title: Case C-464/02: Action brought on 23 December 2002 by the Commission of the European Communities against the Kingdom of Denmark

text:
22.2.2003                EN                       Official Journal of the European Union                                            C 44/15
Action brought on 20 December 2002 by the Commission                      23 December 2002 by the Commission of the European
of the European Communities against the Grand Duchy                       Communities, represented by N. B. Rasmussen and D. Martin,
                          of Luxembourg                                   acting as Agents, with an address for service in Luxembourg.
                          (Case C-461/02)
                                                                          The applicant claims that the Court should:
                           (2003/C 44/28)
                                                                          —     Declare that, in so far as it does not, under its legislation
                                                                                and administrative practice, allow employees who work
                                                                                outside Denmark and are resident in Denmark to use for
An action against the Grand Duchy of Luxembourg was                             commercial or private purposes a company car registered
brought before the Court of Justice of the European Communi-                    in a neighbouring country where the undertaking of
ties on 20 December 2002 by the Commission of the European                      their employer has its principal office, the Kingdom of
Communities, represented by H. Støvlbæk and F. Simonetti,                       Denmark has failed, within the terms of Article 226 EC,
acting as Agents, with an address for service in Luxembourg.                    to fulfil its obligations under the combined provisions of
                                                                                Articles 39 EC and 10 EC;
The applicant claims that the Court should:
                                                                          —     Declare that, in so far as, under its legislation and
—     declare that, by not reporting to the Commission every                    administrative practice, it allows employees who work in
      two years on the results of the measures taken to                         another EU Member State and are resident in Denmark
      implement the programmes provided for in Council                          to use for commercial and/or private purposes a motor
      Directive 93/76/EEC of 13 September 1993 to limit                         vehicle, in particular a company car, which is registered
      carbon dioxide emissions by improving energy efficiency                   in another Member State in which the undertaking of
      (SAVE) (1), the Grand Duchy of Luxembourg has failed to                   their employer has its principal office or seat, only subject
      fulfil its obligations under Article 9 of that directive;                 to the conditions (i) that the work in the foreign
                                                                                undertaking is the main activity engaged in by the person
—     order the Grand Duchy of Luxembourg to pay the costs.                     concerned and (ii) that duty is paid on that vehicle, the
                                                                                Kingdom of Denmark has failed, within the terms of
                                                                                Article 226 EC, to fulfil its obligations under the com-
                                                                                bined provisions of Articles 39 EC and 10 EC;
Pleas in law and main arguments
                                                                          —     Order the Kingdom of Denmark to pay the costs of the
In view of the period prescribed for transposing the directive,                 present proceedings.
a first report on the results of the measures taken to implement
the programmes provided for in the directive should have
been submitted to the Commission on 31 December 1996
and a second report on 31 December 1998. The Luxembourg
authorities’ lack of resources cannot be used to justify breach           Pleas in law and main arguments
of an obligation under a directive.
( 1) OJ L 237 of 22.9.1993, p. 28.                                        The Danish rules which form the basis of the present
                                                                          action were amended during the course of the administrative
                                                                          procedure. According to the ‘previous scheme’ (see Notice
                                                                          No 18 of the Ministry of Justice of 10 January 1992, which
                                                                          subsequently became Notice No 592 of the Ministry of
                                                                          Transport of 24 June 1996), Danish residents who used a
                                                                          motor vehicle that had been registered by an employer/
                                                                          undertaking outside Denmark could, as a main rule, do so
Action brought on 23 December 2002 by the Commission                      only if the vehicle was registered in Denmark or if authorisation
of the European Communities against the Kingdom of                        was granted. In the event of registration being required,
                              Denmark                                     registration duty was also payable under the terms of the
                                                                          Danish Law on registration duty. Under this legislation it was
                                                                          Danish administrative practice to refuse to issue authorisations
                          (Case C-464/02)
                                                                          requested for the purpose of ‘commercial trips within Den-
                                                                          mark, including visits to clients’. Authorisation could, however,
                           (2003/C 44/29)                                 be granted for vehicle use for the purpose of driving directly
                                                                          between the Danish-German border and the place of residence
                                                                          of the person concerned, but only with regard to weekends or
                                                                          holidays. Under no circumstances was it permitted to use
An action against the Kingdom of Denmark was brought                      company cars for private purposes, for example, outside of
before the Court of Justice of the European Communities on                working time.
 ---pagebreak--- C 44/16               EN                        Official Journal of the European Union                                       22.2.2003
Under the ‘amended scheme’ (see the Notice of the Ministry of           seeking employment and obstacles that prevent an employer
Transport of June 1999 on the registration and MOT-testing              from offering such use will have the result of discouraging
of vehicles), Danish workers resident in Denmark may use                Danish residents — in contrast to persons resident outside
within Denmark a foreign registered vehicle without having to           Denmark — from seeking employment in a foreign undertak-
register it in Denmark, subject to compliance with the                  ing offering such ancillary private use of a company car.
condition that the work for the undertaking or at the
established place of operation outside Denmark constitutes the
main activity of the person concerned. The full registration            The Danish Government has set out four principal grounds of
duty need not therefore be paid inasmuch as registration is not
                                                                        justification: the interest in maintaining supervision (road
required. On the other hand, the Law on registration duty does
                                                                        safety and the monitoring and control of road users), the
require payment of a charge which is defined as a part payment          interest in preventing the erosion of tax revenue in Denmark,
calculated on the basis of the full registration duty or —
                                                                        the fact that certain barriers resulting from differences in
following authorisation and subject to the further condition            taxation levels must be accepted, and the interest in achieving
that the car is used solely for commercial purposes — as a
                                                                        equivalent conditions of competition as between Danish and
periodic payment of a fixed amount.
                                                                        non-Danish undertakings. None of these considerations can
                                                                        justify the Danish rules, whether by reference to the dero-
                                                                        gations from Article 39 EC authorised by the Treaty or to the
                                                                        case-law which states that national measures liable to restrict
                                                                        the exercise of the fundamental freedoms guaranteed by the
                                                                        Treaty or to make the exercise of those freedoms less attractive
                                                                        may be accepted under certain conditions.
Both the ‘previous scheme’ and the ‘amended scheme’ create
barriers to the free movement of workers contrary to the
combined provisions of Articles 39 EC and 10 EC. It is                  Finally, the Commission disputes the contention that Council
contrary to Article 39 EC to introduce or retain national               Directive 83/182/EEC (2) can be construed as meaning that the
provisions which give rise to obstacles to the free movement            Danish rules may be treated as lawful, quite apart from the fact
of workers, irrespective of whether the national provisions             that provisions of secondary Community law cannot exempt
apply indiscriminately, if the provisions affect workers’ access        a Member State from its obligations under the combined
to the labour market. The Danish rules are precisely of such a          provisions of Articles 39 EC and 10 EC.
character. A worker resident outside Denmark will, as a matter
of course, be able to use a foreign company car within
Denmark without having to obtain authorisation or to pay                (1 ) Case C-297/99 Skills Motor Coaches and Others [2001] ECR I-
duty. There is thus clear discrimination of a person resident in             573.
Denmark vis-à-vis a person resident outside Denmark in                  (2 ) Council Directive 83/182/EEC of 28 March 1983 on tax exemp-
respect of precisely the same use in Denmark of a foreign                    tions within the Community for certain means of transport
                                                                             temporarily imported into one Member State from another (OJ
registered company car. In conclusion, a worker who does not
                                                                             L 105 of 23.4.1983, p. 59).
perform his ‘main activity’ within the foreign undertaking —
which might precisely point to an extremely limited use of the
company car — is prohibited from using that company car
within Denmark. It seems obvious that an employer will
thereby be dissuaded from employing a person resident in
Denmark in preference to a worker resident outside Denmark
as the above obstacles exist even for purely commercial use of
the vehicle. It is in this context of secondary importance
whether the Danish rules can be regarded as constituting a
barrier to a worker’s right to seek employment outside of               Action brought on 23 December 2002 by the Commission
Denmark or a barrier to an employer’s prospects of recruiting           of the European Communities against the Kingdom of
workers resident in Denmark. There will be a barrier irrespec-                                        Belgium
tive of whether it is the employer or the employee who must
pay the costs and obtain authorisation or effect registration.
                                                                                (Case C-469/02)
                                                                                (2003/C 44/30)
With specific reference to ancillary private use, it should be
noted at the outset that transport from one’s place of residence        An action against the Kingdom of Belgium was brought
to one’s place of work cannot be treated as constituting ‘private       before the Court of Justice of the European Communities on
use’; this follows from the judgment in Case C-297/99 Skills            23 December 2002 by the Commission of the European
Motor Coaches Ltd ( 1). The possibility of ancillary private use        Communities, represented by H. Michard, acting as Agent,
of a company car is an obvious incentive when it comes to               with an address for service in Luxembourg.


