title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 6 July 1995 in Joined Cases T-447/93, T-448/93 and T-449/93: Associazione Italiana Tecnico Economica del Cemento and Others v. Commission of the European Communities (State aid P Remedying of a serious disturbance in the economy of a Member State P Authorization of a general scheme P Conditional on notification of individual cases P Examination of the Community context in relation to individual cases P Economic assessment)

text:
No C 208/22              EN                    Official Journal of the European Communities                                    12 . 8 . 95
JUDGMENT OF THE COURT OF FIRST INSTANCE                                   members of the Bar of England and Wales, instructed by
                          of 29 June 1995                                 Victor O. White and Richard J. Coles, Solicitors, with an
                                                                          address for service in Luxembourg at the Chambers of
in Case T-36/91 : Imperial Chemical Industries pic v.                     Lambert H. Dupong, 14a Rue des Bains, v. Commission of
         Commission of the European Communities ( l )                     the European Communities ( Agents : Julian Currall and
(Competition — Concerted practice — Presumption of                        Nicholas Forwood QC ) — application for the annulment of
innocence — Administrative procedure — Rights of the                      Commission Decision 91 /300/EEC of 19 December 1990
       defence — Equality of arms — Access to the file)                   relating to a proceeding under Article 86 of the EEC Treaty
                             ( 95/C 208/47 )                              ( IV/33 . 133-D : Soda-ash — ICI ) ( 2 ), the Court of First
                                                                          Instance ( First Chamber sitting in extended composition ),
                                                                          composed of: J. L. Cruz Vilaça, President, and D. P. M.
                 (Language of the case: English)                          Barrington, A. Saggio , H. Kirschner and A. Kalogeropoulos,
                                                                          Judges, H. Jung, Registrar, has given a judgment on 29 June
In Case T-36/91 : Imperial Chemical Industries pic,                       1995 , in which it:
established in London, represented by David Vaughan QC,
Gerald Barling QC and David Anderson, Barrister,                          1 . annuls Commission Decision 91 /300/EEC of
members of the Bar of England and Wales , instructed by                         19 December 1990 relating to a proceeding under
Victor O. White and Richard J. Coles, Solicitors, with an                      Article 86 ofthe EEC Treaty (IV/33 . 133-D : Soda-ash —
address for service in Luxembourg at the Chambers of                           ICI);
Lambert H. Dupong, 14a Rue des Bains, v. Commission of
the European Communities ( Agents : Julian Currall and                    2 . orders the Commission to pay the costs.
Nicholas Forwood QC ) — application for the annulment of
Commission Decision 91 /297/EEC of 19 December 1990
relating to a proceeding under Article 85 of the EEC Treaty               (>) OJ No C 165 , 25 . 6 . 1991 .
 ( IV/33 . 133-A: Soda-ash — Solvay, ICI ) ( 2), the Court of             C-) OJ No L 152 , 15 . 6 . 1991 , p . 40 .
First Instance ( first Chamber sitting in extended
composition ), composed of: J. L. Cruz Vilaça , President,
 and D. P. M. Barrington , A. Saggio, H. Kirschner and A.
 Kalogeropoulos, Judges, H. Jung, Registrar, has given a
 judgment on 29 June 1995 , in which it:
 1 . annuls Commission Decision 91 /297/EEC of
       19 December 1990 relating to a proceeding under                     JUDGMENT OF THE COURT OF FIRST INSTANCE
       Article 85 of the EEC Treaty (IV/33 . 133 : Soda-ash —                                       of 6 July 1995
       Solvay, ICI) in so far as it concerns the applicant;                in Joined Cases T-447/93 , T-448/93 and T-449/93 :
                                                                           Associazione Italiana Tecnico Economica del Cemento and
 2 . orders the Commission to pay the costs.                                 Others v. Commission of the European Communities ( 1 )
                                                                           (State aid — Remedying of a serious disturbance in the
 (') OJ No C 165 , 25 . 6 . 1991 .                                         economy of a Member State — Authorization of a general
 ( 2 ) OJ No L 152 , 15 . 6 . 1991 , p . 1 .                               scheme — Conditional on notification ofindividual cases —
                                                                           Examination of the Community context in relation to
                                                                                individual cases — Economic assessment)
                                                                                ( 95/C 208/49 )
                                                                                (Languages of the case: English and French)
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                           of 29 June 1995
  in Case T-37/91 Imperial Chemical Industries pic v.                      In Joined Cases T-447/93 Associazione Italiana Tecnico
          Commission of the European Communities ( l )                     Economica del Cemento , established in Rome, represented
                                                                            by Wilma Viscardini Dona, of the Padua Bar, and Eric
  (Competition — Abuse of a dominant position —                            Morgan de Rivery, of the Paris Bar, with an address for
  Administrative procedure — Rights of the defence —                        service in Luxembourg at the Chambers of Alex Schmitt, 62
  Equality ofarms — Access to the file — Commission 's Rules               Avenue Guillaume; T-448/93 British Cement Association,
  ofProcedure — Authentication ofa decision adopted by the                 established at Wexham Springs (United Kingdom ), Blue
                    college of Commissioners)                               Circle Industries pic, established in London, Castle Cement
                               ( 95/C 208/48 )                              Ltd , established at Peterborough ( United Kingdom ), and
                                                                           The Rugby Group pic, established at Rugby (United
                                                                            Kingdom ), represented by Nicholas Forwood QC and Mark
                  (Language of the case: English)                           Clough, Barrister, of the Bar of England and Wales,
                                                                            instructed by Robert Tudway and Dorcas Rogers,
  In Case T-37/91 : Imperial Chemical Industries pic,                       Solicitors, with an address for service in Luxembourg at the
  established in London, represented by David Vaughan QC,                   Chambers of Arendt & Medernach, 8— 10 Rue Mathias
  Gerald Barling QC and David Anderson, Barrister,                          Hardt; and T-449/93 Titan Cement Company SA,
 ---pagebreak--- 12 . 8 . 95            I EN I                  Official Journal of the European Communities                               No C 208/23
established in Athens, represented by Alastair Sutton and                 K. Stefanakis and Anastassia Chatzitzani, of the Athens Bar,
Daniel Bethlehem, Barristers, of the Bar of England and                   with an address for service in Luxembourg at the Chambers
Wales , and by Aristotelis Kaplanidis, of the Thessaloniki                of Ekaterini Thill-Kamitaki , 17 Boulevard Royal v. Council
Bar, instructed by Victor Melas, of the Athens Bar, with an               of the European Union ( Agents : John Carbery and Sophia
address for service in Luxembourg at the Chambers of Marc                 Kyriakopoulou ), and Commission of the European
Loesch, 8 Rue Zithe, v. Commission of the . European                      Communities ( Agent: Xenophon A. Yataganas ), application
Communities ( agents : Xenophon A. Yataganas, Michel                      for an award of damages pursuant to Article 178 and the
Nolin, Eric White and Daniel Calleja ), supported by                      second paragraph of Article 215 of the EC Treaty, the Court
Hellenic Republic ( agents : Panagiotis Kamarineas,                       of First Instance ( First Chamber ), composed of: J. L. Cruz
Panagiotis Milonopoulos and Christina Sitara ) and                        Vilaça , President, H. Kirschner and A. Kalogeropoulos,
Heracles General Cement Company anonymos eteria ,                         Judges, Registrar : J. Palacio Gonzalez, Administrator, has
established at Likovrisi ( Greece ), represented by Kostas                given a judgment on 6 July 1995 , in which it:
Loukopoulos and Sotiris Felios, of the Athens Bar, with an
address for service in Luxembourg at the Chambers of Jos                  1 . dismisses the application ;
Stoffel, 21 Boulevard de Verdun , — application for the
annulment of the Decision of 1 August 1991 contained in                   2 . orders the applicant to pay the costs.
Commission communication 92/C 1 /03 pursuant to
Article 93(2 ) of the EEC Treaty to other Member States and
interested parties concerning aid to Heracles General                     (') OJ No C 43 , 12 . 2 . 1994 .
Cement Company in Greece, published in the Official
Journal ofthe European Communities of 4 January 1 992 ( 2 )
the Court of First Instance ( First Chamber, extended
composition ), composed of: J. L. Cruz Vilaça , President,
and B. Vesterdorf, A. Saggio, H. Kirschner and A.
Kalogeropoulos , Judges; H. Jung, Registrar, has given a
judgment on 6 July 1995 , in which it:                                         ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 7 June 1995
1 . annuls the Decision of 1 August 1991 contained in
       Commission communication 92/C 1 /03 pursuant to                    in Case T-36/92 DEP: Syndicat français de l'Express
       Article 93 (2) of the EEC Treaty to other Member States            international ( SFEI ) and Others v. Commission of the
       and interested parties concerning aid to Heracles                                     European Communities (')
       General Cement Company in Greece, published in the                                  (Taxation of recoverable costs)
       Official Journal of the European Communities of                                               ( 95 /C 208/51 )
       4 January 1992 ;
2 . orders the Commission to bear its own costs and pay the                                (Language of the case: French)
       costs of the applicants apart from those caused by the
       interventions ;
                                                                          In Case T-36/92 DEP: Syndicat français de l'Express
3 . orders the interveners to bear their own costs and pay                international ( SFEI ), established at Roissy-Charles de
       the costs incurred by the applicants in the context of the         Gaulle ( France ), DHL International , established at
       interventions .                                                    Roissy-Charles de Gaulle ( France ), Service Crie, established
                                                                          at Paris ( France ) and May Courier, established at Paris
 (') OJ No C 121 , 13 . 5 . 1992 .                                         ( France ), represented by Morgan de Rivery, of the Paris Bar,
 ( 2 ) OJ No C 1 , 4 . 1 . 1992 , p . 4 .                                 with an address for service in Luxembourg at the Chambers
                                                                          of Alex Schmitt, 62 Avenue Guillaume , v. Commission of
                                                                          the European Communities ( Agents : Giuliano Marenco and
                                                                          Francisco Enrique Gonzalez Diaz ) — application for
                                                                          taxation of the recoverable costs pursuant to the order of the
                                                                          Court of First Instance (Third Chamber, extended
  JUDGMENT OF THE COURT OF FIRST INSTANCE                                 composition ) of 3 October 1994 declaring that the case
                             of 6 July 1995                               should not proceed to judgment — the Court of First
in Case T-5 72/93 , Odigitria AAE v. Council of the                       Instance (Third Chamber ), composed of J. Biancarelli,
European Union and Commission of the European                              President, and C. W. Bellamy and J. Azizi, Judges; H. Jung,
                            Communities (')                                Registrar, made an order on 7 June 1995 , the operative part
                                                                           of which is as follows :
  (Non-contractual liability — Omission of the Commission
 — Causal link — Applicant's fault — Duty to provide
                                                                           The total costs payable by the Commission to the applicants
                         diplomatic protection)                           are fixed in the sum of Bfrs 1 500 000, together with any
                              ( 95 /C 208/50 )                              VAT due on that sum .
                   (Language of the case: Greek)                           (') OJ No C 160 , 26 . 6 . 1992 .
 In Case T-572/93 , Odigitria AAE having its registered office
 in Athens, represented by Epameinondas Marias, Georgios


