title: Case C-30/03: Action brought on 27 January 2003 by Commission of the European Communities against ITEC-Instituto Tecnológico para a Europa Comunitária

text:
C 70/12                EN                       Official Journal of the European Union                                       22.3.2003
than life assurance ( 1), as supplemented and amended by                Pleas in law and main arguments
Second Council Directive 88/357/EEC (2) and Third Council
Directive 92/49/EEC ( 3), and Articles 17 and 18 of First Council
Directive 79/267/EEC on the coordination of laws, regulations           Under Article 7 of the General Conditions of the Contract , the
and administrative provisions relating to the taking up and             Court of First Instance of the European Communities and, on
pursuit of the business of direct life assurance (4), as amended        appeal, the Court of Justice of the European Communities have
and supplemented by Second Council Directive 90/619/EEC (5)             jurisdiction in any action concerning the validity, application
and Third Council Directive 92/96/EEC (6), may the national             and interpretation of the contract.
legislature provide that, where an insurance company is the
subject of insolvency proceedings, is put into liquidation or is
otherwise in a state of insolvency, claims arising from an              Since the abovementioned amounts, overpaid by the Com-
employment relationship with it are satisfied from the assets           mission, have not been repaid, the defendant failed to fulfil its
which are included in its technical provisions in preference to         obligations under the contract.
claims of persons entitled to an insurance payment and of
successors to all or certain of their rights?
( 1) OJ L 228 of 16.08.1973, p. 3.
( 2) OJ L 172 of 04.07.1988, p. 1.
( 3) OJ L 228 of 11.08.1992, p. 1.
( 4) OJ L 63 of 13.03.1979, p. 1.
( 5) OJ L 330 of 29.11.1990, p. 50.                                     Action brought on 27 January 2003 by Commission
( 6) OJ L 360 of 09.12.1992, p. 1.                                      of the European Communities against ITEC-Instituto
                                                                                Tecnológico para a Europa Comunitária
                                                                                (Case C-30/03)
                                                                                (2003/C 70/20)
Action brought on 27 January 2003 by Commission
of the European Communities against ITEC-Instituto
           Tecnológico para a Europa Comunitária                        An action against ITEC-Instituto Tecnológico para a Europa
                                                                        Comunitária was brought before the Court of Justice of
                                                                        the European Communities on 27 January 2003 by the
                         (Case C-29/03)                                 Commission of the European Communities, represented by
                                                                        G. Braga da Cruz and C. Giolito, acting as Agents, with an
                                                                        address for service in Luxembourg.
                         (2003/C 70/19)
                                                                        The applicant claims that the Court should:
An action against ITEC-Instituto Tecnológico para a Europa              (a)   order the defendant to pay EUR 29 538,01, consisting of
Comunitária was brought before the Court of Justice of the                    EUR 26 105,97 as a capital amount and EUR 3 432,04
European Communities on 27 January 2003 (previously                           by way of interest until 31 December 2002 at the rate
brought before the Court of First Instance on 17 January 2003)                5,25 %;
by the Commission of the European Communities, represented
by G. Braga da Cruz and C. Giolito, acting as Agents, with an           (b)   order payment of EUR 3,75 per diem, by way of interest
address for service in Luxembourg.                                            at the same rate from 31 December 2002 until full
                                                                              payment is made;
The applicant claims that the Court should:
                                                                        (c)   order the defendant to pay the costs.
(a)   order the defendant to pay EUR 69 089,84 consisting of
      EUR 62 236,65 as a capital amount and EUR 6 853,19
      by way of interest until 31 December 2002 at the rate
                                                                        Pleas in law and main arguments
      6,28 %;
(b)   order payment of EUR 10,71 per diem, by way of interest           Under Article 12(2) of the contract, the Court of First Instance
      at the same rate from 31 December 2002 until full                 of the European Communities and, on appeal, the Court of
      payment is made;                                                  Justice of the European Communities have jurisdiction in any
                                                                        action concerning the validity, application and interpretation
(c)   order the defendant to pay the costs.                             of the contract.
 ---pagebreak--- 22.3.2003             EN                          Official Journal of the European Union                                            C 70/13
Since the abovementioned amounts, overpaid by the Com-                          ed as covering only private undertakings or undertakings
mission, have not been repaid, the defendant failed to fulfil its               which had supplied gratuitous services?
obligations under the contract.
                                                                          3.    Can Council Directive 89/665/EEC ( 5) of 21 December
                                                                                1989 on the coordination of the laws, regulations and
                                                                                administrative provisions relating to the application of
                                                                                review procedures to the award of public supply and
                                                                                public works contracts, and in particular Articles 2(1)(a)
                                                                                and 5 thereof, be interpreted as meaning that a con-
                                                                                tracting authority may exclude, up to the end of the
Reference for a preliminary ruling by the Conseil d’Etat,                       process of evaluation of the tenders, from participation in
Section d’Administration by judgment of that Court of                           the procedure or submission of a tender, an undertaking
27 December 2002 in the case of La Société Anonyme                              connected to any person who has been responsible for
                 Fabricom against l’Etat Belge                                  research, testing, study or development in respect of the
                                                                                works, supplies or services, although when questioned in
                                                                                that regard by the contracting authority that undertaking
                          (Case C-34/03)                                        declares that it has gained therefrom no unfair advantage
                                                                                of a nature such as to distort the normal conditions of
                                                                                competition?
                         (2003/C 70/21)
                                                                          (1 ) OJ L 209 of 24.07.1992, p. 1.
                                                                          (2 ) OJ L 199 of 09.08.1993, p. 1.
Reference has been made to the Court of Justice of the                    (3 ) OJ L 199 of 09.08.1993, p. 54.
European Communities by judgment of the Conseil d’Etat,                   (4 ) OJ L 328 of 28.11.1997, p. 1.
                                                                          (5 ) OJ L 395 of 30.12.1989, p. 33.
Section d’Administration (Council of State, Administrative
Section) of 27 December 2002, received at the Court Registry
on 29 January 2003, for a preliminary ruling in the case of La
Société Anonyme Fabricom against l’Etat Belge (the Belgian
State) on the following questions:
1.    Do Council Directive 92/50/EEC of 18 June 1992 relating
      to the coordination of procedures for the award of public           Action brought on 31 January 2003 by the Commission
      service contracts (1), and in particular Article 3(2) thereof,              of the European Communities against Ireland
      Council Directive 93/36/EC of 14 June 1993 coordinating
      procedures for the award of public supply contracts (2),
      and in particular Article 5(7) thereof, Council Directive                                     (Case C-35/03)
      93/37/EEC of 14 June 1993 concerning the coordination
      of procedures for the award of public works contracts (3),                                   (2003/C 70/22)
      in particular Article 6(6) thereof, and Directive 97/52/EC
      of the European Parliament and of the Council of
      13 October 1997 amending Directives 92/50/EEC, 93/
      36/EEC and 93/37/EEC concerning procedures for the
      award of public service contracts, public supply contracts          An action against Ireland was brought before the Court of
      and public works contracts ( 4), in particular Articles 2(1(b)      Justice of the European Communities on 31 January 2003 by
      and 3(1)(b) thereof, in conjunction with the principle of           the Commission of the European Communities, represented
      proportionality, freedom of trade and industry and                  by N. Yerrell, acting as agent, with an address for service in
      respect for the law of property guaranteed in particular            Luxembourg.
      by the protocol of 20 March 1992 to the Convention
      for the Protection of Human rights and Fundamental
      Freedoms, preclude the barring of the submission of an              The Applicant claims that the Court should:
      application to participate in or a tender for a public
      contract for works, supplies or services by any person              a)    find that Ireland has failed in its obligations under the EC
      who has been responsible for research, testing, study or                  Treaty by failing to adopt the laws, regulations and
      development in respect of those works, supplies or                        administrative provisions necessary to comply with
      services where that person has not been given an                          Council Directive 1999/70/EC of 28 June 1999 concern-
      opportunity to prove that, in the circumstances of the                    ing the framework agreement on fixed-term work con-
      case, the experience he has acquired could not distort                    cluded by ETUC, UNICE and CEEP ( 1), or by failing to
      competition?                                                              ensure that management and labour have introduced the
                                                                                necessary measures by agreement, and/or by failing to
2.    Would the answer to the preceding question be different if                inform the Commission thereof;
      the abovementioned directives, considered in conjunction
      with the same principle, freedom and law, were interpret-           b)    condemn Ireland to bear the costs of the procedure.


title: Case C-8/08: Judgment of the Court (Third Chamber) of 4 June 2009 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — T-Mobile Netherlands BV, KPN Mobile NV, Orange Nederland NV, Vodafone Libertel NV v Raad van bestuur van de Nederlandse Mededingingsautoriteit (Reference for a preliminary ruling — Article 81(1) EC — Concept of concerted practice — Causal connection between concerted action and the market conduct of undertakings — Appraisal in accordance with the rules of national law — Whether a single meeting is sufficient or whether concerted action on a regular basis over a long period is necessary)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/12

