title: Case T-162/03: Action brought on 30 April 2003 by Pascal Millot against the Commission of the European Communities

text:
C 171/38               EN                          Official Journal of the European Union                                           19.7.2003
The applicant claims that the Court should:                                The applicant claims that the Court should:
—      order the Commission to make good the damage suffered               —     annul the decision of the Commission of 6 May 2002
       by it as a result of incomplete compliance with the                       definitively recruiting the applicant in Grade A 7 at step 3;
       judgment of the Court of 28 February 2002;
                                                                           —     order the defendant to pay the costs.
—      order the Commission to pay the costs.
                                                                           Pleas in law and main arguments
Pleas in law and main arguments                                            The applicant took up his duties as a probationary official on
                                                                           1 August 2001 and was provisionally recruited at step 1 in
                                                                           grade A 7. The applicant made a request for recruitment at a
                                                                           higher grade. That request was refused.
The applicant has brought this action seeking a declaration
that the Commission is liable for failing to comply entirely
with the judgment of the Court ( 1) reducing the amount of the             In support of his application the applicant submits that there
fine imposed on the applicant by the Commission in decision                was a breach of Article 31(2) of the Staff Regulations in so far
94/601/CE (Plasterboard), relating to a proceeding pursuant to             as the Commission did not take account of the specific
Article 85 of the EC Treaty (IV/C/33.833-Plasterboard) ( 2).               requirements of the service. The applicant also submits that
                                                                           there was a manifest error of assessment.
In the applicant’s view, the Commission should still pay the
interests due on the difference between the sum paid and the
amount of the fine finally fixed by the Court of First Instance
together with the costs, agreed by common accord of the
parties at EUR 50 000. The defendant incurs non-contractual
liability for the damage arising therefrom.                                Action brought on 12 May 2003 by Sergio Rossi S.p.A.
                                                                           against the Office for Harmonisation in the Internal
                                                                                Market (Trade Marks and Designs) (OHIM)
( 1) Case T-308/94 Cascades SA v Commission [2002] ECR II-0000.
( 2) OJ 1991 L 243, p. 1.
                                                                                (Case T-169/03)
                                                                                (2003/C 171/65)
                                                                                (Language of the case: Italian)
                                                                           An action against the Office for Harmonisation in the Internal
Action brought on 30 April 2003 by Pascal Millot against                   Market (Trade Marks and Designs) (OHIM) was brought before
        the Commission of the European Communities                         the Court of First Instance of the European Communities on
                                                                           12 May 2003 by Sergio Rossi S.p.A., represented by Alessandro
                                                                           Ruo, lawyer.
                          (Case T-162/03)
                                                                           Sissi Rossi s.r.l. was also a party to the proceedings before the
                          (2003/C 171/64)                                  Board of Appeal.
                    (Language of the case: French)                         The applicant claims that the Court should:
                                                                           —     declare that there is a likelihood of confusion between
                                                                                the trade marks in question with regard to all the goods
                                                                                referred to and annul the contested decision at issue; in
An action against the Commission of the European Communi-                        the alternative, declare that the trade marks are inconsist-
ties was brought before the Court of Justice of the European                     ent with each other so far as concerns ‘ladies’ bags’ and
Communities on 30 April 2003 by Pascal Millot, residing in                       ‘ladies’ shoes’ and declare that there is an affinity between
Brussels, represented by Sébastien Orlandi, Albert Coolen,                       such goods;
Jean-Noël Louis and Étienne Marchal, lawyers, with an address
for service in Luxembourg.                                                 —     order the defendant to pay the costs.


title: Case C-437/02: Action brought on 3 December 2002 by the Commission of the European Communities against the Republic of Finland

text:
C 31/8                  EN                          Official Journal of the European Union                                            8.2.2003
—      order the Hellenic Republic to pay the costs.                        Pleas in law and main arguments
                                                                            1.    The Commission considers that the tax which is levied in
                                                                                respect of the validation of invoices for the import of
Pleas in law and main arguments
                                                                                pharmaceutical products that come from the Community
                                                                                is contrary to Article 12 of the EC Treaty (now Article 25
1.     The Commission considers that the measures taken are
                                                                                EC) and thus constitutes a charge having an effect
       not sufficient to ensure that the landfill site ‘Pera Galinon’
                                                                                equivalent to that of customs duty.
       is operated in a manner which does not create risks to
       the natural and man-made environment and which is
       consistent with the obligations arising from Article 4 of            2.    The Commission observes that classification as a charge
       the directive.                                                             having equivalent effect does not depend on what the
                                                                                charge is called or its amount.
2.     In the Commission’s view, the Hellenic Republic has
       exceeded the limits of the discretion conferred on it by             3.    None of the three exceptions preventing classification as
       Article 4 of the directive, since over a long period it has                a charge having equivalent effect applies.
       not taken effective action to avert pollution of the
       environment and to protect the health of inhabitants
                                                                            4.    Infringement of Article 133 of the EC Treaty.
       from the unlawful deposit of waste at the Pera Galinon
       site in the prefecture of Heraklion, Crete.
3.     The Commission observes that the landfill site in question
       operates without a permit which meets the conditions
       laid down in Article 9 of the directive.
( 1) OJ No L 194, 25.7.1975, p. 39.
( 2) OJ No L 78, 26.3.1991, p. 32.                                          Action brought on 3 December 2002 by the Commission
                                                                            of the European Communities against the Republic of
                                                                                Finland
                                                                                (Case C-437/02)
Action brought on 22 November 2002 by the                                                             (2003/C 31/13)
Commission of the European Communities against the
                         Hellenic Republic
                          (Case C-426/02)                                   An action against the Republic of Finland was brought
                                                                            before the Court of Justice of the European Communities on
                           (2003/C 31/12)                                   3 December 2002 by the Commission of the European
                                                                            Communities, represented by M. Huttunen and T. van Rijn,
                                                                            acting as Agents, with an address for service in Luxembourg.
An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 22 No-
                                                                            The Commission claims that the Court should
vember 2002 by the Commission of the European Communi-
ties, represented by Xavier Lewis and Minas Konstantinidis, of
its Legal Service.                                                          —     declare that
                                                                                1.    by failing to enact appropriate detailed rules for the
The Commission claims that the Court should:                                            distribution and use of the fishing rights allocated to
                                                                                it,
—      declare that by applying, for the benefit of the Ethniko
       Organismo Farmakon (National Organisation for Medi-
       cines), a charge in respect of the validation of invoices on               2.    and by failing to monitor compliance with the
       the import of raw materials for pharmaceutical use, semi-                        Community legislation on preservation by monitor-
       finished products and finished products from other                               ing fishing and related activities and by appropriate
       Member States or non-member countries, the Hellenic                              inspection of the fishing fleet and related activities,
       Republic has failed to fulfil its obligations under
       Articles 23, 25 and 133 of the Treaty establishing the                     3.    and by failing to prohibit provisionally fishing by
       European Community;                                                              vessels flying its flag or registered in its territory
                                                                                when the quotas allocated to it were deemed to be
—      order the Hellenic Republic to pay the costs.                                    exhausted,
 ---pagebreak--- 8.2.2003                EN                        Official Journal of the European Union                                               C 31/9
       4.   and by failing to institute criminal or administrative        A bse n c e of c r i m i n al p r o c e e d i n gs o r ad m i n-
            proceedings against masters or other persons                  i s tra ti v e ac ti on
            responsible for fishing taking place after the prohib-
            ition of fishing,
                                                                          It appears from the Finnish Government’s answer to the
                                                                          Commission’s reasoned opinion that no measures in accord-
       the Republic of Finland has failed to fulfil its obligations       ance with Article 31 of the monitoring Regulation No 2847/
       under Article 9 of Regulation (EEC) No 3760/92 ( 1) and            93 have been taken.
       Articles 2, 21 and 31 of Regulation (EEC) No 2847/93 (2),
       and
                                                                          (1 ) Council Regulation (EEC) No 3760/92 of 20 December 1992
—      order the Republic of Finland to pay the costs.                         establishing a Community system for fisheries and aquaculture
                                                                               (OJ 1992 L 389, p. 1).
                                                                          (2 ) Council Regulation (EEC) No 2847/93 of 12 October 1993
                                                                               establishing a control system applicable to the common fisheries
                                                                               policy (OJ 1993 L 261, p. 1).
Pleas in law and main arguments
A bs ence o f ap p rop ri at e deta i l ed rul es con -
c erni n g t he use of al l o cati o ns
                                                                          Reference for a preliminary ruling from Stockholms
                                                                          tingsrätt by decision of of 29 November 2002 in the case
Certain stocks of fish referred to in the annexes to the aforesaid                          of Åklagaren v Krister Hanner
regulations were overfished in 1995 and 1996 by vessels
flying the Finnish flag. It appears from the Finnish Govern-
ment’s response to the Commission’s reasoned opinion that                                            (Case C-438/02)
Finland accepts the Commission’s complaint of overfishing in
1995 and 1996 as specified in detail in the tables annexed to
the Commission’s official notice.                                                                     (2003/C 31/14)
A bs ence of i n sp ect i on an d mon i to ri ng                          Reference has been made to the Court of Justice of the
m easu res con cern i n g th e u se o f al l oca ti o ns                  European Communities by a decision of Stockholms tingsrätt
                                                                          of 29 November 2002, which was received at the Court
                                                                          Registry on 4 December 2002, for a preliminary ruling in the
It is clear on the basis of the excess fishing which took place           case of Åklagaren v Krister Hanner on the following questions:
in 1995 and 1996 that Finland breached Article 2 of the
monitoring regulation. In its response to the Commission’s
                                                                          1.     There is an independent system at national level for the
reasoned opinion Finland accepts that the monitoring arrange-                    testing and approval of medicinal products intended to
ments did not operate adequately. Finland refers in particular
                                                                                maintain good quality for medicinal products and prevent
to the difficulties which derived from Finland’s accession to
                                                                                damaging effects of medicinal products. Certain medicinal
the European Union and the changes required by membership                        products also require a prescription from a registered
to the Finnish legislation on fishing.
                                                                                doctor. In such circumstances does Article 31 of the EC
                                                                                Treaty preclude national legislation which provides that
                                                                                retail trade in medicinal products may only be carried on
                                                                                by the State or by legal persons in which the State has a
                                                                                determining influence, the objective of which is to meet
La te sus pen si o n of fi s hi n g                                              the need for safe and effective medicinal products?
                                                                          2.     Does Article 28 of the EC Treaty preclude legislation such
A Member State which terminates fishing only when it is
                                                                                as that described in Question 1, in the light of the
already known that the quota has been exceeded acts too late
                                                                                information in that question.
and thus breaches its obligations under Article 21(2) of the
monitoring Regulation No 2847/93. It is clear from the
Finnish Government’s response to the Commission’s reasoned                3.     Does Article 43 of the EC Treaty preclude legislation such
opinion that the national prohibition decisions were not made                    as that described in Question 1, in the light of the
in sufficient time to prevent excess fishing.                                    information in that question.


