C 102/16                EN                     Official Journal of the European Communities                                     8.4.2000
The Applicant claims that the Court should:                                      Removal from the register of Case C-399/95 (1)
1) declare that by failing to notify the laws, regulations                                       (2000/C 102/29)
     or administrative provisions necessary to comply with
     Commission Directive 98/21/EC of 8 April 1998 (1)                    By order of 13 December 1999 the President of the Court of
     amending Council Directive 93/16/EEC (2) to facilitate the           Justice of the European Communities has ordered the removal
     free movement of doctors and the mutual recoginition of              from the register of Case C-399/95: Federal Republic of
     their diplomas, certificates and other evidence of formal            Germany v Commission of the European Communities.
     qualifications, or by failing to adopt the measures necessary
     to comply with it, Ireland has failed to fulfil its obligations
     under that Directive                                                 (1) OJ C 77 of 16.3.1996.
2) order Ireland to pay the costs of these proceedings.
Pleas in law and main arguments
                                                                                Removal from the register of Case C-195/96 (1)
Article 249 EC (ex Article 189 of the EC Treaty), under which
a directive shall be binding as to the result to be achieved,
upon each Member State, carries by implication an obligation                                     (2000/C 102/30)
on the Member States to observe the period for compliance
laid down in the directive. That period expired on 31 December            By order of 13 December 1999 the President of the Court of
1998 without Ireland having enacted the provisions necessary              Justice of the European Communities has ordered the removal
to comply with the directive referred to in the conclusions of            from the register of Case C-195/96: Federal Republic of
the Commission.                                                           Germany v Commission of the European Communities.
                                                                          (1) OJ C 247 of 24.8.1996.
(1) OJ L 119 of 22.4.1998, p. 15.
(2) OJ L 165 of 7.7.1993, p. 1.
                                                                                Removal from the register of Case C-333/98 (1)
      Removal from the register of Case C-255/92 P (1)                                           (2000/C 102/31)
                         (2000/C 102/27)                                  By order of 17 January 2000 the President of the Court of
                                                                          Justice of the European Communities has ordered the removal
By order of 9 December 1999 the President of the Court of                 from the register of Case C-333/98 (reference for a preliminary
Justice of the European Communities has ordered the removal               ruling from the Commissione dei v i Provvedimenti dell’Ufficio
from the register of Case C-255/92 P: BASF AG v Commission                Italiano Brevetti e Marchi): Merck & Co Inc. v Ufficio Italiano
of the European Communities.                                              Brevetti e Marchi.
(1) OJ C 187 of 24.7.1992.                                                (1) OJ C 327, 24.10.1998.
                                                                                Removal from the register of Case C-291/99 (1)
       Removal from the register of Case C-129/99 (1)
                                                                                (2000/C 102/32)
                         (2000/C 102/28)
                                                                          By order of 18 January 2000 the President of the Court of
By order of 10 December 1999 the President of the Court of                Justice of the European Communities has ordered the removal
Justice of the European Communities has ordered the removal               from the register of Case C-291/99 (reference for a preliminary
from the register of Case C-129/99: Federal Republic of                   ruling from the Tribunale di Trieste, Prima Sezione Civile):
Germany v Commission of the European Communities.                         Crossbow Srl v Ministero delle Finanze.
(1) OJ C 188 of 3.7.1999.                                                 (1) OJ C 314, 30.10.1999.


title: Case C-496/11: Judgment of the Court (Sixth Chamber) of 6 September 2012 (reference for a preliminary ruling from the Tribunal Central Administrativo Sul — Portugal) — Portugal Telecom SGPS, SA v Fazenda Pública (VAT — Sixth Directive — Articles 17(2) and 19 — Deductions — VAT due or paid for services acquired by a holding company — Services having a direct, immediate and unequivocal relationship with taxable output transactions)

text:
               27.10.2012

               EN

               Official Journal of the European Union

               C 331/12

      Judgment of the Court (Sixth Chamber) of 6 September 2012 (reference for a preliminary ruling from the Tribunal Central Administrativo Sul — Portugal) — Portugal Telecom SGPS, SA v Fazenda Pública
      (Case C-496/11) (1)

      (VAT - Sixth Directive - Articles 17(2) and 19 - Deductions - VAT due or paid for services acquired by a holding company - Services having a direct, immediate and unequivocal relationship with taxable output transactions)
      (2012/C 331/18)
      Language of the case: Portuguese

         Referring court

      Tribunal Central Administrativo Sul

         Parties to the main proceedings

         Applicant: Portugal Telecom SGPS SA

         Defendant: Fazenda Pública

         Intervening party: Ministério Público

         Re:

      Reference for a preliminary ruling — Tribunal Central Administrativo Sul — Interpretation of Article 17(2) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Deductions — Tax incurred or paid for services acquired by a holding — Services with a direct, immediate and unequivocal relationship with taxable transactions downstream

         Operative part of the judgment

      Article 17(2) and (5) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that a holding company such as that at issue in the main proceedings which, in addition to its main activity of managing shares in companies in which it holds all or part of the share capital, acquires goods and services which it subsequently invoices to those companies is authorised to deduct the amount of input VAT provided that the input services acquired have a direct and immediate link with the output economic transactions giving rise to a right to deduct. Where those goods and services are used by the holding company in order to perform both economic transactions giving rise to a right to deduct and economic transactions which do not, the deduction is allowed only in respect of the part of the VAT which is proportional to the amount relating to the former transactions and the national tax authorities are authorised to provide for one of the methods for determining the right to deduct in Article 17(5). Where those goods and services are used both for economic and non-economic activities, Article 17(5) of the Sixth Directive is not applicable and the methods of deduction and apportionment are to be defined by the Member States which, in exercising that power, must take account of the purpose and general scheme of the Sixth Directive and, on that basis, lay down a method of calculation which objectively reflects the input expenditure actually attributed to each of those two activities.

         (1)  OJ C 362, 10.12.2011.


title: Case F-110/12: Action brought on 1 October 2012 — ZZ v EMA

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/34

         Action brought on 1 October 2012 — ZZ v EMA
   (Case F-110/12)
   2012/C 379/57
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: S. Orlandi, J.-N. Louis and D. Abreu Caldas, lawyers)

      Defendant: European Medicines Agency

      Subject-matter and description of the proceedings

   Annulment of the decision rejecting the applicant’s application seeking reclassification of his contract as a member of the auxiliary staff as a contract as a member of the temporary staff.

      Form of order sought

               —

               Annul the decision of 21 November 2011 of the authority empowered to conclude contracts rejecting the applicant’s application seeking reclassification of his contract as a member of the auxiliary staff as a contract as a member of the temporary staff;

               —

               order the EMA to bear the costs.


title: Case C-188/13: Order of the President of the Court of 22 November 2013 — European Commission v Republic of Slovenia

text:
               7.4.2014

               EN

               Official Journal of the European Union

               C 102/30

         Order of the President of the Court of 22 November 2013 — European Commission v Republic of Slovenia
   (Case C-188/13) (1)

   2014/C 102/45
   Language of the case: Slovene
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 156, 1.6.2013.


title: Case C-475/11: Judgment of the Court (Fourth Chamber) of 12 September 2013 (request for a preliminary ruling from the Berufsgericht für Heilberufe bei dem Verwaltungsgericht Gießen — Germany) — Kostas Konstantinides (Freedom to provide medical services — Service provider travelling to another Member State to provide the service — Applicability of the rules of professional conduct of the host Member State, in particular those relating to fees and advertising)

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/3

         Judgment of the Court (Fourth Chamber) of 12 September 2013 (request for a preliminary ruling from the Berufsgericht für Heilberufe bei dem Verwaltungsgericht Gießen — Germany) — Kostas Konstantinides
   (Case C-475/11) (1)

   (Freedom to provide medical services - Service provider travelling to another Member State to provide the service - Applicability of the rules of professional conduct of the host Member State, in particular those relating to fees and advertising)
   2013/C 325/04
   Language of the case: German

      Referring court

   Berufsgericht für Heilberufe bei dem Verwaltungsgericht Gießen

      Parties to the main proceedings

      Defendant: Kostas Konstantinides

      Re:

   Request for a preliminary ruling — Berufsgericht für Heilberufe bei dem Verwaltungsgericht Gießen — Interpretation of Article 5(3) and the first sentence, point (a), of Article 6 of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22) — Freedom to provide medical services — Situation in which the service provider travels to another Member State in order to provide the service — Applicability of rules of professional conduct of the host Member State, in particular those relating to fees and advertising

      Operative part of the judgment

               1.

