title: Case C-371/17: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 19 June 2017 — Uber BV v Richard Leipold

text:
               25.9.2017

               EN

               Official Journal of the European Union

               C 318/5

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 19 June 2017 — Uber BV v Richard Leipold
   (Case C-371/17)
   (2017/C 318/08)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Appellant on a point of law: Uber BV

      Respondent in the appeal on a point of law: Richard Leipold

      Questions referred

               1.

               In the case where an undertaking which, in cooperation with hire vehicle undertakings licensed for the carriage of persons, makes available a smartphone application through which users can place orders for chauffeur-driven hire vehicles, does that undertaking itself supply a service in the field of transport within the meaning of Article 58(1) TFEU and Article 2(2)(d) of Directive 2006/123 (1) if the organisational services provided by that undertaking are closely related to the service of carriage, in particular where that undertaking

                           —

                           determines the prices, the processing of payments and the conditions of carriage for the assignment of trips

                     and

                           —

                           advertises the vehicles procured by the undertaking under its own brand designation and with the same uniform promotional offers?

                     If the Court should answer Question 1 in the negative:

               2.

               May an injunction prohibiting a service of the kind at issue in the main proceedings be justified, in the light of current modes of transport, from the perspective of the safeguarding of public policy under Article 16(1) of Directive 2006/123 on the basis of the objective of maintaining the competitiveness and proper functioning of taxi services?

      (1)  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 2006 L 376, p. 36.


title: Case T-363/08: Action brought on 29 August 2008 — 2nine v OHIM — Pacific Sunwear of California (nollie)

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/47

         Action brought on 29 August 2008 — 2nine v OHIM — Pacific Sunwear of California (nollie)
   (Case T-363/08)
   (2008/C 272/91)
   Language in which the application was lodged: English
   Parties

      Applicant: 2nine Ltd (London, United Kingdom) (represented by: S. Palmer, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Pacific Sunwear of California, Inc. (Anaheim, United States)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 June 2008 in case R 1590/2007-2;

               —

               Order the defendant to pay the costs; and

               —

               Take any further action as the Court may deem appropriate.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The figurative mark ‘nollie’ for goods and services in classes 3, 9, 11, 14, 18, 20, 25 and 26 — application No 4 602 017

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited: International trade mark registration No 839 740 of the word mark ‘NOLI’ for goods in classes 3, 18, 24 and 25; United Kingdom trade mark registration No 2 361 525 of the word mark ‘NOLI’ for goods in classes 3, 18, 24 and 25.

      Decision of the Opposition Division: Allowed the opposition and rejected the application in its entirety

      Decision of the Board of Appeal: Partial annulment of the contested decision

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal failed to find that there is a likelihood of confusion between the conflicting trade marks with respect to all the contested goods; infringement of Article 74(1) of Council Regulation No 40/94 as the Board of Appeal failed or neglected to take into account properly the facts, evidence and arguments submitted.


title: Reference for a preliminary ruling by the Tribunale di Genova - Sezione Prima Civile by order of that court of 5 October 1995 in the case of (1) F.lli Carli SpA (2) Casa di Speditione Viale sas against Amministrazione delle Finanze (Case C-333/95)

text:
No C 351 /2               EN                     Official Journal of the European Communities                                         30 . 12 . 95
No 547/72 (') and 9a of Regulation ( EEC ) No 2332/89 ( 2 ),                Reference for a preliminary ruling by the Tribunale di
in the light of Article 48 of the EC Treaty in order to                     Genova — Sezione Prima Civile by order of that court of
ascertain                                                                   5 October 1995 in the case of ( 1 ) F.lli Carli SpA ( 2 ) Casa
                                                                            di Speditione Viale sas against Amministrazione delle
                                                                                Finanze
'whether Article 4 of Law No 222/ 1 984 should be so applied                                            ( Case C-333/95 )
as to extend the reference period for the recognition of                                                   95 /C 351 /04
entitlement to invalidity pension where a worker has been in
receipt of unemployment benefit in another Member State
in which such extension is provided for and , if so, whether
such extension should be subject to conditions .'
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Tribunale di
(') OJ , English Special Edition 1972 ( I ), p . 149 .                      Genova — Sezione Prima Civile ( District Court, Genoa ,
( 2 ) o'| No L 224, 2. 8 . 1989, p. 1 .                                     First Civil Section ) of 5 October 1995 , which was received at
                                                                            the Court Registry on 20 October 1995 , for a preliminary
                                                                            ruling in the case of ( 1 ) F.lli Carli SpA ( 2 ) Casa di Speditione
                                                                            Viale sas against Amministrazione delle Finanze on the
                                                                            following questions :
Reference for a preliminary ruling from the Lansratten                      1 . does the suspension of customs duties on imports from
Stockholm, by order of that court of 13 October 1995 , in                         Spain of the agricultural products listed in the Annex to
            proceedings brought by V.A.G. Sverige AB                              the Regulation ( EEC ) No 3835/90 ( } ), as provided for
                                                                                by Article 1 of Regulation ( EEC ) No 3416/91 ( 2 ), also
                           ( Case C-329/95 )                                      apply to imports from Spain of preserved tuna in olive
                             ( 95/C 351 /03 )                                     oil ?
Reference has been made to the Court of Justice of the
European Communities by an order of the Lansratten
( County Administrative Court ) Stockholm of 13 October                     2 . May the competent customs authorities, pursuant
 1995 , which was received at the Court Registry on                               to Article 5 ( 1 ) and ( 2 ) of Regulation ( EEC )
 19 October 1995 , for a preliminary ruling in proceedings                        No 1679/79 ( 3 ), as supplemented by Regulation ( EEC )
brought by V.A.G. Sverige AP> on the following                                    No 1715/90 ( 4 ) and Article 2 of implementing
questions :                                                                       Regulation ( EEC ) No 2164/91 ( s ) initiate action for the
                                                                                recovery of customs duties which were not collected at
                                                                                the time of importation because they were regarded as
 1 . is the requirement of a certificate under the                                having been totally suspended as a result of an erroneous
       Bilregisterkungorelsen (') compatible with the                             interpretation of the Community legislation in force, but
       provisions of Council Directive 70/ 156/EEC (2 ), as                       which subsequently proved to be due on the basis of a
       worded in its latest version ?                                             different interpretation of the same Community
                                                                                legislation provided by the Commission of the EC after
                                                                                consulting its Legal Service , where the person liable
                                                                                observed all the provisions laid down by the rules in
2 . If the answer to question 1 is affirmative, is the                            force as far as his customs declaration was concerned
       requirement in question compatible with Article 30 of                      and it does not appear that that person was aware that
       the Treaty of Rome, or can it be said to constitute a                      the interpretation initially given to the Community
       measure ' having equivalent effect'?                                       legislation by the Italian authorities was erroneous ?
 3 . In the event that the answer to Question 1 is affirmative
       and the answer to Question 2 is that the measure is to be            (')   OJ  No L  370 , p. 126 .
       regarded as a 'measure having equivalent effect', can the            (2)   OJ  No L  324 , p. 11 .
       Swedish certificate requirement be maintained on the                  (•') OJ  No L  197,  p. 1.
       basis of Article 36 ?                                                 (4 ) OJ  No L  160,  p. 1.
                                                                             (■<) Of  No L  201 , p. 16 .
 (') Section 12 , first paragraph , point 9 .
 ( 2 ) OJ , English Special Edition 1970 ( I ), p. 96 .


title: Case T-425/11: Action brought on 3 August 2011 — Hellenic Republic v Commission

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/45

         Action brought on 3 August 2011 — Hellenic Republic v Commission
   (Case T-425/11)
   2011/C 282/83
   Language of the case: Greek

      Parties

      Applicant: Hellenic Republic (represented by: P. Milonopoulos and K. Boskovits)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the contested decision;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   By the present action, the applicant seeks the annulment of Commission Decision C(2011) 3504 final of 24 May 2011 relating to State aid to certain Greek casinos, No C 16/2010 (ex NN 22/2010, ex CP 318/2009).
   In support of the action, the applicant puts forward the following grounds for annulment.