title: Case C-212/02: Action brought on 5 June 2002 by the Commission of the European Communities against the Republic of Austria

text:
27.7.2002               EN                   Official Journal of the European Communities                                      C 180/15
The Applicant claims that the Court should:                             The applicant claims that the Court should:
(1) declare that by failing to adopt for Gibraltar all the laws,        1.    Declare that, by failing to adopt all the laws, regulations
       regulations or administrative provisions necessary to                  and administrative provisions necessary to comply with
       comply with Council Directive 97/43/Euratom (1) of                     Directive 97/66/EC of the European Parliament and of
       30 June 1997 on health protection of individuals against               the Council of 15 December 1997 concerning the
       the dangers of ionizing radiation in relation to medical               processing of personal data and the protection of privacy
       exposure, and repealing Directive 84/466/Euratom, or in                in the telecommunications sector (1), the Grand Duchy of
       any event by failing to communicate them to the                        Luxembourg has failed to fulfil its obligations under that
       Commission, the United Kingdom has failed fully to fulfil              directive;
       its obligations under that Directive.
                                                                        2.    Order the Grand Duchy of Luxembourg to pay the costs.
(2) order the United Kingdom to pay the costs.
Pleas in law and main arguments                                         Pleas in law and main arguments
According to Article 192(1) of the Treaty, Member States shall          The period prescribed for transposition expired on 24 October
take all appropriate measures, whether general or particular,           1998 and 24 October 2000 (as regards Article 5 of the
to ensure fulfilment of the obligations arising out of this Treaty      directive), respectively.
or resulting from action taken by the institutions of the
Community.
                                                                        (1) OJ L 24 of 30.1.1998, p. 1.
The obligation on the part of the United Kingdom to take
measures in order to comply with the directive is not disputed.
Since the United Kingdom has not informed the Commission
of the provisions adopted to comply with the directive
concerned with regard to Gibraltar, and since the Commission
is in possession of no other information enabling it to conclude        Action brought on 5 June 2002 by the Commission of the
that the United Kingdom has adopted the necessary provisions,             European Communities against the Republic of Austria
it is compelled to assume that the United Kingdom has not yet
adopted such provisions and has thus failed to fulfil its
obligations under the directive.                                                                 (Case C-212/02)
                                                                                (2002/C 180/26)
(1) JO L 180 of 9.7.1997, p. 22.
                                                                        An action against the Republic of Austria was brought before
                                                                        the Court of Justice of the European Communities on 5 June
                                                                        2002 by the Commission of the European Communities,
                                                                        represented by Michel Nolin, of the Commission’s Legal
Action brought on 4 June 2002 by the Commission of the                  Service, acting as Agent, assisted by Rainer Roniger, Rechtsan-
European Communities against the Grand Duchy of                         walt, of Haarmann and Hemmelrath, Brussels, having an
                           Luxembourg                                   address for service at the office of Luis Escobar Guerrero, of
                                                                        the Commission’s Legal Service, Centre Wagner C 254.
                         (Case C-211/02)
                                                                        The applicant claims that the Court should:
                         (2002/C 180/25)
                                                                        1.    Rule that the Republic of Austria has failed to fulfil its
                                                                              obligations under the remedial Directives 89/665/EEC (1)
                                                                              and 92/13/EEC (2), in particular the obligations under
An action against the Grand Duchy of Luxembourg was                           Articles 2(1)(a) and (b) thereof, since the Land procure-
brought before the Court of Justice of the European Communi-                  ment laws of the Länder of Salzburg, Steiermark, Niederös-
ties on 4 June 2002 by the Commission of the European                         terreich and Kärnten do not ensure in all cases that the
Communities, represented by C. Schmidt, acting as Agent,                      award decision is open to review in a procedure whereby
with an address for service in Luxembourg.                                    an unsuccessful tenderer can have that decision set aside;
 ---pagebreak--- C 180/16              EN                      Official Journal of the European Communities                                       27.7.2002
2.    Order the Republic of Austria to pay the costs.                    Reference for a preliminary ruling by the Unabhängiger
                                                                         Verwaltungssenat des Landes Vorarlberg by order of that
                                                                         Court of 6 June 2002 in the appeal brought by Gerhard
                                                                                Lintschinger
Pleas in law and main arguments
                                                                                (Case C-214/02)
The Land legislatures in Salzburg, Steiermark, Niederösterreich
and Kärnten have decided to limit the effects of a review
procedure following the conclusion of a contract to awarding
damages within the meaning of Article 2(6) of Directives 89/                                      (2002/C 180/27)
665/EEC and 92/13/EEC. With the award, to be considered as
a private law declaration of intent, by the contracting authority
to the successful tenderer, the contract is closed and, according
to the provisions of the Land procurement laws — in
conformity with Article 2(6) of both directives — no longer
open to challenge by the Land bodies responsible for review
procedures.
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Unabhängiger Verwal-
The Land procurement laws which the Commission is challeng-              tungssenat des Landes Vorarlberg (Independent Administrative
ing do not, however, contain a definition of the ‘award                  Chamber of the Land Vorarlberg) of 6 June 2002, received at
decision’. They therefore also do not lay down any specific              the Court Registry on 10 June 2002, for a preliminary ruling
form for the decision by the contracting authority to award a            in the appeal brought by Gerhard Lintschinger on the following
particular tenderer the contract. Nor are uniform rules laid             questions:
down as to whether, and how, tenderers can obtain knowledge
of such award decisions. The award decision is rather an
internal decision by the contracting authority, of which
tenderers cannot acquire any knowledge. The award decision               1.    Does Article 2(1)(b) of Council Directive 79/112/EEC (1)
becomes public knowledge only once the contract is con-                        of 18 December 1978 on the approximation of the
cluded.                                                                        laws of the Member States relating to the labelling,
                                                                               presentation and advertising of foodstuffs for sale to
                                                                               the ultimate consumer (now consolidated in European
                                                                               Parliament and Council Directive 2000/13/EC of
The Austrian system is therefore not in compliance with the                    20 March 2000 — OJ 2000 L 109, p. 29), under which
directive inasmuch as, through that nomination as well as                      — subject to Community provisions applicable to natural
through the coincidence of the award decision and the                          mineral waters and to foodstuffs for particular nutritional
conclusion of the contract, the tenderer is deprived of any                    uses — the labelling and methods used may not attribute
chance to contest the award decision and effectively to prevent                to any foodstuff the property of preventing, treating or
an unlawful award decision by applying at the same time for a                  curing a human disease, or suggest that it possesses such
provisional order. That is contrary to the effective review                    properties, preclude national legislation which makes it
procedures required by the directives, under which it must be                  an offence when marketing foodstuffs:
possible to apply for a provisional order at least until the
conclusion of the contract.
                                                                               (a)   to refer to physiological or pharmacological effects,
                                                                                in particular those which preserve youthfulness,
As a consequence of the Court’s judgment in Case C-81/                               inhibit signs of ageing, promote slimming or main-
98 Alcatel (3), the Austrian Federal Chancellery prepared a                          tain health, or to create the impression of any such
memorandum intended to ensure an approach to contract                                effect;
awards in compliance with that judgment until statutory
regulations have been issued. However, a non-binding memor-
andum does not establish an unequivocal legal framework
such as the Republic of Austria is required to create.                         (b) to refer to case-histories, recommendations made by
                                                                                doctors or medical experts’ reports;
(1) OJ 1989 L 395, p. 33.
(2) OJ 1992 L 76, p. 14.                                                       (c)   to use health-related, pictorial or stylised represen-
(3) OJ 2000 C 34, p. 6.                                                              tations of organs of the human body, pictures
                                                                                of members of the health-care professions or of
                                                                                sanatoria or other pictures or illustrations referring
                                                                                to health-care activities?


