title: Case T-151/02: Action brought on 8 May 2002 by SiSi-Werke GmbH & Co. Betriebs KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 180/28              EN                     Official Journal of the European Communities                                      27.7.2002
Action brought on 8 May 2002 by SiSi-Werke GmbH &                       Pleas in law relied on:       —     Infringement                of
Co. Betriebs KG against the Office for Harmonisation in                                                     Article 7(1)(c) of Regulation
       the Internal Market (Trade Marks and Designs)                                                        No 40/94 (1)
                                                                                —     No need to refuse the mark
                                                                                claimed registration
                        (Case T-151/02)
                                                                                —     Infringement                of
                                                                                Article 7(1)(b) of Regulation
                        (2002/C 180/48)                                                                     No 40/94
                                                                                —     German registrations       for
                                                                                upright bottles
                  (Language of the case: German)
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                            Community trade mark (OJ 1994 L 11, p. 1).
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on 8 May
2002 by SiSi-Werke GmbH & Co. Betriebs KG, of Eppelheim,
Germany, represented by H. Eichmann, G. Barth, U. Blumen-
röder, C. Niklas-Falter, M. Kinkeldey, K. Brandt, A. Franke,
U. Stephani, B. Allekotte, E. Pfrang, K. Lochner and B. Ertle,
lawyers.
                                                                        Action brought on 8 May 2002 by SiSi-Werke GmbH &
                                                                        Co. Betriebs KG against the Office for Harmonisation in
                                                                              the Internal Market (Trade Marks and Designs)
The applicant claims that the Court should:
—     annul the decision of the Second Board of Appeal of the                                    (Case T-152/02)
      Office for Harmonisation in the Internal Market (Trade
      Marks and Designs) of 28 February 2002 in case R 721/
      1999-2, relating to Community trade mark application                                       (2002/C 180/49)
      number 573 238, in so far as it relates to goods in
      Class 32 of the Nice Agreement corresponding to the
      following description: fruit drinks and fruit juices;                               (Language of the case: German)
—     order the defendant to pay the costs.
                                                                        An action against the Office for Harmonisation in the Internal
                                                                        Market (Trade Marks and Designs) was brought before the
                                                                        Court of First Instance of the European Communities on 8 May
                                                                        2002 by SiSi-Werke GmbH & Co. Betriebs KG, of Eppelheim,
Pleas in law and main arguments                                         Germany, represented by H. Eichmann, G. Barth, U. Blumen-
                                                                        röder, C. Niklas-Falter, M. Kinkeldey, K.Brandt, A. Franke,
                                                                        U. Stephani, B. Allekotte, E. Pfrang, K. Lochner and B. Ertle,
Trade mark applied for:       Three-dimensional mark in the             lawyers.
                              shape of an upright bottle —
                              application No 573 238
                                                                        The applicant claims that the Court should:
Goods or services:            After limiting the list of goods
                              and services: goods in Class 32
                              (fruit drinks and fruit juices)           —    annul the decision of the Second Board of Appeal of the
                                                                             Office for Harmonisation in the Internal Market (Trade
                                                                             Marks and Designs) of 28 February 2002 in case R 719/
Decision        contested     Refusal to register by the Exam-               1999-2, relating to Community trade mark application
before the Board of           iner                                           number 573 154, in so far as it relates to goods in
Appeal:                                                                      Class 32 of the Nice Agreement corresponding to the
                                                                             following description: fruit drinks and fruit juices;
Decision of the Board of      Dismissal of the applicant’s appeal
Appeal:                                                                 —    order the defendant to pay the costs.


title: Case T-191/09: Judgment of the General Court of 16 December 2010 — HIT Trading and Berkman Forwarding v Commission (Customs Union — Importation of compact fluorescent lamps with integrated electronic ballasts (CFL-i) from Pakistan — Post-clearance recovery of import duties — Application for remission of import duties — Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92)

text:
               5.2.2011

               EN

               Official Journal of the European Union

               C 38/13

         Judgment of the General Court of 16 December 2010 — HIT Trading and Berkman Forwarding v Commission
   (Case T-191/09) (1)

   (Customs Union - Importation of compact fluorescent lamps with integrated electronic ballasts (CFL-i) from Pakistan - Post-clearance recovery of import duties - Application for remission of import duties - Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92)
   2011/C 38/21
   Language of the case: Dutch

      Parties

      Applicant: HIT Trading BV (Lelystad, Netherlands); and Berkman Forwarding BV (Barendrecht, Netherlands) (represented by: A.T.M. Jansen, lawyer)

      Defendant: European Commission (represented by: L. Bouyon and H. van Vliet, Agents, assisted by Y. van Gerven, lawyer)

      Re:

   Application for annulment of Commission Decision C(2009) 747 final of 12 February 2009, stating that the post-clearance entry in the accounts of certain import duties was justified and that the remission of such duties was not justified (File reference: REC 01/08).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the application;

               2.

               Orders Hit Trading BV and Berkman Forwarding BV to pay the costs.

      (1)  OJ C 180 of 1.8.2009


title: Case C-184/14: Judgment of the Court (Third Chamber) of 16 July 2015 (request for a preliminary ruling from the Corte suprema di cassazione (Italy)) — A v B (Reference for a preliminary ruling — Judicial cooperation in civil and commercial matters — Jurisdiction in matters relating to maintenance obligations — Regulation (EC) No 4/2009 — Article 3(c) and (d) — Matter relating to maintenance in respect of minor children concurrent with the parents’ separation proceedings, brought in a Member State other than that in which the children are habitually resident)

text:
               14.9.2015

               EN

               Official Journal of the European Union

               C 302/8

         Judgment of the Court (Third Chamber) of 16 July 2015 (request for a preliminary ruling from the Corte suprema di cassazione (Italy)) — A v B
   (Case C-184/14) (1)

   ((Reference for a preliminary ruling - Judicial cooperation in civil and commercial matters - Jurisdiction in matters relating to maintenance obligations - Regulation (EC) No 4/2009 - Article 3(c) and (d) - Matter relating to maintenance in respect of minor children concurrent with the parents’ separation proceedings, brought in a Member State other than that in which the children are habitually resident))
   (2015/C 302/10)
   Language of the case: Italian

      Referring court

   Corte suprema di cassazione

      Parties to the main proceedings

      Applicant: A

      Defendant: B

      Operative part of the judgment

   Article 3(c) and (d) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations must be understood as meaning that, in the event that a court of a Member State is seized of proceedings involving the separation or dissolution of a marital link between the parents of a minor child and a court of another Member State is seized of proceedings in matters of parental responsibility involving that same child, an application relating to maintenance concerning that child is ancillary only to the proceedings concerning parental responsibility, within the meaning of Article 3(d) of that regulation.

      (1)  OJ C 194, 24.6.2014.


title: Case C-114/02: Action brought on 27 March 2002 by the Commission of the European Communities against the French Republic

