                             (1) OJ C 278 of 5.9.1998.


title: Case C-423/15: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 31 July 2015 — Nils-Johannes Kratzer v R+V Allgemeine Versicherung AG

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/21

         Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 31 July 2015 — Nils-Johannes Kratzer v R+V Allgemeine Versicherung AG
   (Case C-423/15)
   (2015/C 320/29)
   Language of the case: German

      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Applicant: Nils-Johannes Kratzer

      Defendant: R+V Allgemeine Versicherung AG

      Questions referred

               1.

               On a proper interpretation of Article 3(1)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) and Article 14(1)(a) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (2), does a person who, as is clear from his application, is seeking not recruitment and employment but merely the status of applicant in order to bring claims for compensation also qualify as seeking ‘access to employment, to self-employment or to occupation’?

               2.

               If the answer to the first question is in the affirmative:

         Can a situation in which the status of applicant was obtained not with a view to recruitment and employment but for the purpose of claiming compensation be considered as an abuse of rights under EU law?

      (1)  OJ 2000 L 303, p. 16.

      (2)  OJ 2006 L 204, p. 23.


title: Case F-142/11: Judgment of the Civil Service Tribunal (First Chamber) of 12 December 2013 — Simpson v Council (Civil service — Promotion — Decision not to promote the applicant to grade AD 9 after he passed a competition for grade AD 9 — Equal treatment)

text:
               8.2.2014

               EN

               Official Journal of the European Union

               C 39/27

         Judgment of the Civil Service Tribunal (First Chamber) of 12 December 2013 — Simpson v Council
   (Case F-142/11) (1)

   (Civil service - Promotion - Decision not to promote the applicant to grade AD 9 after he passed a competition for grade AD 9 - Equal treatment)
   2014/C 39/49
   Language of the case: English

      Parties

      Applicant: Erik Simpson (Brussels, Belgium) (represented by: M. Velardo, lawyer)

      Defendant: Council of the European Union (represented by: M. Bauer and A.F. Jensen, Agents)

      Re:

   Application for the annulment of the decision not to promote the applicant to grade AD9 after he passed competition EPSO/AD/113/07 ‘Heads of unit (AD9) in the field of translation having Czech, Estonian, Hungarian, Lithuanian, Latvian, Maltese, Polish, Slovak and Slovene as their main language’, and an application for damages

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of the Council of the European Union of 9 December 2010;

               2.

               Dismisses the action as to the remainder;

               3.

               Declares that the Council of the European Union is to bear its own costs and orders it to pay the costs incurred by Mr Simpson.

      (1)  OJ C 65, 3.3.2013, p. 26.


title: Judgment of the Court of first instance 7 February 2002 in Case T-199/94: Hans-Walter Gosch v Commission of the European Communities (Action for damages — Non-contractual liability — Milk — Additional levy — Reference quantity — Producer who has entered into a non-marketing undertaking — Non-resumption of production on expiry of the undertaking)