               1.

                     First ground
                  : Incorrect interpretation of Article 107(1) TFEU relating to the concept of State aid.
               More specifically, the applicant submits that the defendant mistakenly supposes that a lower charge for an admission ticket at certain casinos conferred an advantage upon them through the reduction of State income. Also, the supposed recipients of the aid are not in a comparable legal and factual position vis-à-vis the other casinos that operate in Greece, intra-Community trade is not affected and competition within the internal market is not distorted.

               2.

                     Second ground
                  : Inappropriate, deficient and contradictory reasoning as regards establishing State aid.
               The applicant observes in particular that the reasoning is contradictory since it accepts that a lower charge for a ticket can increase custom at the casinos in question while at the same time it contests the increase in State income by reason of the increase in custom. Also, the reasoning is deficient in relation to proof of the advantage and to establishing the effect on intra-Community trade and it is clearly erroneous as regards proof of the measure’s selective nature.

               3.

                     Third ground
                  : Recovery of the aid infringes Article 14 of Council Regulation (EC) No 659/99. (1)

               More specifically, the applicant submits that the aid is not sought from the actual beneficiaries, that is to say, the customers of the casinos that charge a lower ticket price. Also, recovery is contrary to the general principle of the protection of legitimate expectations, by reason of the previous case-law of the Greek Council of State and the defendant’s conduct, and to the general principle of proportionality since it imposes disproportionate and unjustified burdens on the supposed recipients of the aid and strengthens the competitive position of the casinos that charge the ticket price of EUR 12.

               4.

                     Fourth ground
                  : The defendant calculated the sums to be recovered incorrectly.
               The applicant maintains that the defendant is unable to calculate precisely the supposed advantage of the recipients of the aid and does not take into account the effect which the charging of a lower ticket price had or could have had on demand.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).


title: Case T-361/08: Judgment of the General Court of 21 April 2010 — Peek & Cloppenburg and van Graaf v OHIM — Queen Sirikit Institute of Sericulture (Thai Silk) (Community trade mark — Opposition proceedings — Application for the figurative Community trade mark Thai Silk — Earlier national figurative trade mark representing a winged creature — Admissibility of the action — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/28

         Judgment of the General Court of 21 April 2010 — Peek & Cloppenburg and van Graaf v OHIM — Queen Sirikit Institute of Sericulture (Thai Silk)
   (Case T-361/08) (1)

   (Community trade mark - Opposition proceedings - Application for the figurative Community trade mark Thai Silk - Earlier national figurative trade mark representing a winged creature - Admissibility of the action - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
   2010/C 148/50
   Language of the case: German

      Parties

      Applicants: Peek & Cloppenburg (Hamburg, Germany); and van Graaf GmbH & Co. KG (Vienna, Austria) (represented by: V. von Bomhard, A. Renck, T. Dolde and J. Pause, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: S. Schäffner, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: The Queen Sirikit Institute of Sericulture, Office of the Permanent Secretary, Ministry of Agriculture and Cooperatives, Thailand (Bangkok, Thailand), replaced by the Office of the Permanent Secretary, The Prime Minister’s Office, Thailand (represented by: A. Kockläuner, lawyer)

      Re:

   ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 10 June 2008 (Case R 1677/2007-4), relating to opposition proceedings between Peek & Cloppenburg and the Office of the Permanent Secretary, The Prime Minister’s Office, Thailand.

      Operative part of the order

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Peek & Cloppenburg and van Graaf GmbH & Co. KG to pay the costs.

      (1)  OJ C 301, 22.11.2008.


title: Case C-395/06: Order of the President of the Court of 5 February 2007 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Entidad de Gestión de Derechos de los Productores Audiovisuales (Egeda) v Al Rima, S.A

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/29

         Order of the President of the Court of 5 February 2007 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Entidad de Gestión de Derechos de los Productores Audiovisuales (Egeda) v Al Rima, S.A
   (Case C-395/06) (1)

   (2007/C 82/64)

      Language of the case: Spanish

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

      (1)  OJ C 294, 2.12.2006.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 9 January 1997 in Case C-383/95 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Petrus Wilhelmus Rutten v. Cross Medical Ltd (Brussels Convention - Article 5 (1) - Courts for the place of performance of the contractual obligation - Contract of employment - Place where the employee habitually carries out his work - Work performed in more than one country)

text:
No C 54/8           | EN |                 Official Journal of the European Communities                                     22 . 2 . 97
               JUDGMENT OF THE COURT                                  States in which he has an office where he organizes his
                                                                      activities for his employer and to which he returns after
                        ( Sixth Chamber)
                                                                      each business trip abroad.
                       of 9 January 1997
in Case C-3 83/95 (reference for a preliminary ruling from            (') OJ No C 31 , 3 . 2 . 1996 .
the Hoge Raad der Nederlanden ): Petrus Wilhelmus
                Rutten v. Cross Medical Ltd (')
(Brussels Convention — Article 5 (1 ) — Courts for the
place of performance of the contractual obligation —
Contract of employment — Place where the employee
habitually carries out his work — Work performed in
                    more than one country)                                              ORDER OF THE COURT
                           ( 97/C 54/ 13 )                                                      (Fourth Chamber)
                                                                                of 28 November 1996
                 (Language of the case: Dutch)                        in Case C-293/95 P Odigitria AAE v. Council of the
                                                                      European Union and Commission of the European
                                                                                Communities (')
   (Provisional translation; the definitive translation will be       (Appeal — Non-contractual liability — EEC/Senegal and
          published in the European Court Reports)                    EEC/Guinea-Bissau fishery agreements — Boarding of a
                                                                                fishing vessel — Community licence)
                                                                                ( 97/C 54/ 14 )
In Case C-383/95 : reference to the Court under the
Protocol of 3 June 1971 on the interpretation by the
 Court of Justice of the Convention of 27 September 1968
on jurisdiction and the enforcement of judgments in civil                              (Language of the case: Greek)
and commercial matters by the Hoge Raad der
Nederlanden for a preliminary ruling in the proceedings
 pending before that Court between Petrus Wilhelmus
 Rutten and Cross Medical Ltd — on the interpretation of                 (Provisional translation; the definitive translation will be
 Article 5 ( 1 ) of the abovementioned Convention of                            published in the European Court Reports)
 27 September 1968 ( OJ No L 299, 31 . 12 . 1972 , p. 32 ),
 as amended by the Convention of 9 October 1978 on the
 Accession of the Kingdom of Denmark, Ireland and the                 In Case C-293/95 P: Odigitria AAE ( represented
 United Kingdom of Great Britain and Northern Ireland                 by Anastasia Chatzitzani , Georgios Stefanakis and
 ( OJ No L 304 , 30 . 10 . 1978 , p. 1 and — amended text —           Epameinondas Marias ) — appeal against the judgment of
 p. 77 ), by the Convention of 25 October 1982 on the                 the Court of First Instance of the European Communities
 Accession of the Hellenic Republic ( OJ No L 388 , 31 . 12 .          ( First Chamber ) of 6 July 1995 in Case T-572/93 Odigitria
 1982, p. 1 ) and by the Convention of 26 May 1989 on                 v. Council and Commission ( 1995 ) ECR 11-2025 , seeking
 the Accession of the Kingdom of Spain and the Portuguese             to have that judgment set aside — the other parties to the
 Republic ( OJ No L 285 , 3 . 10 . 1989 , p. 1 ) — the Court           proceedings being Council of the European Union ( Agents :
 ( Sixth Chamber ), composed of: G. F. Mancini, President             John Carbery and Sofia Kyriakopoulou ) and Commission
 of the Chamber, J. L. Murray, C. N. Kakouris, H.                      of the European Communities ( agents : Madame Kontou
 Ragnemalm and R. Schintgen ( Rapporteur ), Judges; F. G.              Durande and Thomas van Rijn ) — the Court ( Fourth
 Jacobs, Advocate-General; R. Grass, Registrar, has given a            Chamber ), composed of: J. L. Murray, President of the
 judgment on 9 January 1997, in which it has ruled :                   Chamber, C. N. Kakouris and P. J. G. Kapteyn
                                                                       ( Rapporteur ) Judges; M. B. Elmer, Advocate-General , R.
                                                                       Grass, Registrar, gave a judgment on 28 November 1996 ,
 Article 5 (1 ) of the Convention of 27 September 1968 on              the operative part of which is as follows :
 jurisdiction and the enforcement of judgments in civil and
 commercial matters, as amended by the Convention of
 26 May 1989 on the accession of the Kingdom of Spain
                                                                        1 . The application is dismissed.
 and the Portuguese Republic, must be interpreted as
 meaning that where, in the performance of a contract of
 employment, an employee carries out his work in several
  Contracting States, the place where he habitually carries            2 . The appelant is ordered to pay the costs.
 out his work, within the meaning of that provision, is the
 place where he has established the effective centre of his
                                                                        (') OJ No C 299 , 11 . 11 . 1995 .
 working activities. When identifying that place, it is
 necessary to take into account the fact that the employee
 spends most of his working time in one of the Contracting