text:
1.6.2002              EN                     Official Journal of the European Communities                                           C 131/9
Action brought on 27 March 2002 by the Commission of                    Reference for a preliminary ruling by the Cour de
 the European Communities against the French Republic                   cassation, chambre commerciale, financiere et econo-
                                                                        mique by judgment of that Court of 26 March 2002 in the
                                                                        case of Administration des Douanes et Droits Indirects
                         (Case C-114/02)                                            against Rioglass SA and Transremar SL
                                                                                (Case C-115/02)
                        (2002/C 131/15)
                                                                                (2002/C 131/16)
An action against the French Republic was brought before the            Reference has been made to the Court of Justice of the
Court of Justice of the European Communities on 27 March                European Communities by judgment of the Cour de cassation,
2002 by the Commission of the European Communities,                     chambre commerciale, financiere et economique (Court of
represented by L. Ström, acting as Agent, with an address for           Cassation, Commercial, Financial and Economic Chamber) of
service in Luxembourg.                                                  26 March 2002, received at the Court Registry on 29 March
                                                                        2002, for a preliminary ruling in the case of Administration
                                                                        des Douanes et Droits Indirects against Rioglass SA and
                                                                        Transremar SL on the following question:
The Commission of the European Communities claims that
the Court should:
                                                                        Must Article 30 of the EC Treaty, (now, after amendment,
                                                                        Article 28 EC) be interpreted as meaning that it precludes
                                                                        the implementation, pursuant to the Code de la Propriété
—     declare that, by failing to adopt all the laws, regulations       Intellectuelle, of procedures for the detention by the customs
      and administrative measures necessary in order to comply          authorities of goods lawfully manufactured in a Member State
      with Directive 98/8/EC of the European Parliament and             of the European Community which are intended, following
      of the Council of 16 February 1998 concerning the                 their transit through French territory, to be placed on the
      placing of biocidal products on the market (1), or at any         market in a non-member country, in the present case Poland?
      rate by failing to communicate the same, the French
      Republic has failed to fulfil its obligations under that
      directive;
—     order the French Republic to pay the costs.
                                                                        Action brought on 3 April 2002 by the Commission of
                                                                        the European Communities against the Hellenic Republic
                                                                                (Case C-119/02)
Pleas in law and main arguments
                                                                                (2002/C 131/17)
The Commission claims that only a small part of Directive
98/8/EC has been transposed. France has communicated                    An action against the Hellenic Republic was brought before
transposition measures in respect of Article 3(1), (2), (3) and         the Court of Justice of the European Communities on 3 April
(6) and Articles 5, 6, 7 and 9 of the directive. The obligations        2002 by the Commission of the European Communities,
imposed by the directive which required to be transposed but            represented by Gregorio Valero Jordana and Minas Konstantin-
have not been transposed or, at any rate, have not been                 idis, Legal Advisers.
communicated, therefore include transposition measures in
respect of Article 3(4), (5) and (7) and Articles 4, 8, 11, 12, 14,
17, 18, 19, 20, 21, 22, 23, 25 and 26 of the directive. The             The Commission claims that the Court should:
time-limit for transposition expired on 13 May 2000.
                                                                        —     declare that, by not adopting measures to instal a
                                                                              collecting system for urban waste water from the area of
                                                                              Thriasio Pedio and not subjecting urban waste water from
                                                                              that area to more stringent secondary treatment before
(1) OJ L 123 of 24.4.1998, p. 1.
                                                                              its discharge into the ‘sensitive area’ of the Bay of Elefsina,
                                                                              the Hellenic Republic has failed to fulfil its obligations
                                                                              under Articles 3(1) and 5(2) of Council Directive 91/
                                                                              271/EEC (1) concerning urban waste-water treatment, as
                                                                              amended by Commission Directive 98/15/EC (2) of


title: Case C-468/01 P: Appeal brought on 6 December 2001 by Procter & Gamble Company against the judgment delivered on 19 September 2001 by the Second Chamber of the Court of First Instance of the European Communities in case T-117/00 between Procter & Gamble Company and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
16.3.2002              EN                   Official Journal of the European Communities                                        C 68/1
                                                                    I
                                                              (Information)
                                                 COURT OF JUSTICE
                                                          COURT OF JUSTICE
Assumption of duties by a new Judge of the Court of                     Fifth Chamber
                             Justice
                                                                        Mr Jann, President of the Chamber,
                         (2002/C 68/01)                                 Mr von Bahr, Mr Edward, Mr La Pergola, Mr Wathelet,
                                                                        Mr Timmermans and Mr Rosas, Judges.
Following his appointment as Judge of the Court of Justice of           2.     In addition, as regards the period from 22 January 2002
the European Communities by decision of the Governments                 to 6 October 2002, the list on the basis of which the
of the Member States of the European Communities of                     composition of the Fifth Chamber is determined, as set out in
19 December 2001 (1), Mr Allan Rosas took his oath before               the decision adopted by the Court at its meeting on 18 Septem-
the Court on 16 January 2002.                                           ber 2001 (1), has been amended as follows:
                                                                        Fifth Chamber
(1) OJ L&nbsp:20 of 23.1.2002, p. 4.
                                                                        (President: Mr Jann)
                                                                        Mr Edward, Mr La Pergola, Mr von Bahr, Mr Timmermans,
                                                                        Mr Wathelet, and Mr Rosas, Judges.
Decisions adopted by the Court at its general meeting on                (1) OJ C 303 of 27.10.2001, p. 1.
                        22 January 2002
                         (2002/C 68/02)
The Court of Justice of the European Communities adopted                Appeal brought on 6 December 2001 by Procter &
the following decisions at its meeting on 22 January 2002:              Gamble Company against the judgment delivered on
                                                                        19 September 2001 by the Second Chamber of the Court
                                                                        of First Instance of the European Communities in case
                                                                        T-117/00 (1) between Procter & Gamble Company and
Assignment of Judge Rosas                                               Office for Harmonisation in the Internal Market (Trade
                                                                                Marks and Designs) (OHIM)
Mr Rosas is assigned to the First and Fifth Chambers.
                                                                                (Case C-468/01 P)
Composition of the Fifth Chamber                                                                  (2002/C 68/03)
1.     The composition of the Fifth Chamber for the period
from 22 January 2002 to 6 October 2002 has been determined              An appeal against the judgment delivered on 19 September
as follows:                                                             2001 by the Second Chamber of the Court of First Instance of
 ---pagebreak--- C 68/2                 EN                     Official Journal of the European Communities                                       16.3.2002
the European Communities in case T-117/00 between Procter                —     in failing to assess whether the specific pattern (speckles
& Gamble Company and Office for Harmonisation in the                           and/or layers) of the colours was already part of the usual
Internal Market (Trade Marks and Designs) (OHIM) was                           get up(s) of the tablets on the market at the relevant date
brought before the Court of Justice of the European Communi-                   and, if not, whether the difference is perceptible, rendering
ties on 6 December 2001 by Procter & Gamble Company,                           it apt to confer distinctive character on the Marks.
established in Cincinnati, Ohio (United States of America),
represented by C.J.J.C. van Nispen and G. Kuipers, lawyers.
                                                                         (1) OJ C 192, 8.7.2000, p. 21.
The Appellant claims that the Court should:
—     annul the judgment
—     order the OHIM to pay the costs both at first instance
      and on appeal.                                                     Appeal brought on 6 December 2001 by Procter &
                                                                         Gamble Company against the judgment delivered on
                                                                         19 September 2001 by the Second Chamber of the Court
                                                                         of First Instance of the European Communities in case
                                                                         T-118/00 (1) between Procter & Gamble Company and
                                                                         Office for Harmonisation in the Internal Market (Trade
Pleas in law and main arguments                                                             Marks and Designs) (OHIM)
                                                                                (Case C-469/01 P)
The Appellant submits that the Court of First Instance erred in
the following respects:                                                                            (2002/C 68/04)
—     in deeming it unnecessary to decide whether the distinc-
      tive character of the Mark should be assessed by reference         An appeal against the judgment delivered on 19 September
      to the date on which the application for registration is           2001 by the Second Chamber of the Court of First Instance of
      filed or the date of actual registration;                          the European Communities in case T-118/00 between Procter
                                                                         & Gamble Company and Office for Harmonisation in the
                                                                         Internal Market (Trade Marks and Designs) (OHIM) was
—     in holding that the level of attention given by the average
                                                                         brought before the Court of Justice of the European Communi-
      consumer to the shape and colours of washing machine
                                                                         ties on 6 December 2001 by Procter & Gamble Company,
      and dishwasher tablets is not high;
                                                                         established in Cincinnati, Ohio (United States of America),
                                                                         represented by C.J.J.C. van Nispen and G. Kuipers, lawyers.
—     in deeming it appropriate to ascertain whether the Marks
      applied for will enable the members of the public targeted
      to distinguish the products from those having a different          The Appellant claims that the Court should:
      trade origin when they come to select a product for
      purchase;                                                          —     annul the judgment
—     in holding that the slightly rounded corners of the tablet         —     order the OHIM to pay the costs both at first instance
      are not likely to be perceived by the average consumer as                and on appeal.
      a distinctive feature of the shape claimed, capable of
      distinguishing it from other washing machine or
      dishwasher tablets and in failing to assess whether such
      slightly rounded corners were already part of the usual            Pleas in law and main arguments
      get up(s) of the tablets on the market at the relevant date
      and, if not, whether the difference is perceptible, rendering
      it apt to confer distinctive character on the Marks;
                                                                         See case C-468/01 P.
—     in failing to assess whether the colours as applied to
      Marks were already part of the usual get up(s) of the              (1) OJ C 192, 8.7.2000, p. 21.
      tablets on the market at the relevant date and, if not,
      whether the difference is perceptible, rendering it apt to
      confer distinctive character on the Marks;


title: Case C-382/13: Judgment of the Court (Fourth Chamber) of 23 April 2015 (request for a preliminary ruling from the Centrale Raad van Beroep — Netherlands) — C.E. Franzen, H.D. Giesen, F. van den Berg v Raad van bestuur van de Sociale verzekeringsbank (Reference for a preliminary ruling — Social security for migrant workers — Regulation (EEC) No 1408/71 — Articles 13(2) and 17 — Casual work in a Member State other than the State of residence — Legislation applicable — Refusal to grant family benefits and reduction of the old-age pension by the State of residence)

text:
               22.6.2015

               EN

               Official Journal of the European Union

               C 205/4

         Judgment of the Court (Fourth Chamber) of 23 April 2015 (request for a preliminary ruling from the Centrale Raad van Beroep — Netherlands) — C.E. Franzen, H.D. Giesen, F. van den Berg v Raad van bestuur van de Sociale verzekeringsbank
   (Case C-382/13) (1)