title: Judgment of the Court (Second Chamber) of 29 April 1999 in Case C-288/97 (reference for a preliminary ruling from the Pretura Circondariale di Bassano del Grappa): Consorzio fra i Caseifici dell'Altopiano di Asiago v Regione Veneto (Milk - Additional levy - Meaning of purchaser - Producers' cooperative)

text:
17.7.1999                EN                      Official Journal of the European Communities                                           C 204/11
determine, in accordance with its domestic law including the rules of       2. Article 2(2) of Regulation No 3950/92 is to be understood as
private international law, the legal effects of a decision given in the          meaning that, whilst purchasers are entitled to deduct from the
State of origin in relation to a court-supervised liquidation.                   price of milk paid to a producer the amount owed by that
                                                                                producer by way of additional levy, the provision does not impose
                                                                                on them any obligation in that regard.
(1) OJ C 271 of 4.9.1997.
                                                                            (1) OJ C 295 of 27.9.1997.
                  JUDGMENT OF THE COURT
                         (Second Chamber)                                                    JUDGMENT OF THE COURT
                          of 29 April 1999                                                            (Fifth Chamber)
in Case C-288/97 (reference for a preliminary ruling
from the Pretura Circondariale di Bassano del Grappa):                                               of 29 April 1999
Consorzio fra i Caseifici dell’Altopiano di Asiago v
                         Regione Veneto (1)                                 in Case C-293/97 (reference for a preliminary ruling from
                                                                            the High Court of Justice): The Queen v Secretary of State
(Milk — Additional levy — Meaning of purchaser —                            for the Environment and Minister of Agriculture Fisheries
                       Producers’ cooperative)                              and Food ex parte H.A. Standley and Others and D.G.D.
                                                                                Metson and Others (1)
                           (1999/C 204/20)
                                                                            (Directive 91/676/EEC — Protection of waters against
                                                                            pollution caused by nitrates from agricultural sources —
                     (Language of the case: Italian)                        Identification of waters affected by pollution — Designation
                                                                            of vulnerable zones — Criteria — Validity in the light of the
                                                                            polluter pays principle, the principle that environmental
(Provisional translation; the definitive translation will be published      damage should as a priority be rectified at source, the
                    in the European Court Reports)                               principle of proportionality and the right to property)
In Case C-288/97: reference to the Court under Article 177 of                                         (1999/C 204/21)
the EC Treaty from the Pretura Circondariale di Bassano del
Grappa (District Magistrates’ Court, Bassano del Grappa), Italy,
for a preliminary ruling in the proceedings pending before that                                 (Language of the case: English)
court between Consorzio fra i Caseifici dell’Altopiano di
Asiago and Regione Veneto — on the interpretation of Articles
2 and 9 of Council Regulation (EEC) No 3950/92 of 28
December 1992 establishing an additional levy in the milk and
milk products sector (OJ 1992 L 405, p. 1) — the Court                      In Case C-293/97: reference to the Court under Article 177 of
(Second Chamber), composed of G. Hirsch (Rapporteur),                       the EC Treaty by the High Court of Justice of England and
President of the Chamber, G.F. Mancini and R. Schintgen,                    Wales, Queen’s Bench Division, for a preliminary ruling in the
Judges, A. La Pergola, Advocate General; R. Grass, Registrar,               proceedings pending before that court in The Queen v
has given a judgment on 29 April 1999, in which it has ruled:               Secretary of State for the Environment and Minister of
                                                                            Agriculture, Fisheries and Food ex parte H.A. Standley and
1. For the purposes of Articles 2(2) and 9(e) of Council Regulation         Others and D.G.D. Metson and Others, intervener: National
    (EEC) No 3950/92 of 28 December 1992 establishing an                    Farmers’ Union, on the interpretation and validity of Council
    additional levy in the milk and milk products sector, the term          Directive 91/676/EEC of 12 December 1991 concerning the
    purchaser is to be interpreted as including any intermediary            protection of waters against pollution caused by nitrates from
    undertaking which acquires milk from a producer under a                 agricultural sources (OJ 1991 L 375, p. 1) — the Court
    contract, irrespective of the manner in which the latter is paid,       (Fifth Chamber), composed of: P. Jann, President of the First
    for the purpose either of treating or processing the milk itself or     Chamber, acting for the President of the Fifth Chamber,
    of transferring it to another undertaking for treatment or              J.C. Moitinho de Almeida (Rapporteur), C. Gulmann,
    processing and which, in the event that the undertaking in              D.A.O. Edward and L. Sevón, Judges; P. Léger, Advocate Gen-
    question is a collection of cooperatives which are themselves           eral; L. Hewlett, Administrator, for the Registrar, has given a
    purchasers carries out on behalf of those cooperatives the              judgment on 29 April 1999, in which it held:
    administrative and accounting operations necessary for the
    payment of the levy, and in particular the operations referred to       1. Articles 2(j) and 3(1) of Council Directive 91/676/EEC of
    in Article 7 of Commission Regulation (EEC) No 536/93 of                     12 December 1991 concerning the protection of waters against
    9 March 1993 laying down detailed rules on the application of                pollution caused by nitrates from agricultural sources and Annex
    the additional levy on milk and milk products.                               I thereto must be interpreted as requiring the identification of


title: Case T-267/06: Judgment of the General Court of 14 February 2012 — Italy v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Financial corrections — Fruit and vegetables — Public storage of beef and veal)

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/20

         Judgment of the General Court of 14 February 2012 — Italy v Commission
   (Case T-267/06) (1)

   (EAGGF - Guarantee Section - Expenditure excluded from Community financing - Financial corrections - Fruit and vegetables - Public storage of beef and veal)
   2012/C 89/31
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: G. Aiello, Avvocato dello Stato)

      Defendant: European Commission (represented by: C. Cattabriga and F. Jimeno Fernández, Agents, assisted by A. Dal Ferro, lawyer)

      Re:

   Partial annulment of Commission Decision 2006/554/EC of 27 July 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2006 L 218, p. 12), in so far as it excludes certain expenditure incurred by the Italian Republic in the fruit and vegetable sector and in the public storage of beef and veal sector.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Italian Republic to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 281, 18.11.2006.