         Judgment of the Court (Third Chamber) of 4 June 2009 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — T-Mobile Netherlands BV, KPN Mobile NV, Orange Nederland NV, Vodafone Libertel NV v Raad van bestuur van de Nederlandse Mededingingsautoriteit
   (Case C-8/08) (1)

   (Reference for a preliminary ruling - Article 81(1) EC - Concept of ‘concerted practice’ - Causal connection between concerted action and the market conduct of undertakings - Appraisal in accordance with the rules of national law - Whether a single meeting is sufficient or whether concerted action on a regular basis over a long period is necessary)
   2009/C 180/20
   Language of the case: Dutch

      Referring court

   College van Beroep voor het bedrijfsleven

      Parties to the main proceedings

      Applicants: T-Mobile Netherlands BV, KPN Mobile NV, Orange Nederland NV, Vodafone Libertel NV

      Defendant: Raad van bestuur van de Nederlandse Mededingingsautoriteit

      Re:

   Reference for a preliminary ruling — College van Beroep voor het bedrijfsleven — Interpretation of Article 81 EC — Concept of concerted practice — Need for a causal link between the concerted action and the conduct of the undertakings on the market — Whether appraisal is to be carried out in accordance with the rules of national law — Whether one instance of concerted action is sufficient or whether concerted action on a regular basis over a lengthy period is necessary

      Operative part of the judgment

               1.

               A concerted practice pursues an anti-competitive object for the purposes of Article 81(1) EC where, according to its content and objectives and having regard to its legal and economic context, it is capable in an individual case of resulting in the prevention, restriction or distortion of competition within the common market. It is not necessary for there to be actual prevention, restriction or distortion of competition or a direct link between the concerted practice and consumer prices. An exchange of information between competitors is tainted with an anti-competitive object if the exchange is capable of removing uncertainties concerning the intended conduct of the participating undertakings.

               2.

               In examining whether there is a causal connection between the concerted practice and the market conduct of the undertakings participating in the practice — a connection which must exist if it is to be established that there is concerted practice within the meaning of Article 81(1) EC — the national court is required, subject to proof to the contrary, which it is for the undertakings concerned to adduce, to apply the presumption of a causal connection established in the Court’s case-law, according to which, where they remain active on that market, such undertakings are presumed to take account of the information exchanged with their competitors.

               3.

               In so far as the undertaking participating in the concerted action remains active on the market in question, there is a presumption of a causal connection between the concerted practice and the conduct of the undertaking on that market, even if the concerted action is the result of a meeting held by the participating undertakings on a single occasion.

      (1)  OJ C 92, 12.4.2008.


title: Joined Cases T-192/01 and T-245/04: Judgment of the Court of First Instance of 30 September 2009 — Lior v Commission and Commission v Lior (Arbitration clause — Thermie and Altener II programs — Contracts concerning renewable energy and energy saving projects — Admissibility — Claim for payment — Justification of the costs — Claim for reimbursement of advance payments — Compensation)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/34

         Judgment of the Court of First Instance of 30 September 2009 — Lior v Commission and Commission v Lior
   (Joined Cases T-192/01 and T-245/04) (1)

   (Arbitration clause - Thermie and Altener II programs - Contracts concerning renewable energy and energy saving projects - Admissibility - Claim for payment - Justification of the costs - Claim for reimbursement of advance payments - Compensation)
   2009/C 282/63
   Language of the case: French

      Parties

      Applicant in Case T-192/01: Lior GEIE (Brussels, Belgium) (represented: initially by V. Marien and J. Choucroun, then V. Marien, lawyers)

      Defendant in Case T-192/01: Commission of the European Communities (represented: initially by H. Støvlbæk, Agent and M. Bra, lawyer, then H. Støvlbæk and M. Konstantinidis, Agents and B. Wägenbaur, lawyer)

      Applicant in Case T-245/04: Commission of the European Communities

      Defendants in Case T-245/04: Lior GEIR and Lior International NV (Hoeilaart, Belgium) (represented by: V. Marien)

      Re:

   Two actions under Article 238 EC brought by Lior GEIE and the Commission respectively in pursuance of seven contracts concluded between the Commission and Lior as part of the Thermie programme and a contract concluded between the Commission and Lior as part of the Altener II programme.

      Operative part of the judgment

   The Court:

               1.

               Orders Lior GEIE to pay the Commission:

                           —

                           EUR 6 156,75 for the Biogas contract, the Biomass contract and the Maxibrochure Bioclimatic contract, together with interest from 28 February 2002 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in February 2002 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

                           —

                           EUR 16 325,11 for the Biomass contract, together with interest from 30 June 2002 at the interest rate in euros applied by the European Central Bank to its main refinancing operations from June 2002 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

                           —

                           EUR 3 980 for the Wind Energy contract, together with interest from 15 January 2002 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in January 2002 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

                           —

                           EUR 36 000 for the Transport contract, together with interest from 31 August 2001 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in August 2001 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

                           —

                           EUR 36 000for the Photovoltaic contract together with interest from 31 August 2001 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in August 2001 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment.

               2.

               Orders Lior to pay the Commission EUR 32 800 for the Agores contract together with interest from 28 February 2003 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in February 2003 increased by 1.5 percentage points until full payment.

               3.

               Declares that there is no need to give a ruling on the Commission's form of order in Case T-245/04 seeking an order that Lior International NV is jointly and severally liable for the payment of the sums owed by Lior.

               4.

               Orders Lior to pay, in addition to its own costs relating to the main proceedings in Joined Cases T-192/01 and T-245/04, one quarter of the Commission's costs relating to those proceedings.

               5.

               Orders Lior to bear all the costs relating to the application for interim relief in Case T-192/01 R.

               6.

               Orders the Commission to bear three-quarters of its own costs relating to the main proceedings in Case T-192/01 and three-quarters of its own costs relating to the proceedings brought against Lior in Case T-245/04.

               7.

               Orders the Commission to bear its own costs relating to the action against Lior International in Case T-245/04.

               8.

               Orders Lior International to bear its own costs.

      (1)  OJ C 303, of 27.10.2001.


title: Judgment of the Court of First Instance of 6 March 2003 in Cases T-228/99 and T-233/99: Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission of the European Communities (State aid — Commission's lack of competence — Infringement of the rights of the defence — Infringement of essential procedural requirements — Concept of aid — Infringement of Articles 87 EC and 295 EC — Market economy investor — Appropriate rate of remuneration — Infringement of the obligation to state reasons)