               Article 5(3) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications must be interpreted as meaning that national rules such as, first, Paragraph 12(1) of the Code of professional conduct for doctors in Hesse, under which fees must be reasonable and, unless provided otherwise by law, calculated on the basis of the official Regulation on doctors’ fees, and, secondly, Paragraph 27(3) of that code, which prohibits doctors from engaging in unprofessional advertising, do not fall within its material scope. It is, however, for the referring court to ascertain, taking into account the indications given by the Court of Justice of the European Union, whether those rules constitute a restriction within the meaning of Article 56 TFEU, and, if so, whether they pursue an objective in the public interest, are appropriate to ensuring that it is attained, and do not go beyond what is necessary for attaining it.

               2.

               Article 6(a) of Directive 2005/36 must be interpreted as not laying down the rules of conduct or disciplinary procedures to which a service provider who travels to the territory of the host Member State to pursue his profession on a temporary and occasional basis may be subject, but as merely stating that Member States may provide either for automatic temporary registration with or for pro forma membership of a professional organisation or body, in order to facilitate the application of disciplinary provisions in accordance with Article 5(3) of that directive.

      (1)  OJ C 355, 3.12.2011.


title: Case T-644/16: Action brought on 9 September 2016 — ClientEarth v Commission

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/54

         Action brought on 9 September 2016 — ClientEarth v Commission
   (Case T-644/16)
   (2016/C 402/64)
   Language of the case: English

      Parties

      Applicant: ClientEarth (London, United Kingdom) (represented by: O. Brouwer, lawyer, and N. Frey, Solicitor)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the defendant’s decision to refuse access to the requested documents pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission documents, (1) as communicated to the applicant on 1 July 2016 in a letter with the reference C(2016) 4286 final;

               —

               order the Commission to pay the applicant’s costs pursuant to Article 87 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging errors of law and manifest error of assessment resulting in a misapplication of the international relations exception (third indent of Article 4(1)(a) Regulation No 1049/2001) and failure to state reasons:

                           —

                           The Commission has not established the applicability of the international relations exception. It has notably not established how disclosure of purely legal documents that contain reflections on EU law is in itself capable of revealing strategic objectives pursued by the European Union during negotiations or weakens the Commission’s negotiating position. The Commission is bound by the rule of law and cannot negotiate international agreements that violate EU law. The Applicant further submits that Article 4(1)(a) of Regulation No 1049/2001 (and other exceptions) cannot be invoked ‘in perpetuum’, i.e. as long as the Commission conducts anywhere negotiations regarding other international agreements. The Commission has moreover failed to state reasons as to how disclosure of the requested documents could specifically and actually undermine the public interest as regards international relations.

               2.

               Second plea in law, alleging errors of law and manifest error of assessment resulting in a misapplication of the protection of legal advice exception (second indent of Article 4(2) Regulation No 1049/2001) and failure to state reasons:

                           —

                           The Commission has failed to establish whether there is a reasonably foreseeable and not purely hypothetical risk that disclosure of the requested documents would undermine its interest in receiving frank, objective and comprehensive legal advice.

               3.

               Third plea in law, alleging errors of law and manifest error of assessment resulting in the misapplication of the protection of the decision-making process exception (first subparagraph of Article 4(3) Regulation No 1049/2001) and failure to state reasons:

                           —

                           The Commission has failed to explain how access to the requested documents could specifically and actually undermine the decision-making process.

               4.

               Fourth plea in law, alleging error of law and manifest error of assessment resulting in the misapplication of the overriding public interest test and failure to state reasons:

                           —

                           There is an overriding public interest, because disclosure would make it possible to have a debate on access to justice, notably access to (and the role of) domestic courts, and the need to preserve the unity and autonomy of EU law. These topics are of direct interest to EU citizens and NGOs like the applicant.

               5.

               Fifth plea in law, alleging breach of Article 4(6) Regulation No 1049/2001 (Partial access) and request of a measure of inquiry

                           —

                           The applicant submits that the Commission did not, or in any event not to the requisite legal standard, examine and grant partial access to the requested documents.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


title: Case C-14/04: Reference for a preliminary ruling by the Conseil d'État by order of that Court of 3 December 2003 in the case of Abdelkader Dellas, Confédération générale du travail, Fédération nationale des syndicats des services de santé et des services sociaux CFDT and Fédération nationale de l'action sociale Force Ouvrière against Secrétariat général du gouvernement; Intervener: Union des fédérations et syndicats nationaux d'employeurs sans but lucratif du secteur sanitaire, social et médico-social

text:
6.3.2004                EN                        Official Journal of the European Union                                             C 59/19
3.    Must Directive 2002/2/EC be interpreted as meaning that                   as set out in Article 1(1) thereof, must the definition of
      its application, and therefore its effectiveness, is subject              working time set out in the directive be considered to
      to the adoption of a positive list of feed materials                      apply exclusively to the Community thresholds estab-
      containing their specific names, as set out in the tenth                  lished by the directive or must it be considered to have
      recital to the preamble and the Commission Report                         general scope, applying also to the thresholds which,
      (COM2003 178) (2) dated 24 April 2003 or must the                         while adopted under the various national legal orders
      implementation of the directive in the Member States                      with a view to transposing the directive, may in fact be
      must take place before the adoption of the positive list of               set — as they have been in France in the interest of
      feed materials laid down by the directive, with reference                 employee protection — at a level affording greater
      to a list of the feed materials contained in the compound                 protection than the thresholds established by the direc-
      feedingstuffs by the names and generic definitions of their               tive?
      commodity classes?
                                                                          2.    To what extent could a strictly proportional system of
4.    Is Directive 2002/2/EC to be regarded as unlawful on                      equivalence, which involves calculating the total number
      the grounds of infringement of the principle of equal                     of hours in attendance before applying a weighting
      treatment and non-discrimination to the detriment of                      mechanism to them which reflects even the very least
      feedingstuff producers when compared with the pro-                        work-intensive periods during periods of inactivity, be
      ducers of foodstuffs for human consumption in so far as                   considered compatible with the objectives of the Working
      the former are subject to rules requiring indications of the              Time Directive?
      quantities of feed materials in compound feedingstuffs?
(1) OJ L 63 of 6.03.2002, p. 23.                                          (1) Council Directive 93/104/EC of 23 November 1993 concerning
(2) Not published.                                                            certain aspects of the organization of working time (OJ L 307 of
                                                                              13.12.1993, p. 18).
Reference for a preliminary ruling by the Conseil d’État
by order of that Court of 3 December 2003 in the case of
Abdelkader Dellas, Confédération générale du travail,
Fédération nationale des syndicats des services de santé                  Action brought on 20 January 2004 by the Commission
et des services sociaux CFDT and Fédération nationale de                  of the European Communities against the Federal Repub-
l’action sociale Force Ouvrière against Secrétariat général                                          lic of Germany
du gouvernement; Intervener: Union des fédérations et
syndicats nationaux d’employeurs sans but lucratif du
           secteur sanitaire, social et médico-social                                                (Case C-16/04)
                           (Case C-14/04)                                                            (2004/C 59/32)
                          (2004/C 59/31)
                                                                          An action against the Federal Republic of Germany was
                                                                          brought before the Court of Justice of the European Communi-
Reference has been made to the Court of Justice of the                    ties on 20 January 2004 by the Commission of the European
European Communities by order of the Conseil d’État (Council              Communities, represented by Denis Martin and Horstpeter
of State) of 3 December 2003, received at the Court Registry              Kreppel, acting as Agents, with an address for service in
on 15 January 2004, for a preliminary ruling in the case of               Luxembourg.
Abdelkader Dellas, Confédération générale du travail, Fédér-
ation nationale des syndicats des services de santé et des
services sociaux CFDT and Fédération nationale de l’action
sociale Force Ouvrière against Secrétariat général du gouverne-           The applicant claims that the Court should:
ment; Intervener: Union des fédérations et syndicats nationaux
d’employeurs sans but lucratif du secteur sanitaire, social et            1.    Declare that
médico-social (Union of national federations and unions of
non-profit-making employers in the health, social and medico-
social sectors) on the following questions:                                     a)    by virtue of the fact that, contrary to the require-
                                                                                ments of Community law,
1.    In the light of the purpose of the Working Time
      Directive (1), namely to lay down minimum safety and                            —     § 30(4) VBG 1/GUV.01 permits sliding doors
      health requirements for the organisation of working time,                             and revolving doors as emergency doors,


title: Case C-429/15: Reference for a preliminary ruling from Court of Appeal (Ireland) made on 5 August 2015 — Evelyn Danqua v The Minister for Justice and Equality Ireland and the Attorney General

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/23

         Reference for a preliminary ruling from Court of Appeal (Ireland) made on 5 August 2015 — Evelyn Danqua v The Minister for Justice and Equality Ireland and the Attorney General
   (Case C-429/15)
   (2015/C 320/31)
   Language of the case: English

      Referring court

   Court of Appeal

      Parties to the main proceedings

      Applicant: Evelyn Danqua

      Defendant: The Minister for Justice and Equality Ireland and the Attorney General

      Other party: The Refugee Legal Services

      Questions referred

               1.