title: Case T -506/04: Order of the Court of First Instance of  10 March 2006  — Success-Marketing v OHIM

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/29

         Order of the Court of First Instance of 10 March 2006 — Success-Marketing v OHIM
   (Case T -506/04) (1)

   (2006/C 108/54)

      Language of the case: German

   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 193 6.8.2005.


title: Reference for a preliminary ruling by the Industrial Tribunal, Bury St Edmunds, by request of that court of 25 July 1997, in the case of Mrs A. M. Sirdar against (1) The Army Board, (2) Secretary of State for Defence (Case C-273/97)

text:
27 . 9 . 97           EN                  Official Journal of the European Communities                                      C 295/ 17
Action brought on 22 July 1997 by the Commission of the              Article 43 of the EC Treaty and adopted, in consequence,
European Communities against the Council of the                      according to the co-decision procedure laid down in
                       European Union                                Article 189b of the EC Treaty.
                        ( Case C-269/97)
                                                                     (') OJ L 117, 7. 5 . 1997, p. 1 .
                          ( 97/C 295/25 )                            ( 2 ) Judgments in Case 68/86 United Kingdom v. Council
                                                                            ( substances having a hormonal action ) and Case 131 /86
                                                                            United Kingdom v. Council [ 1988 ] ECR 855 and 905 ; Case
                                                                            C-131 /87 Commission v. Council [ 1989] ECR 3743 ( trade in
An action against the Council of the European Union was                     animal glands and organs intended for the pharmaceutical
brought before the Court of Justice on 22 July 1997 by                      industry ) and Case C-ll /88 Commission v. Council [ 1989]
the Commission of the European Communities,                                 ECR 3799 and Case C-331 /88 The Queen v. MAFF, ex parte
                                                                            Fedesa and Others [ 1990] ECR 4023 .
represented by Pieter van Nuffel and Gerard Berscheid, of
its Legal Service, acting as Agents, with an address for
service in Luxembourg at the office of Carlos Gomez de la
Cruz, Wagner Centre, Kirchberg.
The Commission of the European Communities claims                    Reference for a preliminary ruling by the Industrial
that the Court should :                                              Tribunal, Bury St Edmunds, by request of that court of
                                                                     25 July 1997, in the case of Mrs A. M. Sirdar against
                                                                          ( 1 ) The Army Board, (2 ) Secretary of State for Defence
— annul Council Regulation ( EC ) No 820/97 of 21 April                                          ( Case C-273/97 )
      1997 (') establishing a system for the identification
     and registration of bovine animals and regarding the                                          ( 97/C 295/26 )
     labelling of beef and beef products,
                                                                     Reference has been made to the Court of Justice of the
                                                                     European Communities by request of the Industrial
— preserve the effects of the annulled regulation until              Tribunal, Bury St Edmunds, of 25 July 1997, which was
     new rules on the subject, adopted by the Community              received at the Court Registry on 29 July 1997, for a
     legislature on the proper legal basis, enter into force,        preliminary ruling in the case of Mrs A. M. Sirdar against
                                                                     ( 1 ) The Army Board, ( 2 ) Secretary of State for Defence,
                                                                     on the following questions:
— order the Council to pay the costs .
                                                                      1 . Are policy decisions which a Member State takes
                                                                              during peace time and/or in preparation for war in
Pleas in law and main arguments adduced in support:                           relation to access to employment in, vocational
                                                                              training for, working conditions in, or the deployment
                                                                              of its armed forces, where such policy decisions are
Absence of correct legal basis : the choice of the legal basis                taken for the purposes of combat effectiveness, outside
of an act should be based in particular on the purpose and                    the scope of the EC Treaty and/or its subordinate
content of the act. Regulation ( EC ) No 820/97 is a                          legislation in particular Council Directive 76/207/
measure which does indeed concern the production and                          EEC 0 )?
marketing of beef, but was adopted for the purpose of
ensuring a high level of health protection. The
Commission considers that where such an act has at its               2 . Are the decisions which a Member State may take in
principal objective the protection of human health, it must                   preparation for war and during peace time with regard
be based on Article 100a of the EC Treaty, even though                        to the engagement, training and deployment of
                                                                              soldiers in marine commando units of its armed forces
the act concerns a product included in Annex II of the
Treaty and might make a contribution, ancillary to the                        designed for close engagement with enemy forces in
principal objective, to the attainment of one or more                         the event of war outside the scope of the EC Treaty or
objectives of the common agricultural policy. The                             its subordinate legislation where such decisions are
Commission considers that the development of the                              taken for the purpose of ensuring combat effectiveness
                                                                              in such units ?
provisions of the EC Treaty relating to public health
warrant a reconsideration of the interpretation given by
the Court in the past of the relationship between Article 43         3 . Does Article 224 of the EC Treaty, on its proper
and Article 100 of the EC Treaty ( 2).                                        construction, permit member states to exclude from
                                                                              the    ambit    of      Council  Directive  76/207/EEC
                                                                              discrimination on grounds of sex in relation to access
In the alternative, should the Court hold that Regulation                     to employment vocational training working conditions
 ( EC ) No 820/97 does not primarily pursue a public health                   including the conditions governing dismissal in the
objective but equally pursues common agricultural policy                      armed forces during peace time and/or in preparation
objectives, the Commission considers that logically the                       for war for the purpose of ensuring combat
regulation should be based both on Article 100a and                           effectiveness ?
 ---pagebreak--- C 295/ 18                   EN                Official Journal of the European Communities                                        27 . 9 . 97
4. Is the policy adopted by a Member State of excluding                          incurred, or certain to be incurred but uncertain as
     all women during peace time and/or in preparation for                       to amount or as to the date on which they will
     war, from service as interoperable marines capable of                       arise ( Article 20 ( 1 )),
     being excluded from the ambit of Council Directive
     76/207/EEC by virtue of the operation of Article 224 ?                  — provisions are not to be used to adjust the values
     If so, what guidelines or criteria should be applied in                     of assets ( Article 20 ( 3 )),
     order to determine whether the said policy may
     properly be so excluded from the ambit of Directive
                                                                             — account is to be taken of all foreseeable liabilities
     76/207/EEC by reason of Article 224 ?
                                                                                and potential losses arising in the course of the
                                                                                financial year concerned or of a previous one, even
5. Is the policy adopted by a Member State of excluding                          if such liabilities or losses become apparent only
                                                                                between the date of the balance sheet and the date
     all women during peace time and/or in preparation for
     war from service as interoperable marines capable of                        on which it is drawn up ( Article 31 ( 1 ) (c ) ( bb )),
     being justified under Article 2 ( 2 ) of Council Directive
     76/207/EEC ?                                                            — the components of asset and liability items are to
                                                                                be valued separately (Article 31 ( 1 ) ( e ) ) ,
6. If so, what is the test to be applied by a national                       — provisions are not to exceed in amount the sums
     tribunal when considering whether or not the                                which are necessary ( first paragraph of Article 42 ),
     application of the policy is justified ?
                                                                             where a building construction undertaking, which uses
(') Council Directive 76/207/EEC of 9 February 1976 on the
    implementation of the principle of equal treatment for men               subcontractors in addition to its own employees to
    and women as regards access to employment, vocational                    perform its contracts, does not make individual
    training and promotion, and working conditions ( OJ L 39,                provision, taking into account the individual liabilities
    14 . 2 . 1976 , p. 40 ).                                                 under warranties inherent in particular contracts, for
                                                                             indemnity liabilities not arising until after the date of
                                                                             the balance sheet, but makes global provision therefor
                                                                             by way of a fixed percentage of the turnover subject to
                                                                             warranties ?
                                                                         2 . If Question 1 is answered in the affirmative :
Reference for a preliminary ruling by the Finanzgericht
Koln by order of that court of 16 July 1997 in the case of
DE + ES Bauunternehmung GmbH against Finanzamt                               Subject to what preconditions, in accordance with
                                 Bergheim                                    what valuation criteria and in what percentage,
                             Case C-2 75/97 )                                possibly assessed by the business itself, may such
                                                                             global provision be made, regard also being had to
                              ( 97/C 295/27 )                                any rights of recourse against employees of the
                                                                             business and subcontractors, which are enforceable
                                                                             only to a limited extent, and, in the event of doubts as
                                                                             to the amount of the provision needed, who bears the
Reference has been made to the Court of Justice of the
                                                                             disadvantage of the fact that the matter is not
European Communities by order of the Thirteenth                              susceptible of proof?
Chamber of the Finanzgericht Koln ( Finance Court,
Cologne ) of 16 July 1997, received at the Court Registry
on 30 July 1997, for a preliminary ruling in the case of
DE + ES Bauunternehmung GmbH against Finanzamt
( Tax Office ) Bergheim on the following questions:
                                                                         Action brought on 30 July 1997 by the Commission of the
1 . Is there compliance with the accounting rules laid                       European Communities against the French Republic
     down by the Fourth Council Directive 78/660/EEC of
     25 July 1978 on annual accounts ( OJ L 222, 14 . 8 .                                        ( Case C-276/97 )
     1978 , p. 11 ), under which :                                                                 ( 97/C 295/28 )
     — the annual accounts are to give a true and fair
          view of the company's assets, liabilities, financial           An action against the French Republic was brought before
          position and profit or loss ( Article 2 ( 3 )),                the Court of Justice of the European Communities on
                                                                         30 July 1997 by the Commission of the European
                                                                         Communities, represented by Helene Michard and Enrico
     — provisions are intended to cover losses or debts the              Traversa , acting as Agents, with an address for service in
          nature of which is clearly defined and which at the            Luxembourg at the office of Carlos Gomez de la Cruz,
          date of the balance sheet are either likely to be              Wagner Centre, Kirchberg .