text:
24.5.2003                 EN                        Official Journal of the European Union                                               C 124/17
                                                         COURT OF FIRST INSTANCE
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                           of 6 March 2003                                                             of 6 March 2003
in Cases T-228/99 and T-233/99: Westdeutsche Landes-                        in Joined Cases T-61/00 and T-62/00: Associazione Pro-
bank Girozentrale and Land Nordrhein-Westfalen v Com-                       duttori Olivicoli Laziali (APOL) and Associazione Italiana
           mission of the European Communities (1)                          Produattori Olivicoli (AIPO) v Commission of the Euro-
                                                                                pean Communities (1)
(State aid — Commission’s lack of competence — Infringe-
                                                                            (Agriculture — EAGF — Regulation (EEC) No 355/77
ment of the rights of the defence — Infringement of essential
                                                                            — Regulation (EEC) No 4253/88 Community Financial
procedural requirements — Concept of aid — Infringement                     Assistance — Aid for the processing and marketing of
of Articles 87 EC and 295 EC — Market economy investor
                                                                            agricultural products — Procedure to annul aid — Failure
— Appropriate rate of remuneration — Infringement of the
                                                                            to comply with the conditions of grant — Force majeure —
                      obligation to state reasons)
                                                                                Principle of proportionality)
                           (2003/C 124/28)                                                             (2003/C 124/29)
                     (Language of the case: German)                                              (Language of the case: Italian)
In Cases T-228/99 and T-233/99: Westdeutsche Landesbank                     In Joined Cases T-61/00 and T-62/00: Associazione Produttori
Girozentrale, established in Düsseldorf (Germany), represented              Olivicoli Laziali (APOL), established in Rome, Associazione
by F. Montag, lawyer, with an address for service in Luxem-                 Italiana Produttori Olivicoli (AIPO), established in Rome,
bourg, and Land Nordrhein-Westfalen, represented by                         represented by E. Cappelli, P. de Caterini, F. Lepri and
M. Schütte, lawyer, with an address for service in Luxembourg,              R. Vaccarella, lawyers, with an address for service in Luxem-
supported by Federal Republic of Germany (Agents: W.-                       bourg, against Commission of the European Communities
D. Plessing, assisted by H.-F. Wissel), against Commission of               (Agents: C. Cattabriga and M. Moretto)
the European Communities (Agents: K.-D. Borchardt and V.
Kreuschitz) supported by Bundesverband deutscher Banken eV,                 —      application, in Case T-61/00, for annulment of Decision C
established in Berlin (Germany), represented by H.-J. Niemeyer,                    (1999) 4561 of the Commission, of 14 December 1999,
lawyer — application for annulment of Commission Decision                          withdrawing the financial contribution granted from the
2000/392/EC of 8 July 1999 on a measure implemented by                             European Agricultural Guidance and Guarantee Fund to
the Federal Republic of Germany for Westdeutsche Landesbank                        the applicant by Decision C (84) 1100/293 of the
— Girozentrale (WestLB) (OJ 2000 L 150, p. 1) — the Court                          Commission, of 20 December 1984,
of First Instance (Second Chamber, Extended Composition),
composed of R.M. Moura Ramos, President, V. Tiili, J. Pirrung,              —      in Case T-62/00, for annulment of Decision C (1999)
P. Mengozzi and A.W.H. Meij, Judges; D. Christensen, Adminis-                      4559 of the Commission, of 14 December 1999, with-
trator, for the Registrar, has given a judgment on 6 March                         drawing the financial contribution from the European
2003, in which it:                                                                 Agricultural Guidance and Guarantee Fund granted to the
                                                                                applicant by Decision C (84) 500/213 of the Commission,
                                                                                of 29 June 1984
1.     Annuls Commission Decision 2000/392/EC of 8 July 1999
       on a measure implemented by the Federal Republic of Germany          the Court of First Instance (Second Chamber), composed of
       for Westdeutsche Landesbank — Girozentrale (WestLB);                 R.M. Moura Ramos, President, and J, Pirrung and A.W.H. Meiji,
                                                                            Judges; J. Palacio Gonzàlez, Principle Administrator, for the
2.     Orders the Commission to pay the costs of the applicants and         Registrar, has given a judgment on 6 March 2003, in which it:
       to bear its own costs;
                                                                            1.     Dismisses the applications;
3.     Orders the Federal Republic of Germany and the Bundesverband
       deutscher Banken eV to bear their own costs.                         2.     In each case, orders the applicant concerned to bear all the costs.
( 1) OJ C 6 of 8.1.2000.                                                    (1 ) OJ C 135 of 13.5.2000.


title: Case C-44/09: Action brought on 30 January 2009 — Commission of the European Communities v Hellenic Republic

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/29

         Action brought on 30 January 2009 — Commission of the European Communities v Hellenic Republic
   (Case C-44/09)
   (2009/C 69/54)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: M. van Beek and M. Karanasou-Apostolopoulou)

      Defendant: Hellenic Republic
   Form of order sought

               —

               declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/113/EC (1) of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, or in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;

               —

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments
   The time-limit for transposition of Directive 2004/113/EC into domestic law expired on 21 December 2007.

      (1)  OJ L 373 of 21.12.2004, p. 37.


title: Case T-317/07: Judgment of the Court of First Instance of 19 November 2008 — Commission v B2 Test (Arbitration clause — Contract concluded in the framework of the specific programme for research and technological development, including demonstration, in the field of industrial and materials technologies (1994-1998) — Breach of contract — Repayment of balance of advance paid by the Commission)

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/27

         Judgment of the Court of First Instance of 19 November 2008 — Commission v B2 Test
   (Case T-317/07) (1)

   (Arbitration clause - Contract concluded in the framework of the specific programme for research and technological development, including demonstration, in the field of industrial and materials technologies (1994-1998) - Breach of contract - Repayment of balance of advance paid by the Commission)
   (2009/C 6/55)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: L. Escobar Guerrero, Agent, assisted by E. Boutier and J. Marthan, lawyers)

      Defendant: B2 Test SA (Gardanne, France) (represented by: M. Baffert, lawyer)
   Re:
   Application under Article 238 EC seeking to obtain repayment of the balance of the advance paid by the European Community, plus late-payment interest thereon, in the framework of the contract BRST-CT-98-5452, and the payment of damages with interest.
   Operative part of the judgment
   The Court:

               1.

               Orders B2 Test SA to repay to the Commission the principal sum of EUR 43 437,94, increased by late-payment interest at the statutory annual rate applicable in France, from 31 July 2002 until the debt has been paid in full;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders B2 Test to pay the costs.

      (1)  OJ C 269, 10.11.2007.


title: Case C-213/03: Reference for a preliminary ruling by the Cour de cassation (France), First Civil Chamber, by order of that court of 6 May 2003 in the case of Syndicat professionnel coordination des pêcheurs de l'Etang de Berre et de la région against Électricité de France