C 3/50                EN                       Official Journal of the European Communities                                   5.1.2002
      Removal from the Register of Case T-247/99 (1)                            Removal from the Register of Case T-225/00 (1)
                         (2002/C 3/86)                                                              (2002/C 3/89)
                   (Language of the case: Italian)                                          (Language of the case: German)
By order of 20 September 2001, the President of the First
Chamber of the Court of First Instance of the European                    By order of 13 September 2001, the President of the Fifth
Communities has ordered the removal from the Register of                  Chamber of the Court of First Instance of the European
Case T-247/99, Flavia Angeletti and André Van Meuter v                    Communities has ordered the removal from the Register of
Commission of the European Communities.                                   Case T-225/00: Andrea Gaul v Commission of the European
                                                                          Communities.
(1) OJ C 34 of 5.2.2000.
                                                                          (1) OJ C 302 of 21.10.2000.
      Removal from the Register of Case T-167/00 (1)
                                                                                Removal from the Register of Case T-55/01 (1)
                         (2002/C 3/87)
                                                                                (2002/C 3/90)
                   (Language of the case: French)
                                                                                (Language of the case: German)
By order of 14 September 2001, the President of the Second
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the Register of                  By order of 12 September 2001, the President of the Chamber
Case T-167/00: Jaume Costa v Commission of the European                   of the Court of First Instance of the European Communities
Communities.                                                              has ordered the removal from the Register of Case T-55/01,
                                                                          Asahi Vet SA v Commission of the European Communities.
(1) OJ C 247 of 26.8.2000.
                                                                          (1) OJ C 161 of 2.6.2001.
      Removal from the Register of Case T-192/00 (1)
                         (2002/C 3/88)                                          Removal from the Register of Case T-112/01 (1)
                   (Language of the case: French)                                                   (2002/C 3/91)
                                                                                (Language of the case: French)
By order of 10 September 2001, the President of the Fifth
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the Register of
                                                                          By order of 10 September 2001, the President of the Fifth
Case T-192/00: Sabrina Tesoka v Commission of the European
                                                                          Chamber of the Court of First Instance of the European
Communities.
                                                                          Communities has ordered the removal from the Register of
                                                                          Case T-112/01: Ursula Klug v Council of the European Union.
(1) OJ C 273 of 23.9.2000.
                                                                          (1) OJ C 275 of 29.9.2001.


title: Action brought on 2 May 1997 by the Commission of the European Communities against the Portuguese Republic (Case C-169/97)

text:
No C 199/12                EN                Official Journal of the European Communities                                    28 . 6 . 97
on 2 May 1997, for a preliminary ruling in the case of                        widening the scope of Directive 81/851/EEC (2 ) on
The Queen against Secretary of State for Defence, ex                          the approximation of provisions laid down by
parte: Terence Perkins, on the following question(s ):                        law, regulation or administrative action relating
                                                                              to veterinary medicinal products and laying down
1 . Must the requirement in Article 2 ( 1 ) of Council                        additional provisions on homeopathic veterinary
     Directive 76/207/EEC (') ('the Equal Treatment                           medicinal products, the Portuguese Republic has failed
     Directive') that there shall be ' no discrimination on the               to fulfil its obligations under the third paragraph of
     grounds of sex either directly or indirectly by reference                Article 189 of the EC Treaty and Article 10 of
     in particular to marital or family status' be interpreted                Directive 92/74/EEC,
     as including discrimination based on a person's sexual
     orientation ?                                                      — in the alternative, declare that, by not informing the
                                                                              Commission forthwith of such measures, the
     If the answer to question I is yes, then:                                Portuguese Republic has failed to fulfil its obligations
                                                                              under the abovementioned provisions;
2 . Whether a policy adopted by a Member State without
     any exception or qualification to discharge from the               — order the Portuguese Republic to pay the costs.
     armed forces any person of homosexual orientation, is
     outside the scope of the EC Treaty and the legislation             Pleas in law and main arguments adduced in support:
     thereunder if the Member State considers that it is
     appropriate and necessary for the purposes of ensuring
     combat effectiveness of its armed forces in the event of           The mandatory nature of the provisions of the third
     war and so for the essential purpose of the defence of             paragraph of Article 189 and the first paragraph of
     that Member State .                                                Article 5 of the EC Treaty requires Member States to
                                                                        adopt the measures necessary to transpose directives
                                                                        addressed to them into their domestic law before the
     If the answer to question 2 is 'no', then:                         expiry of the period prescribed for doing so and forthwith
                                                                        to inform the Commission thereof. That period, which is
3 . Whether the policy adopted by "the Secretary of State               laid down in Article 10 of the Directive, expired on
     without any exception or qualification to discharge                31 December 1993 without the Portuguese Republic
     from the Services any person of homosexual                         having brought into force the necessary provisions .
     orientation is capable of being justified under Article 2
     (2 ) of the Equal Treatment Directive and, if so, what             (') OJ No L 2 97, 13 . 10. 1992 , p . 12 .
     approach and guidelines should be adopted in                       ( 2 ) OJ No L 317, 6 . 11 . 1981 , p . 1 .
     determining whether the policy is justified ?
(') Council Directive 76/207/EEC of 9 February 1976 on the
    implementation of the principle of equal treatment for men
    and women as regards access to employment, vocational
    training and promotion, and working conditions ( OJ No L 39,
    14 . 2 . 1976 , p. 40 ).                                            Action brought on 2 May 1997 by the Commission of the
                                                                            European Communities against the Portuguese Republic
                                                                                ( Case C-l 70/97 )
                                                                                ( 97/C 199/24 )
Action brought on 2 May 1997 by the Commission of the                   An action against the Portuguese Republic was brought
   European Communities against the Portuguese Republic                 before the Court of Justice of the European Communities
                             Case C-169/97 )                            on 2 May 1997 by the Commission of the European
                                                                        Communities, represented by Francisco de Sousa Fialho,
                             ( 97/C 199/23 )
                                                                        of its Legal Service, acting as Agent, with an address for
                                                                        service in Luxembourg at the office of Carlos Gomez de la
An action brought against the Portuguese Republic was                   Cruz, of its Legal Service, Wagner Centre, Kirchberg.
brought before the Court of Justice of the European
Communities on 2 May 1997 by the Commission of the                      The applicant claims that the Court should :
European Communities, representend by Francisco de
Sousa Fialho, of its Legal Service, acting as Agent, with an
address for service in Luxembourg at the office of Carlos               — declare that, by failing to adopt the laws, regulations
Gomez de la Cruz, Wagner Centre, Kirchberg.                                    or administrative provisions necessary to comply with
                                                                               Commission Directive 91/412/EEC ( 1 ) of 23 July 1991
                                                                               laying down the principles and guidelines of good
The applicant claims that the Court should:                                    manufacturing practice for veterinary medicinal
                                                                               products, the Portuguese Republic has failed to fulfil
— declare that, by failing to adopt the laws, regulations                      its obligations under the third paragraph of Article 189
      or administrative provisions necessary to comply with                    of the EC Treaty and Article 15 of Directive 91 /412/
      Council Directive 92/74/EEC (') of 22 September 1992                     EEC ,


title: Case C-475/07: Judgment of the Court (Third Chamber) of 12 February 2009 — Commission of the European Communities v Republic of Poland (Failure of a Member State to fulfil its obligations — Electricity tax — Directive 2003/96/EC — First subparagraph of Article 21(5) — Time at which the tax becomes chargeable)

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/5

         Judgment of the Court (Third Chamber) of 12 February 2009 — Commission of the European Communities v Republic of Poland
   (Case C-475/07) (1)

   (Failure of a Member State to fulfil its obligations - Electricity tax - Directive 2003/96/EC - First subparagraph of Article 21(5) - Time at which the tax becomes chargeable)
   (2009/C 82/09)
   Language of the case: Polish
   Parties

      Applicant: Commission of the European Communities (represented by: W. Mölls and K. Herrmann, Agents)

      Defendant: Republic of Poland (represented by: T. Kozek, M. Dowgielewicz, M. Jarosz and A. Rutkowska, Agents)
   Re:
   Failure of a Member State to fulfil its obligations — Failure to adopt, within the prescribed time limit, the measures necessary to comply with Article 21(5) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (Text with EEA Relevance) (OJ 2003 L 283, p. 51) — Time at which the electricity tax becomes chargeable
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adapt, by 1 January 2006, its system of electricity tax, with regard to the time at which the electricity tax becomes chargeable, to the requirements of the first subparagraph of Article 21(5) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, as amended by Council Directive 2004/74/EC of 29 April 2004, the Republic of Poland has failed to fulfil its obligations under that directive.