title: Order of the Court (Third Chamber) 27 January 2004 in Case C-259/02 (Reference for a preliminary ruling by the High Court of Justice of England and Wales, Chancery Division): La Mer Technology Inc. v Laboratoires Goemar SA,

text:
               17.4.2004

               EN

               Official Journal of the European Union

               C 94/14

      ORDER OF THE COURT

   (Third Chamber)
   27 January 2004
   in Case C-259/02 (Reference for a preliminary ruling by the High Court of Justice of England and Wales, Chancery Division): La Mer Technology Inc. v Laboratoires Goemar SA, (1)

   (Article 104(3) of the Rules of Procedure - Trade marks - Directive 89/104/EEC - Articles 10(1) and 12(1) - Revocation of a trade mark - Notion of genuine use of a trade mark)
   (2004/C 94/27)
   Language of the case: English
   In Case C-259/02: Reference to the Court under Article 234 EC by the High Court of Justice of England and Wales, Chancery Division for a preliminary ruling in the proceedings pending before that court between La Mer Technology Inc. and Laboratoires Goemar SA, on the interpretation of Articles 10(1) and 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), the Court (Third Chamber), composed of: J.N. Cunha Rodrigues, acting as President of the Third Chamber, J.-P. Puissochet (Rapporteur) and F. Macken, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, has made an order on 27 January 2004, the operative part of which is as follows:

               1.

               Articles 10(1) and 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that there is ‘genuine use’ of a trade mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by that mark. When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real in the course of trade, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark. When it serves a real commercial purpose, in the circumstances cited above, even minimal use of the mark or use by only a single importer in the Member State concerned can be sufficient to establish genuine use within the meaning of the Directive.

               2.

               While First Directive 89/104 makes the classification of use of the trade mark as ‘genuine use’ consequential only on consideration of the circumstances which pertain in respect of the relevant period and which predate the filing of the application for revocation, it does not preclude, in assessing the genuineness of use during the relevant period, account being taken, where appropriate, of any circumstances subsequent to that filing. It is for the national court to determine whether such circumstances confirm that the use of the mark during the relevant period was genuine or whether, conversely, they reflect an intention on the part of the proprietor to defeat that claim.

      (1)  OJ C 219 of 14.09.2002.


title: Case T-150/08: Action brought on 21 April 2008 — REWE-Zentral v OHIM — Aldi Einkauf (Clina)

text:
               21.6.2008

               EN

               Official Journal of the European Union

               C 158/20

         Action brought on 21 April 2008 — REWE-Zentral v OHIM — Aldi Einkauf (Clina)
   (Case T-150/08)
   (2008/C 158/33)
   Language in which the application was lodged: German
   Parties

      Applicant: REWE-Zentral AG (Cologne, Germany) (represented by: M. Kinkeldey, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Aldi Einkauf GmbH & Co. OHG (Essen, Germany)
   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 15 February 2008 in Case R 1484/2006-4;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the word mark ‘Clina’ for goods in Classes 3 and 21 (Application No 3 921 079)

      Proprietor of the mark or sign cited in the opposition proceedings: Aldi Einkauf GmbH & Co. OHG

      Mark or sign cited in opposition: the word mark ‘CLINAIR’ for goods in Classes 3 and 5 (Community trade mark No 1 769 850)

