title: Case C-429/03: Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Massa e Carrara — Sezione III — by order of that Court of 21 July 2003 in the case brought by Duegi Trasporti S.r.l. against Comune di Carrara

text:
24.1.2004              EN                        Official Journal of the European Union                                            C 21/11
Reference for a preliminary ruling by the Commissione                          (the ‘tax on marble’) on goods transported out of one
Tributaria Provinciale di Massa e Carrara — Sezione III —                      municipality and intended for other regions of the same
by order of that Court of 21 July 2003 in the case brought                     State, or does not that particular charge instead involve
by Roberto Lorenzoni against 1) Comune di Carrara, and                         less favourable treatment of goods intended for those
                   2) Bipielle Riscossoni S.p.a.                               regions in comparison with goods exported in other
                                                                               Member States, and does not this pecuniary charge
                                                                               constitute an impediment to free movement of goods
                         (Case C-428/03)
                                                                               throughout the European market?
                          (2004/C 21/18)
Reference has been made to the Court of Justice of the
European Communities by order of the Commissione Tribu-
taria Provinciale di Massa e Carrara — Sezione III — (Provincial
Tax Court of Massa Carrara, Third Chamber) of 21 July 2003,              Reference for a preliminary ruling by the Commissione
received at the Court Registry on 7 October 2003, for a                  Tributaria Provinciale di Massa e Carrara — Sezione III —
preliminary ruling in the case brought by Roberto Lorenzoni              by order of that Court of 21 July 2003 in the case brought
against 1) Comune di Carrara, and 2) Bipielle Riscossoni S.p.a.              by Duegi Trasporti S.r.l. against Comune di Carrara
on the following questions:
                                                                                (Case C-429/03)
(A) Does a tax, levied by a municipal authority in one
      Member State on goods exported to another Member
      State on account of their leaving a municipality in the                                      (2004/C 21/19)
      first Member State, constitute a charge having equivalent
      effect to customs duties on exports, even though that
      fiscal charge also applies to goods leaving that munici-
      pality for another part of that Member State?
                                                                         Reference has been made to the Court of Justice of the
(B) Are the legislative provisions by virtue of which that tax           European Communities by order of the Commissione Tribu-
      is levied compatible with Community law? In particular,            taria Provinciale di Massa e Carrara — Sezione III — (Provincial
      is the provision laid down in the Law of the Italian State         Tax Court of Massa Carrara, Third Chamber) of 21 July 2003,
      No 749 of 15 July 1911 (as subsequently amended and                received at the Court Registry on 7 October 2003, for a
      supplemented) by virtue of which the Comune di Carrara             preliminary ruling in the case brought by Duegi Trasporti S.r.l.
      imposes and levies a tax on marble (and derivatives)               against Comune di Carrara on the following questions:
      excavated in its territory and transported out of it (the ‘tax
      on marble’) compatible with, or contrary to, Article 23            (A) Does a tax, levied by a municipal authority in one
      (ex Article 9) of the Treaty establishing the European                   Member State on goods exported to another Member
      Communities, which provides that ‘[t]he Community                        State on account of their leaving a municipality in the
      shall be based upon a customs union which shall cover                    first Member State, constitute a charge having equivalent
      all trade in goods and which shall involve the prohibition               effect to customs duties on exports, even though that
      between Member States of customs duties on imports                       fiscal charge also applies to goods leaving that munici-
      and exports and of all charges having equivalent effect’,                pality for another part of that Member State?
      and Article 25 (ex Article 12), which provides that
      ‘[c]ustoms duties on imports and exports and charges               (B) Are the legislative provisions by virtue of which that tax
      having equivalent effect shall be prohibited between                     is levied compatible with Community law? In particular,
      Member States. This prohibition shall also apply to                      is the provision laid down in the Law of the Italian State
      customs duties of a fiscal nature’?                                      No 749 of 15 July 1911 (as subsequently amended and
                                                                               supplemented) by virtue of which the Comune di Carrara
(C) Is this tax on marble compatible with Articles 81 EC to                    imposes and levies a tax on marble (and derivatives)
      89 EC (ex Articles 85 to 90 and 92 to 94 of the EC                       excavated in its territory and transported out of it (the ‘tax
      Treaty), which lay down a series of rules intended to                    on marble’) compatible with, or contrary to, Article 23
      create a system which will ensure that competition on                    (ex Article 9) of the Treaty establishing the European
      the common market is not distorted and which will                        Communities, which provides that ‘[t]he Community
      remove subsisting impediments in order to attain that                    shall be based upon a customs union which shall cover
      objective?                                                               all trade in goods and which shall involve the prohibition
                                                                               between Member States of customs duties on imports
(D) If the answer to the previous question is ‘No’ — having                    and exports and of all charges having equivalent effect’,
      regard to the fact that, in respect of the municipality in               and Article 25 (ex Article 12), which provides that
      which the tax on marble (and derivatives) is levied the                  ‘[c]ustoms duties on imports and exports and charges
      Treaty provides no special measures in favour of the                     having equivalent effect shall be prohibited between
      Italian Republic — is it compatible with Community law                   Member States. This prohibition shall also apply to
      for a legislative provision to impose a pecuniary charge                 customs duties of a fiscal nature’?
 ---pagebreak--- C 21/12                EN                      Official Journal of the European Union                                        24.1.2004
(C) Is this tax on marble compatible with Articles 81 EC to            In particular:
     89 EC (ex Articles 85 to 90 and 92 to 94 of the EC
     Treaty), which lay down a series of rules intended to             1.   Are only ‘traditional’ homeopathic medicinal products
     create a system which will ensure that competition on                  subject to the special, simplified registration procedure
     the common market is not distorted and which will                      under Article 14 et seq. of Directive 2001/83/EC?
     remove subsisting impediments in order to attain that
     objective?                                                        2.   If the answer to this question is in the affirmative, can a
                                                                            medicinal product also be considered ‘traditional’ if it is
(D) If the answer to the previous question is ‘No’ — having                 manufactured using bibliographically identified homeo-
     regard to the fact that, in respect of the municipality in             pathic stocks without having been in actual homeopathic
     which the tax on marble (and derivatives) is levied the                use in that combination prior to the registration applied
     Treaty provides no special measures in favour of the                   for;
     Italian Republic — is it compatible with Community law                 or:
     for a legislative provision to impose a pecuniary charge
     (the ‘tax on marble’) on goods transported out of one                  Does the second indent of the second sentence of
     municipality and intended for other regions of the same                Article 15 of Directive 2001/83/EC permit a Member
     State, or does not that particular charge instead involve              State to require that, for registration of a homeopathic
     less favourable treatment of goods intended for those                  medicinal product that is manufactured using a number
     regions in comparison with goods exported in other                     of homeopathic stocks, a bibliography must be produced
     Member States, and does not this pecuniary charge                      that refers to the combination preparation as such?
     constitute an impediment to free movement of goods
     throughout the European market?
                                                                       (1) OJ L 311, p. 67.
                                                                       Reference for a preliminary ruling by the Bundesverga-
                                                                       beamt (Wien) by order of that Court of 27 October 2003
Reference for a preliminary ruling by the Verwaltungsge-               in the case of STRABAG AG against Österreichische
richt Berlin by order of that Court of 28 August 2003 in                                        Bundesbahnen
the case of meta Fackler KG against Federal Republic of
                            Germany
                                                                                (Case C-462/03)
                        (Case C-444/03)                                                         (2004/C 21/21)
                         (2004/C 21/20)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Bundesvergabeamt
                                                                       (Wien) (Federal Procurement Office, Vienna) of 27 October
                                                                       2003, received at the Court Registry on 4 November 2003,
                                                                       for a preliminary ruling in the case of STRABAG AG against
Reference has been made to the Court of Justice of the                 Österreichische Bundesbahnen on the following questions:
European Communities by order of the Verwaltungsgericht
Berlin (Administrative Court Berlin) of 28 August 2003,
received at the Court Registry on 21 October 2003, for a               1.   Is Article 2(2)(c) of Directive 93/38/EEC (1) to be inter-
preliminary ruling in the case of meta Fackler KG against                   preted as meaning that, contrary to the other factual
Federal Republic of Germany on the following questions:                     situations covered by Article 2(2) of the Directive, in the
                                                                            area of transport ‘merely’ the operation of networks is to
                                                                            be considered a sectoral activity?
Is the rule contained in Paragraph 39(2) No 7a of the                  2.   Which activities fall within the scope of ‘the operation of
Arzneimittelgesetz (Law on Medicinal Products, ‘AMG’) com-                  networks providing a service to the public in the field of
patible with Directive 2001/83/EC of the European Parliament                transport by railway’ under Article 2(2)(c) of Directive
and of the Council of 6 November 2001 (1) (‘Directive 2001/                 93/38/EEC? To what extent are, in particular, measures
83/EC’) in so far as it refuses registration for a medicinal                in the field of infrastructure to be subsumed under this
product composed of bibliographically identified homeopathic                heading? To what extent are such measures in the field of
constituents if its ‘administration as a homeopathic medicinal              infrastructure to be classified under the heading ‘provision
product is not generally known’?                                            of networks’?