title: Case C-117/17: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy) lodged on 6 March 2017 — Comune di Castelbellino v Regione Marche and Others

text:
               10.7.2017

               EN

               Official Journal of the European Union

               C 221/2

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy) lodged on 6 March 2017 — Comune di Castelbellino v Regione Marche and Others
   (Case C-117/17)
   (2017/C 221/02)
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per le Marche

      Parties to the main proceedings

      Applicant: Comune di Castelbellino

      Defendants: Regione Marche, Ministero per i beni e le attività culturali, Ministero dell’Ambiente e della Tutela del Territorio e del Mare, Regione Marche Servizio Infrastrutture Trasporti Energia — P.F. Rete Elettrica Regionale, Provincia di Ancona

      Questions referred

               1.

               Does EU law (and in particular Directive 2011/92/EU, (1) in the version in force on the date of adoption of the contested measures) preclude, as a rule, a national rule or administrative practice which allows EIA screening or EIAs in respect of plants already in existence at the time when the procedure takes place, or does it, on the other hand, allow exceptional circumstances justifying a derogation from the general rule that an EIA is, by nature, a preventative assessment to be taken in into account?

               2.

               More particularly, is such a derogation justified in the case in which a new law exempts from an EIA a specific project which would have been subject to screening on the basis of a decision of the national court that declared unconstitutional or disapplied an earlier rule providing for exemption?

      (1)  Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1).


title: Case C-617/13 P: Judgment of the Court (Fifth Chamber) of 9 June 2016 — Repsol Lubricantes y Especialidades SA, formerly Repsol Lubricantes YPF y Especialidades SA, Repsol Petróleo SA, Repsol SA v European Commission (Appeal — Article 81 EC — Agreements, decisions and concerted practices — Spanish market for penetration bitumen — Market sharing and price coordination — Notice on immunity from fines and reduction of fines in cartel cases (2002) — Final paragraph of point 23(b) — Partial immunity from fines — Evidence of facts previously unknown to the Commission)

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/5

         Judgment of the Court (Fifth Chamber) of 9 June 2016 — Repsol Lubricantes y Especialidades SA, formerly Repsol Lubricantes YPF y Especialidades SA, Repsol Petróleo SA, Repsol SA v European Commission
   (Case C-617/13 P) (1)

   ((Appeal - Article 81 EC - Agreements, decisions and concerted practices - Spanish market for penetration bitumen - Market sharing and price coordination - Notice on immunity from fines and reduction of fines in cartel cases (2002) - Final paragraph of point 23(b) - Partial immunity from fines - Evidence of facts previously unknown to the Commission))
   (2016/C 296/07)
   Language of the case: Spanish

      Parties

      Appellants: Repsol Lubricantes y Especialidades SA, formerly Repsol Lubricantes YPF y Especialidades SA, Repsol Petróleo SA, Repsol SA (represented by: L. Ortiz Blanco, J. Buendía Sierra, M. Muñoz de Juan, A. Givaja Sanz and A. Lamadrid de Pablo, abogados)

      Other party to the proceedings: European Commission (represented by: C. Urraca Caviedes and F. Castillo de la Torre, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Repsol Lubricantes y Especialidades SA, Repsol Petróleo SA and Repsol SA to pay the costs.

      (1)  OJ C 24, 25.1.2014.


title: Case C-136/08 P: Order of the Court of 30 April 2009 — Japan Tobacco, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Torrefacção Camelo L da (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(5) — Detrimental to the distinctive character of the earlier mark — Unfair advantage taken of the distinctive character or the repute of the earlier mark — Likelihood — Application for registration of the figurative sign CAMELO as a Community trade mark — Opposition by the proprietor of the national word and figurative marks CAMEL)

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/16

         Order of the Court of 30 April 2009 — Japan Tobacco, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Torrefacção Camelo Lda

   (Case C-136/08 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(5) - Detrimental to the distinctive character of the earlier mark - Unfair advantage taken of the distinctive character or the repute of the earlier mark - Likelihood - Application for registration of the figurative sign ‘CAMELO’ as a Community trade mark - Opposition by the proprietor of the national word and figurative marks CAMEL)
   2009/C 220/27
   Language of the case: French

      Parties

      Appellant: Japan Tobacco, Inc. (represented by: A. Ortiz López, S. Ferrandis González and E. Ochoa Santamaría, abogados)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: A. Folliard-Monguiral, Agent), Torrefacçao Camelo Lda

      Re:

   Appeal against the judgment in Case T-128/06 Japan Tobacco v OHIM and Torrefacçao Camelo by which the Court of First Instance (Fifth Chamber) dismissed the action brought by Japan Tobacco for annulment of the decision of the Second Board of Appeal of OHIM of 22 February 2006 in opposition proceedings between Japan Tobacco and Torrefacçao Camelo — Infringement of Article 8(5) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) — Relative grounds for refusal to register a trade mark — Unfair advantage taken of the distinctive character of an earlier trade mark, or detrimental to that distinctive character

      Operative part of the order

               1.

               Dismisses the appeal.

               2.

               Orders Japan Tobacco, Inc. to pay the costs.

      (1)  OJ C 209, 15.8.2008.


title: Case C-30/00: Reference for a preliminary ruling by the Supremo Tribunal Administrativo, Second Chamber, by judgment of that court of 12 January 2000, in the case of William Hinton & Sons, Lda and Fazenda Pública