               2.

               Orders the Republic of Poland to pay the costs.

      (1)  OJ C 22, 26.1.2008.


title: Case C-357/08: Order of the President of the Court of 17 September 2009 — Commission of the European Communities v Hellenic Republic

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/19

         Order of the President of the Court of 17 September 2009 — Commission of the European Communities v Hellenic Republic
   (Case C-357/08) (1)

   2010/C 11/34

      Language of the case: Greek

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

      (1)  OJ C 247, 27.9.2008.


title: Case C-180/01 P: Appeal brought on 25 April 2001 by Commission of the European Communities against the judgment delivered on 7 February 2001 by the Second Chamber of the Court of First Instance of the European Communities in case T-89/98 between National Association of Licensed Opencast Operators (NALOO) and Commission of the European Communities, supported by British Coal Corporation, International Power plc (formerly National Power plc) and PowerGen (UK) plc (formerly PowerGen plc)

text:
C 200/46               EN                    Official Journal of the European Communities                                     14.7.2001
Appeal brought on 25 April 2001 by Commission of the                         were to be treated as a single complaint), the Court of
European Communities against the judgment delivered                          First Instance then held that the argument that the
on 7 February 2001 by the Second Chamber of the Court                        infringements were already in the past when referred to
of First Instance of the European Communities in case                        the Commission is unfounded and that the Treaty articles
T-89/98 (1) between National Association of Licensed                         therefore empower the Commission to investigate the
Opencast Operators (NALOO) and Commission of the                             complaint as regards the alleged infringements in
European Communities, supported by British Coal Cor-                         1986/1987 to 1989/1990. In so doing the Court of First
poration, International Power plc (formerly National                         Instance mischaracterised the Commission’s arguments.
Power plc) and PowerGen (UK) plc (formerly PowerGen                          The Court of First Instance also failed to address the
                               plc)                                          arguments that were actually put to it, by the applicant
                                                                             and the interveners as well as the Commission. Moreover,
                                                                             in so far as the judgment is to be taken as first
                        (Case C-180/01 P)                                    empowering the Commission and then imposing on it
                                                                             the duty to issue recommendations in respect of past
                                                                             infringements that have no continuing relevance, it runs
                         (2001/C 200/82)                                     counter to the Court’s ruling in Banks and Hopkins and
                                                                             cannot stand. In the absence of such a general power, an
                                                                             essential precondition for the duty to investigate identified
                                                                             by the Court of First Instance disappears.
An appeal against the judgment delivered on 7 February 2001
by the Second Chamber of the Court of First Instance of the
European Communities in case T-89/98 between National
Association of Licensed Opencast Operators (NALOO) and                  3)   The Court of First Instance erred in law in characterising
Commission of the European Communities, supported by                         the 1990 and 1994 Complaints as a single continuing
British Coal Corporation, International Power plc (formerly                  complaint in so far as they each concerned the pre-1990
National Power plc) and PowerGen (UK) plc (formerly Power-                   situation. The Court of First Instance has also erred by
Gen plc), was brought before the Court of Justice of the                     not addressing the arguments put to it by the Commission
European Communities on 25 April 2001 by Commission of                       concerning the limitations required by the principle of
the European Communities, represented by A. Whelan, acting                   legal certainty on the period in respect of which it could
as Agent, assisted by J.E. Flynn, Barrister, with an address for             be obliged to take action in respect of past infringements
service in Luxembourg.                                                       if its primary arguments as to obligation, discretion and
                                                                             competence failed.
The Appellant claims that the Court should:
                                                                        4)   In so far as the operative part of the Court of First
                                                                             Instance judgment may be understood as affecting the
(i)   set aside the judgment;                                                Commission’s decision regarding the non-applicability of
                                                                             Article 65 of the ECSC Treaty in the present case, the
(ii) dismiss the application as unfounded; and                               Commission appeals against it for lack of reasoning.
(iii) order the applicants to pay the costs.
                                                                             In relation to the level of royalties, the Court of First
                                                                             Instance has erred in law and/or failed to give reasons for
                                                                             departing fundamentally from the approach laid down in
Pleas in law and main arguments                                              NALOO I in holding that the Commission was obliged to
                                                                             start from the position that royalties higher than the ‘not
                                                                             abnormally high’ level were prima facie excessively high
The Commission submits that the judgment of the Court of                     and that it could not reject the complaint for lack of
First Instance should be set aside for the following reasons:                relevant evidence without giving reasons for concluding
                                                                             that they were not excessive.
1)    The Court of First Instance erred in law in so far as it
      held that there was any obligation on the part of the
      Commission to examine or investigate the issues raised
      in a complaint under the Treaty and/or by failing to
      give proper reasons regarding the existence of such an
      obligation.
                                                                        (1) OJ C 234, 25.7.98, p. 36.
2)    The Court of First Instance misrepresented the Com-
      mission’s position in implying that the Commission took
      the view that it could only act if infringements were
      current at the time a complaint was laid. Having held that
      the Commission was indeed made aware of alleged
      infringements current at the time the complaint was
      made (on the basis that the 1990 and 1994 Complaints


               21.3.2009

               EN

               Official Journal of the European Union

               C 69/1

         (2009/C 69/01)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 55, 7.3.2009

   Past publications

      OJ C 44, 21.2.2009

      OJ C 32, 7.2.2009

      OJ C 19, 24.1.2009

      OJ C 6, 10.1.2009

      OJ C 327, 20.12.2008

      OJ C 313, 6.12.2008

   These texts are available on:

               EUR-Lex: http://eur-lex.europa.eu


title: Case C-30/12: Reference for a preliminary ruling from the Okresný súd Prešov (Slovakia) lodged on 23 January 2012 — Valeria Marcinová v Pohotovosť, s.r.o.

text:
               31.3.2012

               EN

               Official Journal of the European Union

               C 98/17

         Reference for a preliminary ruling from the Okresný súd Prešov (Slovakia) lodged on 23 January 2012 — Valeria Marcinová v Pohotovosť, s.r.o.
   (Case C-30/12)
   2012/C 98/27
   Language of the case: Slovak

      Referring court

   Okresný súd Prešov

      Parties to the main proceedings

      Applicant: Valeria Marcinová

      Defendant: Pohotovosť, s.r.o.

      Question referred

   Do Articles 38 and 17 of the Charter of Fundamental Rights of the European Union in conjunction with Article 169 TFEU preclude the application of national legislation under which, on the basis of an agreement on deductions from salary, such deductions are made from the consumer in the absence of any judicial control of unfair clauses and according to which the consumer has no direct possibility of annulling those deductions?


title: Case C-260/03: Action brought on 17 June 2003 by the Commission of the European Communities against the Kingdom of Denmark