title: Case T-182/01: Action brought on 3 August 2001 by Sophie Bachotet against the Commission of the European Communities

text:
C 317/28                EN                     Official Journal of the European Communities                                     10.11.2001
In this case the applicant is bringing an action for failure to act       Pleas in law and main arguments
and annulment.
                                                                          The applicant in the present case objects to her non-inclusion
In support of its claims, the applicant asserts:                          on the list of successful candidates drawn up in the context of
                                                                          the Notice of a selection process for temporary members of
—     infringement of Articles 4(b), 86 and 88 of the ECSC                staff COM/R/A/01/1999 for the management of Research and
      Treaty. It is alleged in this respect that the imposition on        Technological Development programmes.
      ECSC undertakings of charges which, in the case of
      Charbonnages de France, will be directly or indirectly
      financed, whereas the applicant, a private company, will
      have to meet them in the absence of any commercial                  In support of her claims the applicant alleges:
      production, constitutes discrimination contrary to the
      ECSC Treaty;                                                        —     The infringement of the duty to state reasons and the
                                                                                principle of openness;
—     infringement of essential procedural requirements by
      failure to state reasons;                                           —     The infringement of the Selection Process Notice and the
                                                                                rules governing the composition of a selection board;
—     lack of competence, since it does not appear from the
      letter of 10 July 2001 that the decision which it contains
      was formally taken by the Commission and that its                   —     The infringement of the principles of sound adminis-
      signatory was authorised to sign it;                                      tration and equal treatment, in that the identity and the
                                                                                professional and administrative situation of the members
                                                                                of the Selection Committee were disclosed only to certain
—     breach of the principle of sound administration.                          candidates.
(1) Sacilor Lorminesv Commission (not yet published in the Official
    Journal).
                                                                          Action brought on 27 July 2001 by Alza Corporation
                                                                          against the Office for Harmonization in the Internal
                                                                                Market
Action brought on 3 August 2001 by Sophie Bachotet
  against the Commission of the European Communities
                                                                                (Case T-183/01)
                          (Case T-182/01)
                                                                                (2001/C 317/56)
                          (2001/C 317/55)
                                                                                (Language of the case: English)
                    (Language of the case: French)
An action against the Commission of the European Communi-                 An action against the Office for Harmonization in the Internal
ties was brought before the Court of First Instance of the                Market was brought before the Court of First Instance of the
European Communities on 3 August 2001 by Sophie Bachotet,                 European Communities on 27 July 2001 by Alza Corporation,
resident in Brussels, represented by Jean-Noël Louis and                  represented by Michael Edenborough, Hogarth Chambers,
Véronique Peere, lawyers, with an address for service in                  London (UK).
Luxembourg.
                                                                          The applicant claims that the Court should:
The applicant claims that the Court should:
                                                                          —     annul the decisions of the Board of Appeal and the
—     annul the decision of the Selection Committee COM/                        Opposition Division in so far as they concern the
      R/A/01/1999 to award the applicant a mark that was not                    application for registration of the applicant’s mark for the
      sufficient to allow her to be included on the reserve list;               goods in Class 5; and as a consequence, order that the
                                                                                Office should allow the applicant’s mark to proceed to
—     order the defendent to pay the costs.                                     registration for the goods in Class 5;


title: Judgment of the Court (Fifth Chamber) of 25 October 2001 in Case C-493/99: Commission of the European Communities v Federal Republic of Germany (Failure by a Member State to fulfil its obligations — Articles 52 and 59 of the EC Treaty (now, after amendment, Articles 43 EC and 49 EC) — National legislation on the contracting out of labour in the construction industry — Exclusion of undertakings not party to a collective agreement for that industry and not having an establishment in the Member State in which services are to be provided — Proportionality)