text:
C 122/10                EN                   Official Journal of the European Communities                                          29.4.2000
The contested decision infringes Article 4 of Regulations               (c) For the purposes of applying Article 1(1)(2)(c) in conjunc-
1073/1999 and 1074/1999 inasmuch as:                                         tion with the second subparagraph of Article 2(1) of
                                                                             Council Regulation (EEC) No 1697/79 of 24 July 1979,
— it renders entirely nugatory the OLAF’s ability to conduct                 may a first act determining the amount of levies payable
     internal inquiries within the EIB and, furthermore, the                 be regarded as the end of the limitation period for
     application of Regulations 1073/1999 and 1074/1999 to                   post-clearance recovery proceedings or, on the contrary, is
     the EIB. Moreover, access by OLAF to the information held               the end of that period marked by the issue of a second act
     by the EIB must be authorised case by case by the President             revoking and replacing the first, giving a new amount for
     of the EIB who also decides the type of access to be                    the levies due?
     granted;
                                                                        (d) What meaning must be attributed to Article 254 of the
— by providing for no more than ‘assistance’ to OLAF in                      Treaty of Accession (2) where it imposes on the Portuguese
     anti-fraud efforts with regard to transactions carried out in           Republic the obligation to eliminate surplus stocks of
     relation to the EIB’s own resources it is creating a                    products and, in particular, to do so ‘at the expense of the
     distinction between the various sources of financing which              Portuguese Republic’?
     is incompatible with the protection of the ‘financial
     interests’ of the European Community;
                                                                        (e) Is the requirement imposed by the Portuguese Customs
                                                                             Authorities on holders of surplus sugar that they pay
— it does not constitute at all a sufficient measure                         the levies provided for in Regulation (EEC) No 579/86
     implementing the obligations under Article 4(6) of the                  (Article7(1)) in circumstances where the Portuguese Repub-
     abovementioned regulations.                                             lic had failed to take the measures necessary for the export
                                                                             thereof outside the Community compatible with the
                                                                             obligation laid down by Article 254 of the Treaty of
(1) Not published, communicated to the Commission by letter of
    16.11.1999.                                                              Accession, of which further details are given in the
                                                                             implementing regulations — Council Regulation (EEC)
                                                                             No 3771/85 of 20 December 1985 (3) (Article 8) and
                                                                             Commission Regulation (EEC) No 579/86 of 28 February
                                                                             1986 (4) (Articles 4 and 8)?
                                                                        (f) For the purposes of Article 5(2) of Council Regulation
                                                                             (EEC) No 1697/79 of 24 June 1979, must an incorrect
                                                                             estimate of sugar requirements for public supply of the
Reference for a preliminary ruling by the Supremo                            Autonomous Region of Madeira, which was based on an
Tribunal Administrativo, Second Chamber, by judgment                         import licence in which exemption from customs duties
of that court of 12 January 2000, in the case of William                     was granted in full awareness of Article 254 of the Treaty
           Hinton & Sons, Lda and Fazenda Pública                           of Accession and Council Regulation (EEC) No 3771/85,
                                                                             be regarded as a significant error?
                          (Case C-30/00)
                                                                        (g) For the purposes of Article 5(2) of Regulation (EEC)
                         (2000/C 122/15)                                     No 1697/79, must the successive errors of fact and of
                                                                             law committed by the competent Customs Authority in
                                                                             determining the amount payable be regarded as significant?
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Second Chamber
of the Supremo Tribunal Administrativo (Supreme Adminis-                (h) If the previous two questions are answered in the affirm-
trative Court) of 12 January 2000, which was received at the                 ative, could the debtor reasonably detect such errors on
Court Registry on 4 February 2000, for a preliminary ruling in               the part of the competent customs authorities?
the case of William Hinton & Sons, Lda and Fazenda Pública,
on the following questions:
                                                                        (1) Council Regulation (EEC) No 1697/79 of 24 July 1979 on the
(a) Should it be inferred from Article 1(2)(c) of Council                   post-clearance recovery of import duties or export duties which
     Regulation (EEC) No 1697/79 of 24 July 1979(1) that,                   have not been required of the person liable for payment on goods
     when the legal act known as entry in the accounts has                  entered for a customs procedure involving the obligation to pay
     been carried out, that act must necessarily precede the                such duties — OJ 1979 L 197, p. 1.
     notification regarding recovery and actual recovery?               (2) OJ 1985 L 302.
                                                                        (3) Council Regulation (EEC) No 3771/85 of 20 December 1985 on
                                                                            stocks of agricultural products in Portugal (OJ 1985 L 362, p. 21).
(b) Should there be deemed to be a lack of any entry in the             (4) Commission Regulation (EEC) No 579/86 of 28 February 1986
     accounts, for the purposes of the second subparagraph of               laying down detailed rules relating to stocks of products in the
     Article 2(1) of Council Regulation (EEC) No 1697/79 of                 sugar sector in Spain and Portugal on 1 March 1986 (OJ 1986
     24 July 1979, when the purpose of the first measure by                 L 57 of 1.3.1986).
     which the Customs Authority enters the amount of levies
     in accounting records or the equivalent thereof is to record
     the recovery of those levies?


title: Order of the Court of First Instance of 10 January 2005 in Case T-209/04 Kingdom of Spain v Commission of the European Communities (Fisheries policy — Detailed rules and arrangements regarding Community structural assistance in the fisheries sector — Request for authorisation for the establishment of joint enterprises — Failure by the Commission to take a decision — Action for failure to act — Action manifestly unfounded)

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/21

      ORDER OF THE COURT OF FIRST INSTANCE

   of 10 January 2005
   in Case T-209/04 Kingdom of Spain v Commission of the European Communities (1)

   (Fisheries policy - Detailed rules and arrangements regarding Community structural assistance in the fisheries sector - Request for authorisation for the establishment of joint enterprises - Failure by the Commission to take a decision - Action for failure to act - Action manifestly unfounded)
   (2005/C 115/41)
   Language of the case: Spanish
   In Case T-209/04: the Kingdom of Spain, represented by N. Díaz Abad, lawyer, with an address for service in Luxembourg, against the Commission of the European Communities (Agents: T. van Rijn and S. Pardo Quintillán) — action for failure to act seeking a declaration that the Commission has unlawfully omitted to take a decision on the authorisations requested by the Spanish authorities concerning the establishment of joint enterprises, in accordance with Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (OJ 1999 L 337, p. 10), as amended by Council Regulation (EC) No 2369/2002 of 20 December 2002 (OJ 2002 L 358, p. 49) — the Court of First Instance (Third Chamber), composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges; H. Jung, Registrar, made an order on 10 January 2005, the operative part of which is as follows:

               1.

               The action is dismissed so far as concerns the requests relating to the vessels Balcagia and Enterprace;

               2.

               There is no further need to adjudicate on the remainder of the action;

               3.

               The applicant shall bear the costs.

      (1)  OJ C 201 of 7.8.2004.


title: Case T-492/04: Action brought on 23 December 2004 by Jungbunzlauer AG and three others against the Commission of the European Communities

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/30

         Action brought on 23 December 2004 by Jungbunzlauer AG and three others against the Commission of the European Communities
   (Case T-492/04)
   (2005/C 82/58)
   Language of the case: German
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 December 2004 by Jungbunzlauer AG, Basel (Switzerland), Jungbunzlauer Ladenburg GmbH, Ladenburg (Germany), Jungbunzlauer Holding AG, Chur (Switzerland) and Jungbunzlauer Austria AG, Vienna, represented by R. Bechtold, M. Karl, U. Soltész and C. Steinle, lawyers.
   The applicants claim that the Court should:

               1.

               annul in its entirety the Commission's decision of 29 September 2004 (Case COMP/E-1/36.756 – Sodium gluconate);
               alternatively, annul the decision in regard to individual addressees,
               alternatively, reduce the fine imposed in the decision;

               2.

               order the Commission to pay the applicants' costs;

               3.

               obtain and refer to the documents in case T-312/01 and adopt any other procedural measures which the Court considers appropriate.

         Pleas in law and main arguments
   By the contested decision, the Commission found that the applicants had participated in a continuous agreement and/or concerted practice in the sodium gluconate sector and had thereby infringed Article 81(1) EC and Article 53 of the EEA Agreement. As a result, fines were imposed on those undertakings.
   The applicants are contesting that decision and submit that it was only Jungbunzlauer Ladenburg GmbH which was responsible for the infringement. Jungbunzlauer Austria AG and Jungbunzlauer AG did not at any time participate in the infringement and had no influence on the market behaviour or company policies of Jungbunzlauer Ladenburg GmbH. Nor, in the applicants' submission, were they liable by virtue of their association with Jungbunzlauer Ladenburg GmbH from the point of view of company law, or by virtue of their membership of the Jungbunzlauer group. Jungbunzlauer Holding AG was merely a holding company without any decisive influence on the production volume and pricing policies and thereby on the behaviour of Jungbunzlauer Ladenburg GmbH in the sodium gluconate market.
   Even if Jungbunzlauer Austria AG, Jungbunzlauer AG and Jungbunzlauer Holding AG had been responsible for the infringement, which, according to the applicants, is not the case, the Commission's power to impose fines on those companies had already been lost through lapse of time.
   Furthermore, the applicants claim that, in so far as the decision is addressed to Jungbunzlauer Ladenburg AG, it is defective in form and substance, because the Commission was in breach of a number of rules and principles. Among other, the Commission infringed the principles of presumed innocence and good administration by carrying out a second administrative procedure while the court proceedings relating to a decision of 2 October 2001 concerning the same cartel were still pending. By its ‘second’ decision of 29 September 2004, the Commission also infringed the principle of legitimate expectation and the principle of ne bis indem. Moreover, the length of the proceedings was unreasonable.
   With regard to the fine imposed, the applicants assert, among other, that the fine is disproportionately high and exceeds the upper limit of fines, that the Commission is mistaken in its assumption of duration, that Jungbunzlauer Ladenburg GmbH is not the ringleader and that there are extenuating circumstances due to the excessive length of the proceedings.


title: Case C-249/16: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 2 May 2016 — Saale Kareda v Stefan Benkö

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/12

         Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 2 May 2016 — Saale Kareda v Stefan Benkö
   (Case C-249/16)
   (2016/C 305/17)
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Appellant on a point of law: Saale Kareda

      Respondent in the appeal on a point of law: Stefan Benkö

      Questions referred

               1.

