title: Case C-497/10 PPU: Judgment of the Court (First Chamber) of 22 December 2010 (reference for a preliminary ruling from the Court of Appeal of England and Wales (Civil Division) — United Kingdom) — Barbara Mercredi v Richard Chaffe (Judicial cooperation in civil matters — Regulation (EC) No 2201/2003 — Matrimonial matters and parental responsibility — Child whose parents are not married — Concept of ‘habitual residence’ of an infant — Concept of ‘rights of custody’ )

text:
               19.2.2011

               EN

               Official Journal of the European Union

               C 55/17

         Judgment of the Court (First Chamber) of 22 December 2010 (reference for a preliminary ruling from the Court of Appeal of England and Wales (Civil Division) — United Kingdom) — Barbara Mercredi v Richard Chaffe
   (Case C-497/10 PPU) (1)

   (Judicial cooperation in civil matters - Regulation (EC) No 2201/2003 - Matrimonial matters and parental responsibility - Child whose parents are not married - Concept of ‘habitual residence’ of an infant - Concept of ‘rights of custody’)
   2011/C 55/30
   Language of the case: English

      Referring court

   Court of Appeal of England and Wales (Civil Division)

      Parties to the main proceedings

      Applicant: Barbara Mercredi

      Defendant: Richard Chaffe

      Re:

   Reference for a preliminary ruling — Court of Appeal (England & Wales) (Civil Division) — Interpretation of Articles 8 and 10 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) — Concept of habitual residence — Child born in the United Kingdom of a British father and French mother with the nationality of the mother, the parents being unmarried — Child removed to Reunion by the mother — Lawful removal when it took place because the mother then had parental responsibility for the child — Subsequent application for parental responsibility, shared custody and access brought by the father before the British courts — Order of the High Court ordering the return of the child to the United Kingdom — Order challenged by the mother on the ground that the child was no longer habitually resident in the United Kingdom when the court was seised

      Operative part of the judgment

               1.

               The concept of ‘habitual residence’, for the purposes of Articles 8 and 10 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State — other than that of her habitual residence — to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother’s move to that State and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case.
               If the application of the abovementioned tests were, in the case in the main proceedings, to lead to the conclusion that the child’s habitual residence cannot be established, which court has jurisdiction would have to be determined on the basis of the criterion of the child’s presence, under Article 13 of the Regulation.

               2.

               Judgments of a court of a Member State which refuse to order the prompt return of a child under the Hague Convention of 25 October 1980 on the civil aspects of international child abduction to the jurisdiction of a court of another Member State and which concern parental responsibility for that child have no effect on judgments which have to be delivered in that other Member State in proceedings relating to parental responsibility which were brought earlier and are still pending in that other Member State.

      (1)  OJ C 328, 04.12.2010.