text:
C 369/4                  EN                       Official Journal of the European Communities                                        22.12.2001
      between those organisations, there is no breach of Article 90(1)       W.-D. Plessing and B. Muttelsee-Schön) — application for a
      of the Treaty, in conjunction with Article 85(1)(c) thereof (now       declaration that, by providing in its legislation that construc-
      Article 81(1)(c) EC);                                                  tion undertakings established in other Member States
—     a national provision such as Paragraph 18(3) of the Rettungs-
      dienstgesetz, as enacted on 22 April 1991, is contrary to
      Article 90(1) of the Treaty read in conjunction with Article 86        (a)   may not provide transfrontier services on the German
      thereof (now Article 82 EC), in so far as it is established that:            market as part of a consortium unless they have their seat
      —     the medical aid organisations such as those in question in             or at least an establishment in Germany employing their
            the main proceedings occupy a dominant position on the                 own staff and have concluded a company-wide collective
            market for emergency transport services,                               agreement for those staff;
      —     that dominant position exists on a substantial part of the
            common market, and
                                                                             (b) may not contract out workers from another country to
      —     there is a sufficient degree of probability, having regard to          other construction undertakings unless they have their
            the economic characteristics of the market in question, that           seat or at least an establishment in Germany employing
            the provision actually prevents undertakings established in            their own staff and, as members of a German employers’
            Member States other than the Member State in question                  association, are covered by framework and social-welfare
            from carrying out ambulance transport services there, or               collective agreements;
            even from establishing themselves there;
—     however, a provision such as Paragraph 18(3) of the Rettungs-
      dienstgesetz 1991 is justified under Article 90(2) of the Treaty
                                                                             (c)   may not establish in Germany a branch recognised as a
      provided that it does not bar the grant of an authorisation to
                                                                                construction undertaking if its staff is entrusted solely
      independent operators where it is established that the medical
                                                                                with work on administration, marketing, planning, super-
      aid organisations entrusted with the operation of the public
                                                                                vision and/or wages and salaries, but, in order to be so
      emergency ambulance service are manifestly unable to satisfy
                                                                                recognised, such an establishment must employ on the
      demand in the area of emergency ambulance and patient
                                                                                German labour market workers who spend more than
      transport services.
                                                                                50 % of the firm’s total working time on building sites,
(1) OJ C 63 of 4.3.2000.
                                                                             the Federal Republic of Germany has failed to fulfil its
                                                                             obligations under Articles 52 and 59 of the EC Treaty (now,
                                                                             after amendment, Articles 43 EC and 49 EC) — the Court
                  JUDGMENT OF THE COURT                                      (Fifth Chamber), composed of: P. Jann, President of the
                                                                             Chamber, D.A.O. Edward (Rapporteur), A. La Pergola, L. Sevón
                           (Fifth Chamber)                                   and C.W.A. Timmermans, Judges; D. Ruiz-Jarabo Colomer,
                                                                             Advocate General; R. Grass, Registrar, has given a judgment
                        of 25 October 2001                                   on 25 October 2001, in which it:
in Case C-493/99: Commission of the European Communi-
             ties v Federal Republic of Germany(1)
(Failure by a Member State to fulfil its obligations —                       1.    Declares that, by providing in its legislation that construction
Articles 52 and 59 of the EC Treaty (now, after amendment,                         undertakings established in other Member States
Articles 43 EC and 49 EC) — National legislation on the
contracting out of labour in the construction industry —
Exclusion of undertakings not party to a collective agreement
for that industry and not having an establishment in the                           (a)   may not provide transfrontier services on the German
Member State in which services are to be provided —                                      market as part of a consortium unless they have their seat
                            Proportionality)                                             or at least an establishment in Germany employing their
                                                                                own staff and have concluded a company-wide collective
                           (2001/C 369/06)                                               agreement for those staff;
                    (Language of the case: German)
(Provisional translation; the definitive translation will be published             (b) may not contract out workers from another country to
                    in the European Court Reports)                                       other construction undertakings unless they have their seat
                                                                                or at least an establishment in Germany employing their
                                                                                own staff and, as members of a German employers’
In Case C-493/99: Commission of the European Communities                                 association, are covered by framework and social-welfare
(Agent: J. Sack) v Federal Republic of Germany (Agents:                                  collective agreements;
 ---pagebreak--- 22.12.2001              EN                        Official Journal of the European Communities                                            C 369/5
      (c)   may not establish in Germany a branch recognised as a            Article 29(1) and (2) of Council Directive 71/305/EEC of 26 July
            construction undertaking if its staff is entrusted solely with   1971 concerning the coordination of procedures for the award of
            work on administration, marketing, planning, supervision         public works contracts, as amended by Council Directive 89/440/EEC
            and/or wages and salaries, but in order to be so recognised,     of 18 July 1989, must be interpreted as permitting an adjudicating
            such an establishment must employ on the German labour           authority which has chosen to award a contract to the most
            market workers who spend more than 50 % of the firm’s            economically advantageous tender to award that contract to the
            total working time on building sites,                            tenderer who has submitted the tender the ultimate cost of which, in
                                                                             the professional opinion of an expert, is likely to be the lowest,
      the Federal Republic of Germany has failed to fulfil its               provided that the equal treatment of tenderers has been ensured,
      obligations under Articles 52 and 59 of the EC Treaty (now,            which presupposes that the transparency and objectivity of the
      after amendment, Articles 43 EC and 49 EC);                            procedure have been guaranteed and in particular that:
2.    Orders the Federal Republic of Germany to pay the costs.               —     this award criterion was clearly stated in the contract notice or
                                                                                contract documents; and
(1) OJ C 63 of 4.3.2000.                                                     —     the professional opinion is based in all essential points on
                                                                                objective factors regarded in good professional practice as
                                                                                relevant and appropriate to the assessment made.
                                                                             (1) OJ C 102 of 8.4.2000.
                  JUDGMENT OF THE COURT
                          (Fifth Chamber)
                                                                                JUDGMENT OF THE COURT
                       of 18 October 2001
                                                                                (Fourth Chamber)
in Case C-19/00 (reference for a preliminary ruling from
the Supreme Court of Ireland): SIAC Construction Ltd v
                                                                                of 11 October 2001
          County Council of the County of Mayo (1)
                                                                             in Case C-254/00: Commission of the European Communi-
(Public works contracts — Award to the most economically                                  ties v Kingdom of the Netherlands (1)
             advantageous tender — Award criteria)
                                                                             (Failure by a Member State to fulfil obligations — Failure to
                          (2001/C 369/07)                                    implement Directive 95/47/EC within the prescribed period
                                                                             — Use of standards for the transmission of television
                                                                                signals)
                    (Language of the case: English)
                                                                                (2001/C 369/08)
In Case C-19/00: reference to the Court under Article 234 EC                                     (Language of the case: Dutch)
from the Supreme Court of Ireland for a preliminary ruling in
the proceedings pending before that court between SIAC
Construction Ltd and County Council of the County of Mayo                    (Provisional translation; the definitive translation will be published
— on the interpretation of Article 29 of Council Directive                                      in the European Court Reports)
71/305/EEC of 26 July 1971 concerning the coordination of
procedures for the award of public works contracts (OJ,
English Special Edition 1971 (II), p. 682), as amended by
Council Directive 89/440/EEC of 18 July 1989 (OJ 1989                        In Case C-254/00: Commission of the European Communities
L 210, p. 1) — the Court (Fifth Chamber), composed of:                       (Agent: H. van Lier) v Kingdom of the Netherlands (Agents:
P. Jann (Rapporteur), President of the Chamber, A. La Pergola,               M.A Fierstra, and subsequently by J. van Bakel) — application
L. Sevón, M. Wathelet and C.W.A. Timmermans, Judges;                        for a declaration that by failing to bring into force or to
F.G. Jacobs, Advocate General; H.A. Rühl, Principal Adminis-                 communicate all of the laws, regulations and administrative
trator, for the Registrar, has given a judgment on 18 October                provisions necessary to comply with Directive 95/47/EC of
2001, in which it has ruled:                                                 the European Parliament and of the Council of 24 October


title: Case C-672/13: Judgment of the Court (Sixth Chamber) of 19 March 2015 (request for a preliminary ruling from the Fővárosi Törvényszék — Hungary) — OTP Bank Nyrt v Magyar Állam, Magyar Államkincstár (Reference for a preliminary ruling — State aid — Article 107(1) TFEU — Concept of ‘State aid’ — Housing aid granted prior to the accession of Hungary to the European Union to certain categories of household — Payment of the aid by credit institutions in exchange for a State guarantee — Article 108(3) TFEU — Measure not previously notified to the European Commission — Unlawfulness)

text:
               11.5.2015

               EN

               Official Journal of the European Union

               C 155/5

         Judgment of the Court (Sixth Chamber) of 19 March 2015 (request for a preliminary ruling from the Fővárosi Törvényszék — Hungary) — OTP Bank Nyrt v Magyar Állam, Magyar Államkincstár
   (Case C-672/13) (1)

   ((Reference for a preliminary ruling - State aid - Article 107(1) TFEU - Concept of ‘State aid’ - Housing aid granted prior to the accession of Hungary to the European Union to certain categories of household - Payment of the aid by credit institutions in exchange for a State guarantee - Article 108(3) TFEU - Measure not previously notified to the European Commission - Unlawfulness))
   (2015/C 155/06)
   Language of the case: Hungarian

      Referring court

   Fővárosi Törvényszék

      Parties to the main proceedings

      Applicant: OTP Bank Nyrt

      Defendants: Magyar Állam, Magyar Államkincstár

      Operative part of the judgment

   The guarantee provided by the Hungarian State under Paragraph 25(1) and (2) of Government Decree No 12/2001 of 31 January 2001 concerning aid intended to facilitate access to housing, granted exclusively to credit institutions prima facie constitutes ‘State aid’ within the meaning of Article 107(1) TFEU. However, it is for the referring court to ascertain more specifically the selective nature of such a guarantee by determining, in particular, whether, following the amendment of the Decree of 2001 which is supposed to have taken place in 2008, that guarantee may be granted to economic operators other than credit institutions and, in the affirmative, whether that fact may call into question the selective nature of that guarantee.
   If the referring court classifies the State guarantee at issue in the main proceedings as ‘State aid’ within the meaning of Article 107(1) TFEU, such a guarantee must be regarded as new aid and is, on that ground, subject to the obligation of prior notification to the European Commission in accordance with Article 108(3) TFEU. It is for the referring court to verify whether the Member State concerned has complied with that obligation and, if that is not the case, to declare that guarantee unlawful.
   The beneficiaries of a State guarantee, such as that at issue in the main proceedings, granted without regard for Article 108(3) TFEU and, therefore, unlawful, do not have any remedies available in accordance with EU law.