               Can an application for asylum, which is governed by domestic legislation which reflects a Member State's obligations under the Qualification Directive, be regarded as an appropriate comparator in respect of an application for subsidiary protection for the purposes of the principle of equivalence?

               2.

               If the answer to the first question is in the affirmative, is it relevant for this purpose that the time limit imposed in respect of applications for subsidiary protection serves the important interest of ensuring that applications for international protection are dealt within a reasonable time?


title: Case C-182/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias by judgment of that court of 3 March 2004 in the case of Elmeka N.E. against the Minister for Economic Affairs

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/7

         Reference for a preliminary ruling by the Simvoulio tis Epikratias by judgment of that court of 3 March 2004 in the case of Elmeka N.E. against the Minister for Economic Affairs
   (Case C-182/04)
   (2004/C 201/12)
   Reference has been made to the Court of Justice of the European Communities by judgment of the Simvoulio tis Epikratias (Council of State, Greece) of 3 March 2004, received at the Court Registry on 19 April 2004, for a preliminary ruling in the case of Elmeka N.E. against the Minister for Economic Affairs on the following questions:
   The questions in the present case match the questions in Case C-181/04.


title: Case C-212/11: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 9 May 2011 — Jyske Bank Gibraltar Limited v Administración del Estado

text:
               30.7.2011

               EN

               Official Journal of the European Union

               C 226/11

         Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 9 May 2011 — Jyske Bank Gibraltar Limited v Administración del Estado
   (Case C-212/11)
   2011/C 226/21
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Applicant: Jyske Bank Gibraltar Limited

      Defendant: Administración del Estado

      Question referred

   Does Article 22(2) of Directive 2005/60/EC (1) of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing permit a Member State to make it a mandatory requirement that the information which must be provided by credit institutions operating in its territory without a permanent establishment be forwarded directly to its own authorities responsible for the prevention of money laundering, or, on the other hand, must the request for information be directed to the Financial Intelligence Unit of the Member State in whose territory the addressee institution is situated?

      (1)  OJ 2005 L 309, p. 15.


title: Case T-28/14: Order of the General Court of 25 June 2014  — José Manuel Baena Grupo v OHIM — Neuman (Seated figure)

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/58

         Order of the General Court of 25 June 2014 — José Manuel Baena Grupo v OHIM — Neuman (Seated figure)
   (Case T-28/14) (1)

   2014/C 303/70
   Language of the case: Spanish
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 78, 15.3.2014.


title: Joined Cases F-106/13 and F-25/14: Judgment of the Civil Service Tribunal (Second Chamber) of 8 October 2015 — DD v FRA (Civil service — FRA staff — Member of the temporary staff — Career development report — Internal appeal — Accusations of discrimination — Accusations of victimisation within the meaning of Directive 2000/43 — Administrative enquiry — Disciplinary proceedings — Disciplinary penalty — Reprimand — Articles 2, 3, and 11 of Annex IX to the Staff Regulations — Termination of a contract of indefinite duration — Article 47(c)(i) of the CEOS — Right to be heard — Article 41(2)(a) of the Charter of Fundamental Rights of the European Union)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/62

         Judgment of the Civil Service Tribunal (Second Chamber) of 8 October 2015 — DD v FRA
   (Joined Cases F-106/13 and F-25/14) (1)

   ((Civil service - FRA staff - Member of the temporary staff - Career development report - Internal appeal - Accusations of discrimination - Accusations of victimisation within the meaning of Directive 2000/43 - Administrative enquiry - Disciplinary proceedings - Disciplinary penalty - Reprimand - Articles 2, 3, and 11 of Annex IX to the Staff Regulations - Termination of a contract of indefinite duration - Article 47(c)(i) of the CEOS - Right to be heard - Article 41(2)(a) of the Charter of Fundamental Rights of the European Union))
   (2015/C 381/87)
   Language of the case: English

      Parties

      Applicant: DD (represented by: L. Levi and M. Vandenbussche, lawyers)

      Defendant: European Union Agency for Fundamental Rights (represented by: M. Kjærum, acting as Agent, and P. Jenkinson, lawyer)

      Re:

      Case F-106/13: Application for annulment of the decision of the Director of the FRA imposing a disciplinary penalty, in the form of a reprimand, on the applicant.

      Case F-25/14: Application for annulment of the decision terminating the applicant’s contract and of the decision rejecting his complaint and an application for damages in respect of the non-material and material harm allegedly suffered.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of 20 February 2013 by which the Director of the European Union Agency for Fundamental Rights imposed a reprimand on DD;

               2.

               Annuls the decision of 13 June 2013 by which the Director of the European Union Agency for Fundamental Rights terminated DD’s contract of indefinite duration as a member of the temporary staff;

               3.

               Dismisses the actions in Joined Cases F-106/13 and F-25/14 as to the remainder;

               4.

               Declares that the European Union Agency for Fundamental Rights is to bear its own costs and orders it to bear the costs incurred by DD.

      (1)  OJ C 45, 15.2.2014, p. 46 and OJ 184, 16.6.2014, p. 43.


title: Case C-644/16: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 15 December 2016 — Synthon BV v Astellas Pharma Inc.

text:
               20.3.2017

               EN

               Official Journal of the European Union

               C 86/9

         Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 15 December 2016 — Synthon BV v Astellas Pharma Inc.
   (Case C-644/16)
   (2017/C 086/11)
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellant: Synthon BV

      Respondent: Astellas Pharma Inc.

      Questions referred

               1.

                           (a)

                           Must Article 6 of the Enforcement Directive (1) be interpreted as meaning that, when adopting a criterion for granting a claim for the production of exhibits, a distinction must be made according to whether the party from whom the exhibits are sought is an (alleged) infringer or a third party?

                           (b)

                           If the answer to that question is in the affirmative, in what respect do those criteria then differ?

               2.

                           (a)

                           If a defence is raised against a claim for the production of exhibits contending that the intellectual-property right on the basis of which the exhibits are sought is void (or no longer exists), should the merits of that defence be assessed on the basis of the same criterion as that which applies to the question of the plausibility of the alleged infringement (assuming that the intellectual-property right invoked actually exists)?

                           (b)

                           If the answer to that question is in the negative, in what respect do the criteria differ?

                           (c)

                           In answering Questions 2(a) and 2(b), should a distinction be made according to whether the intellectual-property right concerned was granted after its validity had been investigated (as in the case of a European patent), or whether it arose by operation of law (as in the case of copyright)?