               Must Article 7(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) (‘Regulation No 1215/2012’) be interpreted as meaning that, where a debtor under a (joint) credit agreement with a bank has, on his own, made the repayments due under that credit agreement, a reimbursement claim (compensation/recourse claim) brought by that debtor against the other debtor under that credit agreement constitutes a derived (secondary) contractual claim arising from that credit agreement?

               2.

               If Question 1 is answered in the affirmative:
               Is the place of performance of a debtor’s reimbursement claim (compensation/recourse claim) against the other debtor arising out of the underlying credit agreement to be determined

                           a.

                           in accordance with the second indent of Article 7(1)(b) of Regulation No 1215/2012 (‘provision of services’) or

                           b.

                           in accordance with Article 7(1)(c), in conjunction with Article 7(1)(a), of Regulation No 1215/2012 on the basis of the lex causae?

               3.

               If Question 2.a is answered in the affirmative:
               Is the service characterising the credit agreement the granting of the loans by the bank, and is, therefore, the place of performance of that service determined in accordance with the second indent of Article 7(1)(b) of Regulation No 1215/2012 by the registered office of the bank, if the loans were provided exclusively at that place?

               4.

               If Question 2.b is answered in the affirmative:
               For the purpose of determining the place of performance for the non-performed contractual obligation in accordance with Article 7(1)(a) of Regulation No 1215/2012, is the decisive date

                           a.

                           the date on which the two debtors took out the loans (March 2007) or

                           b.

                           the dates on which the loan debtor entitled to recourse made to the bank the payments from which he derives the recourse claim (June 2012 to June 2014)?

      (1)  OJ 2012 L 351, p. 1.


title: Case T-332/16: Action brought on 15 June 2016 — Colgate-Palmolive v EUIPO (360°)

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/32

         Action brought on 15 June 2016 — Colgate-Palmolive v EUIPO (360o)
   (Case T-332/16)
   (2016/C 296/42)
   Language of the case: English

      Parties

      Applicant: Colgate-Palmolive Co. (New York, New York, United States) (represented by: M. Zintler and A. Stolz, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU word mark ‘360o’ — Application for registration No 14 042 162

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 14 April 2016 in Case R 2288/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Pleas in law

               —

               Infringement of Article 7(1)(b) and (c), (2) and (3) of Regulation No 207/2009 and of the rules of law relating to its application as set out in Article 65(2) of Regulation No 207/2009.


title: Case C-373/99: Action brought on 7 October 1999 by the Hellenic Republic against the Commission of the European Communities

text:
C 6/10                 EN                   Official Journal of the European Communities                                       8.1.2000
     of the Directive, even adopting draft directives in that field    — infringement of Article 5 of Regulation (EEC) No
     which it communicated to the Member States. The sudden                 729/70 (2), as amended by Regulation (EC) No 1287/95 (3);
     change of mind by the Commission, now considering that
     compensation schemes for non-commercial prices and the            — overstepping by the Commission of the limits of its
     ‘sistemas insulares y extrapeninsulares’ in the electricity            discretion;
     sector cannot fall within the scope of Article 24 because
     they do not involve formal derogations from the obli-             — defective or no statement of grounds;
     gations imposed by the Directive, damages the expectations
     of both Spain and the economic operators which the
                                                                       — infringement of an essential procedural requirement for
     Commission itself had raised.
                                                                            imposing the corrections;
— Breach of the duty to provide a statement of reasons.                — infringement/misinterpretation of Article 12(6) of Regu-
                                                                            lation (EEC) No 2677/85; (4)
                                                                       — lack of competence ratione temporis for the Commission
(1) OJ No L 27, p. 20 of 30.1.1997.
                                                                            to impose penalties.
                                                                       ( 1) Decision 99/596/EC, OJ No L 226, 27.8.1999, p. 26.
                                                                       ( 2) OJ, English Special Edition 1970 (I), p. 218.
                                                                       ( 3) OJ No L 125, 8.6.1995, p. 1.
                                                                       ( 4) OJ No L 254, 25.9.1985, p. 5.
Action brought on 7 October 1999 by the Hellenic
Republic against the Commission of the European Com-
                             munities
                         (Case C-373/99)                               Action brought on 7 October 1999 by the Federal
                                                                       Republic of Germany against the Commission of the
                          (2000/C 6/19)                                                      European Communities
An action against the Commission of the European Communi-                                         (Case C-376/99)
ties was brought before the Court of Justice of the European
Communities on 7 October 1999 by the Hellenic Republic,                                             (2000/C 6/20)
represented by Vasilios Kontolaimos, Legal Adviser in the State
Legal Service, and Ioannis-Konstantinos Khalkias, Member of
that Service, with an address for service in Luxembourg at the         An action against the Commission of the European Communi-
Greek Embassy, 117 Val Sainte-Croix.                                   ties was brought before the Court of Justice of the European
                                                                       Communities on 7 October 1999 by the Federal Republic of
                                                                       Germany, represented by Wolf-Dieter Plessing, Ministerialrat in
The applicant claims that the Court should: annul or, in the           the Federal Ministry of Financial Affairs, 108 Graurheindorfer
alternative, amend Commission Decision C (1999) 2476 of                Straße, D-53117 Bonn, and Holger-Friedrich Wissel, Rechtsan-
28 July 1999 amending Decision 99/187/EC on the clearance              walt, c/o Pünder, Volhard, Weber & Axster, 6 Cecilienallee,
of the accounts presented by the Member States in respect of           D-40474 Düsseldorf.
the expenditure for 1995 of the Guarantee Section of the
European Agricultural Guidance and Guarantee Fund                      The applicant claims that the Court should:
(EAGGF) (1), as regards the chapters thereof specifically contest-
ed, which concern the financial corrections to fruit and
                                                                       1. Annul the Commission decision of 8 July 1999 concerning
vegetables, to arable crops, to the 2 % deduction for adminis-
                                                                            a measure taken by the Federal Republic of Germany in
trative expenditure, to cotton and to olive oil.
                                                                            favour of Westdeutsche Landesbank Girozentrale, refer-
                                                                            ence COM (1999) 2265 fin., notified on 4 August 1999;
Grounds for annulment and main arguments                               2. Order the defendant to pay the costs.
The main grounds for annulment advanced by the Hellenic                Pleas in law and main arguments
Republic are as follows:
                                                                       — Irregular composition of the Commission [see Case
— incorrect assessment by the Commission of the facts;                      C-334/99 (1)].


title: Judgment of the Court (Third Chamber) of 14 October 2004 in Case C-275/03: Commission of the European Communities v Portuguese Republic (Failure by a Member State to fulfil its obligations — Directive 89/665/EEC — Review procedures for the award of public supply and public works contracts — Incomplete transposition)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/21

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 14 October 2004
   in Case C-275/03: Commission of the European Communities v Portuguese Republic (1)

   (Failure by a Member State to fulfil its obligations - Directive 89/665/EEC - Review procedures for the award of public supply and public works contracts - Incomplete transposition)
   (2004/C 300/43)
   Language of the case: Portuguese
   In Case C-275/03: Commission of the European Communities (Agents: A. Caeiros and K. Wiedner) v Portuguese Republic (Agents: L. Fernandes and C. Gagliardi Graça ) — action under Article 226 EC for failure to fulfil obligations, brought on 25 June 2003 — the Court (Third Chamber), composed of: A. Rosas, President of the Chamber, A. Borg Barthet, J.-P. Puissochet (Rapporteur), S. von Bahr and U. Lõhmus, Judges; C. Stix-Hackl, Advocate General; R.Grass, Registrar, has given a judgment on 14 October 2004, in which it:

               1.

               Declares that, by failing to repeal the Decree-Law No 48051 of 21 November 1967, making the award of damages to persons harmed by a breach of Community law relating to public contracts, or the national laws implementing it, conditional on proof of fault or fraud, the Portuguese Republic has failed to fulfil its obligations under Article 1(1) and Article 2(1)(c) of Council Directive 89/665/EEC 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;

               2.

               Orders the Portuguese Republic to pay the costs.