      (1)  OJ C 85, 22.3.2014.


title: Judgment of the Court (First Chamber) of 9 September 2004 in Joined Cases C-184/02 and C-223/02: Kingdom of Spain and Republic of Finland v European Parliament and Council of the European Union (Directive 2002/15/CE — Organisation of the working time of road transport workers — Self-employed drivers — Legal basis — Freedom to pursue an occupation — Principle of equal treatment — Proportionality — Obligation to state reasons)

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/3

      JUDGMENT OF THE COURT

   (First Chamber)
   of 9 September 2004
   in Joined Cases C-184/02 and C-223/02: Kingdom of Spain and Republic of Finland v European Parliament and Council of the European Union (1)

   (Directive 2002/15/CE - Organisation of the working time of road transport workers - Self-employed drivers - Legal basis - Freedom to pursue an occupation - Principle of equal treatment - Proportionality - Obligation to state reasons)
   (2004/C 262/04)
   Languages of the case: Spanish and Finnish
   In Joined Cases C-184/02 and C-223/02: actions for annulment under Article 230 EC brought on 16 May and 12 June 2002, Kingdom of Spain (Agents: R. Silva de Lapuerta and subsequently N. Díaz Abad) in Case C-184/02 and Republic of Finland (Agent: T. Pynnä) in Case C-223/02 v European Parliament (Agents: M. Gómez-Leal and C. Pennera (C-184/02) and H. von Hertzen and G. Ricci (C-223/02)) and Council of the European Union (Agents: A. Lopes Sabino and G.-L. Ramos Ruano (C-184/02) and A. Lopes Sabino and H. Erno (C-223/02)), supported by Commission of the European Communities (Agents: F. Castillo de la Torre and W. Wils (C-184/02) and M. Huttunen and W. Wils (C-223/02)) — the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas, S. von Bahr, K. Lenaerts (Rapporteur), and K. Schiemann, Judges; C. Stix-Hackl, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, gave a judgment on 9 September 2004, in which it:

               1.

               Dismisses the actions;

               2.

               Orders the applicants to bear their own costs and pay those of the defendants;

               3.

               Orders the Commission to bear its own costs.

      (1)  OJ C 169 of 13.7.2002.

      OJ C 202 of 24.8.2002.


title: Case T-235/10: Action brought on 21 May 2010 — Timehouse v OHIM (Shape of a watch)

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/44

         Action brought on 21 May 2010 — Timehouse v OHIM (Shape of a watch)
   (Case T-235/10)
   ()
   2010/C 209/67
   Language in which the application was lodged: German

      Parties

      Applicant: Timehouse GmbH (Eystrup, Germany) (represented by V. Knies, lawyer)

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

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 March 2010 in case R 0942/2009-1; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: A three-dimensional trade mark, representing a watch for goods in Class 14.

      Decision of the Examiner: Rejection of the application for registration.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Article 7(1)(b) and of Council Regulation No 207/2009 (1), as the trade mark is distinctive.

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


title: JUDGMENT OF THE COURT of 9 December 1997 in Case C-353/95 P: Tiercé Ladbroke SA v. Commission of the European Community, supported by the French Republic (Competition - State aid - Levy on bets taken on horse-races - Transfer of resources to an undertaking established in another Member State)

text:
C 55/4                EN                 Official Journal of the European Communities                                  20.2.98
               JUDGMENT OF THE COURT                                3. orders the Kingdom of Spain and the United Kingdom
                                                                        of Great Britain and Northern Ireland to bear their
                     of 9 December 1997                                 own costs.
in Case C-265/95: Commission of the European
Communities, supported by Kingdom of Spain and United
Kingdom of Great Britain and Northern Ireland v. French             (1) OJ C 268, 14.10.1995.
                          Republic (1)
(Free movement of goods Ð Agricultural products Ð
Trade barriers resulting from actions by private
      individuals Ð Obligations of the Member States)
                         (98/C 55/05)
                                                                                JUDGMENT OF THE COURT
                (Language of the case: French)                                           of 9 December 1997
                                                                    in Case C-353/95 P: TierceÂ Ladbroke SA v. Commission
                                                                    of the European Community, supported by the French
                                                                                Republic (1)
 (Provisional translation; the definitive translation will be
          published in the European Court Reports)                  (Competition Ð State aid Ð Levy on bets taken on horse-
                                                                    races Ð Transfer of resources to an undertaking
                                                                                established in another Member State)
In Case C-265/95: Commission of the European                                                 (98/C 55/06)
Communities (Agents: Hendrik van Lier and Jean-Francis
Pasquier), supported by Kingdom of Spain (Agents:
Alberto JoseÂ Navarro GonzaÂlez and Rosario Silva de
Lapuerta), United Kingdom of Great Britain and Northern
Ireland (Agent: John E. Collins, assisted by Stephen                                (Language of the case: English)
Richards and Mark Hoskins) v. French Republic (Agents:
Jean-FrancËois Dobelle, Catherine de Salins, Anne de
Bourgoing and Philippe Martinet) Ð application for a
declaration that, by failing to take all necessary and
                                                                    In Case C-353/95P: TierceÂ Ladbroke SA, a company
proportionate measures in order to prevent the free
                                                                    incorporated under Belgian law, represented by Jeremy
movement of fruit and vegetables from being obstructed
                                                                    Lever QC, Christopher Vajda, Barrister, and Stephen Kon,
by actions by private individuals, the French Republic has
                                                                    Solicitor, with an address for service in Luxembourg at the
failed to fulfil its obligations under the common
                                                                    Chambers of Winandy & Err, 60 Avenue Gaston Diderich,
organisation of the markets in agricultural products and
                                                                    appeal against the judgment of the Court of First Instance
Article 30 of the EC Treaty, in conjunction with Article 5
                                                                    of the European Communities (First Chamber, Extended
of that Treaty Ð the Court, composed of: G. C.
                                                                    Composition) of 18 September 1995 in Case T-471/93
Rodríguez Iglesias, President, C. Gulmann, H.
                                                                    TierceÂ Ladbroke v. Commission [1995] ECR II-2537,
Ragnemalm, M. Wathelet and R. Schintgen (Rapporteur)
                                                                    seeking to have that judgment set aside, the other party to
(Presidents of Chambers), G. F. Mancini, J. C. Moitinho
                                                                    the proceedings being the Commission of the European
de Almeida, P. J. G. Kapteyn, J. L. Murray, D. A. O.
                                                                    Communities (Agent: Eric White) supported by the French
Edward, J.-P. Puissochet, G. Hirsch and P. Jann, Judges;
                                                                    Republic (Agents: Jean-FrancËois Dobelle, Catherine de
C. O. Lenz, Advocate-General; H. A. Rühl, Principal
                                                                    Salins and Jean-Marc Belorgey) Ð the Court composed of:
Administrator, for the Registrar, has given a judgment on
                                                                    G. C. Rodríguez Iglesias, President, C. Gulmann, H.
9 December 1997, in which it:
                                                                    Ragnemalm, R. Schintgen (Presidents of Chambers), G. F.
                                                                    Mancini, P. J. G. Kapteyn (Rapporteur), J. L. Murray,
                                                                    D. A. O. Edward, J.-P. Puissochet, G. Hirsch and P. Jann,
                                                                    Judges, Advocate-General: G. Cosmas, Registrar: H.
1. declares that, by failing to adopt all necessary and
                                                                    Holstein, Deputy Registrar, has given a judgment on
     proportionate measures in order to prevent the free
                                                                    9 December 1997, in which it:
     movement of fruit and vegetables from being
     obstructed by actions by private individuals, the
     French Republic has failed to fulfil its obligations
     under Article 30 of the EC Treaty, in conjunction with
     Article 5 of that Treaty, and under the common                 1. dismisses the appeal;
     organisations of the markets in agricultural products;
2. orders the French Republic to pay the costs;                     2. orders TierceÂ Ladbroke SA to pay the costs;
 ---pagebreak--- 20.2.98               EN                  Official Journal of the European Communities                                       C 55/5
3. orders the French Republic to bear its own costs.                               JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
(1) OJ C 31, 3.2.1996.
                                                                                of 11 December 1997
                                                                     in Case C-8/96 (reference for a preliminary ruling from
                                                                     the Tribunal de Grande Instance de Tours): Locamion SA
                                                                         v. Directeur des Services Fiscaux d'Indre-et-Loire (1)
               JUDGMENT OF THE COURT                                 (Directive 69/335/EEC Ð Regional charge on vehicle
                       (Third Chamber)                                                  registration certificates)
                     of 9 December 1997                                                       (98/C 55/08)
in Case C-143/96 (reference for a preliminary ruling from
the Bundesfinanzhof): Leonhard Knubben Speditions
            GmbH v. Hauptzollamt Mannheim (1)                                       (Language of the case: French)
(Common Customs Tariff Ð Crushed' peppers within the
meaning of subheading 0904 20 90 of the Combined
                        Nomenclature)
                                                                       (Provisional translation; the definitive translation will be
                         (98/C 55/07)                                         published in the European Court Reports)
               (Language of the case: German)
                                                                     In Case C-8/96: reference to the Court under Article 177
  (Provisional translation; the definitive translation will be       of the EC Treaty from the Tribunal de Grande Instance
          published in the European Court Reports)                   (Regional Court), Tours (France), for a preliminary ruling
                                                                     in the proceedings pending before that court between
                                                                     Locamion SA and Directeur des Services Fiscaux d'Indre-
In Case C-143/96: reference to the Court under Article 177           et-Loire Ð on the interpretation of Council Directive 69/
of the EC Treaty from the Bundesfinanzhof (Federal                   335/EEC of 17 July 1969 concerning indirect taxes on the
Finance Court) (Germany), for a preliminary ruling in the            raising of capital (OJ, English Special Edition 1969 (II),
proceedings pending before that court between Leonhard               p. 412), as amended by Council Directive 73/79/EEC of
Knubben Speditions GmbH and Hauptzollamt Mannheim                    9 April 1973 varying the field of application of the
Ð on the interpretation of subheading 0904 20 of the                 reduced rate of capital duty provided for in respect of
Combined Nomenclature, in the version resulting from                 certain     company       reconstruction      operations     by
Commission Regulation (EEC) No 3174/88 of                            Article 7(1)(b) of the directive concerning indirect taxes on
21 September 1988 amending Annex I to Council                        the raising of capital (OJ L 103, 18.4.1973, p. 13), by
Regulation (EEC) No 2658/87 on the tariff and statistical            Council Directive 73/80/EEC of 9 April 1973 fixing
nomenclature and on the Common Customs Tariff (OJ                    common rates of capital duty (OJ L 103, 18.4.1973,
L 298, 31.10.1988, p. 1) and from Commission                         p. 15), by Council Directive 74/553/EEC of 7 November
Regulation (EEC) No 2886/89 of 2 August 1989                         1974 amending Article 5(2) of Directive 69/335/EEC (OJ
amending Annex I to Regulation No 2658/87 (OJ L 282,                 L 303, 13.11.1974, p. 9), and by Council Directive 85/
2.10.1989, p. 1) Ð the Court (Third Chamber), composed               303/EEC of 10 June 1985 amending Directive 69/335/EEC
of: C. Gulmann, President of the Chamber, J. C. Moitinho             (OJ L 156, 15.6.1985, p. 23) Ð the Court (Sixth
de Almeida (Rapporteur) and J.-P. Puissochet, Judges; A.             Chamber), composed of: H. Ragnemalm (Rapporteur),
La Pergola, Advocate-General; H. A. Rühl, Principal                  President of the Chamber, G. F. Mancini, P. J. G. Kapteyn,
Administrator, for the Registrar, has given a judgment on            J. L. Murray and G. Hirsch, Judges; G. Cosmas,
9 December 1997, in which it has ruled:                              Advocate-General; D. Louterman-Hubeau, Principal
                                                                     Administrator, for the Registrar, has given a judgment on
Subheading 0904 20 of the Combined Nomenclature, in                  11 December 1997, in which it has ruled:
the version resulting from Commission Regulation (EEC)
No 3174/88 of 21 September 1988 amending Annex I to
Council Regulation (EEC) No 2658/87 on the tariff and
statistical nomenclature and on the Common Customs                   Article 10 of Council Directive 69/335/EEC of 17 July
                                                                     1969 concerning indirect taxes on the raising of capital, as
Tariff and from Commission Regulation (EEC) No 2886/
                                                                     amended by Council Directive 73/79/EEC of 9 April 1973
89 of 2 August 1989 amending Annex I to Regulation
                                                                     varying the field of application of the reduced rate of
(EEC) No 2658/87, must be construed as meaning that
                                                                     capital duty provided for in respect of certain company
the expression sonst zerkleinert' (otherwise crushed')
                                                                     reconstruction operations by Article 7(1)(b) of the
does not cover a product cut into pieces measuring
                                                                     directive concerning indirect taxes on the raising of
between 4 and 8 mm.
                                                                     capital, by Council Directive 73/80/EEC of 9 April 1973
                                                                     fixing common rates of capital duty, by Council Directive
(1) OJ C 180, 22.6.1996.                                             74/553/EEC of 7 November 1974 amending Article 5(2)
                                                                     of Directive 69/335/EEC, and by Council Directive 85/
                                                                     303/EEC of 10 June 1985 amending Directive 69/335/