      (1)  Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual-property rights (OJ 2004 L 157, p. 45).


title: Action brought on 30 August 1995 by the Commission of the European Communities against the Italian Republic (Case C-289/95)

text:
14 . 10 . 95           EN                    Official Journal of the European Communities                                  No C 268/ 19
2 . If Question 1 is to be answered in the affirmative :                Second limb of the plea :
     Is the termination of residence of such a worker by virtue         The Court of First Instance has further infringed
     of an expulsion order made solely on general preventive            Community law by holding, in points 84 and 85 of the
     grounds with a view to deterring other aliens compatible           judgment, that there is no limit of time for raising a new plea
     with Article 14 ( 1 ) of the abovementioned Decision ?             under Article 48 ( 2 ) of its Rules of Procedure.
                                                                        Third limb of the plea :
                                                                        In ordering the Commission to produce the text of the
Appeal brought on 30 August 1995 by the Commission of                   decision as authenticated at the time, the Court of First
the European Communities against the judgment delivered                 Instance infringed Community law, in so far as its order is
on 29 June 1995 by the First Chamber of the Court of First              based on a mistaken view of the rules governing the
Instance of the European Communities sitting in extended                procedure and the rules of proof and evidence; the Court of
composition in case T-37/91 between Imperial Chemical                   First Instance also made a mistake of reasoning in that it
Industries pic and the Commission of the European                       failed to explain in both the order of 25 October 1994 and
                          Communities                                   the judgment why it had concluded that it should order the
                       ( Case C-286/95 P)                               Commission to produce that text.
                           95/C 268/41
                                                                        Second plea for setting aside the judgment: infringement of
An appeal against the judgment delivered on 29 June 1995                Community law and lack of reasoning as concerns the
by the First Chamber of the Court of First Instance of the              purpose of authentication and the consequences of a failure
European Communities sitting in extended composition in                 to authenticate the decision at the time of its adoption.
Case T-37/91 between Imperial Chemical Industries pic and
the Commission of the European Communities, was
                                                                        First limb of the plea :
brought before the Court of Justice of the European
Communities on 30 August 1995 by the Commission of the                  The Court of First Instance has infringed Community law by
European Communities, represented by Julian Currall and                 holding, in particular in ground 91 of the judgment, that
Berend Jan Drijber, members of its Legal Service, acting as             authentication is a formal requirement which must be
agents, with an address for service in Luxembourg at the                observed independently of the existence or not of any
office of Carlos Gômez de la Cruz, Centre Wagner,                       evidence capable of casting doubt on the authenticity of the
Kirchberg.                                                              notified text .
The appellant claims that the Court should:
                                                                        Second limb of the plea :
1 , set aside the Court of First Instance's judgment of
     29 June 1995 in Case T-37/91 , Imperial Chemical                   The Court of First Instance infringed Community law and
     Industries pic v. Commission of the European                       made a mistake of reasoning in holding in grounds 88 , 90
     Communities ;                                                      and 92 that authentication must take place before the act is
                                                                        notified to the addressee, failing which it is void, and that the
                                                                        authentication carried out in this case was defective .
2 , dismiss the ground of annulment of the Commission's
     decision based upon the lack of authentication;
                                                                        Third limb of the plea :
3 , remit the case to the Court of First Instance pursuant to
     Article 54 of the Statute ( EC ) of the Court of Justice for a     The Court of First Instance has infringed Community law
     decision on the other grounds of annulment alleged                 and incidentally neglected its obligation to give reasons for
     against the Commission's decision;                                 its judgment by failing to consider whether the alleged defect
                                                                        was such as to affect the interests of the addressee of the
4 , order ICI to pay the costs of this appeal .                         decision .
Pleas in law and main arguments adduced in support:
First plea for the setting aside of the judgment: infringement
of Community law and lack of reasoning as regards the
admissibility of ICI's new plea for annulment, the
organization of the procedure and the rules of proof and
evidence .                                                              Action brought on 30 August 1995 by the Commission of
                                                                          the European Communities against the Italian Republic
First limb of the plea :                                                                       Case C-289/95 )
The Court of First Instance has infringed Community law by                                       ( 95/C 268/42
holding, at point 82 of the judgment, that the statements by
the Commission to which reference is made, can amount in
themselves to a new fact for the purposes of Article 48 ( 2 ) of        An action against the Italian Republic was brought before
its Rules of Procedure .                                                the Court of Justice of the European Communities on
 ---pagebreak--- No C 268/20              EN                  Official Journal of the European Communities                                   14 . 10 . 95
30 August 1 995 by the Commission of the European                       The applicant claims that the Court should:
Communities, represented by Antonio Aresu, of its Legal
Service, acting as Agent, with an address for service in                1 , annul Articles 1 and 2 of the Commission's decision of
Luxembourg at the office of Carlos Gomez de la Cruz,
Wagner Centre, Kirchberg.
                                                                            28 June 1995 relating to a proceeding pursuant to
                                                                            Article 90 ( 3 ) of the Treaty establishing the European
                                                                            Community and concerning the system of discounts on
The applicant claims that the Court should :                                landing fees at Brussels National Airport;
— declare that, by adopting the Ministerial Decree of
    13 March 1992 without first communicating a draft                   2 , order the Commission to pay the costs .
    thereof to the Commission, the Italian Republic has
    failed to fulfil its obligations under Article 8 of Council
    Directive 83/ 189/EEC of 28 March 1983 laying down a                Pleas in law and main arguments adduced in support:
    procedure for the provision of information in the field of
    technical standards and regulations (*),                            1 . The contested decision states that the system of
                                                                            discounts on landing fees introduced by Article 2 ( 2 ) of
— order the Italian Republic to pay the costs .                             the Royal Decree of 22 December 1989 is a measure
                                                                            incompatible with Article 90 ( 1 ) of the EC Treaty, read
Pleas in law and main arguments adduced in support:                         in conjunction with Article 86 thereof.
The Commission states that the Ministerial Decree of
3 March 1992 had not been communicated to it in draft                   2 . According to the Commission, the system of discounts
form, which constitutes a manifest failure to fulfil the                    established by the Royal Decree has the effect of
obligations imposed upon Member States by Directive                         applying to the airlines who use Brussels airport
83/ 189/EEC . Furthermore, in the view of the Commission                    dissimilar conditions for equivalent transactions . The
as set out in communication 86/C 245/05 ( OJ No C 245 ,                     Commission claims that the applicant introduced that
1986 , p . 4 ), that infringement of the procedure laid down by             system in order to benefit the Belgian national air
Directive 83/ 189/EEC renders the technical regulations in                  transport company, namely Sabena .
question incapable of producing legal effects and therefore
unenforceable against third parties . The Commission                        The discounts laid down by the Belgian State in the
maintains that the prohibition on the adoption of national                  Royal Decree are administered by the Régie des Voies
measures without prior notification has direct effect and                   Aériennes ( Airways Authority: hereinafter 'the RVA').
confers upon the individual rights which may be relied upon                 Since the RVA has been granted exclusive rights with
before the national courts .                                                respect to the operation of Brussels National Airport,
                                                                            the Commission considers that it holds a dominant
In particular, the Commission claims that the Italian                       position on the market for such services and that the
authorities have infringed the first paragraph of Article 8(1 )             application of the allegedly discriminatory discounts
of Directive 83/ 189/EEC which provides for the                             constitutes an abuse of a dominant position. However,
communication of all draft technical regulations .                          in view of the fact that the RVA can exercise no
                                                                            discretion in that area, its sole role being to implement
(!) OJ No L 109 , 26 . 4 . 1983 , p . 8 .                                   the Royal Decree, the Commission claims that the
                                                                            applicant State has acted in disregard of its obligations
                                                                            under Article 90 ( 1 ) of the EC Treaty, read in
                                                                            conjunction with Article 86 thereof, in so far as it
                                                                            requires the RVA to administer the discriminatory
                                                                            system of discounts .
Action brought on 5 September 1995 by the Kingdom of
Belgium against the Commission of the European                          3 . The applicant claims that the Commission infringed the
                             Communities
                                                                            rights of the defence in its adoption of the contested
                          ( Case C-291 /95 )                                decision . In the course of the procedure, the applicant
                            ( 95/C 268/43 )                                 had no opportunity to give its views, as would have been
                                                                            proper, and no access to the Commission's file.
An action against the Commission of the European
Communities was brought before the Court of Justice of the                  The applicant also claims that the decision was adopted
European Communities on 5 September 1995 by the                             in disregard of Articles 86 and 90 of the EC Treaty; that
Kingdom of Belgium, represented by Jan Devadder, acting                     it is vitiated by lack of competence; that the analysis on
as Agent, assisted by Jacques H. J. Bourgeois, of the Brussels              which it was based is flawed, both in fact and in law,
Bar, with an address for service in Luxembourg at the                       thus infringing Article 190 of the EC Treaty; and lastly,
Belgian Embassy, 4 rue des Girondins .                                      that it is vitiated by misuse of powers .


title: Case T-21/08: Action brought on 8 January 2008 — Evets v OHIM (QWIK TUNE)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/61

         Action brought on 8 January 2008 — Evets v OHIM (QWIK TUNE)
   (Case T-21/08)
   (2008/C 64/99)
   Language of the case: English
   Parties

      Applicant: Evets Corporation (Irvine, United States) (represented by: S. Ryan, Solicitor)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               That the decision R 604/2007– 4 of the Fourth Board of Appeal of 5 November 2007 be set aside;

               —

               that an order be substituted that the application for restitutio in integrum was brought within the time-limits as prescribed by Article 78(2);

               —

               that the matter be referred back to the Fourth Board of Appeal for them to deal with the substantive issue as to whether all due care was taken to renew the trade mark concerned;

               —

               that the costs be borne by the defendant.