   ((Reference for a preliminary ruling - Social security for migrant workers - Regulation (EEC) No 1408/71 - Articles 13(2) and 17 - Casual work in a Member State other than the State of residence - Legislation applicable - Refusal to grant family benefits and reduction of the old-age pension by the State of residence))
   (2015/C 205/05)
   Language of the case: Dutch

      Referring court

   Centrale Raad van Beroep

      Parties to the main proceedings

      Applicants: C.E. Franzen, H.D. Giesen, F. van den Berg

      Defendant: Raad van bestuur van de Sociale verzekeringsbank

      Operative part of the judgment

               1.

               Article 13(2)(a) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, must be interpreted as meaning that a resident of a Member State, who comes within the scope of that regulation, as amended, and who works for several days per month on the basis of an on-call contract in the territory of another Member State, is subject to the legislation of the State of employment both on the days on which he performs the employment activities and on the days on which he does not.

               2.

               Article 13(2)(a) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, read in conjunction with Article 13(1) of that regulation, must be interpreted, in circumstances such as those in the main proceedings, as not precluding a migrant worker, who is subject to the legislation of the State of employment, from receiving, by virtue of national legislation of the Member State of residence, an old-age pension and family benefits from the latter State.

      (1)  OJ C 274, 21.9.2013.


title: Judgment of the Court of First Instance of 23 October 2003 in Case T-255/01: Changzhou Hailong Electronics & Light Fixtures Co. Ltd and Zhejiang Yankon Group Co. Ltd v Council of the European Union (Anti-dumping — Determination of normal value — Market-economy treatment — Analogue country — Article 2(7) of Regulation (EC) No 384/96)

text:
10.1.2004                EN                             Official Journal of the European Union                                               C 7/31
1.    The contested decision of the Commission 2001/146/EC of                   2.    Dismisses the rest of the action as unfounded.
      20 September 2000 relating to a proceeding under Article 81
      of the EC Treaty (COMP/36.653 — Opel) is annulled in so
                                                                                3.    Orders the applicant to bear its own costs, as well as those of
      far as it establishes the existence of a restrictive supply measure
                                                                                the Commission.
      contrary to Article 81(1) EC.
2.    The amount of the fine imposed on the applicants by Article 3
                                                                                (1) OJ C 150 of 19.5.2001.
      of the contested decision is reduced to EUR 35 475 000.
3.    The application is dismissed as to the remainder.
4.    The applicants are ordered to bear four fifths of their own costs
      and four fifths of the Commission’s costs; the Commission is
      ordered to bear one fifth of its own costs and one fifth of the
      applicants’ costs.
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
(1) OJ C 61 of 24.2.2001.
                                                                                of 23 October 2003
                                                                                in Case T-255/01: Changzhou Hailong Electronics & Light
                                                                                Fixtures Co. Ltd and Zhejiang Yankon Group Co. Ltd v
                                                                                Council of the European Union (1)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Anti-dumping — Determination of normal value — Mar-
                         of 16 October 2003                                     ket-economy treatment — Analogue country — Article 2(7)
                                                                                of Regulation (EC) No 384/96)
in Case T-47/01: Co-Frutta Soc. coop. rl v Commission of
                  the European Communities (1)                                                              (2004/C 7/56)
(Action for annulment — Access to documents — Decision
94/90/ECSC, EC, Euratom — Refusal — Authorship rule                                                 (Language of the case: English)
                         — Misuse of powers)
                             (2004/C 7/55)
                                                                                In Case T-255/01, Changzhou Hailong Electronics & Light
                                                                                Fixtures Co. Ltd, established at Changzhou (China), Zhejiang
                     (Language of the case: Italian)                            Yankon Group Co. Ltd, formerly Zheijang Sunlight Group Co.
                                                                                Ltd, established at Shangyu (China), represented by P. Bentley
                                                                                QC, and F. Ragolle, lawyer, v Council of the European Union
                                                                                (Agents: S. Marquardt, and G. M. Berrisch), supported by
In Case T-47/01, Co-Frutta Soc. coop. rl, established in Padua                  Commission of the European Communities (Agents: V. Kreu-
(Italy), represented by W. Viscardini, M. Paolin and S. Donà,                   schitz, T. Scharf and S. Meany): Application for annulment of
lawyers, v Commission of the European Communities (Agents:                      Council Regulation (EC) No 1470/2001 of 16 July 2001
P. Stancanelli, P. Aalto and P. Wölker): Application for                        imposing a definitive anti-dumping duty and collecting defini-
annulment of the Commission’s decision contained in the                         tively the provisional duty imposed on imports of integrated
letters of 31 July 2000 from the Directorate-General for                        electronic compact fluorescent lamps (CFL-i) originating in the
Agriculture and 5 December 2000 from the Secretary-General                      People’s Republic of China (OJ 2001 L 195, p. 8), the Court
of the Commission, by which access to the documents sought                      of First Instance (Fifth Chamber, Extended Composition),
by the applicant in connection with the arrangements for                        composed of: R. García-Valdecasas, President, P. Lindh,
importing bananas was partly refused, the Court of First                        J.D. Cooke, J. Pirrung and H. Legal, Judges; J. Plingers,
Instance (Fifth Chamber), composed of: R. García-Valdecasas,                    Administrator, for the Registrar, has given a judgment on
President, P. Lindh and J.D. Cooke, Judges; J. Palacio González,                23 October 2003, in which it:
Principal Administrator, for the Registrar, has given a judgment
on 16 October 2003, in which it:
                                                                                1.    Dismisses the action.
1.    Dismisses the application for annulment of the decision
      contained in the letter from DG Agriculture of 31 July 2000               2.    Orders the applicants to bear their own costs and to pay the
      as inadmissible.                                                                costs incurred by the Council.
 ---pagebreak--- C 7/32                  EN                         Official Journal of the European Union                                            10.1.2004
3.    Orders the Commission to bear its own costs.                             JUDGMENT OF THE COURT OF FIRST INSTANCE
(1) OJ C 3 of 5.1.2002.                                                                             of 21 October 2003
                                                                           in Case T-302/01: Gerhard Birkhoff v Commission of the
                                                                                European Communities (1)
                                                                           (Officials — Article 2(5) of Annex VII to the Staff Regu-
                                                                           lations — Cancellation of an allowance for dependent child
                                                                               who has reached majority — Legitimate expectations)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (2004/C 7/58)
                        of 23 October 2003
                                                                                (Language of the case: Italian)
in Case T-279/01: Giorgio Lebedef v Commission of the
                    European Communities (1)
(Officials — Staff report — Late preparation — Action for                  In Case T-302/01: Gerhard Birkhoff, former official of the
                           compensation)                                   Commission of the European Communities, now retired,
                                                                           residing in Weitnau (Germany), represented by V. Salvatore,
                                                                           lawyer, against Commission of the European Communities
                           (2004/C 7/57)                                   (Agents: J. Currall and A. Dal Ferro) — first, an application for
                                                                           annulment of the decision of the appointing authority of
                                                                           26 September 2001 rejecting the complaint brought by the
                    (Language of the case: French)                         applicant against the decision of the Commission of 4 July
                                                                           2001 by which it cancelled payment to the applicant of the
                                                                           dependent child allowance in respect of his daughter and of
                                                                           the decision of 4 July 2001 and, secondly, a claim for
                                                                           compensation for material and non-material damage — the
In Case T-279/01: Giorgio Lebedef, an official of the Com-                 Court of First Instance (Second Chamber), composed of
mission of the European Communities, residing in Senninger-                N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges;
berg (Luxembourg), represented by G. Bouneou and F. Frabetti,              H. Jung, Registrar, gave a judgment on 21 October 2003, in
lawyers, with an address for service in Luxembourg, against                which it:
Commission of the European Communities (Agent: J. Currall)
— application, first, for annulment of the Commission’s
decisions partially rejecting the applicant’s complaints seeking           1.    Annuls the decision of the Commission of 4 July 2001
damages to compensate him for the non-material damage                            cancelling, with effect from 1 July 2001, payment of the
caused by the delay in the preparation of the staff reports                      dependent child allowance in respect of the applicant’s daughter
concerning him for the periods 1995/1997 and 1997/1999                           who has reached majority.
and, secondly, for damages to compensate him for that non-
material damage — the Court of First Instance (Single Judge:
V. Tiili); I. Natsinas, Administrator, for the Registrar, has given        2.    Finds that there is no need to adjudicate on the claim for
a judgment on 23 October 2002, in which it:                                      compensation for the damage arising from the loss of cover in
                                                                                respect of the applicant’s daughter by the EC Sickness Insurance
                                                                                Fund, nor on the part of the claim seeking compensation for the
1.    Orders the Commission to pay the applicant the sum of                      tax consequences of the contested decision.
      EUR 1 500, in addition to the sum of EUR 619,73 already
      awarded by the Appointing Authority.                                 3.    Dismisses the remainder of the claim for compensation.
2.    Dismisses the remainder of the action.                               4.    Orders the Commission to pay two-thirds of the applicant’s
                                                                                costs, including those incurred in the proceedings for interim
3.    Orders the Commission to pay the costs.                                    relief in the present case.
(1) OJ C 3 of 5.1.2002.                                                    (1) OJ C 44 of 16.2.2002.