      Decision of the Opposition Division: Rejection of the opposition

      Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the trade mark application

      Pleas in law: Infringement of Article 8(1) of Regulation (EC) No 40/94 (1) as there is no likelihood of confusion between the opposing marks.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case T-387/15: Judgment of the General Court of 29 March 2017 — J & Joy v EUIPO — Joy-Sportswear (J AND JOY) (EU trade mark — Opposition proceedings — EU word mark J AND JOY — Earlier national figurative mark joy SPORTSWEAR — Relative grounds for refusal — Likelihood of confusion — Similarity of the goods — Similarity of the signs — Assessment criteria — Composite mark — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/30

         Judgment of the General Court of 29 March 2017 — J & Joy v EUIPO — Joy-Sportswear (J AND JOY)
   (Case T-387/15) (1)

   ((EU trade mark - Opposition proceedings - EU word mark J AND JOY - Earlier national figurative mark joy SPORTSWEAR - Relative grounds for refusal - Likelihood of confusion - Similarity of the goods - Similarity of the signs - Assessment criteria - Composite mark - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2017/C 151/37)
   Language of the case: English

      Parties

      Applicant: J & Joy SA (Waremme, Belgium) (represented by: A. Maqua, C. Pirenne and C. Smits, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO) (represented by: H. O’Neill, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Joy-Sportswear GmbH (Ottensoos, Germany), (represented by: T. Kiphuth, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 22 April 2015 (Case R 1352/2014-2) relating to opposition proceedings between Joy-Sportswear and J & Joy.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders J & Joy SA to pay the costs.

      (1)  OJ C 381, 16.11.2015.


title: Case T-122/15: Judgment of the General Court of 16 May 2017 — Landeskreditbank Baden-Württemberg v ECB (Economic and monetary policy — Prudential supervision of credit institutions — Article 6(4) of Regulation (EU) No 1024/2013 — Article 70(1) of Regulation (EU) No 468/2014 — Single supervisory mechanism — Competences of the ECB — Decentralised exercise by the national authorities — Assessment of the size of a credit institution — Need for direct supervision by the ECB)

text:
               3.7.2017

               EN

               Official Journal of the European Union

               C 213/26

         Judgment of the General Court of 16 May 2017 — Landeskreditbank Baden-Württemberg v ECB
   (Case T-122/15) (1)

   ((Economic and monetary policy - Prudential supervision of credit institutions - Article 6(4) of Regulation (EU) No 1024/2013 - Article 70(1) of Regulation (EU) No 468/2014 - Single supervisory mechanism - Competences of the ECB - Decentralised exercise by the national authorities - Assessment of the size of a credit institution - Need for direct supervision by the ECB))
   (2017/C 213/34)
   Language of the case: German

      Parties

      Applicant: Landeskreditbank Baden-Württemberg — Förderbank (Karlsruhe, Germany) (represented by: initially by A. Glos, K. Lackhoff and M. Benzing, and subsequently by A. Glos and M. Benzing, lawyers)

      Defendant: European Central Bank (ECB) (represented by: E. Koupepidou, R. Bax and A. Riso, and subsequently by E. Koupepidou and R. Bax, acting as Agents, assisted by H.-G. Kamann, lawyer)

      Intervener in support of the defendant: European Commission (represented by W. Mölls and K.-P. Wojcik, acting as Agents)

      Re:

   Action pursuant to Article 263 TFEU for annulment of Decision ECB/SSM/15/1 of the ECB of 5 January 2015, taken pursuant to Article 6(4) and Article 24(7) of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63), by which the ECB refused to recognise the applicant as a less significant entity within the meaning of Article 6(4) of that regulation.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action.

               2.

               Orders the Landeskreditbank Baden-Württemberg — Förderbank to bear its own costs and to pay those incurred by the European Central Bank.

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 178, 1.6.2015.


title: Case C-135/99: Reference for a preliminary ruling by the Bundessozialgericht by order of that court of 24 February 1999 in the case of Ursula Elsen against Bundesversicherungsanstalt für Angestellte