         Pleas in law and main arguments

      Community trade mark concerned: The figurative Community trade mark ‘QWIK TUNE’ for goods and services in classes 9 and 15 — application No 117 994

      Decision of the Administration of Trade Marks and Legal Division: Refused the request for restitutio in integrum and declared the trade mark as deemed to have been cancelled

      Decision of the Board of Appeal: Dismissed the appeal and declared the restitutio in integrum request as deemed not to have been filed

      Pleas in law: The pleas in law and main arguments relied on by the applicant are identical or similar to those relied on in Case T-20/08, Evets/OHIM (DANELECTRO).


title: Case C-453/15: Judgment of the Court (Second Chamber) of 8 December 2016 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against A, B (Reference for a preliminary ruling — Taxation — VAT — Directive 2006/112/EC — Article 56 — Place where services are supplied — Concept of ‘similar rights’ — Transfer of greenhouse gas emission allowances)

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/3

         Judgment of the Court (Second Chamber) of 8 December 2016 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against A, B
   (Case C-453/15) (1)

   ((Reference for a preliminary ruling - Taxation - VAT - Directive 2006/112/EC - Article 56 - Place where services are supplied - Concept of ‘similar rights’ - Transfer of greenhouse gas emission allowances))
   (2017/C 038/04)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

   A, B

      Intervener: Generalbundesanwalt beim Bundesgerichtshof

      Operative part of the judgment

   Article 56(1)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the ‘similar rights’ mentioned in that provision include the greenhouse gas emission allowances defined in Article 3(a) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC.

      (1)  OJ C 363, 3.11.2015.


title: Case C-258/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 24 May 2012 — Vodafone Omnitel Nv v Autorità per le Garanzie nelle Comunicazioni

text:
               21.7.2012

               EN

               Official Journal of the European Union

               C 217/13

         Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 24 May 2012 — Vodafone Omnitel Nv v Autorità per le Garanzie nelle Comunicazioni
   (Case C-258/12)
   2012/C 217/29
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicant: Vodafone Omnitel Nv

      Defendant: Autorità per le Garanzie nelle Comunicazioni

      Question referred

   Are the Community provisions in the sector, and in particular the provisions of Directive No 2002/20/EC, (1) to be interpreted as precluding the national rules referred to, in particular Law No 266 of 2005, as those provisions are actually applied by regulation included.

      (1)  Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive); OJ 2002 L 108, p. 21.


title: Case T-430/15: Action brought on 30 July 2015 — Flowil International Lighting v OHIM — Lorimod Prod Com (Silvania Food)

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/38

         Action brought on 30 July 2015 — Flowil International Lighting v OHIM — Lorimod Prod Com (Silvania Food)
   (Case T-430/15)
   (2015/C 320/55)
   Language in which the application was lodged: English

      Parties

      Applicant: Flowil International Lighting (Holding) BV (Amsterdam, Netherlands) (represented by: J. Güell Serra, lawyer)

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

      Other party to the proceedings before the Board of Appeal: SC Lorimod Prod Com, Srl (Simleul Silvaniei, Romania)

      Details of the proceedings before OHIM

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

      Trade mark at issue: Community figurative mark containing the word elements ‘Silvania Food’ — Application for registration No 11 042 082

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 8 May 2015 in Case R 616/2014-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Pleas in law

               —

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

               —

               Infringement of Article 8(5) of Regulation No 207/2009.


title: Case T-165/12: Action brought on 11 April 2012 — European Dynamics Luxembourg and Evropaiki Dinamiki v Commission

text:
               23.6.2012

               EN

               Official Journal of the European Union

               C 184/17

         Action brought on 11 April 2012 — European Dynamics Luxembourg and Evropaiki Dinamiki v Commission
   (Case T-165/12)
   2012/C 184/30
   Language of the case: Greek

      Parties

      Applicants: European Dynamics Luxembourg SA (Ettelbrück, Luxembourg) and Evropaiki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: V Christianos, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the General Court should:

               —

               annul the European Commission decision CMS/cms D(2012)/00008 of 8 February 2012, which was communicated to the applicants on 9 February 2012, whereby the European Commission rejected the applicants’ tender in the closed tendering procedure EuropeAid/131431/C/SER/AL, and

               —

               order the Commission to pay the entirety of the applicant’s costs.

      Pleas in law and main arguments

   By this action, the applicants seek the annulment of the European Commission decision CMS/cms D(2012)/00008 of 8 February 2012, which was communicated to the applicants on 9 February 2012, whereby the European Commission rejected the applicants’ tender in the closed tendering procedure EuropeAid/131431/C/SER/AL.
   The applicants claim that the contested decision should be annulled, in accordance with Article 263 TFEU, because of contravention of the rules of European Union law and, in particular, on the following three grounds:

               1.

               First, because of the infringement by the Commission of the principle of transparency, since the contested decision, even after the Commission’s letter of 21 February 2012, did not allow the tenderers to have access to the record of the Commission’s assessment.

               2.

               Second, because of the infringement by the Commission of the duty to state reasons:

                           —

                           because, in respect of the characteristics and advantages of the successful tenderer, even after the Commission’s letter of 21 February 2012, both the analytical score of the successful tenderer’s technical bid and the justification for that score were completely lacking in the contested decision.

                           —

                           Because in respect of the technical bid of the applicants themselves, the contested decision, even after the Commission’s letter of 21 February 2012, contained a completely inadequate statement of reasons for its score.


title: Action brought on 16 October 1995 by Franz Becker, Giuseppe Lisitano, Richard Mirsberger, Gerda Müller-Maersch, Heinz L. Nörenberg, Wolfram Pütz and Gerhard Tscheepe against the Commission of the European Communities (Case T-191/95)