title: Case C-126/06: Order of the Court (Eighth Chamber) of 19 January 2007 (reference for a preliminary ruling from the Diikitiko Protodikio Tripolis, Greece) — Carrefour — Marinopoulos AE v Nomarkhiaki aftodiikisi Tripolis (Free movement of goods — Article 28 EC — Quantitative restrictions — Measures having equivalent effect — Marketing of frozen bakery products)

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/10

         Order of the Court (Eighth Chamber) of 19 January 2007 (reference for a preliminary ruling from the Diikitiko Protodikio Tripolis, Greece) — Carrefour — Marinopoulos AE v Nomarkhiaki aftodiikisi Tripolis
   (Case C-126/06) (1)

   (Free movement of goods - Article 28 EC - Quantitative restrictions - Measures having equivalent effect - Marketing of frozen bakery products)
   (2007/C 82/19)
   Language of the case: Greek
   Referring court
   Diikitiko Protodikio Tripolis
   Parties to the main proceedings

      Applicant: Carrefour — Marinopoulos AE

      Defendant: Nomarkhiaki aftodiikisi Tripolis
   Re:
   Reference for a preliminary ruling — Diikitiko Protodikio Tripolis — Interpretation of Art. 28 EC — Marketing of pre-cooked bakery products (‘bake-off ’products) — Requirement of a licence
   Operative part of the order
   Article 28 EC must be interpreted as precluding national legislation which makes the sale of ‘bake-off ’products subject to the same requirements as those applicable to the complete process of manufacturing and marketing bread and traditional bakery products.

      (1)  OJ C 108, 6.5.2006.


27.10.2001            EN                Official Journal of the European Communities                                      C 303/15
       Removal from the register of Case C-431/00 (1)                     Removal from the register of Case C-195/01 (1)
                       (2001/C 303/24)                                                     (2001/C 303/25)
By order of 4 September 2001 the President of the Court of         By order of 4 September 2001 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-431/00: Commission of the              from the register of Case C-195/01: (reference for a preliminary
European Communities v Portuguese Republic.                        ruling from the House of Lords): Scandecor Development AB,
                                                                   Panther + Scandecor Ltd v Scandecor Marketing AB, Scandecor
                                                                   Ltd.
(1) OJ C 28 of 27.1.2001.
                                                                   (1) OJ C 200 of 14.7.2001.


title: Case T-74/06: Action brought on  3 March 2006  — Fox Racing/OHIM

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/24

         Action brought on 3 March 2006 — Fox Racing/OHIM
   (Case T-74/06)
   (2006/C 108/44)
   Language in which the application was lodged: English
   Parties

      Applicant: Fox Racing Inc. (Morgan Hill, USA) [represented by: P. Brownlow, Solicitor]

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

      Other party to the proceedings before the Board of Appeal: Lloyd IP Limited (Penrith, United Kingdom)
   Form of order sought

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Markets (Trade Marks and Designs) (‘OHIM’), of 8 December 2005 (Case R 1180/2004 — 1) in part, insofar as it rejected the application in respect of motorcycle and safety helmets and protective clothing for motorcyclists and cyclists (Class 9) and clothing, namely jackets, raincoats, sweatshirts, jerseys, shirts, pants, blouses, tights, shorts, hats, caps, sweatbands, headbands, gloves, belts, shoes, boots, socks and aprons (Class 25);

               —

               order OHIM to pay the costs of this application.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘SHIFT’ for goods in classes 9, 16, 18 and 25 — application No 2419349

      Proprietor of the mark or sign cited in the opposition proceedings: Lloyd Lifestyle Limited

      Mark or sign cited: The Community figurative mark and earlier non-registered work mark ‘Swift’ and the national figurative mark ‘Swift leathers’ for goods in classes 9 and 25

      Decision of the Opposition Division: Refuses registration

      Decision of the Board of Appeal: Annuls the contested decision insofar as it rejected the application for ‘pressure air gauges’ and goods in classes 16 and 18; confirms the contested decision for the remainder

      Pleas in law: Violation of Article 8(1)(b) of Council Regulation (EC) No 40/94.


title: Case C-89/12: Judgment of the Court (Fourth Chamber) of 25 April 2013 (request for a preliminary ruling from the Hof van Cassatie van België — Belgium) — Rose Marie Bark v Galileo Joint Undertaking, in liquidation (Joint undertakings — Contracts concluded with members of staff — Applicable rules — Regulation (EC) No 876/2002)

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/9

         Judgment of the Court (Fourth Chamber) of 25 April 2013 (request for a preliminary ruling from the Hof van Cassatie van België — Belgium) — Rose Marie Bark v Galileo Joint Undertaking, in liquidation
   (Case C-89/12) (1)

   (Joint undertakings - Contracts concluded with members of staff - Applicable rules - Regulation (EC) No 876/2002)
   2013/C 171/15
   Language of the case: Dutch

      Referring court

   Hof van Cassatie van België

      Parties to the main proceedings

      Applicant: Rose Marie Bark

      Defendant: Galileo Joint Undertaking, in liquidation

      Re:

   Request for a preliminary ruling — Hof van Cassatie van België — Interpretation of Article 11(2), of the Statutes of the Galileo Joint Undertaking, set out in the annex to Council Regulation (EC) No 876/2002 of 21 May 2002 setting up the Galileo Joint Undertaking (OJ 2002 L 138, p. 1) — Fixed-term contracts concluded with members of staff — Contracts based on ‘employment of other staff of the European Communities’ — Mandatory provisions of the Staff Regulations on the conditions for compensation

      Operative part of the judgment

   Article 11(2) of the Statutes of the Galileo Joint Undertaking, set out in the annex to Council Regulation (EC) No 876/2002 of 21 May 2002 setting up the Galileo Joint Undertaking, as amended by Council Regulation (EC) No 1943/2006 of 12 December 2006 must be interpreted as meaning that the conditions of employment of other servants of the European Communities and, in particular, the salary rates defined therein, do not apply to members of staff of Galileo who have fixed-term contracts.