text:
C 118/22                 EN                      Official Journal of the European Communities                                         18.5.2002
                                                           COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                       1977 introducing a system of premiums for the non-marketing
                                                                                of milk and milk products and for the conversion of dairy herds,
                                                                                did not deliver milk during the reference year opted for by the
                          7 February 2002                                         Member State concerned;
in Case T-187/94: Theresia Rudolph v Council of the                         2.    Declares that the period in respect of which the applicant must
European Union and Commission of the European Com-                                be compensated for the losses sustained as a result of the
                             munities (1)                                         application of Regulation No 857/84 is that beginning on
                                                                                5 August 1987 and ending on 28 March 1989;
(Action for damages — Non-contractual liability — Milk —                    3.    Orders the parties to forward to the Court, within six months
Additional levy — Reference quantity — Regulation (EC)                            of this judgment, particulars of the amounts to be paid,
No 2187/93 — Compensation for producers — Interruption                            established by mutual agreement;
                      of the limitation period)
                                                                            4.    Orders the parties, in the absence of such agreement, to submit
                                                                                to the Court within the same period their quantified claims;
                           (2002/C 118/34)
                                                                            5.    Reserves the costs.
                    (Language of the case: German)
                                                                            (1) OJ C 174 of 25.6.1994.
In Case T-187/94, Theresia Rudolf, residing in Rasdorf-
Grüsselbach (Germany), represented by B. Meisterernst,
M. Düsing, D. Mannstetten, F. Schulze and C.-H. Husemann,
lawyers, with an address for service in Luxembourg, v Council
of the European Union (Agent: A.-M. Colaert) and Commission                     JUDGMENT OF THE COURT OF FIRST INSTANCE
of the European Communities (Agents: D. Booß, M. Niejahr,
H.-J. Rabe and M. Núñez-Müller): Application for compen-
sation under Article 178 and the second paragraph of                                                  7 February 2002
Article 215 of the EC Treaty (now Article 235 EC and the
second paragraph of Article 288 EC) for damage suffered by                  in Case T-199/94: Hans-Walter Gosch v Commission of
the applicant as a result of her having been prevented from                                  the European Communities (1)
marketing milk by virtue of Council Regulation (EEC) No 857/
84 of 31 March 1984 adopting general rules for the application
                                                                            (Action for damages — Non-contractual liability — Milk —
of the levy referred to in Article 5c of Regulation (EEC)
                                                                            Additional levy — Reference quantity — Producer who
No 804/68 in the milk and milk products sector (OJ 1984
                                                                            has entered into a non-marketing undertaking — Non-
L 90, p. 13), as supplemented by Commission Regulation
                                                                               resumption of production on expiry of the undertaking)
(EEC) No 1371/84 of 16 May 1984 laying down detailed rules
for the application of the additional levy referred to in
Article 5c of Regulation (EEC) No 804/68 (OJ 1984 L 132,                                              (2002/C 118/35)
p. 11), Court of First Instance (Fourth Chamber), composed of:
P. Mengozzi, President, V. Tilli and R. M. Moura Ramos,                                        (Language of the case: German)
Judges; D. Christensen, Administrator, for the Registrar, has
given a judgment on 7 February 2002, in which it:
                                                                            In Case T-199/94, Hans-Walter Gosch, residing in Högersdorf
1.    Declares that the defendants are bound to make good the               (Germany), represented by D. Hansen and S. Vieregge, lawyers,
      damage sustained by the applicant as a result of the application      with an address for service in Luxembourg, v Commission of
      of Council Regulation (EEC) No 857/84 of 31 March 1984                the European Communities (Agents: D. Booß, M. Niejahr
      adopting general rules for the application of the levy referred to    and M. Núñez-Müller): Application for compensation under
      in Article 5c of Regulation (EEC) No 804/68 in the milk               Article 178 and the second paragraph of Article 215 of the EC
      and milk products sector, as supplemented by Commission               Treaty (now Article 235 EC and the second paragraph of
      Regulation (EEC) No 1371/84 of 16 May 1984 laying down                Article 288 EC) for damage suffered by the applicant as a
      detailed rules for the application of the additional levy referred    result of his having been prevented from marketing milk by
      to in Article 5c of Regulation (EEC) No 804/68, in so far as          virtue of Council Regulation (EEC) No 857/84 of 31 March
      those regulations did not make provision for the allocation of a      1984 adopting general rules for the application of the levy
      reference quantity to producers who, pursuant to an undertaking       referred to in Article 5c of Regulation (EEC) No 804/68 in the
      given under Council Regulation (EEC) No 1078/77 of 17 May             milk and milk products sector (OJ 1984 L 90, p. 13),
 ---pagebreak--- 18.5.2002              EN                     Official Journal of the European Communities                                            C 118/23