title: Case C-222/10 P: Appeal brought on 7 May 2010 by Brigit Lind against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-5/09: Brigit Lind v European Commission

text:
               17.7.2010

               EN

               Official Journal of the European Union

               C 195/10

         Appeal brought on 7 May 2010 by Brigit Lind against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-5/09: Brigit Lind v European Commission
   (Case C-222/10 P)
   2010/C 195/15
   Language of the case: English

      Parties

      Appellant: Brigit Lind (represented by: I. Anderson, Advocate)

      Other party to the proceedings: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul in its entirety the General Court's decision and order of March 24th 2010 dismissing her Application as manifestly inadmissible with costs.

               —

               Retain jurisdiction over Appellant's Appeal and ordering the Commission to pay Appellant;

                           (a)

                           the sum of EUR 50,000 or such other sum as the Court may consider just and equitable for her shock and distress at her brother's suffering and death as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s (1) precautionary medical monitoring protections for long- term radiation illnesses in the case of the Thule special intervention teams.

                           (b)

                           Payment to the Estate of John Erling Nochen;

                                       (i)

                                       the sum of EUR 250,000, or such other sum as the Court may consider just and equitable for his suffering from 2006 until his death in 2008 from lung cancer as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s precautionary medical monitoring protections for long- term radiation illnesses in the case of the Thule intervention teams.

                                       (ii)

                                       Funeral costs in the amount of EUR 6,000.

      Pleas in law and main arguments

               1.

               The General Court erred in dismissing Appellant's non- contractual liability case as inadmissible by distorting both the nature of her claims and her pleas in law. As a result of such distortion, the Court failed to consider unlawfulness in the context of the Commission's capricious and disingenuous pretexts for refusing to act — which inaction eviscerated the Uniform Health Safety Standards for the protections of workers and the public in cases of radiological accidents caused by the military use of nuclear energy.

               2.

               Failure to Apply Legal Principles Common to Member States The Court failed to assess the unlawfulness of the Commission's lack of care, diligence and sound administration with reference to legal principles common to member state systems for determining administrative accountability for damage caused to individuals, as required under Article 188 of the EAEC Treaty.

               3.

               Inappropriate Application of Commission's Unique Competition Law Exemption- Powers To Admissibility of Health Standards Complaint The Court further erred by considering the Commission's military exemption of the radiological accident at Thule from the Directive's health protections, in the light of the Commission's wide and unique discretion to formulate EU competition policy by discretionary exemptions of unlawful trade agreements. This ignored admissibility decisions of this Court in other EU areas where the Commission does not possess such a unique discretion and where allegations of the Commission's failure to act did not deem a claim manifestly inadmissible.
               The Court overlooked the fact that Commission does not have a unique and unfettered discretion to enforce the Uniform Health Safety Standards since the EAEC Treaty narrowly defines its exemption- power and specifically provides mechanisms for individuals to complain of its administrative failures to act in areas where protections have been conferred on them. This includes situations where the refusal to act has been addressed to another party.

               4.

               Failure to Consider Whether Commission's Refusal to Act Violated EAEC Treaty's Designated Object of Protecting the Health of Workers and the Public.
               The Court also erred by failing to enquire into whether the Commission's refusal to act violated the EAEC Treaty's objectives of establishing and ensuring the application of Uniform Health Safety Standards to protect workers and the public from the long term effects of ionizing radiation. In doing so it overlooked the Commission's peremptory duty under the EAEC Treaty to ensure that the provisions of the Treaty are properly applied, including its embodied precautionary principle.

               5.

               Failure to Consider Whether the Commission's Refusal Violated a Superior Law.
               With the incorporation of the European Convention of Human Rights into EU jurisprudence, the Court erred in failing to consider whether the Commission's refusal to enforce the medical monitoring provisions of Directive 96/29 violated Article 2 of the Convention by knowingly placing the life of Appellant's brother at risk to the un-checked and un-monitored development of long term radiation cancers, such as the cancer which killed him.

      (1)  Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation
   OJ L 159, p. 1


title: Order of the President of the Court of First Instance of 27 April 2005 in Case T-34/05 R Makhteshim-Agan Holding BV and Others v Commission of the European Communities (Interlocutory proceedings — Interim measures — Action for failure to act — Admissibility — Directive 91/414/EEC)

text:
               9.7.2005

               EN

               Official Journal of the European Union

               C 171/22

      ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

   of 27 April 2005
   in Case T-34/05 R Makhteshim-Agan Holding BV and Others v Commission of the European Communities
   (Interlocutory proceedings - Interim measures - Action for failure to act - Admissibility - Directive 91/414/EEC)
   (2005/C 171/37)
   Language of the case: English
   In Case T-34/05 R: Makhteshim-Agan Holding BV and Others, established in Amsterdam (Netherlands), represented by C. Mereu and K. Van Maldegen, lawyers, against Commission of the European Communities (Agent: B. Doherty, with an address for service in Luxembourg) — application for an order for interim measures concerning the evaluation of Endosulfan with a view to its possible inclusion in Annex I to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1) — the President of the Court of First Instance made an order on 27 April 2005, the operative part of which is as follows:

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.


title: Case C-218/11: Reference for a preliminary ruling from the Fővárosi Ítélőtábla (Hungary) lodged on 11 May 2011 — Észak-dunántúli Környezetvédelmi és Vízügyi Igazgatóság (Édukövízig), Hochtief Construction AG Magyarországi Fióktelepe v Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/14

         Reference for a preliminary ruling from the Fővárosi Ítélőtábla (Hungary) lodged on 11 May 2011 — Észak-dunántúli Környezetvédelmi és Vízügyi Igazgatóság (Édukövízig), Hochtief Construction AG Magyarországi Fióktelepe v Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság
   (Case C-218/11)
   2011/C 232/23
   Language of the case: Hungarian

      Referring court

   Fővárosi Ítélőtábla

      Parties to the main proceedings

      Applicants: Észak-dunántúli Környezetvédelmi és Vízügyi Igazgatóság (Édukövízig), Hochtief Construction AG Magyarországi Fióktelepe

      Defendant: Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság

      Intervener: Vegyépszer Építő és Szerelő Zrt., MÁVÉPCELL Kft.