      (1)  OJ C 213 of 6.9.2003.


title: Case T-80/16: Action brought on 23 February 2016 — Shire Pharmaceuticals Ireland v EMA

text:
               18.4.2016

               EN

               Official Journal of the European Union

               C 136/37

         Action brought on 23 February 2016 — Shire Pharmaceuticals Ireland v EMA
   (Case T-80/16)
   (2016/C 136/52)
   Language of the case: English

      Parties

      Applicant: Shire Pharmaceuticals Ireland Ltd (Dublin, Ireland) (represented by: D. Anderson, QC, M. Birdling, Barrister, G. Castle and S. Cowlishaw, Solicitors)

      Defendant: European Medicines Agency

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Medicines Agency dated 15 December 2015 and communicated to the applicant on 18 December 2015 refusing to validate an application pursuant to Regulation (EC) No 141/2000 (1) for designation as an orphan medicinal product; and

               —

               order the defendant to pay the applicant’s costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on one plea in law, alleging that the contested decision erred in its interpretation and application of Regulation (EC) No 141/2000. The applicant contends that the defendant:

               —

               misapplied Article 5 of Regulation (EC) No 141/2000 by failing to appreciate the procedural nature of the validation process;

               —

               should not have concluded that the conditions for designation were not (or could not be) established;

               —

               erroneously elided the concepts of ‘medicinal product’ and ‘active substance’ contrary to Articles 3 and 5 of Regulation (EC) No 141/2000;

               —

               misapplied and erroneously relied upon the communication from the European Commission on Regulation (EC) No 141/2000 (2);

               —

               erroneously placed reliance on the fact that the applicant had previously received protocol assistance pursuant to Article 6 of Regulation (EC) No 141/2000; and

               —

               frustrated the objective of Regulation (EC) No 141/2000 as identified by Article 1 of Regulation (EC) No 141/2000 and its recitals.

      (1)  Regulation (EC) No 141/2000 of the European Parliament and of the Council of 16 December 1999 on orphan medicinal products (OJ 2000 L 18, p. 1).

      (2)  Communication (2003/C 178/02) from the Commission on Regulation (EC) No 141/2000 of the European Parliament and of the Council on orphan medicinal products (OJ 2003 C 178, p. 2).


title: Case T-48/17: Action brought on 27 January 2017 — ADDE v Parliament

text:
               13.3.2017

               EN

               Official Journal of the European Union

               C 78/40

         Action brought on 27 January 2017 — ADDE v Parliament
   (Case T-48/17)
   (2017/C 078/55)
   Language of the case: English

      Parties

      Applicant: Alliance for Direct Democracy in Europe ASBL (Brussels, Belgium) (represented by: L. Defalque, lawyer)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Parliament of 21 November 2016 on the 2015 funding of the ADDE party declaring an amount of 500 615,55 euros as ineligible and requesting the reimbursement of the amount of 172 654,92 euros

               —

               annul the decision of the European Parliament of 15 December 2016, inasmuch as it limits the pre-financing amount for the 2017 grant to 33 % of the maximum grant amount and makes the payment of the pre-financing amount conditional on the presentation of a first demand guarantee, and, as a consequence, article I.4.1 of the grant award decision FINS-2017-13 appended to this decision;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action for annulment of the decision of 21 November 2016, the applicant relies on three pleas in law.

               1.

               First plea in law, alleging a breach of the principle of good administration and violation of the rights of the defence.

               2.

               Second plea in law, alleging several manifest errors of assessment which give rise to a breach of Articles 7, 8 and 9 of Regulation (EC) No 2004/2003 of the European Parliament and of the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding (OJ 2003 L 297, p. 1)

               3.

               Third plea in law, alleging a breach of the principle of proportionality and the principle of equal treatment

         In support of the action for annulment of the decision of 15 December 2016, the applicant relies on three pleas in law.

               1.

               First plea in law, alleging a breach of the principle of good administration and violation of the rights of the defence.

               2.

               Second plea in law, alleging a violation of article 134 of the EU financial regulation.

               3.

               Third plea in law, alleging a breach of the principle of proportionality and the principle of equal treatment.


title: Case C-170/11: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 7 April 2011 — Maurice Robert Josse Marie Ghislain Lippens and Others v Hendrikus Cornelis Kortekaas and Others, other party: Ageas NV, previously Fortis N.V

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/12

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 7 April 2011 — Maurice Robert Josse Marie Ghislain Lippens and Others v Hendrikus Cornelis Kortekaas and Others, other party: Ageas NV, previously Fortis N.V
   (Case C-170/11)
   2011/C 179/22
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

   Applicants:

               Maurice Robert Josse Marie Ghislain Lippens

               Gilbert Georges Henri Mittler

               Jean Paul François Caroline Votron

         Defendants:

               Hendrikus Cornelis Kortekaas

               Kortekaas Entertainment Marketing B.V.

               Kortekaas Pensioen B.V.

               Dirk Robbard De Kat

               Johannes Hendrikus Visch

               Euphemia Joanna Bökkerink

               Laminco Gld N-A

         Other party: Ageas NV, previously Fortis N.V

      Question referred

   Must the EC Evidence Regulation, (1) in particular Article 1(1) thereof, be interpreted as meaning that a judge wishing to hear a witness who resides in another Member State must always, for that form of the taking of evidence, use the methods put in place by the EC Evidence Regulation, or does he have the power to use the methods provided by his own national procedural law such as summoning the witness to appear before him?

      (1)  Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ 2001 L 174, p.1).


title: Case T-285/03: Judgment of the Court of First Instance of 26 November 2008 — Agraz and Others v Commission (Non-contractual liability — Agriculture — Common organisation of the markets in processed fruit and vegetable products — Production aid for processed tomato products — Method of calculating the amount — 2000/2001 marketing year — Determination of the loss)

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/23

         Judgment of the Court of First Instance of 26 November 2008 — Agraz and Others v Commission
   (Case T-285/03) (1)

   (Non-contractual liability - Agriculture - Common organisation of the markets in processed fruit and vegetable products - Production aid for processed tomato products - Method of calculating the amount - 2000/2001 marketing year - Determination of the loss)
   (2009/C 19/42)
   Language of the case: French
   Parties

      Applicants: Agraz, SA (Madrid, Spain) and the 86 applicants listed in Annexes I and II to the judgment (represented by: J.L. da Cruz Vilaça, D. Choussy and S. Estima Martins)

      Defendant: Commission of the European Communities (represented by: M. Nolin, Agent)
   Re:
   Action for damages for the loss allegedly suffered by the applicants as the result of the method used to calculate the amount of production aid under Commission Regulation (EC) No 1519/2000 of 12 July 2000 setting for the 2000/2001 marketing year the minimum price and the amount of production aid for processed tomato products (OJ 2003 L 174, p. 29).
   Operative part of the judgment
   The Court:

               1.

               Orders the Commission to pay to Agraz, Sa and the 86 other companies listed in Annexes I and II damages equivalent to an increase of 15.54 % in the amount of production aid which they received for the 2000/2001 marketing year, as set by Annex II to Regulation No 1519/2000.

               2.

               Orders those damages to be reassessed using compensatory interest as from the time of actual payment of the aid to each applicant up to the date of delivery of the present judgment, at the rate fixed by the ECB for principal refinancing operations, plus two points, in respect of the applicants listed in Annex I, and at the rate of annual inflation determined for the period in question by Eurostat in the Member State where they are established, in respect of the applicants listed in Annex II.

               3.

               Orders that the damages, as reassessed, be accompanied by default interest, as from the date of delivery of the present judgment until complete payment, at the rate set by the ECB for principal refinancing operations, plus two points.

      (1)  OJ C 251, 18.10.2003.


title: Case C-135/17: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 March 2017 — X-GmbH v Finanzamt Stuttgart — Körperschaften

text:
               10.7.2017

               EN

               Official Journal of the European Union

               C 221/4

         Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 March 2017 — X-GmbH v Finanzamt Stuttgart — Körperschaften
   (Case C-135/17)
   (2017/C 221/05)
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: X-GmbH

      Defendant: Finanzamt Stuttgart — Körperschaften

      Questions referred

               1.

               Is Article 57(1) EC (now Article 64(1) TFEU) to be interpreted as meaning that a restriction in a Member State which existed on 31 December 1993 in respect of the movement of capital to and from third countries involving direct investments is not affected by Article 56 EC (now Article 63 TFEU) even if the national law in force at the relevant date restricting the movement of capital to and from third countries essentially applied only to direct investments but was extended after that date to cover also investment holdings in foreign companies below the shareholding threshold of 10 %?

               2.

               If the first question is to be answered in the affirmative: Is Article 57(1) EC to be interpreted as meaning that a national-law restriction in respect of the movement of capital to or from third countries involving direct investments is to be regarded as applicable on the relevant date of 31 December 1993, if later national law substantially corresponding to the restriction in force at the relevant date enters into force, the restriction existing at the relevant date being nevertheless substantially amended for a short time by legislation which formally entered into force but was in practice never applied due to the fact that it was replaced by the legislation at present in force before it could be applied to a specific case for the first time?

               3.

               If either of the first two questions is to be answered in the negative: Does Article 56 EC preclude legislation of a Member State under which the basis of assessment to tax of a taxable person resident in that Member State, which holds at least 1 % of the shares in a company established in another State (in the present case, Switzerland), includes positive income earned by that company derived from capital investments pro rata, in the amount of the shareholding, where such income is taxed at a lower rate than in the Member State?


title: Case C-568/13: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 6 November 2013 — Azienda Ospedaliero-Universitaria di Careggi-Firenze v Data Medical Service srl

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/25

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 6 November 2013 — Azienda Ospedaliero-Universitaria di Careggi-Firenze v Data Medical Service srl
   (Case C-568/13)
   2014/C 52/45
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Appellant: Azienda Ospedaliero-Universitaria di Careggi-Firenze

      Respondent: Data Medical Service srl

      Questions referred

               1.