text:
3.7.1999                EN                    Official Journal of the European Communities                                            C 188/15
     presented by the Member States in respect of the expendi-           (2) Must the operations referred to in Article 4(3) of Direc-
     ture for 1995 of the Guarantee Section of the European                   tive 69/335/EEC be regarded as covered by the prohibition
     Agricultural Guidance and Guarantee Fund (1) in so far as                laid down in Article 10 of the same Community measure,
     Article 2 thereof requires a contribution from Germany of                in such a way as to preclude the collection, under the
     DM 833 895.82 on account of non-compliance with                          directive, not only of the tax on the raising of capital but
     payment deadlines, rather than charging it to the EAGGF;                 also of any other levy, of whatever kind, in particular one
                                                                              that is a charge rather than a tax?
•    order the Commission to pay the costs.
                                                                         (3) Must Articles 10 and 12(1)(e) of the same directive be
                                                                              interpreted as meaning that the fees payable for entry
Pleas in law and main arguments                                               (prescribed by law) on the National Register of Legal
                                                                              Persons of increases of capital may not vary according to
— Lack of legal basis for charging a contribution of                          the amount of such increases?
     DM 2 237 238.60 to Budget heading B01-2122-007
     rather than the contribution of DM 1 403 342.78 calcu-              (4) May such variables also be regarded as a function of the
     lated by the German authorities, which was the correct                   cost of the service provided?
     figure especially in view of a reserve remaining from 1994
     of DM 2 447 802.54. In clearing the accounts for 1995,
     the Commission did not apply, or did not correctly apply,           (5) Does that cost include the salary of officials, agents or
     the reserve regulations in its working paper VT/458/93 -                 other public employees, expenses incurred in respect of
     Rev.4 of 30 September 1994.                                              minor operations carried out free of charge, and a portion
                                                                              of overheads (rent of premises, data-processing and com-
                                                                              munications equipment, electricity, water and the like)
— Infringement of the principle of the protection of legitimate               attributable to registration operations?
     expectations: The Commission’s conduct is in contradic-
     tion to its own conduct in connection with the clearance
     of accounts for 1994, when it recognised an initially               (6) Is it permitted, having regard to the abovementioned
     disputed payment as having been paid on time. The unused                 articles of the said directive, to regard those variables
     residual reserve amount resulting therefrom cannot be left               deriving from increases of capital as a manifestation of
     out of account by the Commission in the clearance of                     standardised charges and, as such, authorised charges?
     accounts for 1995.
                                                                         (7) It is permitted, having regard to the same provisions of the
— Infringement of the duty to state reasons under Article 190                 directive, for any fee to be charged in excess of the cost of
     of the EC Treaty.                                                        the service? And if so, to what extent? If the excess were to
                                                                              be manifest and unreasonable, could the amount of the
                                                                              fees be reduced on an equitable basis?
(1) Decision 1999/187/EC, OJ No L 61, 10.3.1999, p. 37.
                                                                         (1) Council Directive 69/335/EEC of 17 July 1969 concerning
                                                                             indirect taxes on the raising of capital (OJ English Special Edition,
                                                                             1969(II) p. 412).
Reference for a preliminary ruling by the Supremo
Tribunal Administrativo, Second Chamber, by judgment
of that court of 17 March 1999, in the case of IGI-
Investimentos Imobiliários, SA, and Fazenda Pública, both
            being both appellants and respondents
                                                                         Reference for a preliminary ruling by the Bundessozial-
                         (Case C-134/99)                                 gericht by order of that court of 24 February 1999 in the
                                                                         case of Ursula Elsen against Bundesversicherungsanstalt
                                                                                für Angestellte
                         (1999/C 188/34)
Reference has been made to the Court of Justice of the                                             (Case C-135/99)
European Communities by an judgment of the Second Chamb-
er of the Supremo Tribunal Administrativo (Supreme Adminis-                                        (1999/C 188/35)
trative Court) of 17 March 1999, which was received at the
Court Registry on 19 April 1999, for a preliminary ruling in
the case of IGI-Investimentos Imobiliários, SA, and Fazenda             Reference has been made to the Court of Justice of the
Púiblica, on the following questions:                                   European Communities by order of the Bundessozialgericht
                                                                         (Federal Social Court) of 24 February 1999, received at the
(1) May Articles 10 and 12 of Council Directive 69/335/EEC (1)           Court Registry on 19 April 1999, for a preliminary ruling in
     be relied on by a private individual in dealings with the           the case of Ursula Elsen against Bundesversicherungsanstalt
     State, even if the latter has not transposed that directive         für Angestellte (Federal Insurance Office for Clerical Staff) on
     into national law?                                                  the following question:
 ---pagebreak--- C 188/16               EN                       Official Journal of the European Communities                                      3.7.1999
Does European law require a period of child-rearing under                  Action brought on 19 April 1999 by the Commission of
German law prior to 1 January 1986 to be taken into account                the European Communities against the Hellenic Republic
if the child was in fact raised in another Member State (in this
case France) but the parent who brought the child up was
                                                                                (Case C-137/99)
engaged in occupational activity as a cross-border worker
subject to compulsory insurance in the Federal Republic of
Germany until the start of the maternal protection period and                                        (1999/C 188/37)
after the end of her maternity leave as well?
                                                                           An action against the Hellenic Republic was brought before
                                                                           the Court of Justice of the European Communities on 19 April
                                                                           1999 by the Commission of the European Communities,
                                                                           represented by Maria Kondou-Durande, of its legal Service,
                                                                           with an address for service in Luxembourg at the office of
                                                                           Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre,
                                                                           Kirchberg.
                                                                           The Commission claims that the Court should:
Reference for a preliminary ruling from the French
Conseil d’Etat (Council of State) (Judicial Section, Ninth                 1. declare that, by not adopting the laws, regulations and
and Eighth Sub-Sections) by order of that court of 5 March                      administrative provisions required to comply with Council
1999 in the case of Ministre du Budget and Ministre de                          Directive 96/43/EC (1) of 26 June 1996 amending and
l’Economie et des Finances v Société Monte Dei Paschi Di                        consolidating Directive 85/73/EEC in order to ensure
                               Siena                                            financing of veterinary inspections and controls on live
                                                                                animals and certain animal products and amending Direc-
                                                                                tives 90/675/EEC and 91/496/EEC, for the protection of
                         (Case C-136/99)                                        animals during transportation, the Hellenic Republic has
                                                                                failed to fulfil its obligations under the Treaty and that
                                                                                directive;
                         (1999/C 188/36)
                                                                           2. order the Hellenic Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by an order of the French Conseil                     Pleas in law and main arguments
d’Etat (Council of State) (Judicial Section, Ninth and Eighth
Sub-Sections) of 5 March 1999, which was received at the
Court Registry on 19 April 1999, for a preliminary ruling in               The Member States are required by the binding character of
the case of Ministre du Budget and Ministre de l’Economie et               the third paragraph of Article 189 and of Article 5 of the EC
des Finances v Société Monte Dei Paschi Di Siena.                          Treaty to adopt the measures needed to transpose directives
                                                                           into national law before the expiry of the period laid down for
                                                                           that purpose and to communicate those measures immediately
The French Conseil d’Etat is asking the Court of Justice to rule           to the Commission. That period expired on 1 July 1997
on the question whether or not the provisions of the Eighth                without the Hellenic Republic having communicated to the
Council Directive 79/1072/EEC of 6 December 1979 (1)have                   Commission the provisions transposing the directive at issue
the effect of granting to taxable persons established in a                 into national law.
Member State of the Community where they are taxed only on
a part of their turnover a right to a partial refund of the tax            (1) OJ No L 162, 1.7.1996, p. 1.
charged in another Member State in respect of goods or
services which they have used in order to carry out, in the
State in which they are established, transactions of which some
are not taxed. If they do, to what method of determining the
portion of refundable tax do those provisions refer, and, in
particular, is that portion to be determined according to the
rules applicable in the State where the taxable person is
established, or according to the rules in force in the State
required to make the refund?                                               Action brought on 19 April 1999 by the Commission of
                                                                           the European Communities against the Grand Duchy of
                                                                                Luxembourg
(1) Eighth Council Directive 79/1072/EEC of 6 December 1979 on
    the harmonisation of the 1aws of the Member States relating to                                   (Case C-138/99)
    turnover taxes — Arrangements for the refund of value added tax
    to taxable persons not established in the territory of the country
    (OJ 1979 L 331, p. 11).                                                                          (1999/C 188/38)
                                                                           An action against the Grand Duchy of Luxembourg was
                                                                           brought before the Court of Justice of the European Communi-
                                                                           ties on 19 April 1999 by the Commission of the European


title: JUDGMENT OF THE COURT (Sixth Chamber) of 17 July 1997 in Case C-219/95 P: Ferriere Nord SpA v. Commission of the European Communities (Competition - Infringement of Article 85 of the EEC Treaty)