      (1)  OJ C 133, 5.5.2012.


title: Case T-351/02: Action brought on 28 November 2002 by Deutsche Bahn AG against the Commission of the European Communities

text:
8.2.2003              EN                         Official Journal of the European Union                                         C 31/19
The applicant claims that the Court should:                              The applicant claims that the Court should:
—     annul paragraph 1 of the operative part of the decision
      delivered by the Second Board of Appeal of the OHIM on             —     annul Commission Decision A-2661/D-1565 (2002) of
      17 September 2002;                                                       21 September 2002;
—     confirm the remainder of the decision;
                                                                         —     order the Commission to pay the costs.
—     order the defendant to pay the costs.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
Applicant for the Com-        Quick Restaurants SA
munity trade mark:
The Community trade           Figurative mark ‘QUICK’ — Appli-
                                                                         The action is directed against the letter in which the Com-
mark concerned:               cation No 350793, lodged in
                                                                         mission rejected the applicant’s complaint of 5 July 2002
                              respect of goods and services in
                                                                         contesting the tax exemption for aviation fuel under Para-
                              Classes 29, 30, 31 and 32 (meat,
                                                                         graph 4(1), Head 3(a), of the German Mineralölsteuergesetz
                              fish, coffee, foodstuffs, pre-pre-
                                                                         (Law on taxation of mineral oil, ‘MinöStG’) and declined to
                              pared dishes, prepared drinks)
                                                                         initiate a State-aid investigation of the exemption of aviation
Decision of the exam-         Registration refused                       fuel under that provision. The applicant submits that the
iner:                                                                    Commission erred in law in its decision in concluding that the
                                                                         unilateral exemption of airline undertakings from the tax on
Decision of the Board of      Confirmation of the contested              mineral oil did not constitute aid because the exemption from
Appeal:                       decision in respect of certain             the tax was covered by Directive 92/81/EEC of 19 October
                              goods in Classes 29, 30 and 31             1992 (1).
                              (that is to say: pre-prepared
                              dishes) and annulment of the
                              decision in respect of the other
                              goods                                      The applicant submits that the contested decision infringes
                                                                         essential procedural requirements. It is void because the
Grounds of claim:             Misapplication of Article 7(1)(c)          Commission did not carefully and comprehensively examine
                              of Regulation (EC) No 40/94.               the facts submitted to it by the applicant in its complaint.
                              According to the applicant, the            Furthermore, the Commission infringed the obligation to state
                              trade mark is capable of ident-            reasons under Article 253 EC. It did not indicate in detail why
                              ifying the goods concerned.                the submissions of law and of fact by the applicant in the
                                                                         complaint did not suffice to show the existence of State aid. In
                                                                         particular, the Commission ought to have stated why a
                                                                         directive which is based exclusively on Article 93 EC could
                                                                         lead to the inapplicability of Articles 87 and 88 EC. Moreover,
                                                                         the contested decision is contradictory and there is consider-
                                                                         able doubt as to whether it was lawfully adopted.
Action brought on 28 November 2002 by Deutsche Bahn
AG against the Commission of the European Communi-
                               ties
                                                                         The applicant also submits that Paragraph 4(1), Head 3(a),
                        (Case T-351/02)                                  MinöStG satisfies all the requirements for the application of
                                                                         Article 87(1) EC. The exemption from the basic obligation to
                                                                         pay excise duty on mineral oils is a benefit with monetary
                        (2003/C 31/28)                                   value without appropriate counter-performance by the airline
                                                                         companies and therefore a financial benefit for the purposes
                  (Language of the case: German)                         of Article 87(1) EC. There is no doubt that there is a
                                                                         competitive relationship between the applicant, as operator of
                                                                         high-speed trains, and airline companies with regard to the
                                                                         transport of persons between cities and conurbations in
An action against the Commission of the European Communi-                Germany and neighbouring countries, and the airline compani-
ties was brought before the Court of First Instance of the               es thereby enjoy a considerable cost advantage over the
European Communities on 28 November 2002 by Deutsche                     applicant as a result of the tax exemption, which leads to a
Bahn AG, Berlin, Germany, represented by M. Schütte, lawyer,             distortion of competition and affects trade between Member
with an address for service in Luxembourg.                               States.
 ---pagebreak--- C 31/20                   EN                          Official Journal of the European Union                                               8.2.2003
The applicant also submits that the application of                            efficiency of enterprises’. These guidelines were first notified
Article 87(1) EC is not excluded by Directive 92/81/EEC. That                 to, and approved by, the Commission in 1992. The purpose
directive does not create any exemption from the law on State                 of the notification which gave rise to the contested decision
aid, the directive being based exclusively on Article 93 EC but               was to acquire a renewed extension of the approval with effect
not also on Article 88(2) EC or Article 87(3)(e) EC. The                      from 1 January 2001 for a five-year period until 31 December
Commission’s view disregards the principles of the primacy of                 2006.
the Treaty over provisions of secondary law and leads to an
incorrect application of Articles 87 and 88 EC.
( 1) Council Directive 92/81/EEC of 19 October 1992 on the harmon-            In its application the applicant complains that the Commission
     isation of the structures of excise duties on mineral oils (OJ 1992      found that the four part-programmes ‘coaching’, ‘participation
     L 316, p. 12).                                                           in trade fairs’, ‘cooperation’ and ‘promotion of product design’
                                                                              of the above guidelines were not compatible with the common
                                                                              market inasmuch as they exceeded the scope and the intensity
                                                                              of aid laid down in Regulation (EC) No 70/2001 (1). Moreover,
                                                                              the applicant challenges the finding that the part-programme
                                                                              ‘cooperation’ provides for operating aid that is incompatible
                                                                              with the common market and that Germany may implement
                                                                              the four abovementioned part-programmes only when they
                                                                              have been brought into conformity with the contested
Action brought on 4 December 2002 by Freistaat Sachsen                        decision.
   against the Commission of the European Communities
                            (Case T-357/02)
                                                                              The applicant submits that the Commission’s findings are in
                                                                              many respects incorrect both substantively and also pro-
                            (2003/C 31/29)                                    cedurally. It claims that, the Commission, in breach of its
                                                                              Communication on the accelerated clearance of aid schemes
                     (Language of the case: German)                           for SMEs and of amendments of existing schemes (2), reached
                                                                              its decision under the normal procedure and wrongly based its
                                                                              conclusions as to the compatibility of the aid measure notified
                                                                              by the applicant exclusively on Regulation (EC) No 70/2001.
                                                                              The Commission ought to have based its decision on the
An action against the Commission of the European Communi-                     Community guidelines on State aid for small and medium-
ties was brought before the Court of First Instance of the                    sized enterprises (3) applicable at the time of the notification,
European Communities on 4 December 2002 by the Freistaat                      under which the notified aid measure is compatible with the
Sachsen (Germany), represented by T. Lübbig, lawyer.                          common market.
The applicant claims that the Court should:
                                                                              In the alternative, the applicant submits that the Commission
—       annul Article 2(2), Article 3 and Article 4 of Commission
                                                                              ought to have authorised the notified aid measure even if this
        Decision C(2002) 2606 of 24 September 2002 on
                                                                              had been examined on the basis of Regulation (EC) No 70/
        Germany’s intended aid rules ‘Guidelines on the pro-
        motion of small and medium-sized businesses —                         2001, which entered into force only after the notification.
        Improvement of efficiency of enterprises in Sachsen’;
—       order the defendant to pay the costs.
                                                                              Finally, the applicant claims that the Commission has not
                                                                              adequately shown the existence of a restriction of competition.
Pleas in law and main arguments
                                                                              (1 ) Commission Regulation (EC) No 70/2001 of 12 January 2001 on
In the context of its promotion of small businesses, the                           the application of Articles 87 and 88 of the EC Treaty to State aid
                                                                                to small and medium-sized enterprises (OJ 2001 L 10, p. 33).
applicant grants members of the professions and small and
                                                                              (2 ) OJ 1992 C 213, p. 10.
medium-sized enterprises with a registered office or place of                 (3 ) OJ 1996 C 213, p. 4.
business in Sachsen, on application, subsidies by way of the
promotion of projects in order to promote the economy. This
promotion is based on the ‘Guidelines of the Sachsen State
Ministry for the Economy and Labour on the promotion of
small and medium-sized businesses — Improvement of the


title: Case C-203/13: Action brought on 17 April 2013 — European Commission v Republic of Bulgaria

text:
               8.6.2013

               EN

               Official Journal of the European Union

               C 164/12

         Action brought on 17 April 2013 — European Commission v Republic of Bulgaria
   (Case C-203/13)
   2013/C 164/23
   Language of the case: Bulgarian

      Parties

      Applicant: European Commission (represented by: O. Beynet, M. Heller and P. Mihaylova, acting as Agents)

      Defendant: Republic of Bulgaria

      Form of order sought

               —

               Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose Article 3(7) of, and the second subparagraph of point 1(a), and points 1(b), (c), (d), (f), (h) and (i) of Annex I to, Directive 2009/72/EC (1) of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC, or in any case by failing to notify the Commission of the adoption of such provisions, the Republic of Bulgaria has failed to fulfil its obligations under Article 49(1) of that directive;

               —

               impose on the Republic of Bulgaria, pursuant to Article 260(3) TFEU, a penalty payment for failure to fulfil its obligation to notify the Commission of the measures transposing Directive 2009/72/EC at the daily rate of EUR 8 448 from the day on which judgment is delivered in the present case;

               —

               order the Republic of Bulgaria to pay the costs.