as supplemented by Commission Regulation (EEC) No 1371/                  1.    Declares that the defendants are bound to make good the
84 of 16 May 1984 laying down detailed rules for the                           damage sustained by the applicant as a result of the application
application of the additional levy referred to in Article 5c of                of Council Regulation (EEC) No 857/84 of 31 March 1984
Regulation (EEC) No 804/68 (OJ 1984 L 132, p. 11), Court of                    adopting general rules for the application of the levy referred to
First Instance (Fourth Chamber), composed of: P. Mengozzi,                     in Article 5c of Regulation (EEC) No 804/68 in the milk
President, V. Tilli and R. M. Moura Ramos, Judges; D. Christens-               and milk products sector, as supplemented by Commission
en, Administrator, for the Registrar, has given a judgment on                  Regulation (EEC) No 1371/84 of 16 May 1984 laying down
7 February 2002, in which it:                                                  detailed rules for the application of the additional levy referred
                                                                               to in Article 5c of Regulation (EEC) No 804/68, in so far as
1.    Dismisses the application;                                               those regulations did not make provision for the allocation of a
                                                                               reference quantity to producers who, pursuant to an undertaking
                                                                               given under Council Regulation (EEC) No 1078/77 of 17 May
2.    Orders the applicant to pay the costs.
                                                                               1977 introducing a system of premiums for the non-marketing
                                                                               of milk and milk products and for the conversion of dairy herds,
(1) OJ C 218 of 6.8.1994.                                                      did not deliver milk during the reference year opted for by the
                                                                               Member State concerned;
                                                                         2.    Declares that the period in respect of which the applicant must
                                                                               be compensated for the losses sustained as a result of the
                                                                               application of Regulation No 857/84 is that beginning on
                                                                               5 August 1987 and ending on 28 March 1989;
    JUDGMENT OF THE COURT OF FIRST INSTANCE                              3.    Orders the parties to forward to the Court, within six months
                                                                               of this judgment, particulars of the amounts to be paid,
                         7 February 2002                                       established by mutual agreement;
                                                                         4.    Orders the parties, in the absence of such agreement, to submit
in Case T-201/94: Erwin Kustermann v Council of the                            to the Court within the same period their quantified claims;
European Union and Commission of the European Com-
                            munities (1)                                 5.    Reserves the costs.
(Action for damages — Non-contractual liability — Milk —
Additional levy — Reference quantity — Regulation (EC)                   (1) OJ C 218 of 6.8.1994.
No 2187/93 — Compensation for producers — Interruption
                     of the limitation period)
                         (2002/C 118/36)
                   (Language of the case: German)                            JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                7 February 2002
In Case T-201/94, Erwin Kustermann, residing in Eggenthal
                                                                         in Case T-261/94: Bernhard Schulte v Council of the
(Germany), represented by H.-P. Ried, Y. Schur and R. Bruk-
                                                                         European Union and Commission of the European Com-
hardt, lawyers, with an address for service in Luxembourg, v
                                                                                munities (1)
Council of the European Union (agent: A.-M. Colaert) and
Commission of the European Communities (Agents: D. Booß,
M. Niejahr, H.-J. Rabe and M. Núñez-Müller): Application for           (Action for damages — Non-contractual liability — Milk —
compensation under Article 178 and the second paragraph of               Additional levy — Reference quantity — Regulation (EC)
Article 215 of the EC Treaty (now Article 235 EC and the                 No 2187/93 — Compensation for producers — Act of the
second paragraph of Article 288 EC) for damage suffered by                               national authorities — Limitation)
the applicant as a result of his having been prevented from
marketing milk by virtue of Council Regulation (EEC)                                                (2002/C 118/37)
No 857/84 of 31 March 1984 adopting general rules for the
application of the levy referred to in Article 5c of Regulation                              (Language of the case: German)
(EEC) No 804/68 in the milk and milk products sector (OJ
1984 L 90, p. 13), as supplemented by Commission Regulation
(EEC) No 1371/84 of 16 May 1984 laying down detailed rules
for the application of the additional levy referred to in Article        In Case T-261/94, Bernhard Schulte, residing in Delbrück
5c of Regulation (EEC) No 804/68 (OJ 1984 L 132, p. 11),                 (Germany), represented by R. Freise, lawyer, v Council of the
Court of First Instance (Fourth Chamber), composed of:                   European Union (agents: A.-M. Colaert and M. Núñez-Müller)
P. Mengozzi, President, V. Tilli and R. M. Moura Ramos,                  and Commission of the European Communities (Agents:
Judges; D. Christensen, Administrator, for the Registrar, has            D. Booß, M. Niejahr and M. Núñez-Müller): Application for
given a judgment on 7 February 2002, in which it:                        compensation under Article 178 and the second paragraph of