text:
C 200/14                  EN                       Official Journal of the European Union                                         23.8.2003
Action brought on 17 June 2003 by the Commission of the                    Reference for a preliminary ruling by the Tribunale
 European Communities against the Kingdom of Denmark                       Amministrativo Regionale per l'Emilia-Romagna, Sezione
                                                                           di Parma by order of that Court of 6 May 2003 in the
                                                                           case of Allevamenti Associati S.r.l. and Regione Emilia
                             (Case C-260/03)                               Romagna against AGEA e Latteria Sociale Moderna
                                                                                S.c.a.r.l.
                             (2003/C 200/23)
                                                                                (Case C-261/03)
                                                                                (2003/C 200/24)
An action against the Kingdom of Denmark was brought
before the Court of Justice of the European Communities on
17 June 2003 by the Commission of the European Commu-                      Reference has been made to the Court of Justice of the
nities, represented by H.P. Hartvig, acting as Agent, with an              European Communities by order of the Tribunale Amministra-
address for service in Luxembourg.                                         tivo Regionale per l'Emilia-Romagna, Sezione di Parma
                                                                           (Regional Administrative Court for Emilia-Romagna, Parma
                                                                           district) of 6 May 2003, received at the Court Registry on
The applicant claims that the Court should:                                17 June 2003, for a preliminary ruling in the case of Alleva-
                                                                           menti Associati S.r.l. and Regione Emilia Romagna against
                                                                           AGEA e Latteria Sociale Moderna S.c.a.r.l. on the following
1.     Declare that the Kingdom of Denmark,                                question:
       —     by not adopting detailed rules for use of the fishing         On a proper construction of Regulation EEC No 3950/92 (1) of
             availabilities allocated to Denmark;                          28 December 1992 (in particular Articles 1, 2 and 9(g)
                                                                           thereof) and Regulation EEC No 536/93 (2) of 9 March 1993
       —     by not ensuring compliance with the EC regulations            (in particular Articles 1, 2 and 3 thereof), is the transfer of a
             on the conservation of fishery resources through              quantity of milk by the producer to a third party, while
             monitoring of fishing activity, through appropriate           retaining the right of property in it, in performance of a
             inspections of landings and registration of catches,          contract for the processing of the milk and in order to
             and through administrative action or criminal                 manufacture cheese, butter and whey, for consideration, to be
             proceedings against the persons responsible for over-         classified as ‘delivery’ or ‘direct sale’ for the purposes of
             fishing;                                                      determining milk quotas and whether the additional levy is to
                                                                           be applied?
       —     by not having provisionally prohibited fishing from
             vessels flying the Danish flag or registered in               (1) OJ L 405 of 31.12.1992, p. 1.
             Denmark when the quota applicable to them is                  (2) OJ L 57 of 10.03.1993, p. 12.
             deemed to have been exhausted;
       has failed to fulfil its obligations under both Article 9(2)
       of Council Regulation (EEC) No 3760/92 (1) and
       Articles 2, 21(1) and (2) and 31 of Regulation (EEC)
       No 2847/93 (2);                                                     Reference for a preliminary ruling by the Tribunale
                                                                           Amministrativo Regionale per l'Emilia-Romagna, Sezione
                                                                           di Parma by order of that Court of 6 May 2003 in the
2.     Order the Kingdom of Denmark to pay the costs.                      case of Latteria Sociale Moderna Soc. Coop. a r.l. against
                                                                           AIMA and Servizio Provinciale Agricoltura, Reggio Emilia,
                                                                           Regione Emilia Romagna, and AGEA Agenzia per le
                                                                           Erogazioni in Agricoltura; Intervener: Allevamenti Asso-
                                                                                ciati Soc.r.l.
Pleas in law and main arguments                                                                     (Case C-262/03)
These pleas correspond essentially to those put forward in the                                      (2003/C 200/25)
application in Case C-259/03 (3) brought concerning exceeding
of fisheries availabilities and insufficient related control
measures for the years 1990 to 1992 and 1994.                              Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Tribunale Amministra-
                                                                           tivo Regionale per l'Emilia-Romagna, Sezione di Parma
(1) Council Regulation (EEC) No 3760/92 of 20 December 1992                (Regional Administrative Court for Emilia-Romagna, Parma
    establishing a Community system for fisheries and aquaculture (OJ
    1992 L 389, p. 1).                                                     district) of 6 May 2003, received at the Court Registry on
(2) Council Regulation (EEC) No 2847 of 12 October 1993 establishing       17 June 2003, for a preliminary ruling in the case of Latteria
    a control system applicable to the common fisheries policy (OJ         Sociale Moderna Soc. Coop. a r.l. against AIMA and Servizio
    1993 261, p. 1).                                                       Provinciale Agricoltura, Reggio Emilia, Regione Emilia
(3) See p. 13 of this Official Journal.                                    Romagna, and AGEA Agenzia per le Erogazioni in Agricoltura;
                                                                           Intervener: Allevamenti Associati Soc.r.l. on the following
                                                                           question:


title: Case T-500/09: Action brought on 7 December 2009 — Italy v Commission

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/46

         Action brought on 7 December 2009 — Italy v Commission
   (Case T-500/09)
   2010/C 37/66
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: L. Ventrella, avvocato dello Stato)

      Defendant: European Commission

      Form of order sought

               —

               Annul in part Decision C (2009) 7044 of 24 September 2009, notified on 25 September 2009, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), insofar as it applied to Italy, for the financial years 2005 and 2006:

                           —

                           fixed-rate financial corrections (5 %) on account of various alleged weaknesses in controls in the fruit and vegetables sector — citrus processing — totalling EUR 3 539 679,81.

      Pleas in law and main arguments

   In support of its challenge, the Italian Republic pleads breach of an essential procedural requirement (Article 253 EC), on account of a failure to state adequate reasons, and breach of the principle of proportionality.
   The applicant submits in that connection that the Commission corrected certain aid for citrus processing and, in implementing those corrections, failed to ensure that adequate checks had been carried out as to whether the product delivered to the producers’ organisations tallied with the product delivered to the processors and as to whether the product delivered for processing tallied with the finished product. According to the Italian Government, in the course of the procedure it had emerged that the checks had been carried out satisfactorily, in particular as regards both administrative/accounting checks and physical checks, at both the Organizzazione di Produttori (Producers’ Organisation) and the processors; the checks were unannounced (without prior notice to the industry as to the date of the checks) and, in any event, were greater in number than that provided for in the relevant legislation. The essential point which the Commission should have addressed by stating adequate reasons in its decision was therefore whether the risk of loss to the Fund was ‘significant’, such as to justify a fixed-rate correction of 5 %, which appears, in any event, to be disproportionate.


title: Case C-456/12: Judgment of the Court (Grand Chamber) of 12 March 2014 (request for a preliminary ruling from the Raad van State — Netherlands) — O v Minister voor Immigratie, Integratie en Asiel, Minister voor Immigratie, Integratie en Asiel v B (Directive 2004/38/EC  — Article 21(1) TFEU  — Right to move and reside freely within the territory of the Member States  — Beneficiaries  — Right of residence of a third-country national who is a family member of a Union citizen in the Member State of which that citizen is a national  — Return of the Union citizen to that Member State after short periods of residence spent in another Member State)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/6

         Judgment of the Court (Grand Chamber) of 12 March 2014 (request for a preliminary ruling from the Raad van State — Netherlands) — O v Minister voor Immigratie, Integratie en Asiel, Minister voor Immigratie, Integratie en Asiel v B
   (Case C-456/12) (1)

   ((Directive 2004/38/EC - Article 21(1) TFEU - Right to move and reside freely within the territory of the Member States - Beneficiaries - Right of residence of a third-country national who is a family member of a Union citizen in the Member State of which that citizen is a national - Return of the Union citizen to that Member State after short periods of residence spent in another Member State))
   2014/C 135/06
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicants: O., Minister voor Immigratie, Integratie en Asiel

      Defendants: Minister voor Immigratie, Integratie en Asiel, B

      Re:

   Request for a preliminary ruling — Raad van State (Netherlands) — Interpretation of Articles 20 TFEU, 21 TFEU, 45 TFEU and 56 TFEU and of Articles 3(1), 6 and 7(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) — Right of entry and residence of third-country nationals who are family members of a Union citizen — Return of the Union citizen to his Member State of origin after a period of residence spent in another Member State in his capacity as a citizen of the Union within the terms of Article 21 TFEU and as a recipient of services within the terms of Article 56 TFEU — Application of the directive by analogy, as in Case C-370/90 Singh and Case C-291/05 Eind.

      Operative part of the judgment

   Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third-country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third-country national who is a family member of that Union citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.