text:
27. 9 . 97             EN                  Official Journal of the European Communities                                      C 295/5
Beroep voor het Bedrijfsleven ( Administrative Court for              2 . orders the appellant to pay the costs.
Trade and Industry ) ( Netherlands ) for a preliminary ruling
in the proceedings pending before that court between                  H OJ C 208 , 12 . 8 . 1995 .
Affish BV and Rijksdienst voor de Keuring van Vee en
Vlees — on the validity of Commission Decision 95/119/
EC of 7 April 1995 concerning certain protective measures
with regard to fishery products originating in Japan ( OJ
L 80, 8 . 4. 1995, p. 56) — the Court, composed of: G. C.
Rodriguez Iglesias, President, J. L. Murray and L. Sevon
(Rapporteur), Presidents of Chambers, P. J. G. Kapteyn, C.                           JUDGMENT OF THE COURT
Gulmann, D. A. O. Edward, J. -P. Puissochet, G. Hirsch, P.
Jann, H. Ragnemalm and M. Wathelet, Judges; G.                                                ( Sixth Chamber)
Cosmas, Advocate-General; H. A. Riihl, Principal                                               of 17 July 1997
Administrator, for the Registrar, has given a judgment on
17 July 1997, in which it has ruled:                                  in Case C-242/95 (reference for a preliminary ruling from
                                                                      the Østre Landsret): GT-Link A/S v. De Danske Statsbaner
                                                                                (DSB ) O
Examination of Commission Decision 95/119/EC of
7 April 1995 concerning certain protective measures with              (Transport by sea — Harbour duties on shipping and
regard to fishery products originating in Japan has not               goods — Import surcharge — Abuse of a dominant
revealed any factor of such a kind as to affect its validity.                                      position)
                                                                                ( 97/C 295/08 )
H OJ C 208 , 12 . 8 . 1995 .
                                                                                (Language of the case: Danish)
                                                                        (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
               JUDGMENT OF THE COURT
                        ( Sixth Chamber)
                                                                      In Case C-242/95 : reference to the Court under Article 177
                         of 17 July 1997                              of the EC Treaty from the 0stre Landsret (Denmark ) for a
in Case C-2 19/95 P: Ferriere Nord SpA v. Commission of               preliminary ruling in the proceedings pending before that
                 the European Communities (')                         court between GT-Link A/S and De Danske Statsbaner
                                                                      ( DSB ) on the interpretation of Articles 9 to 13 , 84 , 86, 90
 (Competition — Infringement of Article 85 of the EEC                 and 95 of the EEC Treaty, the Court ( Sixth Chamber),
                               Treaty)                                composed of: G. E Mancini, President of the Chamber,
                          ( 97/C 295/07)                              J. L. Murray and P. J. G. Kapteyn ( Rapporteur), Judges;
                                                                      F. G. Jacobs, Advocate-General; H. von Holstein, Deputy
                                                                      Registrar, for the Registrar, gave a judgment on 17 July
                 (Language of the case: Italian)                       1997, in which it has ruled:
   (Provisional translation; the definitive translation will be
                                                                       1 . It is contrary to Article 95 of the EEC Treaty for a
          published in the European Court Reports)                         Member State to impose a 40% import surcharge on a
                                                                           general duty levied on goods loaded, unloaded, or
In Case C-219/95P: Ferriere Nord SpA, a company                            otherwise taken on board or landed within its ports or
incorporated under the laws of Italy, established in                       in the deep-water approach channels to its ports where
 Osoppo ( Italy), represented by Wilma Viscardini Dona, of                 goods are imported by ship from another Member
the Padua Bar, with an address for service in Luxembourg                   State.
 at the Chambers of Ernest Arendt, 8— 10 Rue Mathias
Hardt — appeal against the judgment of the Court of First
Instance ( First Chamber ) of 6 April 1995 in Case T-143/             2 . It is for the domestic legal order of each Member State
 89 Ferriere Nord v. Commission [ 1995] ECR 11-917,                        to lay down the detailed procedural rules, including
 seeking to have that judgment set aside, the other party to               those relating to the burden of proof, governing
the proceedings being Commission of the European                           actions for safeguarding rights which individuals
 Communities ( Agent: Enrico Traversa, assisted by Alberto                 derive from the direct effect of Article 86 of the
 Dal Ferro ) — the Court ( Sixth Chamber), composed of:                    Treaty, provided that such rules are not less favourable
 G. F. Mancini, President of the Chamber, J. L. Murray,                    than those governing similar domestic actions and do
 P. J. G. Kapteyn, G. Hirsch and H. Ragnemalm                              not render virtually impossible or excessively difficult
 ( Rapporteur), Judges; P. Leger, Advocate-General; R.                     the exercise of rights conferred by the Community
 Grass, Registrar, has given a judgment on 17 July 1997, in                legal order.
 which it:
                                                                       3 . Where a public undertaking that owns and operates a
 1 . dismisses the appeal;                                                 commercial port occupies a dominant position in a


title: Action brought on 5 December 1997 by the Commission of the European Communities against the Grand Duchy of Luxembourg (Case C-409/97)