               Does Article 1 of Directive 50/1992, (1) read also in the light of the later Article 1(8) of Directive 18/2004, (2) preclude a national rule which was interpreted as excluding the appellant in the present proceedings, by dint of the fact that it is a commercially-run hospital characterisable as a public economic entity, from participating in tendering procedures?

               2.

               Does European Union law on public procurement — in particular, the general principles of freedom of competition, non-discrimination and proportionality — preclude a national rule under which a body like the appellant hospital, which receives public funding on a permanent basis and is directly contracted to provide a public service, is able to derive from that situation a decisive competitive advantage over rival economic operators, as demonstrated by the size of the discount offered, in circumstances in which corrective measures have not been put in place at the same time in order to prevent that kind of distortion of competition?

      (1)  Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).

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


title: Case T-383/12: Action brought on 24 August 2012 — Ferienhäuser zum See v OHIM — Sunparks Groep (Sun Park Holidays)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/29

         Action brought on 24 August 2012 — Ferienhäuser zum See v OHIM — Sunparks Groep (Sun Park Holidays)
   (Case T-383/12)
   2012/C 355/63
   Language in which the application was lodged: English

      Parties

      Applicant: Ferienhäuser zum See GmbH (Marienmünster, Germany) (represented by: M. Boden and I. Höfener, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Sunparks Groep NV (Den Haan, Belgium)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 June 2012 in case R 1928/2011-4;

               —

               Annul the decision of the Opposition Division of 25 July 2011; and

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘Sun Park Holidays Die wohl kinderfreundlichste Art Campingurlaub zu machen!’ in colours blue, yellow and black, for services in classes 39 and 43 — Community trade mark application No 9078049

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Community trade mark registration No 6852453 for the figurative mark in colours blue and green ‘Sunparks Holiday Parks’, for services in classes 39, 41 and 43; Benelux trade mark registration No 834301 of the word mark ‘SUNPARK’; Benelux trade mark registration No 853882 and International registration No 992185 for the figurative mark ‘SUNPARKS’

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) Council Regulation No 207/2009.


title: Case C-1/08: Judgment of the Court (Third Chamber) of 19 February 2009 (reference for a preliminary ruling from the Corte suprema di cassazione (Italy)) — Athesia Druck Srl v Ministero delle Finanze, Agenzia delle Entrate (Sixth VAT Directive — Article 9(2)(e) — Article 9(3)(b) — Thirteenth VAT Directive — Article 2 — Place where a supply of services is effected — Advertising services — Reimbursement of VAT — Tax representative)

text:
               18.4.2009

               EN

               Official Journal of the European Union

               C 90/5

         Judgment of the Court (Third Chamber) of 19 February 2009 (reference for a preliminary ruling from the Corte suprema di cassazione (Italy)) — Athesia Druck Srl v Ministero delle Finanze, Agenzia delle Entrate
   (Case C-1/08) (1)

   (Sixth VAT Directive - Article 9(2)(e) - Article 9(3)(b) - Thirteenth VAT Directive - Article 2 - Place where a supply of services is effected - Advertising services - Reimbursement of VAT - Tax representative)
   2009/C 90/08
   Language of the case: Italian

      Referring court

   Corte suprema di cassazione

      Parties to the main proceedings

      Applicant: Athesia Druck Srl

      Defendants: Ministero delle Finanze, Agenzia delle Entrate

      Re:

   Reference for a preliminary ruling — Corte suprema di cassazione (Italy) — Interpretation of Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Advertising services — Determination of the place of supply — Supply of services carried out by an undertaking with its head office in the territory of the Community for an undertaking which is established in a third country but which has a tax representative in the territory of a Member State

      Operative part of the judgment

   With regard to advertising services, where the recipient of the services is established outside the European Community, the place of supply is, as a rule, according to Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Tenth Council Directive 84/386/EEC of 31 July 1984, defined as the place where that recipient has his principal place of business. However, Member States may exercise the option provided in Article 9(3)(b) of Sixth Directive 77/388, as amended, and define the place where the services in question are supplied, by way of derogation from that rule, as within the Member State concerned.
   If the option available under Article 9(3)(b) of Sixth Directive 77/388, as amended, is exercised, advertising services provided by a supplier established in the European Community to a customer situated in a non-Member state, whether that customer is the final customer or an intermediate customer, are deemed to be supplied within the European Community, provided that the effective use and enjoyment of the services, within the meaning of Article 9(3)(b) of Sixth Directive 77/388, as amended, take place within the Member State concerned. That is the case, with regard to advertising services, where the advertising material being supplied is disseminated from the Member State concerned.
   Advertising services provided by a supplier established outside the European Community for his own clients cannot be liable to VAT under Article 9(3)(b) of Sixth Directive 77/388, as amended, even where that supplier acted in the capacity of intermediate customer in respect of an earlier supply of services, since such a supply of services does not fall within the scope of Article 9(2)(e) of that directive or, in more general terms, Article 9 of the directive as a whole, those being provisions which are expressly referred to in Article 9(3)(b) of that directive.
   The fact that the supply of services for the purpose of Article 9(3)(b) of Sixth Directive 77/388, as amended, is subject to value added tax does not preclude the taxable person’s right to the refund of VAT where he satisfies the conditions laid down in Article 2 of Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community territory.
   Whether a tax representative is appointed does not, of itself, have any effect on whether the services received or provided by the represented person are liable to VAT.

      (1)  OJ C 64, 8.3.2008.


title: Case T-509/15: Action brought on 3 September 2015 — Kessel medintim v OHIM — Janssen-Cilag GmbH (Premeno)

text:
               26.10.2015

               EN

               Official Journal of the European Union

               C 354/45

         Action brought on 3 September 2015 — Kessel medintim v OHIM — Janssen-Cilag GmbH (Premeno)
   (Case T-509/15)
   (2015/C 354/55)
   Language in which the application was lodged: German

      Parties

      Applicant: Kessel medintim GmbH (Mörfelden-Walldorf, Germany) (represented by: A. Jacob and U. Staudenmaier, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Janssen-Cilag GmbH (Neuss, Germany)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community word mark ‘Premeno’ — Application No 6 408 926

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 2 July 2015 in Case R 349/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision and dismiss the opposition;

               —

               in the alternative: refer the opposition back to OHIM for a new decision;

               —

               order OHIM to pay the cost of the proceedings in accordance with Article 134(1) TFEU.

      Pleas in law

               —

               Infringement of Article 75(2) of Regulation No 207/2009;

               —

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


title: Case C-476/10: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Vorarlberg (Austria) lodged on 1 October 2010 — projektart Errichtungsges mbH, Eva Maria Pepic and Herbert Hilbe v Grundverkehrs-Landeskommission Vorarlberg

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/22

         Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Vorarlberg (Austria) lodged on 1 October 2010 — ‘projektart’ Errichtungsges mbH, Eva Maria Pepic and Herbert Hilbe v Grundverkehrs-Landeskommission Vorarlberg
   (Case C-476/10)
   ()
   2010/C 328/38
   Language of the case: German

      Referring court

   Unabhängiger Verwaltungssenat des Landes Vorarlberg

      Parties to the main proceedings

      Applicants:‘projektart’ Errichtungsges mbH, Eva Pepic and Herbert Hilbe

      Defendant: Grundverkehrs-Landeskommission Vorarlberg

      Questions referred

               1.

               Is Article 6(4) of Directive 88/361/EEC (1) of 24 June 1988 for the implementation of Article 67 of the Treaty, according to which existing national legislation regulating purchases of secondary residences may be upheld, still applicable to the purchase of secondary residences situated in a Member State of the EU by a national of the Principality of Liechtenstein, which forms part of the EEA?

               2.

               Does national legislation which, on the basis of Article 6(4) of Council Directive 88/361/EEC of 24 June 1988, prohibits a national of the Principality of Liechtenstein from purchasing a secondary residence situated in a Member State of the EU conflict with the provisions of the EEA Agreement concerning the free movement of capital, so that a national authority must disregard such national legislation?