      Questions referred

               1.

               Is the requirement that the minimum capacity levels stipulated in Article 44(2) of Directive 2004/18/EC (1) (hereinafter Directive) of the Council of the European Union (‘Council’) be in accordance with Article 47(1)(b) of that Directive to be interpreted in such a way that the contracting authority is entitled to link the minimum capacity levels to a single indicator in an accounting document (balance sheet) that it selects to monitor economic and financial standing?

               2.

               If the answer to the first question is yes, Budapest Court of Appeal further asks whether the consistency requirement laid down by Article 44(2) of the Directive is fulfilled by data selected for assessment of the minimum capacity levels (profit/loss according to the balance sheet), where such data has different content pursuant to the accounting legislation of individual Member States?

               3.

               Is it sufficient, for the purposes of correcting any discrepancies which doubtless exist between Member States, if the contracting authority ensures that there is an opportunity to employ external resources (Article 47(3)), in addition to the documents selected as proof of economic and financial standing, or must the contracting authority, in order to meet the requirement of consistency as regards all the documents selected by it, ensure that that capacity can be demonstrated in another manner (Article 47(5))?

      (1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).


title: Case F-112/14: Judgment of the Civil Service Tribunal (1st Chamber) of 16 July 2015 — EJ v Commission (Civil service — Officials — Reform of the Staff Regulations — Regulation No 1023/2013 — Types of posts — Transitional rules concerning assignment to types of posts — Article 30(2) of Annex XIII to the Staff Regulations — Lawyer administrators in grade AD 13 of the Commission’s Legal Service — Situation of ‘legal advisers’ and ‘members of the Legal Service’ — Methods of accessing grade AD 13 under the 2004 Staff Regulations — Promotion under Article 45 of the Staff Regulations — Appointment pursuant to Article 29 of the Staff Regulations — Assignment to the types of posts ‘Adviser or equivalent’ and ‘Administrator in transition’ — Act adversely affecting an official — Concept of ‘significant responsibilities’ — Concept of ‘special responsibilities’ — Equal treatment — Opportunity for promotion to grade AD 14 — Legitimate expectations — Principle of legal certainty)

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/51

         Judgment of the Civil Service Tribunal (1st Chamber) of 16 July 2015 — EJ v Commission
   (Case F-112/14) (1)

   ((Civil service - Officials - Reform of the Staff Regulations - Regulation No 1023/2013 - Types of posts - Transitional rules concerning assignment to types of posts - Article 30(2) of Annex XIII to the Staff Regulations - Lawyer administrators in grade AD 13 of the Commission’s Legal Service - Situation of ‘legal advisers’ and ‘members of the Legal Service’ - Methods of accessing grade AD 13 under the 2004 Staff Regulations - Promotion under Article 45 of the Staff Regulations - Appointment pursuant to Article 29 of the Staff Regulations - Assignment to the types of posts ‘Adviser or equivalent’ and ‘Administrator in transition’ - Act adversely affecting an official - Concept of ‘significant responsibilities’ - Concept of ‘special responsibilities’ - Equal treatment - Opportunity for promotion to grade AD 14 - Legitimate expectations - Principle of legal certainty))
   (2015/C 279/64)
   Language of the case: French

      Parties

      Applicant: EJ (represented by: S. Orlandi, lawyer)

      Defendant: European Commission (represented by: J. Currall, C. Ehrbar and G. Gattinara, acting as Agents)

      Intervener in support of the defendant: Council of the European Union (represented by: M. Bauer and M. Veiga, acting as Agents)

      Re:

   Action for annulment of the appointing authority’s decisions to assign the applicants, in accordance with the new rules on career and promotion applicable after the reform of the Staff Regulations of 1 January 2014, to the type of post ‘Senior Administrator in transition’, thereby depriving them, in their view, of the opportunity of promotion to grade AD 14, and for a declaration that Article 30(3) of Annex XIII to the Staff Regulations is unlawful.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the individual decisions, as evidenced by a note added after 1 January 2014 to the applicants’ individual computerised files, adopted by the appointing authority of the European Commission, assigning EJ and the other applicants whose anonymised names are set out in the annex hereto to the post which within the European Commission is entitled ‘Senior Administrator in transition’ and corresponds to the Staff Regulations type of post ‘Administrator in transition’;

               2.

               Orders the European Commission to bear its own costs and to pay the costs incurred by EJ and the other applicants whose anonymised names are set out in the annex hereto;

               3.

               Orders the Council of the European Union to bear its own costs.

      (1)  OJ C 26, 26.01.2015, p. 47.


               24.12.2005

               EN

               Official Journal of the European Union

               C 330/12

         Removal from the register of Case C-450/04 (1)

   (2005/C 330/26)

      Language of the case: French

   By order of 28 September 2005, the President of the Court of Justice (Fourth Chamber) of the European Communities has ordered the removal from the register of Case C-450/04: Commission of the European Communities v French Republic.

      (1)  OJ C 314, 18.12.2004.


title: Judgment of the Court (Third Chamber) of 8 September 2005 in Case C-416/02: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directives 75/442/EEC and 91/156/EEC — Meaning of ‘waste’ — Directives 85/337/EEC and 97/11/EC — Assessment of the effects of certain public and private projects on the environment — Directive 80/68/EEC — Protection of groundwater against pollution caused by certain dangerous substances — Directive 91/271/EEC — Urban waste-water treatment — Directive 91/676/EEC — Protection of waters against pollution caused by nitrates from agricultural sources — Pollution caused by a pig farm)

text:
               29.10.2005

               EN

               Official Journal of the European Union

               C 271/1

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 8 September 2005
   in Case C-416/02: Commission of the European Communities v Kingdom of Spain (1)

   (Failure of a Member State to fulfil obligations - Directives 75/442/EEC and 91/156/EEC - Meaning of ‘waste’ - Directives 85/337/EEC and 97/11/EC - Assessment of the effects of certain public and private projects on the environment - Directive 80/68/EEC - Protection of groundwater against pollution caused by certain dangerous substances - Directive 91/271/EEC - Urban waste-water treatment - Directive 91/676/EEC - Protection of waters against pollution caused by nitrates from agricultural sources - Pollution caused by a pig farm)
   (2005/C 271/01)
   Language of the case: Spanish
   In Case C-416/02: Action under Article 226 EC for failure to fulfil obligations, brought on 19 November 2002, Commission of the European Communities (Agent: G. Valero Jordana) supported by United Kingdom of Great Britain and Northern Ireland (Agents: K. Manji, and subsequently C. White, instructing D. Wyatt QC) v Kingdom of Spain (Agent: N. Díaz Abad) — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J.-P. Puissochet (Rapporteur), S. von Bahr, U. Lõhmus and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 8 September 2005, in which it:

               1.

               Declares that, by failing to ensure that urban waste water from the agglomeration of Vera is subjected to such treatment as is required by Article 5(2) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment, that is to say treatment which is more stringent than that described in Article 4 of that directive, and by failing to designate the Rambla de Mojácar as a vulnerable zone contrary to Article 3(1), (2) and (4) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, the Kingdom of Spain has failed to fulfil its obligations under those directives;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Kingdom of Spain to bear two thirds of all the costs and the Commission of the European Communities to bear the other third;

               4.

               Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

      (1)  OJ C 31 of 08. 02. 2003.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 5 December 1996 in Case C-69/95 Italian Republic v. Commission of the European Communities (EAGGF - Clearance of accounts - 1991 - Milk and milk products)

text:
No C 40/2            [ EN |                Official Journal of the European Communities                                       8 . 2 . 97
H. Ragnemalm, Judges; G. Tesauro, Advocate-General; H.                         undertaking from using its right to import into a
von Holstein, Deputy Registrar, for the Registrar, has                         Member State products coming from another
given a judgment on 19 November 1996 , in which it has                         Member State where they are lawfully marketed
ruled :                                                                        and to market them under a particular trade mark
                                                                               in the Member State of importation, when other
The Second Council Directive (77/91 /EEC) of                                   traders have the same right, even if they do not use
13 December 1976 on coordination of safeguards which,                          it,
for the protection of the interests of members and others,
are required by Member States of companies within the
                                                                           — but not precluding a prohibition, on grounds of
meaning of the second paragraph of Article 58 of the
                                                                               consumer protection, on the marketing by all
Treaty, in respect of the formation of public limited                          traders of products coming from a Member State
liability companies and the maintenance and alteration of
                                                                               where they are lawfully marketed, provided that
their capital, with a view to making such safeguards                           the prohibition is necessary in order to ensure
equivalent, in particular Article 29 ( 1 ) and (4) thereof,                    consumer protection and proportionate to that
does not preclude a Member State 's domestic law from                          objective, which must be incapable of being
granting a right of pre-emption to shareholders in the                         achieved by measures which are less restrictive of
event of an increase in capital by consideration in kind                       intra- Community trade . The national court must,
and from subjecting the legality of a decision withdrawing                     in particular, examine whether the risk of
that right of pre-emption to a substantive review of the                       misleading consumers is sufficiently serious to be
kind laid down by the Bundesgerichtshof.                                       able to override the requirements of the free
                                                                               movement of goods .
H OJ No C 101 , 22 . 4 . 1995 .
                                                                      2 . Article 12 (2) (b) of Council Directive 89/104/EEC of
                                                                           21 December 1988 to approximate the laws of the
                                                                           Member States relating to trade marks is to be
                                                                           interpreted as not precluding a prohibition on the
                JUDGMENT OF THE COURT                                      marketing of products coming from a Member State
                      of 26 November 1996                                  where they are lawfully marketed, on the ground that
in Case C-3 13/94 (reference for a preliminary ruling from                 they bear a trade mark which the proprietor has been
the Tribunale di Chiavari ): Fratelli Graffione SNC v. Ditta               specifically prohibited from using in the Member State
                              Fransa (')                                   of importation because it has been held there to be
                                                                           liable to mislead consumers .
 (Prohibition of the use of a trade mark in a Member State
— Prohibition of importation from another Member State
 of a product bearing the same trade mark — Article 30 of             n OJ No C 380 , 31 . 12 . 1994 .
          the EC Treaty and the Trade Mark Directive)
                           ( 97/C 40/03 )
                  (Language of the case: Italian)
   (Provisional translation; the definitive translation will be
                                                                                JUDGMENT OF THE COURT
            published in the European Court Reports)
                                                                                ( Sixth Chamber)
 In Case C-313 /94 : reference to the Court under Article 177
                                                                                of 5 December 1996
 of the EC Treaty from the Tribunale di Chiavari (District
 Court, Chiavari ), Italy, for a preliminary ruling in the            in Case C-69/95 Italian Republic v. Commission of the
 proceedings pending before that court between Fratelli                                  European Communities (')
 Graffione SNC and Ditta Fransa — on the interpretation
 of Articles 30 and 36 of the EC Treaty and Article 12                 (EAGGF — Clearance of accounts — 1991 — Milk and
 (2 ) ( b ) of the First Council Directive 89/104/EEC of                                        milk products)
 21 December 1988 to approximate the laws of the                                                  97/C 40/04 )
 Member States relating to trade marks ( OJ No L 40, 11.2 .
  1989 , p. 1 ) — the Court, composed of: G. C. Rodriguez
 Iglesias, President, G. F. Mancini , J. C. Moitinho de                                (Language of the case: Italian)
 Almeida, J. L. Murray and L. Sevon (Presidents of
  Chambers ), P. J. G. Kapteyn, C. Gulmann ( Rapporteur ),
 D. A. O. Edward, J. -P. Puissochet, G. Hirsch and H.                    (Provisional translation; the definitive translation will be
  Ragnemalm, Judges; F. G. Jacobs, Advocate-General; H. A.                       published in the European Court Reports)
  Riihl, Principal Administrator, for the Registrar, has given
  a judgment on 26 November 1996 , in which it has ruled :             In Case C-69/95 : Italian Republic ( Agent: Umberto
  1 . Articles 30 and 36 of the EC Treaty are to be                    Leanza , assisted by Oscar Fiumara ) v. Commission of the
      interpreted as:                                                  FLuropean Communities ( Agent: Eugenio de March ) —
                                                                       application for partial annulment of Commission Decision
      — precluding reliance on protection against unfair                94/871 /EC of 21 December 1994 on the clearance of the
            competition as a ground for prohibiting an                  accounts presented by the Member States in respect of the
 ---pagebreak--- 8 . 2 . 97             EN                  Official Journal of the European Communities                                   No C 40 / 3
expenditure for 1991 of the European Agricultural                     other document serving as an invoice that fulfils the
Guidance and Guarantee Fund ( EAGGF ), Guarantee                      criteria determined by the Member States themselves, and
Section ( OJ No L 35,2, 31 . 12 . 1994, p. 82 ) — the Court           confer on them the power to require production of the
( Sixth Chamber ), composed of: J. L. Murray, President of            original invoice in order to establish the right to deduct
the Fourth Chamber, acting for the President of the Sixth             input tax, as well as the power, where a taxable person no
Chamber, P. J. G. Kapteyn ( Rapporteur ), G. Hirsch , H.              longer holds the original, to admit other evidence that the
Ragnemalm and R. Schintgen, Judges; D. Ruiz-Jarabo                    transaction in respect of which the deduction is claimed
Colomer, Advocate-General ; Fl . von Holstein , Deputy                actually took place.
Registrar, for the Registrar, has given a judgment on
5 December 1996 , in which it:                                        O OJ No C 137, 3 . 6 . 1995 .
1 . dismisses the action ;
2 . orders the Italian Republic to pay the costs.
(') OJ No C 137, 3 . 6 . 1995 .                                                     JUDGMENT OF THE COURT
                                                                                of 5 December 1996
                                                                      in Joined Cases C-267/95 and C-268/95 ( references for a
                                                                      preliminary ruling from the High Court of Justice of
                                                                      England and Wales, Chancery Division, Patents Court ):
                                                                      Merck & Co . Inc. and Others v. Primecrown Ltd and
               JUDGMENT OF THE COURT
                                                                      Others and Beecham Group pic v. Europharm of Worthing
                      of 5 December 1996                                                            Ltd (')
in Case C-85/95 ( reference for a preliminary ruling from             (Act of Accession of Spain and Portugal — Interpretation
the Bundesfinanzhof): John Reisdorf v. Finanzamt Köln                of Articles 47 and 209 — End of transitional period —
                              West (')                                Articles 30 and 36 of the EC Treaty — Parallel imports of
 (Value added tax — Interpretation of Article 18 (1 ) (a) of                           unpatentable pharmaceuticals)
the Sixth Council Directive 77/388/EEC — Deduction of
                                                                                ( 97/C 40/06 )
input tax paid — Obligation of the taxable person —
                   Possession of an invoice)
                           ( 97/C 40/05 )
                                                                                (Language of the case: English)
                (Language of the case: German)                        In Joined Cases C-267/95 and C-268/95 : references to the
                                                                      Court under Article 177 of the EC Treaty by the High
                                                                      Court of Justice of England and Wales, Chancery Division,
   (Provisional translation; the definitive translation will be       Patents Court, for a preliminary ruling in the proceedings
           published in the European Court Reports)                   pending before that court between Merck & Co . Inc .,
                                                                      Merck Sharp & Dohme Ltd, Merck Sharp & Dohme
 In Case C-85/95 : reference to the Court under Article 177           International Services BV and Primecrown Ltd, Ketan
 of the EC Treaty from the Bundesfinanzhof for a                      Himatlal Mehta , Bharat Himatlal Mehta, Necessity
 preliminary ruling in the proceedings pending before that             Supplies Ltd and between Beecham Group and Europharm
 court between John Reisdorf and Finanzamt Köln-West —                of Worthing Ltd — on the interpretation of Article 47 and
 on the interpretation of Article 18 ( 1 ) ( a ) of the Sixth         Article 209 of the Act concerning the Conditions of
 Council Directive 77/388/EEC of 17 May 1977 on the                   Accession of the Kingdom of Spain and the Portuguese
 harmonization of the laws of the Member States relating               Republic and the adjustments to the Treaties ( OJ No
 to turnover taxes — Common system of value added tax :                L 302, 15 . 11 . 1985 , p. 23 ), and of Articles 30 and 36 of
 uniform basis of assessment ( OJ No L 145 , 13 . 6 . 1977,            the EC Treaty, the Court composed of : G. C. Rodriguez
 p. 1 ) — the Court ( Fifth Chamber ), composed of: J. C.              Iglesias, President, G. F. Mancini , J. L. Murray and L.
 Moitinho de Almeida ( Rapporteur ), President of the                  Sevón , Presidents of Chambers, C. N. Kakouris, C.
 Chamber, C. Gulmann, D. A. O. Edward, J. -P. Puissochet               Gulmann ( Rapporteur ), D. A. O. Edward, J. -P. Puissochet
 and P. Jann, Judges; N. Fennelly, Advocate-General ; H. A.            and H. Ragnemalm, Judges; N. Fennelly, Advocate-
 Rühl, Principal Administrator, for the Registrar, gave a              General ; L. Hewlett, Administrator, has given a judgment
 judgment on 5 December 1996 , the operative part of                   on 5 December 1996 , in which it rules :
 which is as follows :
                                                                       1 . The transitional periods provided for in Articles 47
 Article 18 (1 ) (a) and Article 22 (3) of the Sixth Council               and 209 of the Act concerning the Conditions of
 Directive 77/388/EEC of 17 May 1977 on the                                 Accession of the Kingdom of Spain and the Portuguese
 harmonization of the laws of the Member States relating                    Republic and the Adjustments of the Treaties expired
  to turnover taxes — Common system of value added tax:                     on 6 October 1995 in the ease of the Kingdom of
  uniform basis of assessment permit the Member States to                   Spain and on 31 December 1994 in the case of the
  regard as an invoice not only the original but also any                   Portuguese Republic.