text:
7.2.98                EN                Official Journal of the European Communities                                   C 41/11
3. If so:                                                          Reference for a preliminary ruling from the Oberster
                                                                   Gerichtshof by order of that court of 22 October 1997 in
                                                                   the case of Landesgrundverkehrsreferent der Tiroler
    Should Article 522 in conjunction with Article 526(4)          Landesregierung v. (1) Adolf Sparber, (2) Atelier Delta
    of the Provisions implementing the Community                   Entwurf- und Planungsgesellschaft mbH in liquidation, (3)
    Customs Code, in the versions enacted by Article 1,            Hans-Eberhard Junkersdorf and (4) Maria-Margareta
    points 16 and 18, of Commission Regulation (EC)                                          Junkersdorf
    No 3254/94 of 19 December 1994 (OJ L 346,
    31.12.1994, p. 1), also be applied to customs                                         (Case C-407/97)
    declarations before 7 January 1995?                                                     (98/C 41/21)
                                                                   Reference has been made to the Court of Justice of the
                                                                   European Communities by an order of the Oberster
                                                                   Gerichtshof (Supreme Court), Austria, of 22 October
                                                                   1997, which was received at the Court Registry on
Action brought on 4 December 1997 by the Commission                5 December 1997, for a preliminary ruling in the case of
of the European Communities against the Grand Duchy of             Landesgrundverkehrsreferent der Tiroler Landesregierung
                         Luxembourg                                v. (1) Adolf Sparber, (2) Atelier Delta Entwurf- und
                       (Case C-406/97)                             Planungsgesellschaft mbH in liquidation, (3) Hans-
                                                                   Eberhard      Junkersdorf      and   (4)  Maria-Margareta
                         (98/C 41/20)                              Junkersdorf on the following question:
An action against the Grand Duchy of Luxembourg was                Is Article 70 of the Act concerning the conditions of
brought before the Court of Justice of the European                accession of the Republic of Austria, the Republic of
Communities on 4 December 1997 by the Commission of                Finland and the Kingdom of Sweden and the adjustments
the European Communities, represented by Michel Nolin,             to the Treaties on which the European Union is
of its Legal Service, acting as Agent, with an address for         founded (1), which provides that notwithstanding the
service in Luxembourg at the office of Carlos Gómez de la          obligations under the treaties on which the European
Cruz, of its Legal Service, Wagner Centre, Kirchberg.              Union is founded the Republic of Austria may maintain its
                                                                   existing legislation regarding secondary residences for five
                                                                   years from the date of accession (1 January 1995), to be
The applicant claims that the Court should:                        interpreted as meaning that the transitional provisions
                                                                   in paragraph 40(2) and (5) of the Tiroler
                                                                   Grundverkehrsgesetz 1996 (Landesgesetzblatt für Tirol
Ð declare that, by failing to adopt and bring into force           No 61/1996), which entered into force on 1 October
    within the prescribed period the laws, regulations or          1996, fall within the definition of existing legislation, or
    administrative provisions necessary to comply with             are those provisions to be regarded as new legislation
    Council Directive 93/7/EEC of 15 March 1993 on the             if, as a result of decisions of the Austrian
    return of cultural objects unlawfully removed from the         Verfassungsgerichtshof, the provisions of previous Tyrol
    territory of a Member State (1), or by failing to inform       laws on the sale of land were not applicable in the present
    the Commission thereof, the Grand Duchy of                     case?
    Luxembourg has failed to fulfil its obligations under
    that Directive,
                                                                   (1) OJ C 241, 29.8.1994, p. 1.
Ð order the Grand Duchy of Luxembourg to pay the
    costs.
Pleas in law and main arguments adduced in support:
                                                                   Action brought on 5 December 1997 by the Commission
                                                                   of the European Communities against the Grand Duchy of
The mandatory nature of the provisions of the third                                         Luxembourg
paragraph of Article 189 of the EC Treaty requires
                                                                                (Case C-409/97)
Member States to adopt the measures necessary to
transpose directives addressed to them into their domestic                                  (98/C 41/22)
law before the expiry of the period prescribed for doing
so. In the present case, that period expired on
15 December 1993 without the Grand Duchy of                        An action against the Grand Duchy of Luxembourg was
Luxembourg having brought into force the necessary                 brought before the Court of Justice of the European
provisions.                                                        Communities on 5 December 1997 by the Commission of
                                                                   the European Communities, represented by Marie
                                                                   Wolfcarius, of its Legal Service, acting as Agent, with an
(1) OJ L 74, 27.3.1993, p. 74.
                                                                   address for service in Luxembourg at the office of Carlos
                                                                   Gómez de la Cruz, of its Legal Service, Wagner Centre,
                                                                   Kirchberg.
 ---pagebreak--- C 41/12                EN                   Official Journal of the European Communities                                       7.2.98
The applicant claims that the Court should:                            Action brought on 4 December 1997 by the Commission
                                                                             of the European Communities against the Federal
                                                                                Republic of Germany
1. declare that, by failing to adopt the laws, regulations                                     (Case C-413/97)
     or administrative provisions necessary to comply with
     Council Directive 92/85/EEC of 19 October 1992                                              (98/C 41/24)
     on the introduction of measures to encourage
     improvements in the safety and health at work of
     pregnant workers and workers who have recently                    An action against the Federal Republic of Germany was
     given birth or are breastfeeding (1), the Grand Duchy             brought before the Court of Justice of the European
     of Luxembourg has failed to fulfil its obligations                Communities on 4 December 1997 by the Commission of
     under that Directive;                                             the European Communities, represented by Michel Nolin,
                                                                       of its Legal Service, acting as Agent, with an address for
                                                                       service in Luxembourg at the office of Carlos Gómez de la
                                                                       Cruz, of its Legal Service, Wagner Centre, Kirchberg.
2. order the Grand Duchy of Luxembourg to pay the
     costs.
                                                                       The applicant claims that the Court should:
Pleas in law and main arguments adduced in support:                    1. declare that, by failing to adopt the laws, regulations
                                                                            or administrative provisions necessary to comply with
                                                                            Council Directive 93/7/EEC of 15 March 1993 on the
The pleas in law and main arguments are analogous with                      return of cultural objects unlawfully removed from the
those relied upon in Case C-406/97 (2), the time-limit for                  territory of a Member State (1), or by failing to inform
transposition expired on 19 October 1994.                                   the Commission thereof, the Federal Republic of
                                                                            Germany has failed to fulfil its obligations under
                                                                            Article 18 of that Directive;
(1) OJ L 348, 28.11.1992, p. 1.
(2) See page 11 of this Official Journal.
                                                                       2. order the Federal Republic of Germany to pay the
                                                                            costs.
                                                                       Pleas in law and main arguments adduced in support:
Reference for a preliminary ruling by the Pretura                      The mandatory nature of the provisions of the third
Circondariale di Bologna by order of that court of                     paragraph of Article 189 of the EC Treaty requires
29 November 1997 in the case of E.D. Srl against Italo                 Member States to adopt the measures necessary to
                            Fenocchio                                  transpose directives addressed to them into their domestic
                                                                       law before the expiry of the period prescribed for doing
                        (Case C-412/97)                                so. In the present case, that period expired on
                                                                       15 December 1993 without the Grand Duchy of
                          (98/C 41/23)
                                                                       Luxembourg having brought into force the necessary
                                                                       provisions (2).
Reference has been made to the Court of Justice of the                 (1) OJ L 74, 27.3.1993, p. 74.
European Communities by order of the Pretura                           (2) See page 11 of this Official Journal.
Circondariale       (Magistrates       Court),   Bologna,     of
29 November 1997, received at the Court Registry on
5 December 1997, for a preliminary ruling in the case of
E.D. Srl against Italo Fenocchio on the following question:
                                                                       Action brought on 5 December 1997 by the Commission
Must the prohibition of issuing an ingiunzione (summary                of the European Communities against the Kingdom of
order) where the same is to be served outside the Republic                                            Spain
or territories subject to Italian sovereignty Ð that
prohibition being laid down by the last paragraph of                                           (Case C-414/97)
Article 633 of the Code of Civil Procedure Ð be regarded                                         (98/C 41/25)
as a restriction or equivalent measure capable of
hindering, directly or indirectly, actually or potentially, the
free movement of goods, services and capital guaranteed                An action against the Kingdom of Spain was brought
by Articles 34, 59 and 73b of the Treaty of Rome?                      before the Court of Justice of the European Communities
                                                                       on 15 December 1997 by the Commission of the
                                                                       European Communities, represented by Miguel Díaz-
                                                                       Llanos La Roche, Legal Adviser, and Carlos Gómez de la


title: Case C-388/06: Judgment of the Court (Seventh Chamber) of 29 March 2007 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2003/96/EC — Restructuring of the Community framework for the taxation of energy products and electricity — Failure to implement within the period prescribed)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/19

         Judgment of the Court (Seventh Chamber) of 29 March 2007 — Commission of the European Communities v French Republic
   (Case C-388/06) (1)

   (Failure of a Member State to fulfil obligations - Directive 2003/96/EC - Restructuring of the Community framework for the taxation of energy products and electricity - Failure to implement within the period prescribed)
   (2007/C 96/32)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: W. Mölls, acting as Agent)

      Defendant: French Republic (represented by: G. de Bergues and J.C. Gracia, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the measures necessary to comply with Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing, within the period prescribed, to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, the French Republic has failed to fulfil its obligations under that directive;

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 261, 28.10.2006.


title: Case C-64/14 P: Appeal brought on 7 February 2014 by Sven A. von Storch and Others against the order of the General Court (First Chamber) delivered on 10 December 2013 in Case T-492/12 Sven A. von Storch and Others v European Central Bank

text:
               19.5.2014

               EN

               Official Journal of the European Union

               C 151/9

         Appeal brought on 7 February 2014 by Sven A. von Storch and Others against the order of the General Court (First Chamber) delivered on 10 December 2013 in Case T-492/12 Sven A. von Storch and Others v European Central Bank
   (Case C-64/14 P)
   2014/C 151/11
   Language of the case: German

      Parties

      Appellants: Sven A. von Storch and Others (represented by: M. C. Kerber, Rechtsanwalt, and B. von Storch, Rechtsanwältin)

      Other party to the proceedings: European Central Bank

      Form of order sought

   The appellants claim that the Court should:

               —

               Set aside the order of the First Chamber of the General Court of 10 December 2013 in Case T-492/12;

               —

               Grant the form of order sought by the applicants in the application of 11 November 2012;

               —

               Order the European Central Bank to pay the costs in accordance with Article 122(1) of the Rules of Procedure of the Court of Justice.

      Pleas in law and main arguments

   The appellants submit that the order of the First Chamber of the General Court of the European Union of 10 December 2013 in Case T-492/12 is vitiated by an error of law for the following reasons:

               1.

               Since the wording of the decisions of the ECB of 6 September 2012 on a number of technical features regarding the Eurosystem’s Outright Monetary Transactions in secondary sovereign bond markets and on additional measures to preserve collateral availability for counterparties in order to maintain their access to the Eurosystem’s liquidity-providing operators, and

                           —

                           in the alternative, the wording of Guideline 2012/641/EU of the ECB of 10 October 2012 amending Guideline ECB/2012/18 on additional temporary measures relating to Eurosystem refinancing operations and eligibility of collateral (ECB/2012/23) (1) entail legal effects, the decisions may be the subject-matter of an action. According to settled case-law with regard to Article 19 TEU, the binding nature of an act is determined with reference to its purpose.

               2.