title: Case C-434/05: Judgment of the Court (Third Chamber) of 14 June 2007 (reference for a preliminary ruling from the Hoge Raad der Nederlanden, Netherlands) — Stichting Regionaal Opleidingen Centrum Noord-Kennemerland/West-Friesland (Horizon College) v Staatssecretaris van Financiën (Sixth VAT Directive — Exemptions — Article 13A(1)(i) and 13A(2) — Teaching staff employed by one educational establishment made available, for consideration, to another)

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/8

         Judgment of the Court (Third Chamber) of 14 June 2007 (reference for a preliminary ruling from the Hoge Raad der Nederlanden, Netherlands) — Stichting Regionaal Opleidingen Centrum Noord-Kennemerland/West-Friesland (Horizon College) v Staatssecretaris van Financiën
   (Case C-434/05) (1)

   (Sixth VAT Directive - Exemptions - Article 13A(1)(i) and 13A(2) - Teaching staff employed by one educational establishment made available, for consideration, to another)
   (2007/C 183/14)
   Language of the case: Dutch
   Referring court
   Hoge Raad der Nederlanden
   Parties to the main proceedings

      Applicant: Stichting Regionaal Opleidingen Centrum Noord-Kennemerland/West-Friesland (Horizon College)

      Defendant: Staatssecretaris van Financiën
   Re:
   Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 13(A)(1)(i) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Extent of the exemption in it — Teacher employed by one educational establishment made available, for consideration, to another
   Operative part of the judgment

               1)

               Article 13A(1)(i) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, is to be interpreted as meaning that the expression ‘children's or young people's education, school or university education, vocational training or retraining’ does not cover the making available, for consideration, of a teacher to an educational establishment, within the meaning of that provision, in which that teacher temporarily carries out teaching duties under the responsibility of that establishment, even if the body which makes the teacher available is itself a body governed by public law that has an educational aim, or another organisation defined by the Member State concerned as having similar objects.

               2)

               Article 13A(1)(i) of Sixth Directive 77/388, read in conjunction with Article 13A(2) of that directive, is to be interpreted as meaning that the making available, for consideration, of a teacher to an educational establishment in which that teacher temporarily carries out teaching duties under the responsibility of that establishment, may constitute a transaction that is exempt from value added tax on the basis that it is a supply of services ‘closely related’ to education, within the meaning of Article 13A(1)(i), if such a teacher placement is a means of better enjoying the education deemed to be the principal service, provided, however, — which it is for the national court to verify — that:

                           —

                           both that principal service and the placement which is closely related to it are provided by bodies referred to in Article 13A(1)(i), taking into account, where appropriate, any conditions which may have been introduced by the Member State concerned pursuant to Article 13A(2)(a);

                           —

                           that placement is of a nature and quality such that, without recourse to such a service, there could be no assurance that the education provided by the host establishment and, consequently, the education from which its students benefit, would have an equivalent value; and

                           —

                           the basic purpose of such a placement is not to obtain additional income by carrying out a transaction which is in direct competition with commercial enterprises liable for value added tax.