      Pleas in law and main arguments

   The period for the adoption of measures to transpose the directive expired on 3 March 2011.

      (1)  OJ 2009 L 211, p. 55.


title: Case C-83/00: Action brought on 7 March 2000 by the Commission of the European Communities against the Kingdom of the Netherlands

text:
24.6.2000              EN                  Official Journal of the European Communities                                      C 176/5
Action brought on 7 March 2000 by the Commission of                   The applicant claims that the Court should:
the European Communities against the Kingdom of the
                          Netherlands                                 — declare that, by failing within the prescribed period to
                                                                          adopt the laws, regulations and administrative measures
                         (Case C-82/00)                                   necessary in order to implement the provisions of Directive
                                                                          97/24/EC (1) of the European Parliament and of the Council
                                                                          of 17 June 1997 on certain components and characteristics
                        (2000/C 176/07)
                                                                          of two or three-wheel motor vehicles, the Kingdom of the
                                                                          Netherlands has failed to comply with its obligations under
An action against the Kingdom of the Netherlands was                      the Treaty;
brought before the Court of Justice on 7 March 2000 by the
Commission of the European Communities, represented by                — order the Kingdom of the Netherlands to pay the costs.
C. Van Der Hauwaert, of its Legal Service, acting as Agent,
with an address for service in Luxembourg at the office of
C. Gómez de la Cruz, of its Legal Service, Wagner Centre,
Kirchberg.                                                            Pleas in law and main arguments
The applicant claims that the Court should:                           Under Article 8(1) of Directive 97/24/EC, the Kingdom of the
                                                                      Netherlands was required by no later than 18 December 1998
— declare that, by failing within the prescribed period to            to bring into force the laws, regulations and administrative
    adopt the laws, regulations and administrative measures           measures necessary in order to comply with that directive.
    necessary in order to implement the provisions of Com-
    mission Directive 98/14/EC (1) of 6 February 1998 adapt-
    ing to technical progress Council Directive 70/156/EEC on         (1) OJ 1997 L 226, p. 1.
    the approximation of the laws of the Member States
    relating to the type-approval of motor vehicles and their
    trailers, the Kingdom of the Netherlands has failed to
    comply with its obligations under the Treaty;
— order the Kingdom of the Netherlands to pay the costs.
Pleas in law and main arguments                                       Action brought on 8 March 2000 by the Commission of
                                                                      the European Communities against the Kingdom of the
Under Article 2(1) of Directive 70/156/EEC, the Kingdom of                                       Netherlands
the Netherlands was required by no later than 30 September
1998 to bring into force the laws, regulations and administrat-                                 (Case C-90/00)
ive measures necessary in order to comply with the directive.
                                                                                (2000/C 176/09)
(1) OJ 1998 L 91, p. 1.
                                                                      An action against the Kingdom of the Netherlands was
                                                                      brought before the Court of Justice on 8 March 2000 by the
                                                                      Commission of the European Communities, represented by
                                                                      H.M.H. Speyart, of its Legal Service, acting as Agent, with an
                                                                      address for service in Luxembourg at the office of C. Gómez
                                                                      de la Cruz, Wagner Centre, Kirchberg.
Action brought on 7 March 2000 by the Commission of
the European Communities against the Kingdom of the
                          Netherlands                                 The applicant claims that the Court should:
                                                                      — declare that, by failing to adopt the laws, regulations
                         (Case C-83/00)
                                                                          and administrative provisions necessary to comply with
                                                                          Directive 97/56/EC (1) of the European Parliament and of
                        (2000/C 176/08)                                   the Council of 20 October 1997 amending for the 16th
                                                                          time Directive 76/769/EEC on the approximation of the
An action against the Kingdom of the Netherlands was                      laws, regulations and administrative provisions of the
brought before the Court of Justice on 7 March 2000 by the                Member States relating to restrictions on the marketing
Commission of the European Communities, represented by                    and use of certain dangerous substances and preparations,
C. Van Der Hauwaert, of its Legal Service, acting as Agent,               the Kingdom of the Netherlands has failed to comply with
with an address for service in Luxembourg at the office of                its obligations under the Treaty;
C. Gómez de la Cruz, of its Legal Service, Wagner Centre,
Kirchberg.                                                            — order the Kingdom of the Netherlands to pay the costs.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 12 November 1998 in Case C-134/97 (reference for a preliminary ruling from Skatterättsnämnden): in the proceedings for a preliminary decision brought before it by Victoria Film A/S (Act of accession of the Kingdom of Sweden - Sixth VAT Directive - Transitional provisions - Exemptions - Services provided by authors, artists and performers - Lack of jurisdiction of the Court) (1999/C 1/01)

text:
4.1.1999             EN                  Official Journal of the European Communities                                         C 1/1
                                                                 I
                                                           (Information)
                                             COURT OF JUSTICE
                                                       COURT OF JUSTICE
              JUDGMENT OF THE COURT                                  N. Fennelly, Advocate-General; H. von Holstein, Deputy
                                                                     Registrar, has given a judgment on 12 November 1998, in
                      (Sixth Chamber)
                                                                     which it has ruled:
                   of 12 November 1998
in Case C-134/97 (reference for a preliminary ruling from            The Court has no jurisdiction to answer the questions
Skatterättsnämnden): in the proceedings for a preliminary            referred by Skatterättsnämnden by its order for reference
     decision brought before it by Victoria Film A/S (1)             of 20 February 1997.
(Act of accession of the Kingdom of Sweden Ð Sixth VAT
Directive Ð Transitional provisions Ð Exemptions Ð                   (1) OJ C 166, 31.5.1997.
Services provided by authors, artists and performers Ð
             Lack of jurisdiction of the Court)
                       (1999/C 1/01)
              (Language of the case: Swedish)                                      JUDGMENT OF THE COURT
                                                                                of 17 November 1998
 (Provisional translation; the definitive translation will be        in Case C-70/97 P: Kruidvat BVBA v. Commission of the
         published in the European Court Reports)                    European Communities, supported by Parfums Givenchy
                                                                     SA, ComiteÂ de Liaison des Syndicates EuropeÂens de
                                                                     l'Industrie de la Parfumerie et des CosmeÂtiques (Colipa),
In Case C-134/97: reference to the Court under Article 177           and FeÂdeÂration EuropeÂenne des Parfumeurs DeÂtaillants
of the EC Treaty from Skatterättsnämnden for a                                                 (FEPD) (1)
preliminary ruling in the proceedings for a preliminary              (Appeal Ð Selective distribution system Ð Luxury
decision brought before it by Victoria Film A/S Ð on the             cosmetic products Ð Undertaking directly and
interpretation of the Act concerning the conditions of                                  individually concerned)
accession of the Republic of Austria, the Republic of
Finland and the Kingdom of Sweden and the adjustments                                        (1999/C 1/02)
to the Treaties on which the European Union is founded
(OJ C 241, 29.8.1998, p. 21), in conjunction with
Article 28(3)(b) of Sixth Council Directive 77/388/EEC of                            (Language of the case: Dutch)
17 May 1977 on the harmonisation of the laws of the
Member States relating to turnover taxes Ð Common
system of value added tax: uniform basis of assessment                 (Provisional translation; the definitive translation will be
(OJ L 145, 13.6.1977, p. 1) and point 2 of Annex F                            published in the European Court Reports)
thereto Ð the Court (Sixth Chamber), composed of: G.
Hirsch (Rapporteur), President of the Second Chamber,
acting as President of the Sixth Chamber, G. F. Mancini,             In Case C-70/97 P: Kruidvat BVBA, a company
H. Ragnemalm, R. Schintgen and K. M. Ioannou, Judges;                incorporated under Belgian law, established in Antwerp,