title: Case C-130/03: Action brought on 24 March 2003 by the Commission of the European Communities against the Italian Republic

text:
21.6.2003              EN                       Official Journal of the European Union                                              C 146/21
Pleas in law and main arguments                                         a)     Can an administrative measure which, on the terms and
                                                                               for the purposes stated in the reasoning, imposes on
                                                                               certain undertakings using the electricity transmission
If — as is the case with the Municipality of the City of Munich                network an increased charge for access and use in order
— the conditions for the existence of a body governed by                       to finance general revenue charges of the electricity
                                                                               system be regarded as a State aid for the purposes of
public law are met, there is no need under the directive to
draw a distinction, in the case of every requested provision of                Article 87 et seq. EC
services, as to whether such services are provided in the general
interest and are commercial in nature. It is for that reason            b)     Must the principles established in Directive 96/92 (1)
irrelevant that, in the present case, the City of Munich, in                   concerning the liberalisation of the internal electricity
connection with the provision of a service for a third party,                  market and in particular Article 7 and 8 thereof concern-
burns waste in its own incineration plant and does not effect                  ing operation of the electricity transmission network be
the transport to that plant itself but relies on a private                     interpreted as precluding the possibility for the Member
undertaking to do so. If a public body tenders successfully for                State to adopt measures imposing for a transitional period
a contract but is obliged to subcontract out certain services in               on certain undertakings for access to and use of the
order to ensure provision of the overall service, that public                  transmission network an increased charge in order to
body must apply the procedures set out in Directive 92/50.                     offset the overvaluation of hydroelectric and geothermal
                                                                               electricity occasioned, as stated in the reasoning, by the
                                                                               altered legislative framework and to finance general
The obligation to end breaches of the Community law on the                     revenue charges of the electricity system.
award of contracts even by terminating contracts that have
already been concluded can also not be placed in question by
Article 2(6) of Directive 89/665 (2), which deals with ex post          (1 ) Directive 96/92/EC of the European Parliament and of the Council
facto review of potential breaches of the Community law on                   of 19 December 1996 concerning common rules for the internal
tendering. A Treaty infringement can be treated as terminated                market in electricity (OJ L 27 of 30.1.1997, p. 20).
only once the Member State concerned recognises the illegal
nature of its action and the breach has been completely
brought to an end.
( 1) OJ 1992 L 209, p. 1.
( 2) OJ 1989 L 395, p. 33.
                                                                        Action brought on 24 March 2003 by the Commission of
                                                                          the European Communities against the Italian Republic
                                                                                (Case C-130/03)
Reference for a preliminary ruling by the Consiglio di                                              (2003/C 146/36)
Stato by order of that Court of 14 January 2003 in the
appeal brought by AEM SpA (C-128/03) and by AEM
Torino SpA (C-129/03) against l’Autorità per l’energia
  elettrica e per il gas; Third party: ENEL Produzione SpA
                                                                        An action against the Italian Republic was brought before the
                                                                        Court of Justice of the European Communities on 24 March
                 (Case C-128/03 and C-129/03)                           2003 by the Commission of the European Communities,
                                                                        represented by Niels Bertil Rasmussen and Luigi Cimaglia,
                                                                        acting as Agents.
                          (2003/C 146/35)
                                                                        The applicant claims that the Court should:
Reference has been made to the Court of Justice of the                  —      Declare that, by failing to designate Community trade
European Communities by order of the Consiglio di Stato                        mark courts and tribunals of first and second instance, or
(Council of State) of 14 January 2003, received at the Court                   in any event by failing to forward to the Commission,
Registry on 24 March 2003, for a preliminary ruling in the                     within the prescribed period, a list of such courts and
appeal brought by AEM SpA (C-128/03) and by AEM Torino                         tribunals indicating their names and territorial jurisdic-
SpA (C-129/03) against l’Autorità per l’energia elettrica e per                tion, the Italian Republic has failed to fulfil its obligations
il gas; Third party: ENEL Produzione SpA on the following                      under Article 91 of Council Regulation (EC) No 40/94 (1)
questions:                                                                     of 20 December 1993 on the Community trade mark;
 ---pagebreak--- C 146/22               EN                         Official Journal of the European Union                                        21.6.2003
—     Order the Italian Republic to pay the costs.                        International Inc., and Japan Tobacco, Inc., and Commission
                                                                          of the European Communities, supported by European Parlia-
                                                                          ment, Kingdom of Spain, French Republic, Italian Republic,
Pleas in law and main arguments                                           Portuguese Republic, Republic of Finland, Federal Republic of
                                                                          Germany, Hellenic Republic, Kingdom of the Netherlands,
                                                                          was brought before the Court of Justice of the European
Under the second paragraph of Article 249 of the Treaty                   Communities on 25 March 2003 by R. J. Reynolds Tobacco
establishing the European Community, regulations are binding              Holdings, Inc., established in Winston-Salem, North Carolina
in their entirety and directly applicable in all Member States.           (United States), RJR Acquisition Corp., established in Wilming-
                                                                          ton, Delaware (United States), R. J. Reynolds Tobacco Com-
In the present case, Article 91 of Regulation (EC) No 40/94               pany, established in Winston-Salem, North Carolina (United
imposes an obligation on Member States to designate, in                   States), R. J. Reynolds Tobacco International Inc., established
accordance with their own national legal systems, national                in Winston-Salem, North Carolina (United States) and Japan
courts and tribunals of first and second instance with jurisdic-          Tobacco, Inc., established in Tokyo (Japan), represented by
tion in matters of infringement and validity of Community                 O. W. Brouwer, lawyer, and P. Lomas, solicitor.
trade marks, and to forward to the Commission a list
of designated Community trade mark courts and tribunals
indicating their names and territorial jurisdiction. The final
date for compliance with these obligations was 15 March
1997.
                                                                          The Appellants claim that the Court should:
The Commission cannot but find that the Italian Republic has
not yet forwarded to it the above information and has not thus
far designated any Community trade mark court or tribunal,                —    set aside the judgment of the Court of First Instance of
thereby also failing to meet its obligations under Article 91(1)               15 January 2003, whereby it:
of that regulation.
( 1) OJ L 11 of 14.1.1994, p. 1.
                                                                               i)    dismissed the applications as inadmissible;
                                                                               ii)   ordered the applicants to bear their own costs and,
Appeal brought on 25 March 2003 by R.J. Reynolds                                     jointly and severally, the costs incurred by the
Tobacco Holdings, Inc., RJR Acquisition Corp., R. J. Rey-                            Commission; and
nolds Tobacco Company, R. J. Reynolds Tobacco Inter-
national Inc., and Japan Tobacco, Inc., against the judg-
ment delivered on 15 January 2003 by the Second
Chamber (Extended Composition) of the Court of First                           iii) ordered the interveners to bear their own costs.
Instance of the European Communities in joined cases
T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01
between Philip Morris International, Inc., R. J. Reynolds
Tobacco Holdings, Inc., RJR Acquisition Corp., R. J. Rey-                 —    declare their applications for annulment admissible on
nolds Tobacco Company, R. J. Reynolds Tobacco Inter-                           the basis that the contested decisions were manifestly
national Inc. and Japan Tobacco, Inc., and Commission                          illegal and to give final judgment in the matter; alterna-
of the European Communities, supported by European                             tively
Parliament, Kingdom of Spain, French Republic, Italian
Republic, Portuguese Republic, Republic of Finland, Fed-
eral Republic of Germany, Hellenic Republic, Kingdom of
                         the Netherlands                                  —    declare their applications for annulment admissible and
                                                                               refer the case back to the Court of First Instance for
                                                                               judgment on the merits; alternatively
                        (Case C-131/03 P)
                         (2003/C 146/37)
                                                                          —    refer the case back to the Court of First Instance for
                                                                               consideration of the issue of admissibility joined to the
An appeal against the judgment delivered on 15 January 2003                    merits and for judgment accordingly;
by the Second Chamber (Extended Composition) of the Court
of First Instance of the European Communities in joined cases
T-377/00 (1), T-379/00 (2), T-380/00 ( 2), T-260/01 (3) and
T-272/01 (4) between Philip Morris International, Inc.,                   —    order the Commission to pay the costs pursuant to
R. J. Reynolds Tobacco Holdings, Inc., RJR Acquisition Corp.,                  Article 69, second paragraph of the Rules of Procedure
R. J. Reynolds Tobacco Company, R. J. Reynolds Tobacco                         of the Court of Justice.