      (1)  OJ C 74, 25.3.2006.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 21 January 1999 in Joined Cases C-215/96 and C-216/96 (references for a preliminary ruling from the Tribunale di Genova): Carlo Bagnasco and Others v. Banca Popolare di Novara soc. coop. arl (BPN) (C-215/96), Cassa di Risparmio di Genova e Imperia SpA (Carige) (C-216/96) (Competition - Articles 85 and 86 of the EC Treaty - Standard bank conditions for current-account credit facilities and for the provision of general guarantees)

text:
C 86/2                 EN                 Official Journal of the European Communities                                    27.3.1999
accounts presented by the Member States in respect of the            composed of: G. Hirsch (Rapporteur), President of the
expenditure for 1991 of the European Agricultural                    Second Chamber, acting for the President of the Sixth
Guidance and Guarantee Fund (EAGGF), Guarantee                       Chamber, G. F. Mancini, J. L. Murray, H. Ragnemalm and
Section (OJ L 352, 31.12.1994, p. 82), inasmuch as it                K. M. Ioannou, Judges; D. Ruiz-Jarabo Colomer,
refuses to charge to the EAGGF the sum of DEM                        Advocate-General; R. Grass, Registrar, has given a
116 633 582,10 Ð the Court (Sixth Chamber), composed                 judgment on 21 January 1999, in which it has ruled:
of: P. J. G. Kapteyn, President of the Chamber, G. Hirsch
(Rapporteur), H. Ragnemalm, R. Schintgen and K. M.
Ioannou, Judges; A. La Pergola, Advocate-General; H. von             1. Standard bank conditions, in so far as they enable
Holstein, Deputy Registrar, for the Registrar, has given a                banks, in contracts for the opening of a
judgment on 21 January 1999, in which it:                                 current-account credit facility, to change the interest
                                                                          rate at any time by reason of changes occurring in the
                                                                          money market, and to do so by means of a notice
1. Dismisses the action.                                                  displayed on their premises or in such manner as they
                                                                          consider most appropriate, do not have as their object
                                                                          or effect the restriction of competition within the
2. Orders the Federal Republic of Germany to pay the                      meaning of Article 85(1) of the EC Treaty.
     costs.
                                                                     2. Standard bank conditions relating to the provision of
(1) OJ C 137, 3.6.1995.                                                   general guarantees to secure current-account credit
                                                                          facilities, which derogate from the general law
                                                                          concerning guarantees, such as the rules in the main
                                                                          proceedings, are not, taken as a whole, liable to affect
                                                                          trade between Member States within the meaning of
                                                                          Article 85(1) of the EC Treaty.
                JUDGMENT OF THE COURT
                                                                     3. The application of the abovementioned standard bank
                        (Sixth Chamber)                                   conditions does not constitute abuse of a dominant
                      of 21 January 1999                                  position within the meaning of Article 86 of the
                                                                          Treaty.
in Joined Cases C-215/96 and C-216/96 (references for a
preliminary ruling from the Tribunale di Genova): Carlo
                                                                     (1) OJ C 247, 24.8.1996.
Bagnasco and Others v. Banca Popolare di Novara soc.
coop. arl (BPN) (C-215/96), Cassa di Risparmio di
        Genova e Imperia SpA (Carige) (C-216/96) (1)
(Competition Ð Articles 85 and 86 of the EC Treaty Ð
Standard bank conditions for current-account credit
    facilities and for the provision of general guarantees)
                                                                                JUDGMENT OF THE COURT
                         (1999/C 86/03)
                                                                                (Fifth Chamber)
                                                                                of 21 January 1999
                 (Language of the case: Italian)
                                                                     in    Case     C-150/97: Commission of the European
                                                                                Communities v. Portuguese Republic (1)
  (Provisional translation; the definitive translation will be       (Failure by a Member State to fulfil its obligations Ð
           published in the European Court Reports)                                      Directive 85/337/EEC)
                                                                                (1999/C 86/04)
In Joined Cases C-215/96 and C-216/96: references to the
Court under Article 177 of the EC Treaty from the Tribu-                            (Language of the case: Portuguese)
nale di Genova (Genoa District Court) (Italy) for a
preliminary ruling in the proceedings pending before that
court between Carlo Bagnasco and Others and Banca
Popolare di Novara soc. coop. arl (BPN) (C-215/96),                    (Provisional translation; the definitive translation will be
Cassa di Risparmio di Genova e Imperia SpA (Carige)                             published in the European Court Reports)
(C-216/96) Ð on the interpretation of Articles 85 and 86
of the EC Treaty in relation to certain standard bank
conditions which the Associazione Bancaria Italiana                  In Case C-150/97: Commission of the European
imposes on its members when contracts are concluded for              Communities (Agent: Francisco de Sousa Fialho) v.
current-account credit facilities and for the provision of           Portuguese Republic (Agents: Luís Fernandes and Pedro
general guarantees Ð the Court (Sixth Chamber),                      Portugal) Ð application for a declaration that, by failing


title: Judgment of the Court of 7 January 2004 in Case C-117/01 (Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division): K.B. v National Health Service Pensions Agency, Secretary of State for Health (Article 141 EC — Directive 75/117/EEC — Equal treatment for men and women — Transsexual partner not entitled to a survivor's pension payable solely to a surviving spouse — Discrimination on grounds of sex)

text:
21.2.2004                EN                           Official Journal of the European Union                                                  C 47/3
The principle of cooperation arising from Article 10 EC imposes on            Advocate General; L. Hewlett, Principal Administrator, for the
an administrative body an obligation to review a final administrative         Registrar, has given a judgment on 7 January 2004, in which
decision, where an application for such review is made to it, in order        it has ruled:
to take account of the interpretation of the relevant provision given in
the meantime by the Court where                                               Article 141 EC, in principle, precludes legislation, such as that at
                                                                              issue before the national court, which, in breach of the European
—     under national law, it has the power to reopen that decision;           Convention for the Protection of Human Rights and Fundamental
                                                                              Freedoms, signed in Rome on 4 November 1950, prevents a couple
—     the administrative decision in question has become final as a           such as K.B. and R. from fulfilling the marriage requirement which
      result of a judgment of a national court ruling at final instance;      must be met for one of them to be able to benefit from part of the
                                                                              pay of the other. It is for the national court to determine whether in a
—     that judgment is, in the light of a decision given by the Court         case such as that in the main proceedings a person in K.B.’s situation
      subsequent to it, based on a misinterpretation of Community             can rely on Article 141 EC in order to gain recognition of her right
      law which was adopted without a question being referred to the          to nominate her partner as the beneficiary of a survivor’s pension.
      Court for a preliminary ruling under Article 234(3) EC; and
                                                                              (1) OJ C 150 of 19.5.2001.
—     the person concerned complained to the administrative body
      immediately after becoming aware of that decision of the Court.
(1) OJ C 61 of 24.2.2001.
                                                                                JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                   JUDGMENT OF THE COURT                                                              of 11 December 2003
                          of 7 January 2004                                   in Case C-215/01 (Reference for a preliminary ruling from
                                                                                the Amtsgericht Augsburg): Bruno Schnitzer (1)
in Case C-117/01 (Reference for a preliminary ruling from
the Court of Appeal (England & Wales) (Civil Division):                       (Freedom to provide services — Directive 64/427/EEC —
K.B. v National Health Service Pensions Agency, Secretary                     Skilled services in the plastering trade — National rules
                        of State for Health (1)                               requiring foreign skilled-trade undertakings to be entered on
                                                                                the trades register — Proportionality)
(Article 141 EC — Directive 75/117/EEC — Equal treatment
                                                                                (2004/C 47/05)
for men and women — Transsexual partner not entitled to a
survivor’s pension payable solely to a surviving spouse —
                Discrimination on grounds of sex)                                                 (Language of the case: German)
                           (2004/C 47/04)                                     (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                     (Language of the case: English)
                                                                              In Case C-215/01: Reference to the Court under Article 234
                                                                              EC by the Amtsgericht Augsburg (Germany) for a preliminary
In Case C-117/01: Reference to the Court under Article 234                    ruling in the proceedings before that court against Bruno
EC by the Court of Appeal of England and Wales (Civil                         Schnitzer, on the interpretation of Articles 49 EC, 50 EC, 54
Division) for a preliminary ruling in the proceedings pending                 EC and 55 EC and Council Directive 64/427/EEC of 7 July
before that court between K.B. and National Health Service                    1964 laying down detailed provisions concerning transitional
Pensions Agency, Secretary of State for Health, on the interpret-             measures in respect of activities of self-employed persons in
ation of Article 141 EC and of Council Directive 75/117/EEC                   manufacturing and processing industries falling within ISIC
of 10 February 1975 on the approximation of the laws of the                   Major Groups 23-40 (Industry and small craft industries) (OJ,
Member States relating to the application of the principle of                 English Special Edition 1963-1964, p. 148), the Court (Fifth
equal pay for men and women (OJ 1975 L 45, p. 19), the Court,                 Chamber), composed of: D.A.O. Edward (Rapporteur), acting
composed of: V. Skouris, President, C.W.A. Timmermans,                        for the President of the Fifth Chamber, A. La Pergola and
J.N. Cunha Rodrigues (Rapporteur) and A. Rosas (Presidents                    S. von Bahr, Judges; J. Mischo, Advocate General; L. Hewlett,
of Chambers), D.A.O. Edward, J.-P. Puissochet, F. Macken,                     Principal Administrator, for the Registrar, has given a judgment
N. Colneric and S. von Bahr, Judges; D. Ruiz-Jarabo Colomer,                  on 11 December 2003, in which it has ruled:


title: Case T-133/13: Action brought on 4 March 2013 — Pro-Aqua International/OHIM — Rexair (WET DUST CAN’T FLY)

text:
               27.4.2013

               EN

               Official Journal of the European Union

               C 123/22

         Action brought on 4 March 2013 — Pro-Aqua International/OHIM — Rexair (WET DUST CAN’T FLY)
   (Case T-133/13)
   2013/C 123/37
   Language in which the application was lodged: English