text:
C 158/18                EN                       Official Journal of the European Union                                              5.7.2003
The Commission considers that no argument justifies the                         medicinal products authorised in France or in the Member
existence of the prior authorisation procedure at issue. First, it              State of export or than in the case of homeopathic
cannot be justified by concern to ascertain that the medicinal                  medicinal products registered in a Member State. Never-
product has been manufactured according to the good prac-                       theless, while acknowledging that a prior authorisation
tices laid down by Community legislation. The imported                          procedure may be justified, in principle, in the case of
medicinal product has been authorised or registered in the                      personal imports of such products, that procedure should
Member State of export, which is responsible for ensuring                       be easily accessible, carried out within a reasonable period
compliance with those good practices. Any additional check                      and culminate in an authorisation for the importation of
carried out in France would be contrary to the principle of                     medicinal products not posing any risk to public health.
mutual recognition and the objective of ensuring the free                       However, the prior authorisation procedure applied by
movement of medicinal products. Secondly, with regard to                        France to personal imports of medicinal products does
possible justification on other grounds of protection of health,                not comply with those criteria and is therefore dispro-
it is necessary, in the Commission’s view, to distinguish                       portionate to the objective to be attained.
between three types of medicinal products:
                                                                         (1 ) Council Directive 65/65/EEC of 26 January 1965 on the approxi-
—     medicinal products authorised pursuant to amended                       mation of provisions laid down by law, regulation or administrat-
      Directive 65/65, then pursuant to Directive 2001/83/EC,                 ive action relating to proprietary medicinal products (OJ, English
      both in France and in the Member State where they are                   Special Edition 1965-1966, p. 20).
      purchased (or covered by an authorisation to place them            (2 ) Directive 2001/83/EC of the European Parliament and of the
                                                                              Council of 6 November 2001 on the Community code relating to
      on the Community market (marketing authorisation)).
                                                                              medicinal products for human use (OJ L 311, 28.11.2001, p. 67).
      The French authorities have acknowledged that an import            (3 ) Council Directive 92/73/EC of 22 September 1992 widening
      authorisation was required in the case of personal import-              the scope of Directives 65/65/EEC and 75/319/EEC on the
      ation of medicinal products covered by a marketing                      approximation of provisions laid down by law, regulation or
      authorisation in France. However, in view of the advanced               administrative action relating to medicinal products and laying
      state of harmonisation achieved in the pharmaceutical                   down additional provisions on homeopathic medicinal products
      products sector, in that type of case important guarantees              (OJ L 297, 13.10.1992, p. 8).
      of protection of the health of patients are satisfied. In
      addition, there is the fact that importation will take place
      only following the issue of a lawful medical prescription
      and in quantities not exceeding the needs of the treatment.
      It follows that the prior authorisation procedure at issue
      is not justified.
—     homeopathic medicinal products registered in a Member
      State pursuant to Directive 92/73/EEC, replaced by
      Directive 2001/83/EC. When a homeopathic medicinal
      product is registered in a Member State, it does not in            Reference for a preliminary ruling by the Cour de
      principle pose any risk to health, especially given the fact       cassation (France), First Civil Chamber, by order of that
      that the rules on the manufacture, control and inspection          court of 6 May 2003 in the case of Syndicat professionnel
      of that type of medicinal product have been harmonised.            coordination des pêcheurs de l’Etang de Berre et de la
      In addition, Directive 92/73/EEC has liberalised patients’                        région against Électricité de France
      access to the medicinal products of their choice. A prior
      authorisation procedure for personal importation of
      registered homeopathic medicinal products is therefore                                         (Case C-213/03)
      manifestly unjustified.
                                                                                (2003/C 158/30)
—     medicinal products not authorised in France, but author-
      ised in the Member State where they are purchased. The
      prior authorisation procedure at issue does not constitute
      a measure necessary for the purpose of combating the
      risk of fraud or misuse of the marketing authorisation
      mechanism, since the general legislation making the                Reference has been made to the Court of Justice of the
      importation of medicinal products to be marketed subject           European Communities by order of the Cour de cassation
      to prior authorisation, as well as the on-the-spot checks,         (Court of Cassation) (France), First Civil Chamber, received at
      are sufficient to combat illegal imports of medicinal              the Court Registry on 19 May 2003, for a preliminary ruling
      products. However, from the point of view of the                   in the case of Syndicat professionnel coordination des pêcheurs
      protection of public health, the case of imports relating          de l’Etang de Berre et de la région (Trade association coordinat-
      to medicinal products not authorised in France may                 ing fishermen of the Etang de Berre and the area) against
      justify a more qualified approach than the case of                 Electricité de France on the following questions:
 ---pagebreak--- 5.7.2003              EN                          Official Journal of the European Union                                             C 158/19
1.   Must Article 6(3) of the Athens Protocol of 17 May 1980                    2.     by failing to include in the relevant Austrian legal
     for the protection of the Mediterranean Sea against                               provisions (Luftreinhaltegesetz für Kesselanlagen —
     pollution from land-based sources (the Barcelona Con-                             LRG-K and LRV-K) (law on air purity for boiler
     vention), which has become Article 6(1) in the revised                            plants) the definitions of ’new plant’ and ’existing
     version, be held to have direct effect, so that any interested                    plant’ as set out in Article 2.9 and 2.10 of the
     party may rely on it before the national courts in an action                      directive;
     to halt discharges of water which are not authorised in
     accordance with the procedure and criteria which it                        3.     by failing fully, in particular by reason of the
     prescribes?                                                                       divergence of the Austrian definition of fuel from
                                                                                that set out in Article 2.6 of the directive, to
                                                                                incorporate in the relevant air-purity legislation the
2.   Must the same provision be interpreted to mean that it                            emission limit values for sulphur dioxide, oxides of
     prohibits the discharge into a saltwater marsh communi-                           nitrogen and dust laid down in Article 4.1 in
     cating with the Mediterranean Sea of substances which,                            conjunction with Annexes III to VII to the directive;
     although not toxic, adversely affect the oxygen content
     of the marine environment, without an authorisation                        4.     by failing correctly to transpose in the LRG-K
     issued by the competent authorities of the Member States,                         and LRV-K Article 9(2) and (3) of the directive
     taking into account the provisions of the abovementioned                          concerning the calculation of the emission limit
     Protocol and of Annex III C thereto (now Annex II)?                               value in multi-fuel firing units which use distillation
                                                                                and conversion residues from crude-oil refining for
                                                                                own consumption, alone or with other fuels,
                                                                                the Republic of Austria has failed to fulfil its obligations
                                                                                under Articles 2.6, 2.8, 2.9, 2.10 and 10(4)(1) of Directive
                                                                                88/609, in conjunction with Annexes III to VII thereto
                                                                                and Article 9(2) and (3) of that directive;
                                                                          II.   Order the Republic of Austria to pay the costs of the
                                                                                proceedings.
Action brought on 19 May 2003 by the Commission
of the European Communities against the Republic of
                              Austria                                     Pleas in law and main arguments
                                                                          The Commission finds that the Republic of Austria has failed
                                                                          to fulfil its obligations by failing to bring its national law into
                       (Case C-214/03)
                                                                          line with the directive, which was thus improperly and
                                                                          incompletely transposed, in so far as:
                       (2003/C 158/31)                                    —     it failed correctly to transpose Article 2.8 of the directive
                                                                                relating to the term ‘multi-fuel firing unit’ by restricting
                                                                                the term, in a manner not envisaged in the directive,
                                                                                to units in which the percentage of additional fuels
                                                                                contributing to the thermal input amounts to at least
An action against the Republic of Austria was brought before                    20 % and thus restricting the scope of the directive in
the Court of Justice of the European Communities on 19 May                      that regard;
2003 by the Commission of the European Communities,
                                                                          —     it failed to transpose Article 2.9 and 2.10 of the directive
represented by Josef Christian Schieferer and Gregorio Valero
                                                                                with regard to the definitions of ‘new plant’ and ‘existing
Jordana, of the Commission’s Legal Service, acting as Agents,
                                                                                plant’;
with an address for service in Luxembourg.
                                                                          —     it failed fully to give effect to the emission limit values for
                                                                                sulphur dioxide, oxides of nitrogen and dust in accord-
                                                                                ance with Article 4(1) in conjunction with Annexes III
The applicant claims that the Court should:
                                                                                to VII, particularly in light of the definition of fuel,
                                                                                which in the Austrian legal provisions is confined to
I.   Rule that:                                                                 ‘conventional fuels’, as a result of which only partial effect
                                                                                is given to the scope of the directive;
     1.   by laying down in paragraph 22(1) of the Luft-
          reinhalteverordnung für Kesselanlagen (regulation               —     it failed correctly to transpose Article 9(2) and (3) of the
          on air purity for boiler plants) (LRV-K) a definition                 directive with regard to the calculation of the limit values
          of ’multi-fuel firing unit’ that departs from Article 2.8             for multi-fuel firing units in refineries.
          of Council Directive 88/609/EEC of 24 November
          1988 on the limitation of emissions of certain                  (1 ) OJ 1988 L 336, p. 1.
          pollutants into the air from large combustion plants,
          as amended (1);


title: Case T-28/06: Judgment of the Court of First Instance of 6 November 2007 — RheinfelsQuellen H. Hövelmann v OHIM (VOM URSPRUNG HER VOLLKOMMEN) (Community trade mark — Application for the Community word mark VOM URSPRUNG HER VOLLKOMMEN — Absolute grounds for refusal — Descriptive character — Article 7(1)(b) and 7(1)(c) of Regulation (EC) No 40/94)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/36

         Judgment of the Court of First Instance of 6 November 2007 — RheinfelsQuellen H. Hövelmann v OHIM (VOM URSPRUNG HER VOLLKOMMEN)
   (Case T-28/06) (1)

   (Community trade mark - Application for the Community word mark VOM URSPRUNG HER VOLLKOMMEN - Absolute grounds for refusal - Descriptive character - Article 7(1)(b) and 7(1)(c) of Regulation (EC) No 40/94)
   (2007/C 315/68)
   Language of the case: German
   Parties

      Applicant: RheinfelsQuellen H. Hövelmann GmbH & Co. KG, Duisburg, Germany, (represented by: W. Kellenter and A. Lambrecht, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, acting as Agent)
   Re:
   Appeal against the decision of the Second Board of Appeal of OHIM of 17 November 2005 (Case R 1179/2004-2) concerning an application for registration of the word mark VOM URSPRUNG HER VOLKOMMEN as a Community trade mark
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders RheinfelsQuellen H. Hövelmann GmbH & Co. KG to pay the costs.

      (1)  OJ C 86, 8.4.2006.


title: Case C-389/06: Order of the President of the Sixth Chamber of the Court of 11 September 2007 — Commission of the European Communities v Kingdom of Belgium

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/33

         Order of the President of the Sixth Chamber of the Court of 11 September 2007 — Commission of the European Communities v Kingdom of Belgium
   (Case C-389/06) (1)

   (2007/C 297/55)

      Language of the case: French

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

      (1)  OJ C 261, 28.10.2006.


title: Case T-101/10: Order of the General Court of 19 March 2012 — Poland v Commission

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/28

         Order of the General Court of 19 March 2012 — Poland v Commission
   (Case T-101/10) (1)

   2012/C 133/55
   Language of the case: Polish
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  C 113, 1.5.2010.


title: Case T-289/07: Action brought on 30 July 2007 — Caisse Nationale des Caisses d'Épargne et de Prévoyance v Commission

text:
               6.10.2007

               EN

               Official Journal of the European Union

               C 235/18

         Action brought on 30 July 2007 — Caisse Nationale des Caisses d'Épargne et de Prévoyance v Commission
   (Case T-289/07)
   (2007/C 235/32)
   Language of the case: French
   Parties

      Applicant: Caisse Nationale des Caisses d'Épargne et de Prévoyance (CNCEP) (Paris, France) (represented by: F. Sureau, D. Théophile and É. Renaudeau, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annulment of Commission Decision C(2007) 2110 final of 10 May 2007 pursuant to Article 86(3) of the EC Treaty on the special rights granted to La Banque Postale, Caisses d'Épargne and Crédit Mutuel for the distribution of the livret A and livret bleu;