      (1)  OJ 1988 L 178, p. 5.


title: Judgment of the Court (Second Chamber) of 16 October 2003 in Case C-2/02 (Reference for a preliminary ruling from the Verwaltungsgericht Mainz): Emil Färber GmbH & Co. v Landkreis Alzey-Worms (Common agricultural policy — Fees for health inspections and controls of fresh meat — Directive 85/73/EEC)

text:
29.11.2003               EN                           Official Journal of the European Union                                               C 289/5
1.    Declares that, by keeping in force legislation under which              of the Chamber, V. Skouris and N. Colneric (Rapporteur),
      products in respect of which there has not yet been full                Judges; J. Mischo, Advocate General; R. Grass, Registrar, has
      harmonisation, intended for use on merchant vessels flying the          given a judgment on 16 October 2003, in which it:
      Italian flag, may be marketed only if a certificate of conformity
      has been issued by a national body — so that in some cases the
                                                                              1.    Declares that, by failing to adopt the laws, regulations and
      right to market the products is enjoyed only by the grantee of
                                                                                administrative provisions necessary to comply, as regards the
      the certificate — and by not recognising the validity of tests
                                                                                territory of Gibraltar, with Directive 97/9/EC of the European
      carried out in accordance with international standards by bodies
                                                                                Parliament and of the Council of 3 March 1997 on investor-
      recognised in the other Member States, even where the relevant
                                                                                compensation schemes the United Kingdom of Great Britain
      information is made available to the competent authority and
                                                                                and Northern Ireland has failed to fulfil its obligations under
      it is clear from the certificates that the equipment guarantees a
                                                                                Article 15 of that directive;
      degree of safety equivalent to that required for Italian products,
      the Italian Republic has failed to fulfil its obligations under
      Article 28 EC;                                                          2.    Orders the United Kingdom of Great Britain and Northern
                                                                                Ireland to pay the costs.
2.    Orders the Italian Republic to pay the costs.
                                                                              (1) OJ C 84 of 6.4.2002.
(1) OJ C 84 of 6.4.2002.
                                                                                JUDGMENT OF THE COURT
                                                                                (Second Chamber)
                   JUDGMENT OF THE COURT
                                                                                of 16 October 2003
                         (Second Chamber)
                                                                              in Case C-2/02 (Reference for a preliminary ruling from
                                                                              the Verwaltungsgericht Mainz): Emil Färber GmbH & Co.
                        of 16 October 2003                                                       v Landkreis Alzey-Worms (1)
in Case C-489/01: Commission of the European Communi-                         (Common agricultural policy — Fees for health inspections
ties v United Kingdom of Great Britain and Northern                                and controls of fresh meat — Directive 85/73/EEC)
                               Ireland (1)
                                                                                (2003/C 289/09)
(Failure of a Member State to fulfil its obligations — Failure
  to implement Directive 97/9/EC — Territory of Gibraltar)                                        (Language of the case: German)
                                                                              (Provisional translation; the definitive translation will be published
                           (2003/C 289/08)
                                                                                in the European Court Reports)
                     (Language of the case: English)
                                                                              In Case C-2/02: Reference to the Court under Article 234 EC
                                                                              by the Verwaltungsgericht Mainz (Germany) for a preliminary
                                                                              ruling in the proceedings pending before that court between
In Case C-489/01, Commission of the European Communities                      Emil Färber GmbH & Co. and Landkreis Alzey-Worms, on the
(Agent: C. Tufvesson) v United Kingdom of Great Britain and                   interpretation of Annex A, Chapter I, point 2, indent (a), to
Northern Ireland (Agents: G. Amodeo): Application for a                       Council Directive 85/73/EEC of 29 January 1985 on the
declaration that, by failing to adopt the laws, regulations and               financing of veterinary inspections and controls covered by
administrative provisions necessary to comply, as regards the                 Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/
territory of Gibraltar, with Directive 97/9/EC of the European                496/EEC (OJ 1985 L 32, p. 14), as amended and consolidated
Parliament and of the Council of 3 March 1997 on investor-                    by Council Directive 96/43/EC of 26 June 1996 (OJ 1996
compensation schemes (OJ 1997 L 84, p. 22) or, in any case,                   L 162, p. 1), the Court (Second Chamber), composed of:
by not notifying the measures to the Commission, the United                   R. Schintgen (Rapporteur), President of the Chamber, V. Skou-
Kingdom of Great Britain and Northern Ireland has failed to                   ris and N. Colneric, Judges; A. Tizzano, Advocate General; M.-
fulfil its obligations under Article 15 of that directive, the                F. Contet, Principal Administrator, for the Registrar, has given
Court (Second Chamber), composed of: R. Schintgen, President                  a judgment on 16 October 2003, in which it has ruled:
 ---pagebreak--- C 289/6                  EN                            Official Journal of the European Union                                            29.11.2003
Annex A, Chapter I, point 2, indent (a), to Council Directive 85/              its external trade and give rise to an advantage for national trade at
73/EEC of 29 January 1985 on the financing of veterinary                       the expense of that of another Member State, provided that those
inspections and controls covered by Directives 89/662/EEC, 90/                 rules cannot be justified under Article 30 EC. It is for the national
425/EEC, 90/675/EEC and 91/496/EEC, as amended and consoli-                    court to ascertain whether that is so in the main proceedings.
dated by Council Directive 96/43/EC of 26 June 1996, must be
interpreted as meaning that the standard additional amount laid
down by that provision to cover the cost of the controls and inspections       (1) OJ C 84 of 6.4.2002.
connected with cutting operations is payable for all meat entering the
cutting plant, irrespective of whether it is actually cut in that cutting
plant.
(1) OJ C 68 of 16.3.2002.
                                                                                JUDGMENT OF THE COURT
                                                                                (Second Chamber)
                                                                                of 16 October 2003
                  JUDGMENT OF THE COURT
                                                                               in Case C-32/02: Commission of the European Communi-
                                                                                ties v Italian Republic (1)
                           (First Chamber)
                                                                               (Failure of a Member State to fulfil obligations — Directive
                         of 2 October 2001                                     98/59/EC — Term ‘Employer’ — National law which
                                                                               excludes non-profit-making activities from the scope of the
in Case C-12/02 (reference for a preliminary ruling form                                      directive — Incomplete transposition)
the Bayerisches Oberstes Landesgericht): criminal pro-
                 ceedings against Marco Grilli (1)                                                        (2003/C 289/11)
(Free movement of goods — Measures having equivalent                                                (Language of the case: Italian)
effect — Transfer by road to one Member State of a motor
vehicle purchased in another Member State — Temporary
                                                                               (Provisional translation; the definitive translation will be published
number plates — Criminal penalty for driving a vehicle
                                                                                in the European Court Reports)
                    without a valid registration)
                           (2003/C 289/10)
                                                                               In Case C-32/02, Commission of the European Communities
                                                                               (Agent: A. Aresu) v Italian Republic (Agent: I. M. Braguglia,
                    (Language of the case: German)                             assisted by M. Mari): Application for a declaration that, by not
                                                                               adopting the necessary provisions in respect of employers
(Provisional translation; the definitive translation will be published         engaged in non-profit-making activities, the Italian Republic
                    in the European Court Reports)                             has failed to fulfil its obligations under Council Directive 98/
                                                                               59/EC of 20 July 1998 on the approximation of the laws of
                                                                               the Member States relating to collective redundancies (OJ
                                                                               1998 L 225, p. 16), the Court (Second Chamber), composed
In Case C-12/02: reference to the Court under Article 234 EC                   of: R. Schintgen, President of the Chamber, V. Skouris and
by the Bayerisches Oberstes Landesgericht (Germany) for a                      N. Colneric (Rapporteur), Judges; P. Léger, Advocate General;
preliminary ruling in the criminal proceedings pending before                  R. Grass, Registrar, has given a judgment on 16 October 2003,
that court against Marco Grilli on the interpretation of                       in which it has ruled:
Article 29 EC, the Court (First Chamber), composed of
M. Wathelet (Rapporteur), President of the Chamber, P. Jann
and A. Rosas, P. Léger, Advocate General; R. Grass, Registrar,                 1.     Declares that, by not adopting the necessary provisions in
gave a judgment on 2 October 2003, the operative part of                              respect of employers engaged in non-profit-making activities,
which is as follows:                                                                  the Italian Republic has failed to fulfil its obligations under
                                                                                Council Directive 98/59/EC of 20 July 1998 on the approxi-
                                                                                mation of the laws of the Member States relating to collective
Article 29 EC precludes the rules of a Member State which prohibit                    redundancies;
a national of another Member State, on pain of criminal penalties
such as imprisonment or a fine, from taking to that other State a              2.     Orders the Italian Republic to pay the costs.
vehicle purchased in the first Member State bearing temporary
number plates issued, for the purpose of the export of the vehicle to
that other Member State, by the competent authorities of the latter            (1) OJ C 84 of 6.4.2002.
State, if those rules are of such a kind as to restrict export patterns,
create a difference in treatment between a State’s domestic trade and


title: Case T-691/13: Action brought on 27 December 2013 — Ricoh Belgium v Council

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/43

         Action brought on 27 December 2013 — Ricoh Belgium v Council
   (Case T-691/13)
   2014/C 52/82
   Language of the case: Dutch

      Parties

      Applicant: Ricoh Belgium NV (Vilvoorde, Belgium) (represented by: N. Braeckevelt and A. de Visscher, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the application admissible and well founded;

               —

               annul the decision of the Council of 29 October 2013 not to award Lot 4 of the contract for the ‘Purchase or hire of black and white multifunction printers (MFP) and associated maintenance services in the buildings occupied by the General Secretariat of the Council of the European Union — Reference Number 2013/S 83-138901’ to Ricoh Belgium NV, but to another undertaking;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of the principle of transparency under Articles 15 TFEU and 298 TFEU, as well as under Article 102(1) of Regulation No 966/2012. (1)

               Specifically, although nothing in that regard was mentioned in the relevant specification, the (speed of the) applicant’s printers was tested by the defendant from the moment of their start-up, and not from the moment at which they operate most efficiently. The measurements and values in the applicant’s tender therefore differ from those that follow from the test results, which are ultimately lower and thus produce an unfavourable score. The applicant is unable to verify whether its competitor’s machines were tested under the same (unfavourable) conditions. Moreover, the defendant, after completion of the tests for that award sub-criterion (Criterion C ‘Technical evaluation of the equipment on the basis of tests’), established a calculation and score and presented these to the applicant. That score (namely 41.2%) differs from the score ultimately included in the contested decision (namely 38.61%).