      Parties

      Applicant: Pro-Aqua International GmbH (Ansbach, Germany) (represented by: T. Raible, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Rexair LLC (Troy, United States)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 December 2012 (in case R 211/2012-2);

               —

               Order OHIM to pay the costs, including those incurred in the proceedings before OHIM and the Board of Appeal of OHIM.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘WET DUST CAN’T FLY’ for products and services of classes 3, 7 and 37 (Community trade mark registration No 6 668 073)

      Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Applicant for the declaration of invalidity of the Community trade mark: The applicant

      Grounds for the application for a declaration of invalidity: The grounds of the request for a declaration of invalidity were those laid down in Article 52(1)(a) in conjunction with Article 7(1)(b) and (c) of Council Regulation No 207/2009

      Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009.


title: Case T-106/09: Judgment of the General Court of 9 September 2010 — adp Gauselmann v OHIM — Maclean (Archer Maclean’s Mercury) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Archer Maclean’s Mercury — Earlier national word mark Merkur — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/39

      Judgment of the General Court of 9 September 2010 — adp Gauselmann v OHIM — Maclean (Archer Maclean’s Mercury)
      (Case T-106/09) (1)

      (Community trade mark - Opposition proceedings - Application for the Community figurative mark Archer Maclean’s Mercury - Earlier national word mark Merkur - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)
      (2010/C 288/74)
      Language of the case: English

         Parties

         Applicant: adp Gauselmann GmbH (Espelkamp, Germany) (represented by: P. Koch Moreno, lawyer)

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

         Other party to the proceedings before the Board of Appeal of OHIM: Archer Maclean (Banbury, Oxfordshire, United Kingdom)

         Re:

      Action brought against the decision of the First Board of Appeal of OHIM of 12 January 2009 (Case R 1266/2007-1), relating to opposition proceedings between adp Gauselmann GmbH and Archer Maclean

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders adp Gauselmann GmbH to pay the costs.

         (1)  OJ C 113, 16.5.2009.


5.4.2003               EN                      Official Journal of the European Union                                           C 83/17
        Removal from the register of Case C-444/01 ( 1)                from the register of Case C-215/02 (Reference for a preliminary
                                                                       ruling by the Sozialgericht Stuttgart): Karin Müller v Postbeam-
                         (2003/C 83/35)                                tenkrankenkasse.
                                                                       (1 ) OJ C 202 of 24.8.2002.
By order of 12 December 2002 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-444/01 (Reference for a preliminary
ruling by the Bundesverwaltungsgericht): Stadt Villingen-
Schwenningen v Ophilia Akosua Owusu.
                                                                             Removal from the register of Case C-241/02 P ( 1)
( 1) OJ C 84 of 06.4.2002.
                                                                                (2003/C 83/39)
                                                                       By order of 6 January 2003 the President of the Court of
                                                                       Justice of the European Communities ordered the removal
        Removal from the register of Case   C-61/02 (1)
                                                                       from the register of Case C-241/02 P: International and
                                                                       European Public Services Organisation (IPSO) v European
                         (2003/C 83/36)
                                                                       Central Bank.
By order of 19 December 2002 the President of the Court of             (1 ) OJ C 191 of 10.8.2002.
Justice of the European Communities ordered the removal
from the register of Case C-61/02: Commission of the
European Communities v Republic of Austria.
( 1) OJ C 97 of 20.4.2002.
                                                                               Removal from the register of Case C-337/02 ( 1)
                                                                                (2003/C 83/40)
        Removal from the register of Case C-191/02 ( 1)                By order of 4 February 2003 the President of the Court of
                                                                       Justice of the European Communities ordered the removal
                         (2003/C 83/37)                                from the register of Case C-337/02: Commission of the
                                                                       European Communities v Italian Republic.
By order of 16 December 2002 the President of the Court of             (1 ) OJ C 274 of 9.11.2002.
Justice of the European Communities ordered the removal
from the register of Case C-191/02: Commission of the
European Communities v Federal Republic of Germany.
( 1) OJ C 180 of 27.7.2002.
                                                                               Removal from the register of Case C-368/02 ( 1)
                                                                                (2003/C 83/41)
        Removal from the register of Case C-215/02 ( 1)
                                                                       By order of 23 January 2003 the President of the Court of
                         (2003/C 83/38)                                Justice of the European Communities ordered the removal
                                                                       from the register of Case C-368/02: Commission of the
                                                                       European Communities v Kingdom of Spain.
By order of 16 December 2002 the President of the Court of
Justice of the European Communities ordered the removal                (1 ) OJ C 305 of 7.12.2002.


title: Reference for a preliminary ruling by the Tribunale di Catania, First Civil Chamber, by order of that court of 14 October 1996 in the case of ISFA SpA v. Ministero delle Finanze (Case C-363/96)