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   By this action, the applicant seeks annulment of Commission Decision C(2007) 2110 final of 10 May 2007 declaring the provisions of the French Code Monétaire et Financier which give three credit institutions, La Banque Postale, Caisses d'Épargne et de Prévoyance and Crédit Mutuel, special rights for the distribution of the livret A and livret bleu to be incompatible with Article 86(1) EC in conjunction with Articles 43 EC and 49 EC.
   In support of its action, the applicant raises six pleas in law.
   The first plea alleges infringement of essential procedural requirements in that the Commission did not respect the applicant's rights of the defence and in that the decision is vitiated by a lack of reasoning.
   On the substance, the applicant alleges that the Commission erred in law in taking the view that the special rights for the distribution of the livret A and livret bleu constituted, per se, a restriction on the freedom of establishment. According to the applicant, the Commission committed an error of assessment in taking the view that those special rights, in practice, rendered the exercise of Community freedoms in France less attractive.
   Furthermore, the applicant alleges that the contested decision is vitiated by errors of law and of assessment in that the Commission took the view that the special rights could not be justified under Article 86(2) EC, and by a error of assessment in that it took the view that they could not be justified on grounds of compelling reasons in the public interest.
   Finally, the applicant submits that the Commission erred by evaluating the national measure at issue in the light of the principle of the freedom to supply services.


title: Case C-468/11: Action brought on 13 September 2011 — European Commission v Kingdom of Spain

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/11

         Action brought on 13 September 2011 — European Commission v Kingdom of Spain
   (Case C-468/11)
   2011/C 340/19
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: G. Braun and S. Pardo Quintillán, acting as Agents)

      Defendant: Kingdom of Spain

      Form of order sought

               —

               Declare that:

                           —

                           by imposing on undertakings which supply a service or provide a network under the general authorisation a charge intended to finance the Spanish radio and television broadcasting corporation (Corporación de Radio y Televisión Española ‘RTVE’), establishing in that regard a series of conditions and exceptions as well as certain mechanisms for the transfer of surplus income, and

                           —

                           by failing to give notice in an appropriate manner of its intention to make amendments relating to general authorisations and by failing to allow interested parties, including users and consumers, a sufficient period of time to express their views on the proposed amendments,

                     the Kingdom of Spain has failed to fulfil its obligations under Articles 12 and 14(1) of Directive 2002/20/EC (1) of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive);

               —

               order the Kingdom of Spain to pay the costs.

      Pleas in law and main arguments

   The Commission maintains that Article 5 of the RTVE Law is not compatible with the provision made in Article 12 of the Authorisation Directive. Under Article 5 of the RTVE Law, the Spanish authorities have established a charge (which they call a contribution (‘aportación’)), which is levied on gross receipts of operators of electronic communications with a given geographic scope, without paying due regard to the principles and requirements laid down in Article 12 of the Authorisation Directive.
   The Commission considers that, in failing to give notice in an appropriate manner of its intention to make amendments relating to general authorisations and by failing to allow interested parties, including users and consumers, a sufficient period of time to express their views on the proposed amendments, the Kingdom of Spain has failed to fulfil the obligations laid down by Article 14(1) of the Authorisation Directive.

      (1)  OJ 2002 L 108, p. 21.


title: Case T-581/08: Judgment of the General Court of 27 September 2011 — Perusahaan Otomobil Nasional v OHIM — Proton Motor Fuel Cell (PM PROTON MOTOR) (Community trade mark — Opposition proceedings — Application for the Community figurative mark PM PROTON MOTOR — Earlier national, Benelux and Community word and figurative marks PROTON — Relative grounds for refusal — No likelihood of confusion — Lack of similarity between the goods and services — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Article 8(5) of Regulation No 40/94 (now Article 8(5) of Regulation No 207/2009))

text:
               12.11.2011

               EN

               Official Journal of the European Union

               C 331/17

         Judgment of the General Court of 27 September 2011 — Perusahaan Otomobil Nasional v OHIM — Proton Motor Fuel Cell (PM PROTON MOTOR)
   (Case T-581/08) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark PM PROTON MOTOR - Earlier national, Benelux and Community word and figurative marks PROTON - Relative grounds for refusal - No likelihood of confusion - Lack of similarity between the goods and services - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Article 8(5) of Regulation No 40/94 (now Article 8(5) of Regulation No 207/2009))
   2011/C 331/31
   Language of the case: English

      Parties

      Applicant: Perusahaan Otomobil Nasional Sdn Bhd (Shah Alam, Selangor Darul Ehsan, Malaysia) (represented by: J. Blind, C. Kleiner and S. Ziegler, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Proton Motor Fuel Cell GmbH (Puchheim, Germany) (represented by: C. Sedlmeir, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 9 October 2008 (Case R 1675/2007-1) concerning opposition proceedings between Perusahaan Otomobil Nasional Sdn Bhd and Proton Motor Fuel Cell GmbH.

      Operative part of the judgment

   The General Court:

               1.

               Dismisses the action;

               2.

               Orders Perusahaan Otomobil Nasional Sdn Bhd to pay the costs.

      (1)  OJ C 69, 21.3.2009.


title: Case C-140/11: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 21 March 2011 — Criminal proceedings against Demba Ngagne

text:
               21.5.2011

               EN

               Official Journal of the European Union

               C 152/16

         Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 21 March 2011 — Criminal proceedings against Demba Ngagne
   (Case C-140/11)
   2011/C 152/28
   Language of the case: Italian

      Referring court

   Corte Suprema di Cassazione

      Party to the main proceedings

   Demba Ngagne

      Questions referred

               1.

               Must Article 7(1) and (4), Article 8(1), (3) and (4), and Article 15(1) of Directive 2008/115/EC (1) be construed as precluding a Member State from ordering a non-national who is unlawfully present on its territory to depart from that territory when it is not possible to proceed by means of deportation, whether immediate or following detention, thereby reversing the priorities and the order of procedure laid down in those provisions?

               2.

               Must Article 15(1), (4), (5) and (6) of Directive 2008/115/EC accordingly be construed as precluding a Member State from providing, as a consequence of unjustifiable non-cooperation on the part of a non-national in his own voluntary return, and on that ground alone, that that person is to be charged with an offence punishable by a custodial sentence (imprisonment) which is (up to 10 times) longer than the period of pre-deportation detention, which is no longer possible, or objectively impossible, to apply?

               3.

               Can Article 2(2)(b) of Directive 2008/115/EC be construed, in the light of Article 8 of that directive and the common policy areas identified, in particular, by Article 79 TFEU, as meaning that it is sufficient for the Member State to decide to categorise as a crime the non-national’s non-cooperation in his own voluntary return, because the directive does not apply?

               4.

               Must, on the contrary, Article 2(2)(b) and Article 15(4), (5) and (6) of Directive 2008/115/EC be construed, in the light of Article 5 of the ECHR, as precluding a non-national who is unlawfully present on the national territory and in whose case pre-deportation detention is objectively impossible, or no longer possible, from being subjected to a spiral of voluntary departure orders and restrictions on his freedom, the legal basis for which is the fact that his disobedience of those orders is categorised as a punishable offence?

               5.

               In conclusion, is it possible to assert — in the light of recital 10 [in the preamble to Directive 2008/115/EC], the earlier version of Article 23 of the Convention implementing the Schengen Agreement, the recommendations and guidelines referred to in the preamble to Directive 2008/115/EC, and Article 5 of the ECHR — that Article 7(1) and (4), Article 8(1), (3) and (4), and Article 15(1), (4), (5) and (6) confer the status of a binding rule on the principles that the restriction of freedom for the purposes of repatriation falls to be regarded as an extreme measure (extrema ratio) and that no custodial measure is justified where it is linked to a deportation procedure in relation to which there is no reasonable prospect of return?

      (1)  OJ 2008 L 348, p. 98.


title: Case T-608/11: Judgment of the General Court of 27 June 2013 — Beifa Group v OHIM — Schwan-Stabilo Schwanhäußer (Instrument for writing) (Community design — Invalidity proceedings — Registered Community design representing an instrument for writing — Earlier national figurative and three-dimensional trade marks — Ground for invalidity — Use in the Community design of an earlier sign the holder of which has the right to prohibit such use — Article 25(1)(e) of Regulation (EC) No 6/2002 — Decision taken following the annulment by the General Court of an earlier decision)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/74

         Judgment of the General Court of 27 June 2013 — Beifa Group v OHIM — Schwan-Stabilo Schwanhäußer (Instrument for writing)
   (Case T-608/11) (1)

   (Community design - Invalidity proceedings - Registered Community design representing an instrument for writing - Earlier national figurative and three-dimensional trade marks - Ground for invalidity - Use in the Community design of an earlier sign the holder of which has the right to prohibit such use - Article 25(1)(e) of Regulation (EC) No 6/2002 - Decision taken following the annulment by the General Court of an earlier decision)
   2013/C 225/163
   Language of the case: English

      Parties

      Applicant: Beifa Group Co. Ltd (Ningbo, China) (represented by: R. Davis, Barrister, N. Cordell, Solicitor, and B. Longstaff, Barrister)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Schwan-Stabilo Schwanhäußer GmbH & Co. KG (Heroldsberg, Germany) (represented by: H. Gauß and U. Blumenröder, lawyers)

      Re:

   Action brought against the decision of the Third Board of Appeal of OHIM of 9 August 2011 (Case R 1838/2010-3) relating to invalidity proceedings between Schwan-Stabilo Schwanhäußer GmbH & Co. KG and Ningbo Beifa Group Co., Ltd.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Beifa Group Co. Ltd to pay the costs.