      (1)  OJ C 26, 26.1.2013.


title: Judgment of the Court of 17 September 2002 in Case C-320/00 (Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division): A.G. Lawrence and Others v Regent Office Care Ltd, Commercial Catering Group, Mitie Secure Services Ltd (Principle of equal pay for men and women — Direct effect — Comparison of the work performed for different employers)

text:
9.11.2002                EN                        Official Journal of the European Communities                                           C 274/11
Community law precludes the retroactive application of a time-limit           A situation such as that in the main proceedings, in which the
that is shorter and, as the case may be, more restrictive for the             differences identified in the pay conditions of workers of different sex
claimant than the period for initiating proceedings that was previously       performing equal work or work of equal value cannot be attributed to
applicable to claims for the recovery of national taxes contrary to           a single source, does not come within the scope of Article 141(1) EC.
Community law where no adequate transitional period is provided
during which claims relating to sums paid before the entry into force
of the legislation introducing the new time-limit may still be brought        (1 ) OJ C 316 of 4.11.2000.
within the old period. Where a limitation period of five years is
replaced with a time-limit of three years, a transitional period of 90
days must be regarded as insufficient and six months must be
regarded as the minimum period required to ensure that the exercise
of rights of recovery is not rendered excessively difficult.
( 1) OJ C 247 of 26.8.2000.                                                                     JUDGMENT OF THE COURT
                                                                                of 17 September 2002
                                                                              in Case C-334/00 (Reference for a preliminary ruling from
                                                                              the Corte suprema di cassazione): Fonderie Officine
                                                                              Meccaniche Tacconi SpA v Heinrich Wagner Sinto
                                                                                Maschinenfabrik GmbH (HWS) ( 1)
                  JUDGMENT OF THE COURT                                       (Brussels Convention — Article 5(1) and (3) — Special
                                                                                jurisdiction — Pre-contractual liability)
                       of 17 September 2002                                                               (2002/C 274/18)
in Case C-320/00 (Reference for a preliminary ruling from                                           (Language of the case: Italian)
the Court of Appeal (England & Wales) (Civil Division):
A.G. Lawrence and Others v Regent Office Care Ltd,
Commercial Catering Group, Mitie Secure Services Ltd (1)                      (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Principle of equal pay for men and women — Direct
effect — Comparison of the work performed for different
                               employers)                                     In Case C-334/00: Reference to the Court under the Protocol
                                                                              of 3 June 1971 on the interpretation by the Court of Justice of
                                                                              the Convention of 27 September 1968 on Jurisdiction and the
                                                                              Enforcement of Judgments in Civil and Commercial Matters
                           (2002/C 274/17)
                                                                              by the Corte suprema di cassazione (Italy) for a preliminary
                                                                              ruling in the proceedings pending before that court between
                                                                              Fonderie Officine Meccaniche Tacconi SpA and Heinrich
                     (Language of the case: English)                          Wagner Sinto Maschinenfabrik GmbH (HWS), on the interpret-
                                                                              ation of Article 5(1) and (3) of the abovementioned Convention
                                                                              of 27 September 1968 (OJ 1978 L 304, p. 36), as amended by
                                                                              the Convention of 9 October 1978 on the Accession of the
                                                                              Kingdom of Denmark, Ireland and the United Kingdom of
In Case C-320/00: Reference to the Court under Article 234                    Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and
EC by the Court of Appeal of England and Wales (Civil                         — amended version — p. 77), by the Convention of 25 Octo-
Division) for a preliminary ruling in the proceedings pending                 ber 1982 on the Accession of the Hellenic Republic (OJ 1982
before that court between A. G. Lawrence and Others and                       L 388, p. 1) and by the Convention of 26 May 1989 on the
Regent Office Care Ltd, Commercial Catering Group, Mitie                      Accession of the Kingdom of Spain and the Portuguese
Secure Services Ltd, on the interpretation of Article 141(1) EC,              Republic (OJ 1989 L 285, p. 1), the Court, composed of:
the Court, composed of: G. C. Rodríguez Iglesias, President,                  G. C. Rodríguez Iglesias, President, N. Colneric and S. von Bahr
P. Jann, F. Macken, N. Colneric (Rapporteur) and S. von Bahr                  (Presidents of Chambers), C. Gulmann, D. A. O. Edward, A. La
(Presidents of Chambers), D. A. O. Edward, A. La Pergola,                     Pergola, J.-P. Puissochet, M. Wathelet, R. Schintgen, J. N. Cunha
J.-P. Puissochet, M. Wathelet, R. Schintgen and V. Skouris,                   Rodrigues (Rapporteur) and C. W. A. Timmermans, Judges;
Judges; L. A. Geelhoed, Advocate General; H. A. Rühl, Principal               L. A. Geelhoed, Advocate General; R. Grass, Registrar, has
Administrator, for the Registrar, has given a judgment on                     given a judgment on 17 September 2002, in which it has
17 September 2002, in which it has ruled:                                     ruled:


title: Case C-453/09: Action brought on 19 November 2009 — Commission v Federal Republic of Germany

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/32

         Action brought on 19 November 2009 — Commission v Federal Republic of Germany
   (Case C-453/09)
   2010/C 24/59
   Language of the case: German

      Parties

      Applicant: Commission of the European Communities (represented by: D. Triantafyllou and B.-R. Killmann, Agents)

      Defendant: Federal Republic of Germany

      Form of order sought

               —

               declare that, by applying a reduced rate of value added tax (VAT) to the supply, importation and intra-Community acquisitions of certain live animals, in particular horses, not intended for use in the preparation of foodstuffs for human or animal consumption, the Federal Republic of Germany has failed to fulfil its obligations under Article 96 and 98 in conjunction with Annex III of the Directive on the VAT system;

               —

               order the Federal Republic of Germany to pay the costs.

      Pleas in law and main arguments

   The present action is directed against the reduced rate of VAT applied by the Federal Republic of Germany to the supply, importation and intra-Community acquisitions of live animals, in particular horses, even if they are not normally intended for use in the preparation of foodstuffs for human and animal consumption. In the Commission’s view, that is not compatible with the requirements of Directive 2006/112/EC (‘Directive on the VAT system’), in particular regarding breeds of horses which are normally used as dressage horses, riding horses, circus horses or racehorses.
   The Directive on the VAT system allows the Member States under certain conditions to apply reduced tax rates alongside the standard rate of VAT. For example a Member State may under Article 98(2) of the Directive on the VAT system apply a reduced rate of VAT ‘to supplies … in the categories set out in Annex III’. As the reduced VAT rate must be regarded as an exception to the standard VAT rate, the provision must be interpreted and applied strictly.
   The Commission is of the view that live animals — in particular horses — which are not normally intended for use as foodstuffs, do not fall under point 1 of Annex III. Consequently, the reduced VAT rate under Article 98(2) of the Directive on the VAT system cannot be applied to those animals. That is clear both from the scheme of the directive and from the various language versions of point 1 of Annex III of the directive. Nor does a purposive interpretation lead to a different result: this category (point 1) applies to the preferential treatment of all products intended for the production of foodstuffs for human or animal consumption.
   The failure to distinguish between breeds of horses in the Combined Nomenclature is irrelevant in the present case, since customs law listings are based on different perspectives than VAT law. The fact that Article 98(3) of the Directive on the VAT system allows the Member States to refer to the Combined Nomenclature does not mean that a Member State may rely on a lack of precision in the Combined Nomenclature in order to justify the incorrect transposition of Community VAT law.
   Transactions involving breeds of horses which are normally used as dressage horses, riding horses, circus horses or racehorses may also not be considered as the supply of goods of a kind normally intended for use in agricultural production, eligible for a reduced tax rate under point 11 of Annex III to the Directive on the VAT system. While horses are by nature agricultural animals, that does not mean that those breeds of horses are normally used in agricultural production. In fact, such breeds of horses are usually used for sporting, educational, leisure or entertainment purposes, thus precisely not in agricultural production.


title: Case T-274/06: Action brought on 6 October 2006 — Estaser El Mareny v Commission

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/58

         Action brought on 6 October 2006 — Estaser El Mareny v Commission
   (Case T-274/06)
   (2006/C 294/118)
   Language of the case: Spanish
   Parties

      Applicant: Estaser El Mareny SL (Valencia, Spain) (represented by: A. Hernández Pardo, S. Beltrán Ruiz and L. Ruiz Ezquerra, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the Commission Decision of 12 April 2006 in Case COMP/B-1/38.348 Repsol CPP relating to a proceeding pursuant to Article 81 of the EC Treaty;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   This action is brought against the decision of the Commission of 12 April 2006 by which the defendant institution accepted the commitments offered by REPSOL CPP in accordance with Article 9(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1).
   That decision was made in a proceeding initiated following the application by REPSOL CPP for negative clearance or, failing that, an individual exemption in respect of the standard agreements and/or contracts by means of which it carried out its fuel distribution activities for motor vehicles through service stations in Spain.
   In the offer of commitments accepted by the Commission, REPSOL CPP undertook, inter alia, to increase the annual number of service stations which may change supplier, for which it undertook to offer the bare owners/operators of the service stations the possibility of recovery of the right in rem to the usufruct or over the buildings subject, however, to compliance with a series of conditions by the operator.
   In support of its claims, the applicant, occupier-operator of a service station which had concluded a supply contract with REPSOL CPP, argues:

               (a)

               that REPSOL CPP's contracts with the service stations infringed and infringe the time-limits laid down by Community provisions for non-compete clauses. In fact, prior to the offer of commitments on the part of REPSOL CPP, the Commission was preparing to give a decision declaring that there was an infringement and ordering that it cease;

               (b)

               that, accordingly, the contracts at issue must be regarded as void under Article 81(2) of the EC Treaty;

               (c)

               that the Commission cannot seek to accept those contracts by means of commitment proceedings, when it does not require the infringing party to bring the restrictive practice to an immediate end, but only requires it to grant the possibility of early recovery. On the other hand, despite the fact that it is the unduly lengthy term of the clauses restricting competition which infringes the competition provisions, it requires the operator, in order to recover its right, to pay a price calculated on the basis, among other things, of the remaining years of the term laid down for the right in rem.