title: Case T-185/03: Action brought on 27 May 2003 by Vincenzo Fusco against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
2.8.2003              EN                           Official Journal of the European Union                                           C 184/45
Mark or sign cited in oppo-      Figurative mark ‘GESINMAR’                Pleas in law and main arguments
sition:                          (mark          with         priority
                                                                           Applicant for Community          The Applicant
                                 no 1975912, for goods in
                                                                           trade mark:
                                 Class 36)
                                                                           Community       trade   mark     The trade name ‘ENZO FUSCO’
Decision of the Opposition       Upholding of the opposition for           sought:                          — Application for registration
Division:                        all services in Class 36                                                   No 726735, requested for pro-
                                                                                ducts in Classes 3, 9, 18, 24
                                                                                and 25 (products which are tra-
                                                                                ditionally the subject of trade
                                                                                mark registration by so-called
Decision of the Board of         Dismissal of the appeal                                                    creators of taste and fashion)
Appeal:
                                                                           Proprietor of mark or sign       Antonio Fusco International
                                                                           cited in the opposition pro-     S.A., Luxembourg
Pleas in law:                    Misapplication of Article 8(1)(b)         ceedings:
                                 of Regulation (EC) No 40/94
                                 (likelihood of confusion)
                                                                           Mark or sign cited in op-        Community mark ‘ANTONIO
                                                                           position:                        FUSCO’               (Registration
                                                                                No 654059) for products sub-
                                                                                stantially identical to those
                                                                                claimed by the Applicant
Action brought on 27 May 2003 by Vincenzo Fusco
against the Office for Harmonisation in the Internal
          Market (Trade Marks and Designs) (OHIM)                          Decision of the Opposition       Opposition upheld and applica-
                                                                           Division:                        tion for registration dismissed
                         (Case T-185/03)
                         (2003/C 184/99)                                   Decision of the Board of         Dismissal of the appeal.
                                                                           Appeal:
                   (Language of the case: Italian)
                                                                           Pleas in law:                    Misapplication of Article 8(1)(b)
An action against the Office for Harmonisation in the Internal                                              of Regulation (EC) No 40/94
Market (Trade Marks and Designs) (OHIM) was brought before                                                  (Risk of confusion).
the Court of First Instance of the European Communities on
27 May 2003 by Vincenzo Fusco, represented by B. Saguatti,
lawyers.
The other party to the proceedings before the Board of Appeal
was Antonio Fusco International S.A.                                       Action brought on 27 May 2003 by Joëlle Hivonnet
                                                                                against Council of the European Union
The applicant claims:
                                                                                (Case T-188/03)
—     as a principal claim, that the Court should annul the                                        (2003/C 184/100)
      contested decisions of the Board of Appeal holding that
      the marks Antonio Fusco and Enzo Fusco were liable to                                   (Language of the case: French)
      be confused with each other;
—     in the alternative, should the Court hold that the marks             An action against the Council of the European Union was
      Antonio Fusco and Enzo Fusco are liable to confusion,                brought before the Court of First Instance of the European
      that the Court should specify the precise territorial scope          Communities on 27 May 2003 by Joëlle Hivonnet, domiciled
      of the decision;                                                     in New York (United States), represented by Georges Vander-
—     as a principal claim, a declaration that, although the               sanden and Laure Levi, lawyers.
      opposition is based on an earlier Community trade                    The applicant claims that the Court should:
      mark, the transformation procedure is not precluded save
      by reference to the territory in respect of which the                —     annul the decision of the appointing authority of 23 July
      existence of a risk of confusion may be recognised;                        2002 rejecting the applicant's request for the grant of an
                                                                                education allowance for her daughter Eponine for the
—     that the opponent should be ordered to pay the costs, or,                  school years 1999-2000 and 2000-2001, and only
      in the alternative, given the delicacy and complexity of                   granting an education allowance for the school year
      the questions under consideration, that a composition of                   2001-2002 on an exceptional basis on the ground of
      costs should be established.                                               educational continuity;


title: Case T-139/14: Action brought on 19 February 2014 — PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council

text:
               19.5.2014

               EN

               Official Journal of the European Union

               C 151/26

         Action brought on 19 February 2014 — PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council
   (Case T-139/14)
   2014/C 151/34
   Language of the case: English

      Parties

      Applicants: PT Wilmar Bioenergi Indonesia (Kodya Dumai, Indonesia); and PT Wilmar Nabati Indonesia (Medan, Indonesia) (represented by: P. Vander Schueren, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicants claim that the Court should:

               —

               Annul Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2), insofar as it imposes an anti-dumping duty on the applicants; and

               —

               Order the defendant to pay the applicants’ costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on eleven pleas in law.