No C 119/30        [ EN |                 Official Journal of the European Communities                                13 . 5 . 95
    law in that the Commission unlawfully refused to grant               — denied the applicant the right to be heard and acted
    a declaration that there were no grounds for the                         in breach of the principle of good administration.
    application of the provisions of Article 2 of Regulation
    (EEC ) No 1017/68 and/or Article 85 ( 1 ) of the EC              (!) OJ No L 354, 31 . 12 . 1994, p. 66 .
    Treaty and Article 53 ( 1 ) of the EEA Agreement. The
    Commission therefore has no jurisdiction under
    Article 5 of the Regulation and/or Article 85 ( 3 ) of the
    EC Treaty and Article 53 ( 3 ) of the EEA Agreement to                Removal from the register of Case T-518/93 i 1 )
    impose the conditions .                                                                    95/C 119/56
    Alternatively,                                                                  (Language of the case: French)
                                                                     By order of 28 March 1995 the President of the Second
2. The Decision is founded on an incorrect and incomplete            Chamber ( Extended Composition) of the Court of First
    assessment of the facts, vitiated by manifest error of law       Instance of the European Communities ordered the removal
    in that the conditions are unnecessary for the purpose of        from the register of Case T-518/93 : Anton Durbeck GmbH
    rendering inapplicable Article 2 of the Regulation               v. Council of the European Union and Commission of the
    and/or Article 85 ( 1 ) of the EC Treaty and Article 53 ( 1 )    European Communities .
    of the EEA Agreement.
                                                                     (M OJ No C 188 , 10 . 7. 1993 .
3 . The conditions are not necessary and are
    disproportionate to any alleged restrictions on
    competition. The conditions are also uncertain in their
    application and unduly burdensome. Consequently, the                  Removal from the register of Case T-282/94 ( ] )
    protection of the imposition of the conditions offends                                   ( 95/C 119/57
    against the principles of Community law of the
    protection of legitimate expectations, proportionality                          (Language of the case: Dutch)
    and legal certainty.
                                                                     By order of 17 March 1995 the President of the Third
                                                                     Chamber Court of First Instance of the European
4 . In imposing the conditions, the Commission has                   Communities ordered the removal from the register of
    exceeded its competence and misused its powers by                Case T-282/94: La Société en Commandite Jurope v.
    extending to the Railways, in substance, the obligation          Commission of the European Communities .
    placed by Directive 91/440/EEC upon Eurotunnel as the
    infrastructure manager. The Commission has also                  (M OJ No C 304, 29 . 10 . 1994 .
    exercised its powers under Article 5 of the Regulation
    and/or Article 85 ( 3 ) of the EC Treaty and Article 53 ( 3 )
    of the EEA Agreement to matters governed by, and in a
    manner inconsistent with, Directive 91 /440/EEC. The                  Removal from the register of Case T-359/94 ( )
    imposition of the conditions is therefore both                                           ( 95/C 119/58 )
    discriminatory and unlawful.
                                                                                (Language of the case: German)
5 . The Commission has acted in breach of essential
    procedural requirements and also in breach of                    By order of 22 March 1995 the President of the Fourth
    Article 190 of the EC Treaty and the principle of                Chamber ( Extended Composition) of the Court of First
    Community law of natural justice, thereby vitiating the          Instance of the European Communities ordered the removal
    Decision, in that the Commission:                                from the register of Case T-359/94: Schmidt + Clemens
                                                                     GmbH + Co ., Edelstahlwerke Kaiserau v. Commission of
                                                                     the European Communities.
    — failed to adduce evidence and to provide adequate
        reasons for the Decision,                                    (!) OJ No C 370, 24 . 12 . 1994 .


title: Case F-77/11: Judgment of the Civil Service Tribunal (Third Chamber) of 12 December 2012 — Van Neyghem v Council (Civil service — Officials — Promotion — Promotion year 2007 — Refusal of promotion — Annulment — Implementing measures — Fresh comparative examination of the merits)

text:
               9.2.2013

               EN

               Official Journal of the European Union

               C 38/31

         Judgment of the Civil Service Tribunal (Third Chamber) of 12 December 2012 — Van Neyghem v Council
   (Case F-77/11) (1)

   (Civil service - Officials - Promotion - Promotion year 2007 - Refusal of promotion - Annulment - Implementing measures - Fresh comparative examination of the merits)
   2013/C 38/59
   Language of the case: French

      Parties

      Applicant: Kris Van Neyghem (Tienen, Belgium) (represented by: M. Verlando, lawyer)

      Defendant: Council of the European Union (represented by: M. Bauer and J. Herrmann, Agents)

      Re:

   Application to annul the decision adopted in implementation of the judgment in Case F-53/08 rejecting the applicant’s application for promotion to grade AST 7 in promotion year 2007 and the application for compensation for the damage allegedly suffered by the applicant.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders the Council of the European Union to bear its own costs and to pay one quarter of those incurred by Mr Van Neyghem;

               3.

               Orders Mr Van Neyghem to bear three-quarters of his own costs.

      (1)  OJ C 340, 19.11.2011, p. 40.


title: Case T-218/10: Action brought on 12 May 2010 — DHL International v OHIM — Service Point Solutions (SERVICEPOINT)

text:
               17.7.2010

               EN

               Official Journal of the European Union

               C 195/26

         Action brought on 12 May 2010 — DHL International v OHIM — Service Point Solutions (SERVICEPOINT)
   (Case T-218/10)
   2010/C 195/41
   Language in which the application was lodged: German

      Parties

      Applicant: DHL International GmbH (Bonn, Germany) (represented by: K.-U. Jonas, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Service Point Solutions, SA (Barcelona, Spain)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 February 2010 in Case R 62/2009-2;

               —

               Order the defendant and, if appropriate, the other party to the proceedings to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant.

      Community trade mark concerned: Figurative mark including the word element ‘SERVICEPOINT’ for goods and services in Classes 16, 20, 35 and 39.

      Proprietor of the mark or sign cited in the opposition proceedings: Service Point Solutions, SA

      Mark or sign cited in opposition: Figurative mark including the word element ‘Service Point’ for goods and services in Classes 8, 9, 16, 20, 35, 38, 39 and 42; figurative mark including the word element ‘service point’ for goods and services in Class 16; and figurative mark including the word element ‘service point’ for goods and services in Classes 9 and 42.

      Decision of the Opposition Division: The opposition was upheld.

      Decision of the Board of Appeal: The appeal was dismissed.

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the opposing marks, and infringement of Article 76(1) and (2) of Regulation (EC) No 207/2009 since the Board of Appeal failed to have regard to various documents.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case T-318/07: Order of the Court of First Instance of 3 March 2008 — National Association of Licensed Opencast Operators v Commission

text:
               26.4.2008

               EN

               Official Journal of the European Union

               C 107/43

         Order of the Court of First Instance of 3 March 2008 — National Association of Licensed Opencast Operators v Commission
   (Case T-318/07) (1)

   (2008/C 107/75)

      Language of the case: English

   The President of the Court of First Instance (Sixth Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 247, 20.10.2007.


title: Case C-484/14: Judgment of the Court (Third Chamber) of 15 September 2016 (request for a preliminary ruling from the Landgericht München I — Germany) — Tobias Mc Fadden v Sony Music Entertainment Germany GmbH (Reference for a preliminary ruling — Information society — Free movement of services — Commercial wireless local area network (WLAN) — Made available to the general public free of charge — Liability of intermediary service providers — Mere conduit — Directive 2000/31/EC — Article 12 — Limitation of liability — Unknown user of the network — Infringement of rights of rightholders over a protected work — Duty to secure the network — Tortious liability of the trader)

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/4

         Judgment of the Court (Third Chamber) of 15 September 2016 (request for a preliminary ruling from the Landgericht München I — Germany) — Tobias Mc Fadden v Sony Music Entertainment Germany GmbH
   (Case C-484/14) (1)

   ((Reference for a preliminary ruling - Information society - Free movement of services - Commercial wireless local area network (WLAN) - Made available to the general public free of charge - Liability of intermediary service providers - Mere conduit - Directive 2000/31/EC - Article 12 - Limitation of liability - Unknown user of the network - Infringement of rights of rightholders over a protected work - Duty to secure the network - Tortious liability of the trader))
   (2016/C 419/05)
   Language of the case: German

      Referring court

   Landgericht München I

      Parties to the main proceedings

      Applicant: Tobias Mc Fadden

      Defendant: Sony Music Entertainment Germany GmbH

      Operative part of the judgment

               1.

               Article 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’), read in conjunction with Article 2(a) of that directive and with Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that a service such as that at issue in the main proceedings, provided by a communication network operator and consisting in making that network available to the general public free of charge constitutes an ‘information society service’ within the meaning of Article 12(1) of Directive 2000/31 where the activity is performed by the service provider in question for the purposes of advertising the goods sold or services supplied by that service provider.

               2.

               Article 12(1) of Directive 2000/31 must be interpreted as meaning that, in order for the service referred to in that article, consisting in providing access to a communication network, to be considered to have been provided, that access must not go beyond the boundaries of a technical, automatic and passive process for the transmission of the required information, there being no further conditions to be satisfied.