         Finally, the applicant pleads infringement of the principle in accordance with which persons subject to Community law may not benefit from their own unlawful acts or become enriched without just cause.

      (1)  OJ L 1 of 4.1.2003, p. 1.


title: Judgment of the Court (Second Chamber) of 12 May 2005 in Case C-347/03: Reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio Regione autonoma Friuli-Venezia Giulia and Agenzia regionale per lo sviluppo rurale (ERSA) v Ministero delle Politiche Agricole e Forestali (External relations — EC-Hungary Agreement on the reciprocal protection and control of wine names — Protection in the Community of a name relating to certain wines originating in Hungary — Geographical indication ‘Tokaj’ — Exchange of letters — Possibility of using the word ‘Tocai’ in the term ‘Tocai friulano’ or ‘Tocai italico’ for the description and presentation of certain Italian wines, in particular quality wines produced in specified regions (‘quality wines psr’), during a transitional period expiring on 31 March 2007 — Exclusion of that possibility at the end of the transitional period — Validity — Legal basis — Article 133 EC — Principles of international law relating to treaties — Articles 22 to 24 of the TRIPs Agreement — Protection of fundamental rights — Right to property)

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/9

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 12 May 2005
   in Case C-347/03: Reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio Regione autonoma Friuli-Venezia Giulia and Agenzia regionale per lo sviluppo rurale (ERSA) v Ministero delle Politiche Agricole e Forestali (1)

   (External relations - EC-Hungary Agreement on the reciprocal protection and control of wine names - Protection in the Community of a name relating to certain wines originating in Hungary - Geographical indication ‘Tokaj’ - Exchange of letters - Possibility of using the word ‘Tocai’ in the term ‘Tocai friulano’ or ‘Tocai italico’ for the description and presentation of certain Italian wines, in particular quality wines produced in specified regions (‘quality wines psr’), during a transitional period expiring on 31 March 2007 - Exclusion of that possibility at the end of the transitional period - Validity - Legal basis - Article 133 EC - Principles of international law relating to treaties - Articles 22 to 24 of the TRIPs Agreement - Protection of fundamental rights - Right to property)
   (2005/C 182/17)
   Language of the case: Italian
   In Case C-347/03: reference for a preliminary ruling under Article 234 EC from the Tribunale amministrativo regionale del Lazio (Italy), made by decision of 9 June 2003, received at the Court on 7 August 2003, in the proceedings between Regione autonoma Friuli-Venezia Giulia and Agenzia regionale per lo sviluppo rurale (ERSA), on the one hand, and Ministero delle Politiche Agricole e Forestali, on the other, third party: Regione Veneto — the Court (Second Chamber) composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, R. Silva de Lapuerta, R. Schintgen, G. Arestis and J. Klučka, Judges; F.G. Jacobs, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 12 May 2005, in which it ruled:

               1.

               The Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part, is not the legal basis of Council Decision 93/724/EC of 23 November 1993 concerning the conclusion of the Agreement between the European Community and the Republic of Hungary on the reciprocal protection and control of wine names.

               2.

               Article 133 EC, as referred to in the preamble to Decision 93/724, is an appropriate legal basis for the conclusion by the Community alone of the Agreement between the European Community and the Republic of Hungary on the reciprocal protection and control of wine names.

               3.

               The prohibition of use of the name ‘Tocai’ in Italy after 31 March 2007 resulting from the exchange of letters concerning Article 4 of the Agreement between the European Community and the Republic of Hungary on the reciprocal protection and control of wine names is not contrary to the rules governing homonyms laid down in Article 4(5) of that agreement.

               4.

               The Joint Declaration concerning Article 4(5) of the Agreement between the European Community and the Republic of Hungary on the reciprocal protection and control of wine names, in so far as it states in the first paragraph that in respect of Article 4(5)(a) of that agreement the Contracting Parties noted that at the time of the negotiations they were not aware of any specific case to which the provisions referred to could be applicable, is not a clear misrepresentation of reality.

               5.

               Articles 22 to 24 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, set out in Annex 1 C to the Agreement establishing the World Trade Organisation, approved on behalf of the Community, as regards matters within its competence, by Council Decision 94/800/EC of 22 December 1994, are to be interpreted as meaning that, in a case such as that in the main proceedings, which concerns homonymity between a geographical indication of a third country and a name including the name of a vine variety used for the description and presentation of certain Community wines made from it, those provisions do not require that that name may continue to be used in the future notwithstanding the twofold circumstance that it has been used in the past by the producers concerned either in good faith or for at least 10 years prior to 15 April 1994 and that it clearly identifies the country, region or area of origin of the protected wine in such a way as not to mislead the consumer.

               6.

               The right to property does not preclude the prohibition on use by the operators concerned in the autonomous region of Friuli-Venezia Giulia (Italy) of the word ‘Tocai’ in the term ‘Tocai friulano’ or ‘Tocai italico’ for the description and presentation of certain Italian quality wines produced in specified regions at the end of a transitional period expiring on 31 March 2007, resulting from the exchange of letters concerning Article 4 of the Agreement between the European Community and the Republic of Hungary on the reciprocal protection and control of wine names annexed to that agreement but not referred to in the latter.

      (1)  OJ C 264 of 1.11.2003.


               29.5.2004

               EN

               Official Journal of the European Union

               C 146/8

         Action brought on 9 April 2004 by Lapin liitto, Enontekiön kunta, Inarin kunta, Utsjoen kunta and Unto Autto against the Commission of the European Communities
   (Case T-141/04)
   (2004/C 146/11)
   Language of the case: Finnish
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 April 2004 by Lapin liitto (Lapland Region), Enontekiön kunta (municipality of Enontekiö), Inarin kunta (municipality of Inari), Utsjoen kunta (municipality of Utsjoki) and Unto Autto, reindeer herder, represented by Kari Marttinen, lawyer, and Professor Pertti Eilavaara.
   The applicants claim that the Court should:

               —

               annul and delete the data on sites concerning Finland from the Commission's decision as unlawful as explained in the application,

               —

               annul in particular the Pallas-Ounastunturin kansallispuisto protected site (FI1300101) as infringing the rights of the applicant reindeer herder Unto Autto and unlawful,

               —

               reimburse the legal costs of the proceedings in full with interest determined from the date of judgment.

         Pleas in law and main arguments
   The Commission's decision was adopted on the following principal unlawful bases:

               —

               The Commission exceeded its jurisdiction when it approved the list of sites submitted by Finland.

               —

               The Commission did not check the lawfulness of Finland's decision in accordance with the Treaty of Rome or as required by the nature directive, so that its own decision-making is based on a procedure contrary to Annex III to the nature directive.

               —

               Finland drew up its own decision on sites contrary to Community law, since it did not apply the Community law nature directive in accordance with Annex III to the directive, as confirmed by the Court of Justice of the European Communities in several judgments.

               —

               Objectors were not heard as regards the formation of the alpine regional sites, and the other preparation of the matter was not based in Finland on the procedure laid down by the nature directive.

               —

               Reindeer herder Unto Autto in particular considers that the Commission's decision on the protection of alpine areas does not safeguard his fundamental rights, since the decisions has legal effects but his fundamental rights are not safeguarded. Fundamental rights mean the rights under the Finnish constitution to protection of property, freedom to carry on an occupation, and protection of culture. The Commission's decision also infringes the fundamental rights recognised by the European Union and applied in consistent practice.