      (1)  OJ C 32, 4.2.2012.


title: Case C-378/02: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 18 October 2002 in the case of Waterschap Zeeuws Vlaanderen against Staatssecretaris van Financiën

text:
C 7/10                  EN                    Official Journal of the European Communities                                        11.1.2003
            trade that approaches trade without restrictions in          Reference for a preliminary ruling by the Hoge Raad der
            so far as it is included in the system introduced by         Nederlanden by judgment of that Court of 18 October
            Regulation 1637/98, the import of bananas being              2002 in the case of Waterschap Zeeuws Vlaanderen
            regulated solely on the basis of a tariff quota;                           against Staatssecretaris van Financiën
      —     introduce a tariff quota for a total quantity of
            2 535 000 tonnes for third countries and for non-
            traditional ACP bananas and then allocate that tariff                                   (Case C-378/02)
            quota in percentage terms on the basis of a non-
            representative period, since the import of bananas
            in the period from 1994 to 1996 was already subject
            to restrictive conditions?
                                                                                (2003/C 7/17)
2.    Do the regulations referred to in paragraph 1 infringe
      Article 4 of the Framework Agreement of 23 April 1993
      between the European Economic Community and the
      Cartagena Group and its member countries inasmuch as
      by that agreement, the European Community undertook
      to have its relations with Ecuador governed by the
      provisions of GATT and to grant that country most-
      favoured-nation treatment?                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by judgment of the Hoge Raad der
                                                                         Nederlanden (Supreme Court of the Netherlands) of 18 Octo-
                                                                         ber 2002, received at the Court Registry on 21 October 2002,
3.    Do the Commission regulations referred to in paragraph 1           for a preliminary ruling in the case of Waterschap Zeeuws
      infringe the principle of the protection of legitimate             Vlaanderen against Staatssecretaris van Financiën on the
      expectations and the principle of good faith in inter-             following questions:
      national public law and international customary law,
      inasmuch as the Commission has not fulfilled the obli-
      gations arising for the Community from GATT 1994, has
      misused legal procedures and has not taken account of              1.     Does a body governed by public law have, as regards a
      judicial proceedings and of the outcome of an inter-                      capital item acquired by it which it supplies for consider-
      national dispute settlement procedure inasmuch as,
                                                                                ation to a third party, in respect of which supply it must
      despite declarations made at the time of the adoption of                  be regarded as a taxable person, a right to adjust the
      Regulation No 1637/98, it has not established a system
                                                                                turnover tax paid in respect of that acquisition pursuant
      under which import licences for bananas are issued to
                                                                                to Article 20 (in particular paragraphs 2 and 3) of the
      ‘genuine importers’?                                                      Sixth Directive (1) in so far as it has used that item for
                                                                                activities in which it engages as a public authority under
                                                                                Article 4(5) of that directive?
4.    Has the Commission exceeded the authority given to it
      by Council Regulation No 404/93, as amended by
      Regulation No 1637/98, by adopting the tariff quota for
      the import of bananas while disregarding the obligations           2.     Does a body governed by public law have, under the
      which arise for the Community from GATT 1994 and                          Sixth Directive, the right wholly to exclude a capital item
      GATS or which must, where appropriate, be taken into                      used partly for activities engaged in as a taxable person
      account, because of its avowed intention to adapt the                     and partly for activities engaged in as a public authority
      regime for the import of bananas into the Community to                    from its capital assets, as the Court of Justice has ruled in
      the applicable WTO agreements, as a positive rule of law                  respect of taxable natural persons?
      to be integrated into Community law?
( 1) OJ L 47 [1993], p. 1.                                               (1 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
( 2) OJ L 210 [1998], p. 28.                                                  harmonization of the laws of the Member States relating to
( 3) OJ L 293 [1998], p. 32.                                                  turnover taxes — Common system of value added tax: uniform
( 4) OJ L 349 [1998], p. 32.                                                  basis of assessment (OJ L 145 of 13.06.1977, p. 1).
( 5) OJ L 11 [1999], p. 16.
( 6) OJ L 75 [1999], p. 18.


title: Case T-325/15: Action brought on 22 June 2015 — Sun System Kereskedelmi és Szolgáltató v OHIM — Hollandimpex Kereskedelmi és Szolgáltató (Choco Love)

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/41

         Action brought on 22 June 2015 — Sun System Kereskedelmi és Szolgáltató v OHIM — Hollandimpex Kereskedelmi és Szolgáltató (Choco Love)
   (Case T-325/15)
   (2015/C 279/51)
   Language in which the application was lodged: English

      Parties

      Applicant: Sun System Kereskedelmi és Szolgáltató kft (Budapest, Hungary) (represented by: Á. László, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Hollandimpex Kereskedelmi és Szolgáltató kft (Budapest, Hungary)

      Details of the proceedings before OHIM

      Applicant: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: Community figurative mark containing the word elements ‘Choco love’ — Community trade mark application No 11 496 916

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 26 March 2015 in Case R 1369/2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               uphold the application, alter the contested decision by accepting the opposition and reject the Community trade mark application ‘Choco love’; or in the alternative:

               —

               annul the contested decision and remit the case to OHIM for reexamination;

               —

               order OHIM to pay the applicant’s costs.

      Plea in law

               —

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


21.4.2001             EN                      Official Journal of the European Communities                                  C 118/43
Pleas in law and main arguments                                                InformationRemoval from the Register of Case
                                                                                T-116/98 (1)
The defendant, an official in Grade A 3, contests the decision                                  (2001/C 118/116)
of the appointing authority, taken in the context of the
reorganisation of DG SANCO, to reassign him to the post of
Adviser to the Head of Unit of Directorate D (Unit D4) ‘Food                               (Language of the case: Spanish)
law and biotechnology’, despite the fact that until then he had
carried out those duties for the Director General.
                                                                         By order of 14 December 2000, the President of the Second
                                                                         Chamber of the Court of First Instance of the European
He explains in that regard that his appointment to the post of           Communities has ordered the removal from the Register of
adviser to the Director General was the result of an agreement           Case T-116/98, Compañı́a Trasmediterránea, S.A. v Com-
signed on 6 July 1993 between the applicant himself and the              mission of the European Communities.
Director General of DG Administration (formerly DG IX).
                                                                         (1) OJ C 340 of 7.11.98.
In support of his arguments, the applicant alleges the following
infringements:
—     infringement of the Staff Regulations, in particular
      Article 7(1), and the second and third paragraphs of
      Article 25, as well as failure to observe a number of
      general principles of law, such as the protection of                     Removal from the Register of Case T-244/99 (1)
      legitimate expectations, legal certainty, the duty to have
      regard for the welfare of officials, the principle pacta sunt                             (2001/C 118/117)
      observanda and those which require the appointing
      authority to adopt decisions only on the basis of relevant
      factors which are not vitiated by errors of fact or law.                              (Language of the case: Italian)
—     infringement of rules common to the Member States with             By order of 12 December 2000, the President of the Fifth
      regard to performance of contracts.                                Chamber of the Court of First Instance of the European
                                                                         Communities has ordered the removal from the Register of
                                                                         Case T-244/99, Sadam Abruzzo SpA v Commission of the
                                                                         European Communities.
                                                                         (1) OJ C 20 of 22.10.2000.
       Removal from the Register of Case T-205/96 (1)
                       (2001/C 118/115)                                        Removal from the Register of Case T-245/99 (1)
                                                                                (2001/C 118/118)
                   (Language of the case: French)
                                                                                (Language of the case: Italian)
By order of 15 January 2001, the Court of First Instance of the
European Communities (Single Judge: J. Azizi), has ordered the           By order of 12 December 2000, the President of the Fifth
removal from the Register of Case T-205/96, Roland Bieber                Chamber of the Court of First Instance of the European
v European Parliament.                                                   Communities has ordered the removal from the Register of
                                                                         Case T-245/99, Sadam Castiglionese SpA v Commission of
                                                                         the European Communities.
(1) OJ C 54 of 22.2.1997.
                                                                         (1) OJ C 20 of 22.01.2000.