               3.

               Article 12(1) of Directive 2000/31 must be interpreted as meaning that the condition laid down in Article 14(1)(b) of that directive does not apply mutatis mutandis to Article 12(1) of Directive 2000/31.

               4.

               Article 12(1) of Directive 2000/31, read in conjunction with Article 2(b) of that directive, must be interpreted as meaning that there are no conditions, other than the one mentioned in that provision, to which a service provider supplying access to a communication network is subject.

               5.

               Article 12(1) of Directive 2000/31 must be interpreted as meaning that a person harmed by the infringement of its rights over a work is precluded from claiming compensation from an access provider on the ground that the connection to that network was used by a third party to infringe its rights and the reimbursement of the costs of giving formal notice or court costs incurred in relation to its claim for compensation. However, that article must be interpreted as meaning that it does not preclude such a person from claiming injunctive relief against the continuation of that infringement and the payment of the costs of giving formal notice and court costs from a communication network access provider whose services were used in that infringement where such claims are made for the purposes of obtaining, or follow the grant of injunctive relief by a national authority or court to prevent that service provider from allowing the infringement to continue.

               6.

               Having regard to the requirements deriving from the protection of fundamental rights and to the rules laid down in Directives 2001/29 and 2004/48, Article 12(1) of Directive 2000/31, read in conjunction with Article 12(3) of that directive, must be interpreted as, in principle, not precluding the grant of an injunction such as that at issue in the main proceedings, which requires, on pain of payment of a fine, a provider of access to a communication network allowing the public to connect to the internet to prevent third parties from making a particular copyright-protected work or parts thereof available to the general public from an online (peer-to-peer) exchange platform via an internet connection, where that provider may choose which technical measures to take in order to comply with the injunction even if such a choice is limited to a single measure consisting in password-protecting the internet connection, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously, a matter which it is for the referring court to ascertain.

      (1)  OJ C 46, 9.2.2015.


title: Reference for a preliminary ruling by the Oberste Gerichtshof by order of that court of 27 May 1997 in the land register case brought by Manfred Trummer and Dr Peter Mayer (Case C-222/97)

text:
No C 228/ 12          EN                     Official Journal of the European Communities                                      26 . 7. 97
     in a position which it itself could not take up without                    pursuant to a legal obligation to pay an amount
     infringing Article 86, whilst, as a result, a system of                    determined by a civil-law contract for valuable
     undistorted competition is not invariably guaranteed ?                     consideration ?
( f) If such compulsory affiliation is contrary to                      2.      Is that structuring of service relationships permissible
     Community law, does that mean that it is not legally                       in the light of Article 3 ( f), Article 5 or other
     valid ?                                                                    provisions of the EC Treaty, if competition on a .
                                                                                relevant market is thereby precluded for a long
                                                                                period, and where for the provisions of the service
                                                                                no service monopolies expressly provided for by law
                                                                                exist ?
Reference for a preliminary ruling by the Oberste                       3.      May an individual derive, from the abovementioned
Gerichtshof by order of that court of 27 May 1997 in the                        or other provisions of Council Directive 89/665/EEC
land register case brought by Manfred Trummer and Dr                            on the coordination of the laws, regulations and
                           Peter Mayer                                          administrative provisions relating to the application
                       ( Case C-222/97 )                                        of review procedures to the award of public supply
                         ( 97/C 228/24 )                                        and public works contracts, a specific right to have
                                                                                review proceedings conducted before authorities or
                                                                                courts which comply with the provisions of
Reference has been made to the Court of Justice of the                          Article 2 ( 8 ) of Directive 89/665/EEC (2 ) which right
European Communities by order of the Oberste Gerichts                          is so sufficiently precise and specific that, in the
hof ( Austrian Supreme Court) of 27 May 1997, which                             event of non-transposition of the Directive in
was received at the Court Registry on 13 June 1997, for a                       question by the Member State, an individual may
preliminary ruling in the land register case brought by                         successfully assert that legal right against that
Manfred Trummer and Dr Peter Mayer on the following                             Member State in legal proceedings ?
question:
                                                                        4.      In conducting a review procedure on the basis of an
Does the refusal to allow a mortgage to be created to                           individual's right, founded on Article 41 of Directive
cover an existing foreign-currency debt ( in this case in                       92/50/EEC in conjunction with Directive 89/665/
German marks ( DM )) constitute a restriction on the                            EEC, to the conduct of a review procedure, must a
movement of capital and payments compatible with                                national court, analogous to the Federal Procurement
Article 73b of the EC Treaty ?                                                  Office, refuse to take cognizance of provisions of
                                                                                national law such as Section 91 (2 ) ( 3 ) BVergG,
                                                                                which confer on the Federal Procurement Office
                                                                                powers of review only in the case of infringements of
                                                                                the Federal Procurement law and regulations
                                                                                adopted thereunder, on the ground that those
Reference for a preliminary ruling from the Bundesverga                        provisions preclude a review procedure from being
beamt by order of that body of 15 May 1997 in the                               conducted under the Federal Procurement Law for
review proceedings brought by the applicant, HDM Flug                          awards of contracts for services, and must such a
service GmbH v. Hauptverband der osterreichischen                               national court conduct a review procedure in
      Sozialversicherungstrager, contract-awarding body                         accordance with the fourth part of the Federal
                       ( Case C-223 /97 )                                       Procurement Law ?
                         ( 97/C 228/25 )
                                                                        5 ( a ) Are the services mentioned in the facts of this case to
                                                                                be classified (with reference to Article 10 of Directive
Reference has been made to the Court of Justice of the                          92/50/EEC ) as services coming under Annex I (A) to
European Communities by an order of the Bundesvergabe                          the aformentioned Directive ( Category 3 — Air
amt ( Federal Procurement Office ) of 15 May 1997, which                        transport services of freight and passengers ) and
was received at the Court Registry on 13 June 1997, for a                       contracts    for such    services are  therefore   to  be
preliminary ruling in the review proceedings brought by                         awarded in accordance with the provisions of Titles
the applicant, HDM Flugservice GmbH v. Hauptverband                             III and IV of the Directive, or are they to be
der osterreichischen Sozialversicherungstrager, contract                       classified as services under Annex I ( B ) to the
awarding body, on the following questions :                                     Directive ( Health ) with the result that contracts for
                                                                                such services are to be awarded in accordance with
1.     Can a legal relationship, such as that in the main                       the provisions of Articles 13 and 14, or do those
       proceedings, be deemed to be a contract satisfying                       services fall outside the sphere of application of
       the criteria in Article 1 ( 1 ) ( a ) of Directive 92/50/                Directive 92/50/EEC ?
       CEE (') where, under that relationship, a public
       authority is obliged, on the basis of a State                    5 ( b ) Do the provisions of Articles 1 to 7 of Directive 92/
       agreement at private law providing for no                                50/EEC satisfy the preconditions laid down in the
       remuneration to provide services for remuneration ,                      Van Duyn judgment ( 3 ) on the direct applicability of
       whereby that remuneration is payable by a third                          a Community Directive, with the result that services
       party, also a public contract-awarding body,                             coming under Annex I ( B ) to the Directive are to be


title: Case C-491/15 P: Judgment of the Court (First Chamber) of 11 January 2017 — Rainer Typke v European Commission (Appeal — Access to documents of the institutions — Regulation (EC) No 1049/2001 — Article 3 — Notion of document — Article 2(3) — Documents held by an institution — Characterisation of information contained in a database — Obligation to create a document which does not already exist — None — Existing documents capable of being extracted from a database)

text:
               27.2.2017

               EN

               Official Journal of the European Union

               C 63/4

         Judgment of the Court (First Chamber) of 11 January 2017 — Rainer Typke v European Commission
   (Case C-491/15 P) (1)

   ((Appeal - Access to documents of the institutions - Regulation (EC) No 1049/2001 - Article 3 - Notion of document - Article 2(3) - Documents held by an institution - Characterisation of information contained in a database - Obligation to create a document which does not already exist - None - Existing documents capable of being extracted from a database))
   (2017/C 063/05)
   Language of the case: English

      Parties

      Appellant: Rainer Typke (represented by: C. Cortese, avvocato)

      Other party to the proceedings: European Commission (represented by: F. Clotuche-Duvieusart and B. Eggers, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mr Rainer Typke to pay the costs.

      (1)  OJ C 27, 25.1.2016.