               2.

               Second plea in law, alleging breach of the duty to state reasons following from Article 113(2) of Regulation No 966/2012 and Article 161(3) of Delegated Regulation No 1268/2012, (2) as well as breach of the duty in tender procedures to award the contract to the most economically advantageous tenderer, as follows from Article 110(2) of Regulation No 966/2012 and Article 149(1)(b) of Delegated Regulation No 1268/2012.
               In the further clarification subsequently provided to the applicant, the defendant stated that it had initially made a mistake and that the test results should have been compared against the standards set out in the specifications (copying and printing at 100 per minute) and not against the standards in the tender submitted by the applicant (copying and printing at 110 per minute).
               Although the defendant explained the alleged correction in the final score by stating that the test results had to be assessed against a lower standard (comparison at 100 instead of 110), the applicant appears, for some incomprehensible reason, totally (mathematically) illogically — and also without a single specific calculation or justification — to have suddenly obtained a lower score (38.61 points as opposed to 41.2 points, whereas a higher score of 44.3 points would have been expected for a comparison made against the specification standards).
               In view of the very small overall difference between both tenderers for Lot 4, namely 90.81 points for the other undertaking as against 89.67 points for the applicant, on a correct calculation the applicant ought therefore to have been designated as the most economically advantageous tenderer.

      (1)  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).

      (2)  Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1).


               30.4.2005

               EN

               Official Journal of the European Union

               C 106/22

         Removal from the register of Case C-401/04 (1)

   (2005/C 106/48)

      (Language of the case: Swedish)

   By order of 28 January 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-401/04: Commission of the European Communities v Kingdom of Sweden.

      (1)  OJ C 273 of 06.11.2004.


title: Case C-105/07: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 22 February 2007 — N.V. Lammers & Van Cleeff v Belgische Staat

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/26

         Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 22 February 2007 — N.V. Lammers & Van Cleeff v Belgische Staat
   (Case C-105/07)
   (2007/C 95/47)
   Language of the case: Dutch
   Referring court
   Rechtbank van eerste aanleg te Antwerpen
   Parties to the main proceedings

      Applicant: N.V. Lammers & Van Cleeff

      Defendant: Belgische Staat
   Question referred
   Do Articles 12, 43, 46, 48, 56 and 58 EC preclude Belgian national statutory rules, as set out in the then applicable Articles 18(1), point 3, and 18(2), point 3, of the WIB92, whereby interest payments were not classified as dividends and were therefore not taxable if those interest payments were made to a director which was a Belgian company, whereas in the same circumstances those interest payments were classified as dividends, and therefore taxable, if they were made to a director which was a foreign company?


               29.5.2004

               EN

               Official Journal of the European Union

               C 146/6

         Action brought on 8 April 2004 by Giuseppe Caló against Commission of the European Communities
   (Case T-134/04)
   (2004/C 146/08)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 April 2004 by Giuseppe Caló, residing in Luxembourg, represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court of First Instance should:

               —

               annul the Commission decision of 30 March 2004 to fill the Grade A2 post of Director of the Agriculture, fisheries, structural funds and environment statistics directorate of the DG EUROSTAT and that rejecting the applicant's candidature for that post;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant, an official of the defendant assigned to EUROSTAT as Director of the Agriculture, environment, food and regions statistics directorate, had been reassigned, with his post, to the duties of Principal Adviser to the Director-General of the Directorate-General to which he was assigned. The Commission had also decided to fill his former post.
   The applicant has challenged those decisions before the Court of First Instance in another case (T-118/04 Caló v Commission).
   In the present action, the applicant challenges the decision to appoint another official to his former post, relying, first, on the same pleas in law as those invoked in Case T-118/04. He claims moreover that the candidate appointed does not have the qualifications required by the vacancy notice in question. He also contends that that candidate participated in a meeting of the Commissioners' Chefs de cabinet at which the filling of the post for which he was himself a candidate was decided. The applicant, on that basis, alleges infringement of the principles of transparency, fairness and impartiality and infringement of the rights of the defence. Finally, the applicant alleges a complete failure to state reasons.


title: Case F-138/14: Action brought on 9 December 2014  — ZZ v Commission

text:
               2.2.2015

               EN

               Official Journal of the European Union

               C 34/55

         Action brought on 9 December 2014 — ZZ v Commission
   (Case F-138/14)
   (2015/C 034/68)
   Language of the case: French

      Parties

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

      Defendant: Commission

      Subject-matter and description of the proceedings

   Annulment of the decision on the transfer of the applicant’s pension rights in the EU pension scheme, a decision which applies the new general implementing provisions to Articles 11 and 12 of Annex VIII to the Staff Regulations.

      Form of order sought

               —

               Declare the illegality of Article 9 of the general implementing provisions of Article 11(2) of Annex VIII to the Staff Regulations;

               —

               Annul the decision of 17 February 2014 to calculate the annuities recognised in the pension scheme of the institutions of the European Union on the transfer of her pension rights in that scheme, under the general implementing provisions of Article 11(2) of Annex VIII to the Staff Regulations of 3 March 2011;

               —

               Order the Commission to pay the costs.


title: Case C-154/11: Reference for a preliminary ruling from the Landesarbeitsgericht Berlin-Brandenburg (Germany), lodged on 29 March 2011 — Ahmed Mahamdia v People’s Democratic Republic of Algeria

text:
               11.6.2011

               EN

               Official Journal of the European Union

               C 173/6

         Reference for a preliminary ruling from the Landesarbeitsgericht Berlin-Brandenburg (Germany), lodged on 29 March 2011 — Ahmed Mahamdia v People’s Democratic Republic of Algeria
   (Case C-154/11)
   2011/C 173/10
   Language of the case: German

      Referring court

   Landesarbeitsgericht Berlin-Brandenburg

      Parties to the main proceedings

      Applicant: Ahmed Mahamdia

      Defendant: People’s Democratic Republic of Algeria

      Questions referred

               1.

               Does an embassy of a State outside the scope of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Regulation No 44/2001’) (1) which is situated in a Member State constitute a branch, agency or other establishment within the meaning of Article 18(2) of Regulation No 44/2001?

               2.

               If the answer to the first question should be in the affirmative:
               Can an agreement conferring jurisdiction reached prior to the existence of a dispute confer jurisdiction on a court outside the scope of Regulation No 44/2001, if, by virtue of the agreement conferring jurisdiction, the jurisdiction conferred under Articles 18 and 19 of Regulation No 44/2001 would not apply?

      (1)  OJ 2001 L 12, p. 1.


title: Case C-563/07: Action brought on 20 December 2007 — Commission of the European Communities v Republic of Malta

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/37

         Action brought on 20 December 2007 — Commission of the European Communities v Republic of Malta
   (Case C-563/07)
   (2008/C 51/61)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: U. Wölker and D. Lawunmi, Agents)

      Defendant: Republic of Malta
   The applicant claims that the Court should:

               —

               declare that, by failing to provide the information necessary to comply with Decision No. 280/2004/EC (‘the Decision’) of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community Greenhouse gas emissions and for implementing the Kyoto Protocol (1) in Malta in conjunction with Articles 2 to 7 of Commission Decision 166/2005/EC of 10 February 2005 laying down rules implementing Decision 280/2004/EC, the Republic of Malta has failed to fulfil its obligations under Article 3(1) of the Decision.

         Pleas in law and main arguments
   According to Article 3(1) of decision No 280/2004/EC the Member States shall, for the assessment of actual progress and to enable the preparation of annual reports by the Community, in accordance with obligations under the UNFCCC and the Kyoto protocol, provide the Commission with certain information regarding greenhouse gas emissions by 15 January each year.
   In view of the fact that the Republic of Malta has not provided the Commission with the information due on 15 January 2006 the Commission is obliged to assume that the Maltese authorities have failed to meet their obligations under Article 3(1) of the decision.

      (1)  OJ L 49, p. 1.