text:
  11 . 1 . 97           1 EN                   Official Journal of the European Communities                                   No C 9/ 11
  Reference for a preliminary ruling by the Finanzgericht                  The Commission of the European Communities claims
  Kôln by order of that court of 29 August 1996 in the case                that the Court should :
  of Société générale des grandes sources d'eaux minérales
             françaises against Bundesamt fiir Finanzen                    — declare that, by failing to bring into force within the
                                                                                prescribed time limits the laws, regulations and
                            ( Case C-361 /96 )
                                                                                administrative measures necessary in order to comply
                                 ( 97/C 9/19 )                                   with Commission Directive 93/106/EC (') amending
                                                                                Directive 92/76/EEC (2 ) recognizing protected zones
                                                                                exposed to particular plant health risks in the
                                                                                Community, and Commission Directive 94/3/EC ( 3 ) of
 Reference has been made to the Court of Justice of the                          21 January 1994 establishing a procedure for the
 European Communities by order of the Second Senate of                           notification of interception of a consignment or a
 the Finanzgericht Koln ( Finance Court, Cologne ) of                            harmful organism from third countries and presenting
 29 August 1996, received at the Court Registry on                               an imminent phytosanitary danger, and by failing to
  12 November 1996, for a preliminary ruling in the case of                      communicate those measures to the Commission, the
 Societe generate des grandes sources d'eaux minerales                           Grand Duchy of Luxembourg has failed to fulfil its
 frangaises against Bundesamt fur Finanzen ( Federal                             obligations pursuant to Article 2 of Directive 93/106/
 Finance Office ) on the following questions :                                   EC and Article 7 of Directive 94/3/EC respectively,
                                                                          — order the Grand Duchy of Luxembourg to pay the
 ( a ) Does Article 3 ( a ) of the eighth Council Directive 79/                 costs .
        1072/EEC of 6 December 1979 on the harmonization
       of the laws of the Member States relating to turnover              Pleas in law and main arguments adduced in support:
       taxes ( J ) preclude the Member States from providing
       in their national law that where an invoice or import              The pleas in law and main arguments are the same as in
       document is lost for reasons beyond the control of a               Case C-356/96 (4 ); the time limit for transposition expired
       taxable person referred to in Article 2 of the Directive,          on 15 December 1993 in the case of Directive 93/ 106/EC
       that person may prove his entitlement to a refund by               and on 5 May 1994 in the case of Directive 94/3/EC.
       submitting a duplicate of tfie invoice or import
       document ?                                                         (') OJ No L 298 , 3 . 12 . 1993 , p. 34 .
                                                                          ( 2 ) OJ No L 305 , 21 . 10 . 1992 , p. 12 .
                                                                          ( 3 ) OJ No L 32, 5 . 2. 1994, p. 37.
 ( b ) Should the first question be answered in the negative,             (4) OJ No C 370, 7. 12 . 1996, p. 10.
       does it follow from the prohibition on discrimination
       under Community law and from the principle of
       neutrality of turnover taxes that a taxable person
       referred to in Article 2 of the Directive, who loses an
       invoice or import document referred to in Article 3 ( a )
                                                                         Reference for a preliminary ruling by the Tribunale di
       for reasons beyond his control, has the right to prove
                                                                         Catania, First Civil Chamber, by order of that court of
       his entitlement to a refund by submitting a duplicate
                                                                          14 October 1996 in the case of ISFA SpA v. Ministero
       of the invoice or import document ?                                                              delle Finanze
                                                                                ( Case C-363/96 )
( J ) OJ No L 331 , 27. 12 . 1979, p . 11 .
                                                                                ( 97/C 9/21 )
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of Tribunale di Catania
                                                                         ( District Court, Catania ), First Civil Chamber, of
                                                                          14 October 1996, which was received at the Court
                                                                         Registry on 13 November 1996 , for a preliminary ruling
Action brought on 13 November 1996 by the Commission                     in the case of ISFA SpA v. Ministero delle Finanze on the
of the European Communities against the Grand Duchy of                   following question :
                              Luxembourg
                                                                         Is it permissible under Community law for the competent
                          ( Case C-362/96 )                              authorities of the Italian State reasonably to rely on
                                                                         national procedural rules concerning the periods within
                               ( 97/C 9/20 )                             which proceedings must be brought ( in particular, the
                                                                         second paragraph of Article 13 of Presidential Decree
                                                                         No 641 of 26 October 1972 concerning a three-year
An action against the Grand Duchy of Luxembourg was                      period for bringing actions ) in proceedings brought against
brought before the Court of Justice of the European                      those authorities by an individual before a national court
Communities on 13 November 1996 by the Commission                        for the purpose of safeguarding the right to reimbursement
of the European Communities, represented by Gerard                       of amounts unduly paid ( in respect of administrative
Berscheid, of its Legal Service, acting as Agent, with an                charges under Decree Law No 853/84, converted into Law
address for service in Luxemburg at the office of Carlos                 No 17/85 , as subsequently amended ) in contravention of
Gomez de la Cruz, Wagner Centre, Kirchberg.                              the rules laid down in Council Directive 69/335/EEC of
 ---pagebreak--- No C 9/ 12            1 EN |                    Official Journal of the European Communities                                   11 . 1 . 97
17 July 1969 concerning indirect taxes on the raising of                        gas sector by legislation and has to that end
capital (*), with reference to the period during which the                      submitted, pursuant to Article 189b (2 ) of the EC
Italian State had not correctly transposed the provisions of                    Treaty, a proposal to the Council of the European
the Directive into its domestic legal system (a period                          Union, which is working on the adoption of a
which did not end until the entry into force of Decree Law                      common position, for a European Council and
No 331 of 30 August 1993 , converted into Law No 427                            Parliament Directive concerning common rules for
of 29 October 1993 )?                                                           the internal market in natural gas ( ! ) mean that the
                                                                                competent authorities of a Member State pursuant to
H OJ No L 249 , 3 . 10 . 1969 , p . 25 .                                        Article 9 ( 3 ) of Council Regulation No 17 of
                                                                                6 February 1962 (2 ) are precluded on the basis of the
                                                                                second paragraph of Article 5 of the Treaty, under
                                                                                which the Member States are to abstain from any
                                                                                measure which could prejudice the attainment of the
                                                                                objectives of the Treaty, from applying Article 85 ( 1 )
Reference for a preliminary ruling from the Bezirksgericht                      of the Treaty by administrative order to an agreement
fur Handelssachen Wien, by judgment of that court                               under which two domestic long-distance gas
of      21   October         1996,     in   the  case     of    Verein          undertakings mutually undertake to refrain from
fur      Konsumenteninformation against              Osterreichische            publicly supplying mains gas, whether directly or
                      Kreditversicherung AG                                     indirectly, in the supply area of the other contracting
                            ( Case C-364/96 )                                   party (a market-sharing agreement)?
                               ( 97/C 9/22
                                                                            2 . If Question 1 is answered in the negative :
Reference has been made to the Court of Justice of the                          do the competent authorities of a Member State
European Communities by order of the Bezirksgericht fur                         within the meaning of Article 9 ( 3 ) of Regulation
Handelssachen Wien ( District Commercial Court, Vienna )                        No 17, by applying Article 85 ( 1 ) of the EC Treaty to
of 21 October 1996 , received at the Court Registry on                          a market-sharing agreement between two domestic
14 November 1996, for a preliminary ruling in the                               long-distance gas undertakings, when, in other
case of Verein fur Konsumenteninformation v. Oster                             Member States, such undertakings have sales areas
reichische Kreditversicherung AG on the                     following           protected by contract or de facto from competition or
question:                                                                       there are statutory monopolies over long-distance gas
                                                                                supply, infringe the obligation on the Member States
Is Article 7 of Council Directive 90/314/EEC of 13 June                         which follows from the second paragraph of Article 5
1990 on package travel, package holidays and package                            in conjunction with Article 3 (g) of the EC Treaty to
tours 0 ) to be interpreted as meaning that the payment of                      abstain from any measure which may jeopardize the
sums by a consumer to the provider of services ( e.g. a                         Community objective of establishing a system
hotel-keeper ) at the resort because the latter person                          ensuring that competition in the internal market is
prevented him from returning home unless payment was                            not distorted ?
made is included within the protective scope of that
provision as ' security for the repatriation of the                         3 . If Question 2 is answered in the negative :
consumer '?
                                                                                is there a measure (a selling arrangement) compatible
f 1 ) OJ No L 158 , 23 . 6 . 1990, p . 59 .                                     with the free movement of goods between Member
                                                                                States for the purposes of Article 30 of the EC Treaty,
                                                                                as interpreted by the Court of Justice in Joined Cases
                                                                                C-267/91 and 268/91 Keck and Mithouard [ 1993]
                                                                                ECR 1-6097, where the national legal order ( in
                                                                                Germany paragraph 103 of the Gesetz gegen Wettbe
Reference for a preliminary ruling by the Kammergericht,
                                                                                werbsbeschrankungen ( Law Against Restrictions on
Berlin, by order of that court of 30 October 1996 in the
                                                                                Competition )) exempts, on notification, market
case of Ruhrgas AG and Thyssengas GmbH against the
                          Bundeskartellamt                                      sharing agreements between long-distance gas
                                                                                undertakings — which avail themselves of this
                            ( Case C-365/96 )                                   possibility — from the prohibition on restrictive
                                ( 97/C 9/23 )                                   practices under national law and, if so, does it follow
                                                                                therefrom that the competent authorities of a
Reference has been made to the Court of Justice of the                          Member State pursuant to Article 9 ( 3 ) of Regulation
European Communities by order of the Kammergericht,                             No 17 may not apply the prohibition within the
 Berlin — Kartellsenat ( Cartel Chamber of the Berlin Court                     meaning of Article 85 ( 1 ) of the EC Treaty to such
 of Appeal ) of 30 October 1996, received at the Court                          exempted market-sharing agreements ?
 Registry on 19 November 1996, for a preliminary ruling
in the case of 1 . Ruhrgas AG and 2 . Thyssengas GmbH                       4 . If Question 3 is answered in the negative:
 against the Bundeskartellamt ( Federal Cartel Office ) on
                                                                                is Article 9 ( 3 ) of Regulation No 17, under which the
the following questions :
                                                                                authorities of the Member States remain competent
    1 . Does the fact that the European Commission is                           to apply Article 85 ( 1 ) of the EC Treaty as long as
        seeking to complete the internal market in the natural                  the Commission has not initiated any procedure,