title: Judgment of the Court of 21 September 1999 in Case C-67/96 (reference for a preliminary ruling from the Kantongerecht, Arnhem): Albany International BV v Stichting Bedrĳfspensioenfonds Textielindustrie (Compulsory affiliation to a sectoral pension scheme — Compatibility with competition rules — Classification of a sectoral pension fund as an undertaking)

text:
8.1.2000                EN                      Official Journal of the European Communities                                                 C 6/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82
                                                                             EC), must be interpreted as meaning that it does not confer on
                         (Sixth Chamber)                                     individuals the right to oppose the application of legislation of a
                                                                             Member State which requires them to have recourse, for the
                      of 16 September 1999                                   performance of dock work, exclusively to recognised dockers such as
                                                                             those referred to in the Belgian Law of 8 June 1972 organising dock
                                                                             work, and to pay those dockers remuneration far in excess of the
in Case C-22/98 (reference for a preliminary ruling from                     wages of their own employees or the wages which they pay to other
the Hof van Beroep te Gent): criminal proceedings against                    workers.
Jean Claude Becu, Annie Verweire, Smeg NV, Adia Interim
                               NV (1)
                                                                             (1) OJ No C 94 of 28.3.1998.
(Competition — National legislation allowing only ‘recog-
nised dockers’ to perform certain dock duties — Meaning of
          ‘undertaking’ — Special or exclusive rights)
                           (2000/C 6/01)
                                                                                JUDGMENT OF THE COURT
                    (Language of the case: Dutch)
                                                                                of 21 September 1999
(Provisional translation; the definitive translation will be published       in Case C-67/96 (reference for a preliminary ruling from
                   in the European Court Reports)                            the Kantongerecht, Arnhem): Albany International BV v
                                                                                Stichting Bedrijfspensioenfonds Textielindustrie (1)
In Case C-22/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Hof van Beroep                   (Compulsory affiliation to a sectoral pension scheme —
(Court of Appeal), Ghent, Belgium, for a preliminary ruling in               Compatibility with competition rules — Classification of a
the criminal proceedings pending before that court against                               sectoral pension fund as an undertaking)
Jean Claude Becu, Annie Verweire, Smeg NV, Adia Interim NV
— on the interpretation of Article 90(1) and (2) of the EC                                               (2000/C 6/02)
Treaty (now Article 86(1) and (2) EC), read in conjunction
with Article 6 of the EC Treaty (now, after amendment, Article
12 EC) and Articles 85 and 86 of the EC Treaty (now Articles                                      (Language of the case: Dutch)
81 EC and 82 EC) — the Court (Sixth Chamber), composed of:
P.J.G. Kapteyn, President of the Chamber, J.L. Murray and
R. Schintgen (Rapporteur), Judges; D. Ruiz-Jarabo Colomer,                   (Provisional translation; the definitive translation will be published
Advocate General; D. Louterman-Hubeau, Principal Adminis-                                        in the European Court Reports)
trator, for the Registrar, has given a judgment on 16 September
1999, in which it has ruled:                                                 In Case C-67/96: reference to the Court under Article 177 of
                                                                             the EC Treaty (now Article 234 EC) from the Kantongerecht,
Article 90(1) of the EC Treaty (now Article 86(1) EC), read in               Arnhem, Netherlands, for a preliminary ruling in the proceed-
conjunction with the first paragraph of Article 6 of the EC Treaty           ings pending before that court between Albany International
(now, after amendment, the first paragraph of Article 12 EC), and            BV and Stichting Bedrijfspensioenfonds Textielindustrie — on
 ---pagebreak--- C 6/2                   EN                      Official Journal of the European Communities                                               8.1.2000
the interpretation of Articles 85, 86 and 90 of the EC Treaty              a preliminary ruling in the proceedings pending before that
(now Articles 81 EC, 82 EC and 86 EC) — the Court, composed                court between Brentjens’ Handelsonderneming BV and Stich-
of: G.C. Rodrı́guez Iglesias, President, J.-P. Puissochet,                 ting Bedrijfspensioenfonds voor de Handel in Bouwmaterialen
G. Hirsch and P. Jann, Presidents of Chambers, J.C. Moitinho               — on the interpretation of Article 3(g) of the EC Treaty (now,
de Almeida (Rapporteur), C. Gulmann, J.L. Murray, D.A.O. Ed-               after amendment, Article 3(1)(g) EC) and Articles 5, 85, 86
ward, H. Ragnemalm, L. Sevón and M. Wathelet, Judges;                     and 90 of the EC Treaty (now Articles 10 EC, 81 EC, 82 EC
F.G. Jacobs, Advocate General; D. Louterman-Hubeau, Princi-                and 86 EC) — the Court, composed of: G.C. Rodrı́guez Iglesias,
pal Administrator, for the Registrar, has given a judgment on              President, J.-P. Puissochet, G. Hirsch and P. Jann, Presidents of
21 September 1999, in which it has ruled:                                  Chambers, J.C. Moitinho de Almeida (Rapporteur), C. Gul-
                                                                           mann, J.L. Murray, D.A.O. Edward, H. Ragnemalm, L. Sevón
1. Article 3(g) of the EC Treaty (now, after amendment, Article            and M. Wathelet, Judges; F. G. Jacobs, Advocate General;
    3(1)(g) EC) and Articles 5 and 85 of the EC Treaty (now                D. Louterman-Hubeau, Principal Administrator, for the Regis-
    Articles 10 EC and 81 EC) do not prohibit a decision by the            trar, has given a judgment on 21 September 1999, in which it
    public authorities to make affiliation to a sectoral pension fund      has ruled:
    compulsory at the request of organisations representing employers
    and workers in a given sector.
2. A pension fund charged with the management of a supplementary           1. A decision taken by organisations representing employers and
    pension scheme set up by a collective agreement concluded                   workers in a given sector, in the context of a collective agreement,
    between organisations representing employers and workers in a               to set up in that sector a single pension fund responsible for
    given sector, to which affiliation has been made compulsory by              managing a supplementary pension scheme and to request the
    the public authorities for all workers in that sector, is an                public authorities to make affiliation to that fund compulsory for
    undertaking within the meaning of Article 85 et seq. of the                 all workers in that sector does not fall within the scope of Article
    Treaty.                                                                     85 of the EC Treaty (now Article 81 EC).
3. Articles 86 and 90 of the EC Treaty (now Articles 82 EC and
    86 EC) do not preclude the public authorities from conferring on
    a pension fund the exclusive right to manage a supplementary           2. Article 3(g) of the EC Treaty (now, after amendment, Article
    pension scheme in a given sector.                                           3(1)(g) EC), Article 5 of the EC Treaty (now Article 10 EC) and
                                                                                Article 85 of the Treaty do not prohibit a decision by the public
(1) OJ No C 133 of 4.5.1996.                                                    authorities to make affiliation to a sectoral pension fund
                                                                                compulsory at the request of organisations representing employers
                                                                                and workers in a given sector.
                                                                           3. A pension fund charged with the management of a supplementary
                                                                                pension scheme set up by a collective agreement concluded
                 JUDGMENT OF THE COURT
                                                                                between organisations representing employers and workers in a
                                                                                given sector, to which affiliation has been made compulsory by
                      of 21 September 1999                                      the public authorities for all workers in that sector, is an
                                                                                undertaking within the meaning of Article 85 et seq. of the
in Joined Cases C-115/97, C-116/97 and C-117/97 (refer-                         Treaty.
ences for a preliminary ruling from the Kantongerecht,
Roermond): Brentjens’ Handelsonderneming BV v Stich-
ting Bedrijfspensioenfonds voor de Handel in Bouwmat-
                             erialen (1)                                   4. Articles 86 and 90 of the EC Treaty (now Articles 82 EC and
                                                                                86 EC) do not preclude the public authorities from conferring on
(Compulsory affiliation to a sectoral pension scheme —                          a pension fund the exclusive right to manage a supplementary
Compatibility with competition rules — Classification of a                      pension scheme in a given sector.
           sectoral pension fund as an undertaking)
                           (2000/C 6/03)
                    (Language of the case: Dutch)                          (1) OJ No C 142 of 10.5.1997.
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
In Joined Cases C-115/97, C-116/97 and C-117/97: references
to the Court under Article 177 of the EC Treaty (now Article
234 EC) from the Kantongerecht, Roermond, Netherlands, for


               20.11.2004

               EN

               Official Journal of the European Union

               C 284/30

         Removal from the Register of Case T-224/02 (1)

   (2004/C 284/58)

      (Language of the case: French)

   By order of 16 September 2004, the President of the First Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-224/02, Miguel Forcat Icardo v Commission of the European Communities.