text:
No C 315/22           EN                    Official Journal of the European Communities                                      25 . 11 . 95
Action brought on 4 October 1995 by Camping Qualité                    The applicants claim that the Court should :
France against the Commission of the European
                           Communities                                 — annul the applicants ' pension statements for December
                                                                            1994, drawn up pursuant to Council Regulation ( ECSC,
                         Case T-182/95 )                                    EC, Euratom ) No 3161 /94 of 19 December 1994 ,
                          ( 95 /C 315/42 )                                  inasmuch as that regulation lays down a weighting for
                                                                            Germany at the rate fixed for its capital , Berlin , only
                (Language of the case: French)                              with effect from 1 July 1994 and not from 3 October
                                                                            1990 , and , in so far as may be necessary, annul the
An action against the Commission of the European                            decision of the Commission of 26 July 1995 rejecting the
Communities was brought before the Court of First                           applicants ' complaint,
Instance of the European Communities on 4 October 1995
by Camping Qualité France, an association whose registered             — reinstate the applicants' pension rights in full , weighted
office is in Paris , represented by Jean-Michel Roche and                   at the rate fixed for Berlin since 3 October 1990 ,
Jean-Claude Cohen, of the Paris Bar, with an address for               — order the defendant to pay default interest on the
service in Luxembourg at the Chambers of Stef Oostvogels,                   pension arrears for the period from 3 October 1990 to
 13 Rue Aldringen .                                                         30 June 1994 , calculated in relation to the same period,
                                                                            at the annual rate of 10% .
The applicant claims that the Court should :
                                                                       Pleas in law and main arguments adduced in support:
— annul , together with all its legal consequences, the
    Commission's decision of 27 July 1995 , received on                The pleas in law and main arguments are the same as those
    4 August 1995 , demanding from the applicant                       already invoked in          Cases T-l 71 /95 , T- 172/95       and
    reimbursement of ECU 51 405,74 out of the sum of                   T - 173 /95 .
    ECU 90 000 granted by way of Community subsidy for
    its project for the development of a European chain of
    quality outdoor holiday centres .
                                                                       Action brought on 16 October 1995 by Areacova, SA,
Pleas in law and main arguments adduced in support:                    Armadora José Pereira, SA, Armadores Pesqueros de Aldán,
                                                                       SA, Centropesca, SA, Chymar, SA, Eloymar, SA, Exfaumar,
The applicant claims, first, that the contested decision is not        SA, Farpespan , SL, Freiremar, SA, Hermandos Gandón , SA,
accompanied by a sufficient statement of reasons, since it             Heroya, SA, Hiopesca, SA, José Pereira e Hijos , SA, Juana
makes no reference to any legislation or individual provision          Oya Pérez, Manuel Nores González, Moradiña, SA, Navales
empowering the Commission to adopt a decision of that                  Cerdeiras, SL, Nugago Pesca, SA, Pesquera Austral , SA,
nature .
                                                                       Pescaberbés, SA, Pesquerías Bígaro Narval , SA, Pesquera
As regards the decision 's content, the applicant considers it         Cíes , SA, Pesca Herculina, SA, Pesquera Inter, SA,
to be unfounded , in that, first, it is based on facts which are       Pesquerías Marinenses, SA, Pesquerías Tara, SA, Pesquera
inaccurate and, secondly , it questions the quality of the             Vaqueiro, SA, Sotelo Dios, SA, Asociación Nacional de
project, whereas at this stage the Commission may only                 Armadores de Buques Congeladores de Pesca de Merluza
verify matters concerning the financial use of the amounts             ( ANAMER ), Asociación Nacional de Armadores de Buques
granted .
                                                                       Congeladores de Pesquerías Varias ( ANAVAR ) and
                                                                       Asociación de Sociedades Pesqueras Españolas ( ASPE )
                                                                                against the Council of the European Union
                                                                                ( Case T-l 94/95 )
                                                                                ( 95/C 315/44 )
Action brought on 16 October 1995 by Franz Becker,
Giuseppe Lisitano, Richard Mirsberger, Gerda                                          (Language of the case: Spanish)
Müller-Maersch, Heinz L. Nörenberg, Wolfram Pütz and
Gerhard Tscheepe against the Commission of the European                An action against the Council of the European Union was
                          Communities                                  brought before the Court of First Instance of the European
                                                                       Communities on 1 6 October 1 995 by Areacova , SA, ( whose
                       ( Case T-l 91 /95 )                             registered office is in Vigo , Spain ), Armadora Jose Pereira ,
                         ( 95/C 315/43 )                               SA , ( whose registered office is in Vigo , Spain ), Armadores
                                                                       Pesqueros de Aldan, SA , ( whose registered office is in Vigo,
               (Language of the case: French)                          Spain ), Centropesca , SA, ( whose registered office is in Vigo,
                                                                       Spain ), Chymar, SA, ( whose registered office is in Vigo,
An action against the Commission of the European                       Spain ), Eloymar, SA, ( whose registered office is in Estribela ,
Communities was brought before the Court of First                      Spain ), Exfaumar, SA, ( whose registered office is in Bueu ,
Instance of the European Communities on 16 October 1995                Spain ), Farpespan , SL , ( whose registered office is in Moana ,
by Franz Becker, Giuseppe Lisitano, Richard Mirsberger,                Spain ), Freiremar, SA, ( whose registered office is in Vigo,
Gerda Müller-Maersch , Heinz L. Nörenberg, Wolfram Pütz                Spain ), Hermandos Gandón , SA , ( whose registered office is
and Gerhard Tscheepe , all residing in Germany, represented            in Cangas, Spain ), Heroya , SA , ( whose registered office is in
by Georges Vandersanden and Laure Levi , of the Brussels               Vigo, Spain ), Hiopesca , SA , ( whose registered office is in
Bar, with an address for service in Luxembourg at the offices          Vigo , Spain ), Jose Pereira e Hijos , SA , ( whose registered
of Fiduciaire Myson Sari , 1 Rue Glesener .                            office is in Vigo, Spain ), Juana Oya Perez ( whose registered


title: Case T-543/12: Judgment of the General Court of 24 October 2014  — Grau Ferrer v OHIM — Rubio Ferrer (Bugui va) (Community trade mark — Opposition proceedings — Application for the figurative Community mark Bugui va — Earlier national figurative mark Bugui and earlier Community figurative mark BUGUI — Relative ground for refusal — Rejection of the opposition — Article 76(2) of Regulation (EC) No 207/2009) — Existence of the earlier mark — Evidence presented in support of the opposition before the Board of Appeal not taken into account — Board of Appeal’s discretion — Article 42(2) and (3) of Regulation No 207/2009 — Article 15(1), second paragraph, point (a) of Regulation No 207/2009 — Genuine use of the earlier mark — Form differing in elements which do not alter the distinctive character)

text:
               8.12.2014

               EN

               Official Journal of the European Union

               C 439/27

         Judgment of the General Court of 24 October 2014 — Grau Ferrer v OHIM — Rubio Ferrer (Bugui va)
   (Case T-543/12) (1)

   ((Community trade mark - Opposition proceedings - Application for the figurative Community mark Bugui va - Earlier national figurative mark Bugui and earlier Community figurative mark BUGUI - Relative ground for refusal - Rejection of the opposition - Article 76(2) of Regulation (EC) No 207/2009) - Existence of the earlier mark - Evidence presented in support of the opposition before the Board of Appeal not taken into account - Board of Appeal’s discretion - Article 42(2) and (3) of Regulation No 207/2009 - Article 15(1), second paragraph, point (a) of Regulation No 207/2009 - Genuine use of the earlier mark - Form differing in elements which do not alter the distinctive character))
   (2014/C 439/36)
   Language of the case: Spanish

      Parties

      Applicant: Xavier Grau Ferrer (Caldes de Montbui, Spain) (represented by: J. Carbonell Callicó, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Palmero Cabezas and A. Folliard-Montguiral, Agents)

      Other parties to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Juan Cándido Rubio Ferrer (Xeraco, Spain) and Alberto Rubio Ferrer (Xeraco) (represented by: A. Cañizares Doménech, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 11 October 2012 (Joined Cases R 274/2011-4 and R 520/2011-4) relating to opposition proceedings between Xavier Grau Ferrer on the one hand and, on the other hand, Juan Cándido Rubio Ferrer and Alberto Rubio Ferrer.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 October 2012 (Joined Cases R 274/2011-4 and R 520/2011-4);

               2.

               Declares that OHIM is to bear its own costs and orders it to pay the costs incurred by Mr Xavier Grau Ferrer;

               3.

               Declares that Juan Cándido Rubio Ferrer and Alberto Rubio Ferrer are to bear their own costs.

      (1)  OJ C 55, 23.2.2013.