title: Joined Cases C-436/11 and C-437/11: Order of the President of the Court of 22 May 2013 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Sandra Schüsslbauer, Martin Schüsslbauer, Maximilian Schüsslbauer (C-436/11), Ekkerhard Schauβ (C-437/11) v Iberia Líneas Aéreas de España SA (C-436/11), Transportes Aéreos Portugueses SA (C-437/11)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/56

         Order of the President of the Court of 22 May 2013 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Sandra Schüsslbauer, Martin Schüsslbauer, Maximilian Schüsslbauer (C-436/11), Ekkerhard Schauβ (C-437/11) v Iberia Líneas Aéreas de España SA (C-436/11), Transportes Aéreos Portugueses SA (C-437/11)
   (Joined Cases C-436/11 and C-437/11) (1)

   2013/C 225/106
   Language of the case: German
   The President of the Court has ordered that the cases be removed from the register.

      (1)  OJ C 331, 12.11.2011.


title: Case C-423/01: Reference for a preliminary ruling by the Verwaltungsgericht Neustadt an der Weinstrasse by order of that court of 30 July 2001 in the case of Emil Färber GmbH & Co. v Stadt Neustadt/Weinstrasse

text:
5.1.2002              EN                   Official Journal of the European Communities                                          C 3/17
Question 3                                                            1.    On a proper construction of the second subparagraph of
                                                                            Chapter I(2) in Annex A to Council Directive
Does Article 30(1) and (2) of Directive 93/37/EEC in conjunc-               85/73/EEC (1) as amended and consolidated by Council
tion with the principles of transparency and equal treatment                Directive 96/43/EC (2), is an establishment which is
prohibit a contracting authority from making the acceptance                 situated in the same building as a cutting plant but whose
of an alternative tender, which differs from a tender con-                  operator is a natural or legal person other than the
forming to the tender document in that it proposes a different              operator of the cutting plant also to be regarded as the
technical quality, conditional on a positive assessment based               ‘establishment where the meat is obtained’?
on a criterion in national legislation requiring that ‘the
performance of qualitatively equivalent work is ensured’ if the
tender document refers only to the national provision and             2.    Which criteria are relevant to the fee-levying authority’s
does not specify the comparative parameters to be used to                   decision regarding the extent to which it grants a
assess ‘equivalence’?                                                       reduction of the fees of up to 55 % as provided for in the
                                                                            second subparagraph of Chapter I(2) in Annex A to the
Question 4a                                                                 abovementioned directive?
If the answer to Question 3 is in the affirmative, may a
                                                                            In that regard, may in particular the fact that staff need
contracting authority conclude a tendering procedure like that
                                                                            less time to carry out the controls or inspections also be
described in Question 3 by awarding the contract?
                                                                            taken into consideration where the fees in respect of such
Question 4b                                                                 controls and inspections are determined by the addition
                                                                            of a standard amount pursuant to the first subparagraph
If the answers to Questions 3 and 4a are in the affirmative,                under (a) of Chapter I(2) in Annex A to the abovemen-
must a contracting authority conducting a tendering procedure               tioned directive?
as described in Question 3 reject variants proposed by
tenderers without examining their contents, at any rate if it               Moreover, if Question 1 is answered in the affirmative,
has not defined contract award criteria for assessing the                   when reducing the fee, may account nevertheless be taken
technical differences between the variant and the tender                    of the fact that the establishments situated in one building
document?                                                                   are attributable to operators regarded in law as distinct,
                                                                            and may this in principle lead to a situation where in
Question 5                                                                  such cases less of a reduction is granted than in cases
If the answers to Questions 3 and 4a are in the affirmative and             where the slaughterhouse and cutting plant are not only
the answer to Question 4b is in the negative, must a contracting            situated in the same building but are also operated by the
authority conducting a tendering procedure as described in                  same natural or legal person?
Question 3 accept a variant whose technical differences from
the tender document it is unable to assess on the basis of
contract award criteria owing to the absence of appropriate           (1) OJ L 32 of 5.2.1985, p. 14.
statements in the tender document if this variant is the              (2) OJ L 162 of 1.7.1996, p. 1.
cheapest tender and contract award criteria have not otherwise
been defined?
(1) OJ L 199, p. 54.
                                                                      Reference for a preliminary ruling by the Bundesverga-
                                                                      beamt (Austria) by order of 25 October 2001 in the case
Reference for a preliminary ruling by the Verwaltungsge-              of CS Communications & Systems Austria GmbH v
richt Neustadt an der Weinstrasse by order of that court                          Allgemeine Unfallversicherungsanstalt
of 30 July 2001 in the case of Emil Färber GmbH & Co. v
                  Stadt Neustadt/Weinstrasse
                                                                                (Case C-424/01)
                        (Case C-423/01)
                                                                                (2002/C 3/26)
                         (2002/C 3/25)
Reference has been made to the Court of Justice of the                Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht               European Communities by order of 25 October 2001 by
(Administrative Court) Neustadt an der Weinstrasse of 30 July         the Bundesvergabeamt (Austrian Federal Procurement Office),
2001, which was received at the Court Registry on 26 October          which was received at the Court Registry on 26 October 2001,
2001, for a preliminary ruling in the case of Emil Färber             for a preliminary ruling in the case of CS Communications &
GmbH & Co. v Stadt Neustadt/Weinstrasse on the following              Systems Austria GmbH v Allgemeine Unfallversicherungsan-
questions:                                                            stalt on the following questions:


title: Case C-373/06 P: Appeal brought on 13 September 2006 by Thomas Faherty against the judgment of the Court of First Instance (First Chamber) delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03: Cathal Boyle and others v Commission of the European Communities

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/25

         Appeal brought on 13 September 2006 by Thomas Faherty against the judgment of the Court of First Instance (First Chamber) delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03: Cathal Boyle and others v Commission of the European Communities
   (Case C-373/06 P)
   (2006/C 281/40)
   Language of the case: English
   Parties

      Appellant: Thomas Faherty (represented by: P. Gallagher SC, A. Collins SC, D. Barry, Solicitor)

      Other parties to the proceedings: Ireland, Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               Set aside the judgment of the Court if First Instance of June 13, 2006 in so far as it dismissed the application in case T-224/03, Thomas Faherty v. Commission for the annulment of Commission Decision 2003/245/EC (1) of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for a proposed new RSW vessel to replace the MFV Westward Isle and ordered him to bear his own costs.

               —

               Annul Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for a proposed new RSW vessel to replace the MFV Westward Isle.

               —

               Order the Commission to pay the costs of the entirety of these proceedings.

         Pleas in law and main arguments
   The appellant submits that the judgment of the Court of First Instance should be set aside on the following grounds:
   By determining the appellant's interest in bringing the proceedings by reference to the date of the adoption of decision 2003/245 and not the date on which the application was lodged the Court of First Instance applied an incorrect legal test;
   The Court made a substantive error apparent from the documents submitted to it, namely as to the appellant's ownership of the MFV ‘Westward Isle’ at all times material to the application;
   The finding that the appellant was not individually concerned by decision 2003/245 ‘since the vessels in question are fictitious’ has no basis in law and is, moreover, contradicted by the reasoning of the Court of First Instance in its judgment;
   The appellant is, and at all material times has been, the owner of the MFV ‘Westward Isle’. It therefore cannot be said to have lost the interest it unquestionably had at the commencement of its action for the annulment of decision 2003/245 in so far as it impacted upon its application for safety tonnage in respect of the proposed MFV ‘Westward Isle’;
   The Court of First Instance erred in finding that the appellant was deprived of standing to seek the annulment of decision 2003/245 by reason of the steps it took to mitigate the loss and damage sustained as a result of that measure.

      (1)  OJ L 90, P. 48