               The applicants were directly and individually concerned by the contested decisions, even though those decisions are not directly addressed to them.

               3.

               The order of 10 December 2013 is vitiated by an error of law because the General Court adopted the ECB’s argument that the decisions had no effect on the legal position of citizens. At the same time, the General Court ignored the fact that the decisions actually have wide-ranging consequences for the securities markets and particularly the issue of government bonds and were equally intended by the ECB.

               4.

               The order of 10 December 2013 is vitiated by an error of law because the General Court made the applicants’ right of action dependent on an actual action of the ECB or on subsequent, more concrete transactions, action which in the specific case is likely to fall outside the knowledge of the applicants, not to mention the actual impossibility of any reversal of securities purchases.

               5.

               The order of 10 December 2013 is vitiated by an error of law because the General Court deprived the applicants of the right to effective judicial protection guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950. In particular, the possibility referred to by the General Court of an indirect challenge by means of Article 277 TFEU under no circumstances has the same legal effect as an action under the fourth paragraph of Article 263 TFEU.

      (1)  OJ 2012 L 284, p. 14.


title: ORDER OF THE COURT OF FIRST INSTANCE of 25 May 1998 in Case T-267/97: Broome & Wellington Ltd v Commission of the European Communities (Action for annulment - Notice of initiation of an anti-dumping proceeding - Inadmissibility)

text:
C 258/36             EN                Official Journal of the European Communities                                   15.8.98
               ORDER OF THE PRESIDENT                             1. The application is dismissed as inadmissible.
          OF THE COURT OF FIRST INSTANCE
                       of 26 June 1998                            2. There is no need to adjudicate on the application to
in Case T-262/97 R: Anthony Goldstein v Commission of                 intervene.
                 the European Communities
    (Application for interim measures Ð Inadmissibility)          3. The applicant is ordered to pay the defendant's costs.
                        (98/C 258/64)                             (1) OJ C 370 of 6.12.1997.
               (Language of the case: English)
In Case T-262/97 R: Anthony Goldstein, residing in
London, represented by Raymond St John Murphy,
                                                                  Action brought on 9 June 1998 by Interporc Im- und
Solicitor, against Commission of the European
                                                                  Export GmbH against the Commission of the European
Communities (Agent: Richard Lyal) Ð application for
                                                                                Communities
interim measures in connection with a decision of the
Commission refusing to adopt interim measures sought by                                  (Case T-92/98)
the applicant Ð the President of the Court of First                                       (98/C 258/66)
Instance made an order on 26 June 1998, the operative
part of which is as follows:
                                                                                (Language of the case: German)
1. The application for interim measures is dismissed.
                                                                  An action against the Commission of the European
                                                                  Communities was brought before the Court of First
2. The applicant shall pay the costs of the interlocutory         Instance of the European Communities on 9 June 1998 by
     proceedings.                                                 Interporc Im- und Export GmbH, Hamburg (Germany),
                                                                  represented by Georg M. Berrisch, Rechtsanwalt, of
                                                                  Messrs Schön Nolte Finkelnburg & Clemm, 33 Rue PeÁre
                                                                  de Deken, Brussels.
                                                                  The applicant claims that the Court should:
     ORDER OF THE COURT OF FIRST INSTANCE
                       of 25 May 1998                             Ð annul the contested decision;
in   Case T-267/97: Broome & Wellington Ltd                v
       Commission of the European Communities (1)                 Ð alternatively, annul the contested decision in so far as
                                                                      the applicant has not already received, in the context
(Action for annulment Ð Notice of initiation of an anti-              of the proceedings in Case T-50/96, the documents to
           dumping proceeding Ð Inadmissibility)                      which it has requested access;
                        (98/C 258/65)
                                                                  Ð order the Commission to pay the costs of the present
                                                                      proceedings in any event.
               (Language of the case: English)
                                                                  Pleas in law and main arguments adduced in support:
In Case T-267/97: Broome & Wellington Ltd, having its
registered office in Manchester (United Kingdom),
represented by Fiona M. Carlin, Barrister, of the Northern        The applicant refers, with regard to the previous history of
Ireland Bar, with an address for service in Luxembourg at         this matter, to Case T-124/96 Interporc Im- und Export
the offices of Arendt and Medernach, 8-10 Rue Mathias             GmbH v Commission (1). By judgment delivered in that
Hardt, against Commission of the European Communities             case on 6 February 1998 (2), the Court inter alia annulled
(Agents: Viktor Kreuschitz and Nicholas Khan) Ð                   the Commission's decision of 29 May 1996 refusing the
application for the annulment of a notice of initiation of        applicant access to certain documents held by that
an anti-dumping proceeding concerning imports of                  institution.
unbleached cotton fabrics originating in the People's
Republic of China, Egypt, India, Indonesia, Pakistan and          By its claim in the present action, the applicant contests
Turkey, published on 11 July 1997 (OJ C 210 of                    the fresh refusal to grant access to documents held by the
20.7.1996, p. 12) Ð the Court of First Instance (Third            Commission.
Chamber, Extended Composition), composed of: V. Tiili,
President, C. P. BrieÈt, K. Lenaerts, A. Potocki and J. D.
Cooke, Judges; H. Jung, Registrar, made an order on               In the contested decision, the Secretary-General of the
25 May 1998, the operative part of which is as follows:           Commission classifies the documents requested as falling


C 278/34             EN               Official Journal of the European Communities                                  5.9.98
      Removal from the register of Case C-403/97 (1)                   Removal from the register of Case C-406/97 (1)
                        (98/C 278/71)                                                     (98/C 278/74)
By order of 25 May 1998 the President of the Court of            By order of 15 June 1998 the President of the Court of
Justice of the European Communities has ordered the              Justice of the European Communities has ordered the
removal from the register of Case C-403/97: Commission           removal from the register of Case C-406/97: Commission
of the European Communities v. Federal Republic of               of the European Communities v. Grand Duchy of
Germany.                                                         Luxembourg.
(1) OJ C 26, 24.1.1998.
                                                                 (1) OJ C 41, 7.2.1998.
      Removal from the register of Case C-291/95 (1)                   Removal from the register of Case C-411/97 (1)
                        (98/C 278/72)                                                     (98/C 278/75)
By order of 15 June 1998 the President of the Court of           By order of 16 June 1998 the President of the Court of
Justice of the European Communities has ordered the              Justice of the European Communities has ordered the
removal from the register of Case C-291/95: Kingdom of           removal from the register of Case C-411/97: Commission
Belgium v. Commission of the European Communities.               of the European Communities v. Kingdom of Belgium.
(1) OJ C 268, 14.10.1995.
                                                                 (1) OJ C 55, 20.2.1998.
      Removal from the register of Case C-155/97 (1)                   Removal from the register of Case C-105/97 (1)
                        (98/C 278/73)                                                     (98/C 278/76)
By order of 15 June 1998 the President of the Court of           By order of 25 June 1998 the President of the Court of
Justice of the European Communities has ordered the              Justice of the European Communities has ordered the
removal from the register of Case C-155/97: Commission           removal from the register of Case C-105/97 (reference for
of the European Communities v. Kingdom of Belgium.               a preliminary ruling from the Pretura Circondariale di
                                                                 Trento): Leonardo Gulli v. Ente Poste Italiane.
(1) OJ C 181, 14.6.1997.
                                                                 (1) OJ C 142, 10.5.1997.