      (1)  OJ L 247 of 12.10.2002.


title: Case F-58/10: Judgment of the Civil Service Tribunal (First Chamber) of 18 September 2012 — Allgeier v FRA (Civil service — Duty of assistance — Article 24 of the Staff Regulations — Psychological harassment — Administrative inquiry)

text:
               10.11.2012

               EN

               Official Journal of the European Union

               C 343/22

         Judgment of the Civil Service Tribunal (First Chamber) of 18 September 2012 — Allgeier v FRA
   (Case F-58/10) (1)

   (Civil service - Duty of assistance - Article 24 of the Staff Regulations - Psychological harassment - Administrative inquiry)
   2012/C 343/38
   Language of the case: English

      Parties

      Applicant: Timo Allgeier (Vienna, Austria) (represented by: L. Levi and M. Vandenbussche, lawyers)

      Defendant: European Union Agency for Fundamental Rights (FRA) (represented by: M. Kjærum, acting as Agent, assisted by B. Wägenbaur, lawyer)

      Re:

   First, application for annulment of the decision of the defendant not to pursue the complaint for psychological harassment lodged by the applicant. Second, application for recognition that the applicant has been a victim of psychological harassment on the part of his superiors, and for compensation for the material and non-material loss suffered.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of 16 October 2009 of the European Union Agency for Fundamental Rights;

               2.

               Orders the European Union Agency for Fundamental Rights to pay Mr Allgeier the sum of EUR 5 000;

               3.

               Dismisses the remainder of the application;

               4.

               Orders the European Union Agency for Fundamental Rights to bear its own costs and to pay the costs incurred by Mr Allgeier.

      (1)  OJ C 260, 25.9.2010, p. 27.


title: Case C-673/11: Reference for a preliminary ruling from the Conseil d’État (France) lodged on 29 December 2011 — Établissement national des produits de l’agriculture et de la mer (FranceAgriMer), successor in law to the Office national interprofessionnel des fruits, des légumes, des vins et de l’horticulture (VINIFLHOR) v Organisation de producteurs Les Cimes

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/8

         Reference for a preliminary ruling from the Conseil d’État (France) lodged on 29 December 2011 — Établissement national des produits de l’agriculture et de la mer (FranceAgriMer), successor in law to the Office national interprofessionnel des fruits, des légumes, des vins et de l’horticulture (VINIFLHOR) v Organisation de producteurs Les Cimes
   (Case C-673/11)
   2012/C 89/12
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Établissement national des produits de l’agriculture et de la mer (FranceAgriMer), successor in law to the Office national interprofessionnel des fruits, des légumes, des vins et de l’horticulture (VINIFLHOR)

      Defendant: Organisation de producteurs Les Cimes

      Questions referred

               1.

               How is the option, granted by Article 2(4) of Council Regulation (EEC) No 4045/89 of 21 December 1989 on scrutiny by Member States of transactions forming part of the system of financing by the Guarantee Section of the EAGGF, (1) to extend the scrutiny period ‘for periods … preceding or following the 12-month period’ which it defines, to be implemented by a Member State, having regard to, first, the need to protect the Communities’ financial interests, and second, the principle of legal certainty and the necessity to not give the scrutiny authorities indefinite power?

               2.

               In particular:

                           —

                           Must the period scrutinised, in all instances — if the scrutiny is not to be marred by an irregularity which the person scrutinised may rely on against the decision giving due effect to the results of the scrutiny — end during the twelve month period which precedes the ‘scrutiny’ period during which the scrutiny operations are carried out?

                           —

                           In the event of a positive reply to the preceding question, how must the option, expressly provided for by the regulation, to extend the period of scrutiny for periods ‘following the 12-month period’ be understood?

                           —

                           In the event of a negative reply to the first question, must the scrutiny period nevertheless — if the scrutiny is not to be marred by an irregularity which the scrutinised person may rely on against the decision giving due effect to the results of the scrutiny — include a twelve month period which ends during the scrutiny period preceding that during which the scrutiny was carried out, or, on the contrary, may the scrutiny cover only a period which ends before the beginning of the preceding scrutiny period?

      (1)  Council Regulation (EEC) No 4045/89 of 21 December 1989 on scrutiny by Member States of transactions forming part of the system of financing by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund and repealing Directive 77/435/EEC (OJ 1989 L 388, p. 18).


title: Case C-231/08 P: Appeal brought on 29 May 2008 by Massimo Giannini against the judgment delivered on 12 March 2008 in Case T-100/04 Massimo Giannini v Commission

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/22

         Appeal brought on 29 May 2008 by Massimo Giannini against the judgment delivered on 12 March 2008 in Case T-100/04 Massimo Giannini v Commission
   (Case C-231/08 P)
   (2008/C 223/34)
   Language of the case: French
   Parties

      Appellant: Massimo Giannini (represented by: L. Levi and C. Ronzi, lawyers)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               —

               Annulment of the judgment of the Court of First Instance of the European Communities of 12 March 2008 in Case T-100/04;

               —

               Grant of the appellant's claims in the forms of order sought at first instance and consequently,

                           —

                           annulment of the decision of the selection board in competition COM/A/9/01 not to include the appellant's name on the competition reserve list, a decision notified to the appellant by letter of 11 June 2003, and so far as necessary, annulment of the decision refusing the appellant's application for review, a decision notified to the appellant by letter of 8 July 2003, and annulment of the decision rejecting the appellant's complaint, a decision notified to the appellant by letter of 2 December 2003;

                           —

                           award of damages in respect of material damage assessed (i) on the difference between the unemployment benefit received on conclusion of a temporary staff contract and the salary of an official graded A7 step 4 and (ii) after the period of unemployment, on the amount of salary paid to an official graded A7 step 5, and in respect of non-material damage, assessed at EUR 1;

               —

               order that the Commission pay all of the costs at first instance and on appeal.

         Pleas in law and main arguments
   The appellant relies in essence on three principal grounds in support of his appeal.
   In his first ground of appeal, the appellant complains that the Court of First Instance infringed his right to a fair trial and, more particularly, the right to have his case determined within a reasonable time. Four years elapsed between the date of the case being brought before the Court of First Instance and the date of delivery of the contested judgment. According to the appellant, there was no exceptional circumstance which in this case justified such a length of time. The documents before the Court were neither particularly voluminous nor legally complex and the proceedings had real importance for the appellant.
   In his second ground of appeal, the appellant claims that the Court of First Instance infringed Articles 4, 27 and 29 of the Staff Regulations and misinterpreted both the concept of the interests of the service and the duty of the Community institutions to have regard for the welfare of their servants and officials. According to the appellant, the Court of First Instance confused in that regard entry into the Community civil service, by means of an open competition intended to establish a recruitment reserve, and the career development of persons already employed by means of the mechanisms, provided for by the Staff Regulations, of transfers and promotions.
   In his third ground of appeal, the appellant claims that the Court of First Instance disregarded the obligation to state reasons in judgments and the principles of non-discrimination and respect for the rights of the defence, and that the Court distorted the clear sense of the evidence presented for its assessment. This ground of appeal can be broken down into three parts.
   In the first part of the third ground of appeal, the appellant submits that the Court of First Instance disregarded both the principle of non-discrimination and its obligation to state reasons and the rules on the adducing of evidence by concluding that the fact that some candidates in the competition had knowledge of the document on which the written test was based did not imply an infringement of the principle of non-discrimination and by not requiring that the Commission provide concrete evidence of the absence of discrimination linked to that fact.
   In the second part of this third ground of appeal, the appellant claims that there was an infringement of the principle of non-discrimination and a distortion of the clear sense of the evidence presented for assessment by the Court of First Instance since the Court considered that the selection board was sufficiently constant in composition to ensure the objective comparison and marking of candidates, when the evidence in the documents before the Court demonstrated on the contrary that the composition of that selection board was not sufficiently constant and when several essential pieces of factual information were not made known to the Court of First Instance by the Commission.
   Lastly, in the third part of this ground of appeal, the appellant relies on a further infringement of the principle of non-discrimination and the rules on the adducing of evidence, and a violation of the rights of the defence, in relation to the conclusions drawn by the Court of First Instance as regards the impartiality of the members of the selection board.


title: Case T-568/14: Action brought on 30 July 2014  — Laverana v OHIM (BIO FLUIDE DE PLANTE PROPRE FABRICATION)

text:
               13.10.2014

               EN

               Official Journal of the European Union

               C 361/11

         Action brought on 30 July 2014 — Laverana v OHIM (BIO FLUIDE DE PLANTE PROPRE FABRICATION)
   (Case T-568/14)
   2014/C 361/15
   Language of the case: German

      Parties

      Applicant: Laverana GmbH & Co. KG (Wennigsen, Germany) (represented by J. Wachinger, M. Zöbisch and D. Chatterjee, lawyers)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 May 2014 in case R 120/2014-4;

               —

               order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs

      Pleas in law and main arguments

      Community trade mark concerned: Figurative mark which contains the word elements ‘BIO FLUIDE DE PLANTE PROPRE FABRICATION’ for goods and services in Classes 3, 5 and 35 — Community trade mark application No 1 1 9 22  631

      Decision of the Examiner: Refused the application

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law:

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009;

               —

               Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009;

               —

               Infringement of Article 7(1)(c) of Regulation No 207/2009;

               —

               Misuse of powers by a decision on the basis of competition policy considerations