title: Judgment of the Court (Fifth Chamber) of 20 November 2003 in Case C-152/01 (Reference for a preliminary ruling from the Bundesfinanzhof): Kyocera Electronics Europe GmbH v Hauptzollamt Krefeld (Common Customs Tariff — Customs value — Determination of the transaction value — Interest payable under a financing arrangement — Exclusion — Conditions — Interest distinguished from the price actually paid or payable — Declaration not mentioning the interest due or paid)

text:
10.1.2004                 EN                          Official Journal of the European Union                                                  C 7/5
                   JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                            (Fifth Chamber)                                                             (Fifth Chamber)
                        of 20 November 2003
                                                                                of 13 November 2003
in Case C-152/01 (Reference for a preliminary ruling from
the Bundesfinanzhof): Kyocera Electronics Europe GmbH                         in Case C-209/01 (Reference for a preliminary ruling from
                     v Hauptzollamt Krefeld (1)                               the Bundesfinanzhof): Theodor Schilling, Angelika Fleck-
                                                                                Schilling v Finanzamt Nürnberg-Süd (1)
(Common Customs Tariff — Customs value — Determi-
nation of the transaction value — Interest payable under a                    (Free movement of workers — Officials and servants of the
financing arrangement — Exclusion — Conditions — Inter-                       European Communities — Maintenance of domicile for tax
est distinguished from the price actually paid or payable —                   purposes in the Member State of origin — Income tax —
     Declaration not mentioning the interest due or paid)                     Deduction of expenditure in respect of a household assistant)
                             (2004/C 7/06)
                                                                                (2004/C 7/07)
                     (Language of the case: German)
                                                                                (Language of the case: German)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-152/01: Reference to the Court under Article 234 EC
by the Bundesfinanzhof (Germany) for a preliminary ruling in
the proceedings pending before that court between Kyocera                     In Case C-209/01: Reference to the Court under Article 234 EC
Electronics Europe GmbH and Hauptzollamt Krefeld, on the                      by the Bundesfinanzhof (Germany) for a preliminary ruling in
interpretation of Article 3(2)(a) of Commission Regulation                    the proceedings pending before that court between Theodor
(EEC) No 1495/80 of 11 June 1980 implementing certain                         Schilling, Angelika Fleck-Schilling and Finanzamt Nürnberg-
provisions of Council Regulation (EEC) No 1224/80 on the                      Süd, on the interpretation of Article 48 of the EC Treaty (now,
valuation of goods for customs purposes (OJ 1980 L 154,                       after amendment, Article 39 EC) and of the first paragraph of
p. 14), as amended by Commission Regulation (EEC) No 220/                     Article 14 of the Protocol on the Privileges and Immunities
85 of 29 January 1985 (OJ 1985 L 25, p. 7), the Court (Fifth                  of the European Communities, the Court (Fifth Chamber),
Chamber), composed of: P. Jann, acting for the President of                   composed of: D.A.O. Edward, acting for the President of the
the Fifth Chamber, C.W.A. Timmermans (Rapporteur) and                         Fifth Chamber, A. La Pergola and S. von Bahr (Rapporteur),
S. von Bahr, Judges; F.G. Jacobs, Advocate General; R. Grass,                 Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has
Registrar, has given a judgment on 20 November 2003, in                       given a judgment on 13 November 2003, in which it has
which it has ruled:                                                           ruled:
Article 3(2)(a) of Commission Regulation (EEC) No 1495/80 of                  Article 48 of the EC Treaty (now, after amendment, Article 39 EC),
11 June 1980 implementing certain provisions of Council Regulation            in conjunction with Article 14 of the Protocol on the Privileges and
(EEC) No 1224/80 on the valuation of goods for customs purposes,              Immunities of the European Communities, precludes a situation in
as amended by Commission Regulation (EEC) No 220/85 of                        which officials of the European Communities who are of German
29 January 1985, is to be interpreted as meaning that payments of             origin and are resident in Luxembourg, where they work as officials,
interest are distinguished from the price of the goods even if, at the        and who have incurred expenditure in respect of a household assistant
time when the customs declaration is accepted, the customs authorities        in the latter Member State cannot deduct that expenditure from their
are in possession only of the invoice for the net price of the goods and      taxable income in Germany by reason of the fact that the contributions
neither that invoice nor the declaration of customs value reveal              paid for the household assistant were made to the Luxembourg
expressly or by implication that the buyer paid or must pay interest          statutory pension insurance scheme and not to the German scheme.
to the seller in the context of the import transaction in question.
                                                                              (1) OJ C 212 of 28.7.2001.
(1) OJ C 186 of 30.6.2001.


title: Case T-353/16: Action brought on 28 June 2016 — European Social Enterprise Law Association v EUIPO (EUROPEAN SOCIAL ENTERPRISE LAW ASSOCIATION)

text:
               29.8.2016

               EN

               Official Journal of the European Union

               C 314/31

         Action brought on 28 June 2016 — European Social Enterprise Law Association v EUIPO (EUROPEAN SOCIAL ENTERPRISE LAW ASSOCIATION)
   (Case T-353/16)
   (2016/C 314/42)
   Language of the case: English

      Parties

      Applicant: European Social Enterprise Law Association (London, United Kingdom) (represented by: L. Fletcher, Solicitor)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU word mark ‘EUROPEAN SOCIAL ENTERPRISE LAW ASSOCIATION’ — Application for registration No 14 062 129

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 26 Aprilie 2016 in Case R 2208/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs of the Applicant.

      Pleas in law

               —

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

               —

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


title: Case C-532/15: Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Spain) lodged on 9 October 2015 — Eurosaneamientos, S.L. and Others v ArcelorMittal Zaragoza, S.A.

text:
               21.12.2015

               EN

               Official Journal of the European Union

               C 429/11

         Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Spain) lodged on 9 October 2015 — Eurosaneamientos, S.L. and Others v ArcelorMittal Zaragoza, S.A.
   (Case C-532/15)
   (2015/C 429/15)
   Language of the case: Spanish

      Referring court

   Audiencia Provincial de Zaragoza

      Parties to the main proceedings

      Applicants: Eurosaneamientos, S.L., Entidad Urbanística Conservación Parque Tecnológico de reciclado López Soriano, UTE PTR Acciona Infraestructuras, S.A.

      Defendant: ArcelorMittal Zaragoza, S.A.

      Questions referred

               1.

               Is the fact that there is a legal provision laid down by the State that requires State control in the fixing of the fees of procuradores, by means of rules setting the exact and mandatory amount of those fees, and conferring authority on the courts, in particular in the event of an order for costs, in each particular case to fix those costs subsequently, although that authority is limited to ensuring the strict application of the tariff without the possibility of departing, in exceptional cases and by way of a reasoned decision, from the limits set in the legal provision on tariffs consistent with Articles 4(3) [TEU] and 101 TFEU?

               2.

               Does the definition of the concepts ‘overriding reasons relating to the public interest’, ‘proportionality’ and ‘necessity’ in Articles [4] and [15] of the Directive on services in the internal market (1) as applied by the EU courts, allow the courts of the Member States, in circumstances where there is State regulation in relation to the fixing of fees and there is an implied declaration, in the absence of any rules in the implementing legislation, that there is an overriding reason relating to the public interest, although its inconsistency with EU case-law does not allow it to be upheld, to hold in a particular case that there is a limitation which is not in the public interest and, therefore, to disregard or to amend the legal provision imposing rules on the remuneration of procuradores?

               3.

               Is the application of a legal provision of that nature contrary to the right to a fair trial as defined by the EU courts?

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


title: Case T-411/08 R: Order of the President of the Court of First Instance of 14 November 2008 — Artisjus v Commission (Applications for interim measures — Commission decision ordering the cessation of a concerted practice in connection with the collective management of copyright — Application for suspension of operation of a measure — No urgency)

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/39

         Order of the President of the Court of First Instance of 14 November 2008 — Artisjus v Commission
   (Case T-411/08 R)
   (Applications for interim measures - Commission decision ordering the cessation of a concerted practice in connection with the collective management of copyright - Application for suspension of operation of a measure - No urgency)
   (2009/C 69/90)
   Language of the case: English
   Parties

      Applicant: Artisjus Magyar Szerzői Jogvédő Iroda Egyesület (Budapest, Hungary) (represented by: Z. Hegymegi-Barakonyi and P. Vörös, lawyers)

      Defendant: Commission of the European Communities (represented by: F. Castillo de la Torre and V. Bottka, acting as Agents)
   Re:
   Application for suspension of operation of Articles 3 and 4(2) and (3) of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC) in so far as they relate to the applicant.
   Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.