               1.

               First plea in law, alleging that the EU Institutions acted contrary to the basic Regulation (1) because costs were not calculated on the basis of the records kept by the producer-exporters for the product under investigation and producers under investigation.

               2.

               Second plea in law, alleging violation of the basic Regulation as the constructed normal value includes costs not associated with the production and sale of the product under consideration.

               3.

               Third plea in law, alleging that the EU Commission acted contrary to the basic Regulation by incorporating costs based on international reference prices rather than costs in the country of origin (Indonesia).

               4.

               Fourth plea in law, alleging violations of the basic Regulation resorting to the construction of normal value in the absence of a particular market situation for the product concerned.

               5.

               Fifth plea in law claiming the inapplicability of Article 2(5) of the basic Regulation for being incompatible with Article 2.2.2(1) of the WTO Anti-Dumping Agreement if Article 2(5) allowed an exception to the obligation to use the cost of production in the country of origin in the construction of normal value.

               6.

               Sixth plea in law, alleging that Council Regulation No 1194/2013 is tainted by a manifest error of assessment in law and in fact as the actual price paid by the biodiesel producers for crude palm oil (CPO) is not regulated by government such that the actual price paid can be rejected.

               7.

               Seventh plea in law, alleging that Council Regulation No 1194/2013 violates the basic Regulation in the absence of due allowance for differences affecting price comparability, no fair comparison was made between normal value and export price.

               8.

               Eighth plea in law, alleging manifest error of assessment in the application of the cost adjustment which used the wrong feedstock in the case of the applicants.

               9.

               Ninth plea in law, alleging that Council Regulation No 1194/2013 is tainted by a manifest error of assessment by adjusting the cost of CPO sourced from affiliated CPO producers for not being at arm's length without examination solely on the basis of the alleged impact of the export tax on CPO prices.

               10.

               Tenth plea in law, alleging that Council Regulation No 1194/2013 is based on a manifest error of assessment by (i) rejecting the use of the domestic profit margin of sales of products part of the same general category as biodiesel on the basis that these sales were not made in the ordinary course of trade (ii) assessing the reasonableness of a profit margin based on a long-term interest rather than at short-term or medium term interest rate on loans.

               11.

               Eleventh plea in law, alleging that Council Regulation No 1194/2013 is based on a manifest error of assessment by rejecting the determination of a reasonable profit margin based on the claim that the use of return on capital for this determination is irrelevant for trading companies because they are service businesses without significant capital investments which erroneously denies the need for trading companies to have working capital to exercise their trading activities.

      (1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) referred to as ‘the basic Regulation’


title: Case T-294/02: Action brought on 25 September 2002 by Miguel Vicente-Núñez against Commission of the European Communities

text:
23.11.2002             EN                      Official Journal of the European Communities                                     C 289/35
Action brought on 25 September 2002 by Miguel Vicente-                           has or will have received since 1 April 2000 as pay and
Núñez against Commission of the European Communities                             subsequently as retirement pension, in view of his
                                                                                classification as Grade A5/3+1 on 1 April 2000, and the
                                                                                total of the amounts which he should have received, on
                        (Case T-294/02)                                          the same grounds and during the same period had he
                                                                                been reclassified in Grade A5/2+6 on 1 April 1998,
                                                                                minus, if appropriate, the compensation already paid to
                        (2002/C 289/64)                                          the applicant for the same reason;
                                                                          In any event:
                   (Language of the case: French)
                                                                          —      order the Commission to pay to the applicant
                                                                                EUR 5 000 as compensation for the non-material damage
                                                                                caused to him by the unlawful nature of the contested
                                                                                decisions;
An action against the Commission of the European Com-                     —      order the Commission to pay the costs.
mission was brought before the Court of First Instance of the
European Communities on 25 September 2002 by Miguel
Vicente-Núñez, residing in Krainem (Brussels), represented by
Marc-Albert Lucas, lawyer.                                                Pleas in law and main arguments
                                                                          The applicant in the present case, like the applicant in Case
The applicant claims that the Court should:                               T-10/99 (1), challenges the manner in which, in compliance
                                                                          with the judgment delivered in that case, the appointing
                                                                          authority finally decided to appoint him to Grade A 5, Step 3,
—    annul the decision of 17 October 2001 of the appointing              while fixing his period of service in that grade by reference to
     authority to promote the applicant to Grade A5/3+1 with              1 March 2000 rather than to 1 April 1998.
     effect from 1 April 2000 rather than to Grade A5/2+6
     on 1 April 1998;
                                                                          In support of his arguments, the applicant puts forward a
                                                                          single plea in law in which he alleges breach of the obligation
—    order the Commission to pay to the applicant by way of               to comply with the aforementioned judgment and of the
     compensation for the harm done to his career arising                 principles of equal treatment and that officials should have
     from the contested decisions an amount corresponding                 reasonable career prospects, inasmuch as the contested
     to the difference between the total remuneration received            decision leaves in place, for the period between 1 April 1998
     since 1 April 2000 until the judgment in the present case            and 1 March 2000, certain unlawful aspects criticised by the
     is delivered and the total remuneration which he should              Court of First Instance, by placing him in a less favourable
     have received during the same period if he had been                  position than his colleagues who were promoted to Grade A 5
     reclassified to Grade A5/2+6 on 1 April 1998, minus, if              during the 1998 promotion procedure for promotion from
     appropriate, the compensation already paid to the appli-             one career bracket to the next and by reducing his chances of
     cant for the same reason;                                            being promoted earlier to a higher grade.
—    order the Commission to pay to the applicant default                 (1 ) T-10/99 Vicente Núñez v Commission [2000] ECR-SC I-A-47; II-
     interest at the rate of 8 % per annum on that amount,                     203.
     with effect from the date on which that remuneration
     should have been paid to him until full payment.
In the alternative:
                                                                          Action brought on 27 September 2002 by Koninklijke
—    annul the decision of 11 June 2002 of the appointing                 BAM NBM N.V. v Commission of the European Communi-
     authority following the administrative complaint of                                                   ties
     30 January 2002 inasmuch as it grants the applicant
     compensation of EUR 1 000 for non-material damage
     and harm to his career which leaves in place its decision                                      (Case T-295/02)
     of 17 October 2001 to promote him to Grade A5/3+1
     on 1 April 2000 rather than to Grade A5/2+6 on 1 April                                         (2002/C 289/65)
     1998;
                                                                                (Language of the case: Dutch)
—    order the Commission to pay to the applicant, by way of
     making good the non-material damage caused to him as
     a result of the contested decisions, an amount correspond-           An action against Commission of the European Communities
     ing to the difference between the total of the amounts he            was brought before the Court of First Instance of the European