title: Case C-108/01: Reference for a preliminary ruling made by the House of Lords by order of that court of 8 February 2001, in the case of 1) Consorzio del Prosciutto Di Parma 2) Salumificio S. Rita S.P.A. against 1) Asda Stores Limited 2) Hygrade Foods Limited

text:
5.5.2001               EN                    Official Journal of the European Communities                                           C 134/9
     iii)  By assimilating the position of the existing four            Pleas in law and main arguments
           global CRS operators with all other operators active
           on the relevant market such as system vendors,               Article 40 of BAA’s Articles, which prevents any person from
           airlines or subscribers and in so doing failed to apply      controlling more than 15 % of the company, restricts portfolio
           the case law of the Court of Justice and, in particular
                                                                        investment, and restricts direct investment and, by the same
           the Court’s decision in Bock and Piraiki-Patraiki.           token, establishment: such restrictions fall under Articles 56
                                                                        and 43 of the EC Treaty. While the restriction is not explicitly
b)   In finding that exceptional economic circumstances do              of a discriminatory nature, such a restriction, liable to hinder
     not mean that the Appellants are individually concerned            the exercise of these freedoms, must be justified by ‘imperative
     by the contested measure the Court of First Instance erred         requirements in the general interest’ and be necessary and
     as a matter of law:                                                appropriate for these requirements.
     i)    By failing to apply the principles laid down in the          The UK authorities have failed to demonstrate the imperative
           judgments of the Court of First Instance in Codorniu         requirements of general interest which are to be protected by
           v. Council and Extrament Industrie v. Council and            the rights attached to the Special share and by the 15 % equity
           subsequently applied by the Court of First Instance          limit and, thus, a fortiori, their proportionality, and it therefore
           and the Court of Justice and/or failing to distinguish       must be concluded that the restrictions on the free movement
           those cases adequately or at all.                            of capital and on establishment created thereby are in violation
                                                                        of the obligations of the Member State under Articles 43 and
     ii)   By failing to take account of the decision of the            56 of the Treaty.
           Court of First Instance in Case T-60/96, Merck and
           others.                                                      A breach of the Treaty may occur upon the introduction by a
                                                                        Member State of restrictions on establishment or capital
                                                                        movements, by whatever means. In relation to BAA the
(1) OJ C 226, 7.8.1999, p. 34.                                          measures introduced by mechanisms of company law were
                                                                        introduced by the State in its capacity as public authority and
                                                                        are clearly intended to remain thus since Article 10(1) of BAA’s
                                                                        Articles only allows the Special share to be transferred to ‘one
                                                                        of Her Majesty’s Secretaries of State, another Minister of the
                                                                        Crown or any other person acting on behalf of the Crown’.
                                                                        Consequently, and in order in particular to uphold the
                                                                        uniformity and supremacy of Community law, the adoption
                                                                        by a Member State of the mechanisms of private company law
                                                                        to introduce restrictions on Treaty freedoms can in no way
Action brought on 27 February 2001 by the Commission                    avoid the examination of the compatibility of such restrictions
of the European Communities against the United                          with the Treaty.
      Kingdom of Great Britain and Northern Ireland
                                                                        After such examination the Commission has reached the
                          (Case C-98/01)                                conclusion that the restrictions contained in Articles 10 and
                                                                        40 of the Articles of Association of BAA are incompatible
                                                                        with the provisions of Articles 43 and 56 of the Treaty on the
                         (2001/C 134/13)                                freedoms of establishment and capital movements.
An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 27 February 2001 by the
Commission of the European Communities, represented by
Mr Frank Benyon and Ms Maria Patakia, acting as agents, with
an address for service in Luxembourg.
                                                                        Reference for a preliminary ruling made by the House of
                                                                        Lords by order of that court of 8 February 2001, in the
The Applicant claims that the Court should:                             case of 1) Consorzio del Prosciutto Di Parma 2) Salumi-
                                                                        ficio S. Rita S.P.A. against 1) Asda Stores Limited 2) Hy-
a)   declare that the provisions setting a limitation on interests                            grade Foods Limited
     in voting shares in the BAA plc company (Article 40 of
     the Articles of Association), as well as the authorisation                                  (Case C-108/01)
     procedure on the disposal of assets of the company or
     control in subsidiaries and winding-up (Article 10 of the
     Articles of Association) are incompatible with Articles 43                                  (2001/C 134/14)
     and 56 of the EC Treaty;
                                                                        Reference has been made to the Court of Justice of the
b)   order the United Kingdom to pay the costs.                         European Communities by an order of the House of Lords, of
 ---pagebreak--- C 134/10                EN                     Official Journal of the European Communities                                        5.5.2001
8 February 2001, which was received at the Court Registry on              2.    In the examination of the question whether ‘the same
7 March 2001, for a preliminary ruling in the case of                           cause of action’ has been brought, are exclusively the
1) Consorzio del Prosciutto Di Parma 2) Salumificio S. Rita                     pleadings of the plaintiff in the proceedings initiated by a
S.P.A. against 1) Asda Stores Limited 2) Hygrade Foods                          later action decisive and the defences and submissions of
Limited, on the following question:                                             the defendant therefore irrelevant, in particular also the
                                                                                defence of the procedural objection of set-off concerning
                                                                                a claim that is the subject-matter of a legal dispute
As a matter of Community law, does Council Regulation                           between the same parties on the basis of an action that
(EEC) No 2081/92 (1) read with Commission Regulation (EC)                       has already been brought earlier in another Contracting
No 1107/96 (2) and the specification for the PDO (3)‘prosciutto                 State?
di Parma’ create a valid Community right, directly enforceable
in the court of a member state, to restrain the retail sale as            3.    Where, on the basis of an action to enforce a contract
‘Parma ham’ of sliced and packaged ham derived from hams                        seeking damages for unlawful termination of a long-term
duly exported from Parma in compliance with the conditions                      obligation, the question as to whether such a long-term
of the PDO but which have not been thereafter sliced, packaged                  obligation existed at all is decided, is that decision also
and labelled in accordance with the specification?                              binding in subsequent proceedings between the same
                                                                                parties?
(1) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the
    protection of geographical indications and designations of origin
    for agricultural products and foodstuffs (JO L 208, 24.07.1992,
    p. 1).
(2) Commission Regulation (EC) No 1107/96 of 12 June 1996 on
    the registration of geographical indications and designations of
    origin under the procedure laid down in Article 17 of Council
    Regulation (EEC) No 2081/92 (JO L 148, 21.06.1996, p. 1).
(3) (protected designation of origin).                                    Reference for a preliminary ruling by the Vestre Landsret
                                                                          by order of 9 March 2001 in the case of ApS SPKR 4
                                                                          No 3482 v (1) Skatteministeriet, (2) Public limited com-
                                                                          pany of 11/9 1996, and (3) A.T.S. I/S Arden Transport &
                                                                          Spedition, represented by Søren Lauritsen and Lene
                                                                                Lauritsen
                                                                                (Case C-112/01)
                                                                                (2001/C 134/16)
Reference for a preliminary ruling from the Oberster
Gerichtshof, Austria, by order of that court of 22 February
2001 in the case of Gantner Electronic GmbH v Basch                       Reference has been made to the Court of Justice of the
                  Exploitatie Maatschappij B.V.                           European Communities by order of 9 March 2001 by the
                                                                          Vestre Landsret (Western Regional Court), which was received
                                                                          at the Court Registry on 12 March 2001, for a preliminary
                          (Case C-111/01)                                 ruling in the case of ApS SPKR 4 No 3482 v (1) Skatteministe-
                                                                          riet (Ministry of Fiscal Affairs), (2) Public limited company of
                                                                          11/9 1996, and (3) AT.S. I/S Arden Transport & Spedition,
                          (2001/C 134/15)                                 represented by Søren Lauritsen and Lene Lauritsen, on the
                                                                          following questions:
Reference has been made to the Court of Justice of the
European Communities by an order of the Oberster Gerichts-
hof (Supreme Court), Austria, of 22 February 2001, which was              Question 1
received at the Court Registry on 12 March 2001, for a
preliminary ruling in the case of Gantner Electronic GmbH v
Basch Exploitatie Maatschappij B.V. on the following questions:           Must the provisions in Council Regulation No 2913/92 (1) (the
                                                                          Customs Code) and in Commission Regulation No 2454/93 (2)
                                                                          (the implementing regulation), in particular Article 379(1) of
1.    Does the concept of ‘the same cause of action’ in                   the implementing regulation, be construed as meaning that a
      Article 21 of the Brussels Convention extend also to the            customs debt arising by reason of an offence or irregularity
      defence of the defendant that he has extinguished a part            in connection with external Community transit cannot be
      of the claim sued for by extra-judicial set-off, where the          recovered by the office of departure from the principal in so
      part of this counterclaim that is allegedly not extinguished        far as the principal did not, before the end of the eleventh
      is the subject-matter of a legal dispute between the same           month following the date of registration of the Community
      parties on the basis of an action that has already been             transit declaration, receive the notification referred to in
      brought earlier in another Contracting State?                       Article 379 of the implementing regulation?