20 . 7 . 96           EN                  Official Journal of the European Communities                                No C 210/23
Action brought on 22 May 1996 by Garage Massol SARL                  The applicant contends, in particular, that, according to
  against the Commission of the European Communities                 settled case-law, the Commission is obliged to investigate
                        ( Case T-77/96 )                             every complaint referred to it and that, contrary to that
                                                                     case-law, it has failed either to respond to the formal notice
                          ( 96/C 210/52 )                            served by the applicant or to investigate its complaint.
                                                                     Furthermore, it has refused to communicate details of the
                 (Language of the case: French)                      inquiry carried out into the affairs of Automobiles Peugeot
                                                                     and/or PSA, thereby negating results obtained at the expense
                                                                     of European taxpayers and robbing the principle of
An action against the Commission of the European                     subsidiarity of all practical effect.
Communities was brought before the Court of First
Instance of the European Communities on 22 May 1996 by               In a different connection, the applicant contends that to
Garage Massol SARL, established at Frejairolles ( France ),          refuse to undertake an analysis of the agreement and of the
represented by Jean Louis Portolano, of the                          contractual practices engaged in by Peugeot, on the pretext
Aix-en-Provence Bar, with an address for service in
                                                                     that the Commission was already examining a similar case
Luxembourg at the Chambers of Roy Nathan, of Nathan &                in the course of its inquiries , amounts to an infringement of
Noesen, 18 rue des Glacis .
                                                                     Article 155 of the Treaty, which confers on the Commission
                                                                     responsibility for ensuring compliance with the Treaty
The applicant claims that the Court should :                         provisions . Such a refusal to investigate the complaint is all
                                                                     the more irregular since the Commission enjoys sole power,
— declare that the Commission has failed to act in relation          under Council Regulation No 17, to determine breaches of
     to complaints lodged by Massol SARL,                            the competition rules and has exclusive competence to
                                                                     define which individual matters or categories are to be
— annual the decision implicitly rejecting the complaints            exempt pursuant to Article 85 ( 3 ) of the Treaty .
     and the decision refusing to communicate the replies of
     Automobiles Peugeot and/or PSA,                                 In addition, the Commission's refusal to communicate its
                                                                     correspondence with Automobiles Peugeot and/or the PSA
— find that the Commission has incurred non-contractual
                                                                     group must be regarded as contrary to the right to a fair
                                                                     hearing, the principle of audi alteram partem and the
     liability and order it to make good the damage suffered         established right of an applicant to seek judicial review of
     by Massol SARL in the annual sum of up to ECU                   express decisions of the Commission .
     180 000 from 25 May 1994,
— order the Commission to pay the costs, including a
     contribution of up to FF 100 000 in respect of lawyers '
     fees .
Pleas in law and main arguments                                            Removal from the register of Case T-109/95 ( )
                                                                                ( 96/C 210/53 )
The applicant, a garage marketing Peugeot vehicles in
France outside the network of concessionaires within the                            (Language of the case: English)
PSA group, objects to the Commission's failure to act on the
complaint lodged by it against the system set up by that
group . On the basis of that dealership system, the accredited       By order of 23 April 1996 , the President of the Fourth
concessionaires are opposing, collectively and in concert,           Chamber of the Court of First Instance of the European
the activities of resellers who are not accredited by the            Communities ordered the removal from the register of
manufacturer, contending that the activities of independent          Case T-109/95 : X v . Commission of the European
                                                                     Communities .
resellers are illegal under Regulation ( EEC ) No 123/85 .
Concurrently, and with a view to reserving to themselves the
business of supplying and reselling new Peugeot vehicles,            (') OJ No C 174 , 8 . 7 . 199 5 .
PSA and the distributors within its network have claimed
that their dealership agreements are legal, on the ground
that, according to them, those agreements fulfil the various
exemption criteria laid down by that Regulation .
The reason given for the Commission's refusal to investigate
the complaint was that it was not for the Commission to                    Removal from the register of Case T-157/95 ( )
assume the role assigned to the national courts, before                                        ( 96/C 210/54 )
which proceedings between the applicant and several
dealers are already pending, and that the complaint in
question did not touch on issues of Community interest,
                                                                                (Language of tbe case: Englisb)
since the Commission was already investigating a particular
case calling in question the conditions or practices alluded to       By order of 25 April 1996 , the President of the First
 by it.                                                               Chamber ( Extended Composition ) of the Court of First
 ---pagebreak--- No C 210/24          EN                 Official Journal of the European Communities                              20 . 7 . 96
Instance of the European Communities ordered the removal           Communities ordered the removal from the register of Case
from the register of Case T-157/95 : the European                  T-233/95 , T v. European Parliament.
Association of Mozzarella Manufacturers, Golden Food
Products Limited, Carbery Milk Products Ltd, Dansco                (>) OJ No C 95 , 30 . 3 . 1996 .
Dairy Products Ltd and Express Foods ( Northern Ireland )
Limited v. Commission of the European Communities .
(M OJ No C 286 , 28 . 10 . 1995 .
                                                                        Removal from the register of Case T-219/95 ( )
                                                                                ( 96/C 210/56 )
                                                                                (Language of the case: English)
     Removal from the register of Case T-233/95 ( )                By order of 23 May 1996 , the President of the Fifth
                                                                   Chamber ( Extended Composition ) of the Court of First
                        ( 96/C 210/55 )
                                                                   Instance of the European Communities ordered the removal
                                                                   from the register of Case T-219/95 , Marie-Thérèse
               (Language of the case: Greek)                       Danielsson, Pierre Largenteau and Edwin Haoa v.
                                                                   Commission of the European Communities .
By order of 23 May 1996 , the President of the Second
Chamber of the Court of First Instance of the European             (!) OJ No C 77, 16 . 3 . 1996 .


title: Action brought on 5 December 1995 by the Commission of the European Communities against the Hellenic Republic (Case C-380/95)

text:
3 . 2 . 96               EN I             Official Journal of the European Communities                                 No C 31 / 13
Dobelle , acting as Agents, with an address for service in           against a Member State for national legislation which is
Luxembourg at the French Embassy, 9 Boulevard Prince                 incompatible with the Treaty .
Henri
                                                                     (') OJ No C 286 , 28 . 10 . 1995 p . 12 .
The appellant claims that the Court should :
— annul the judgment of the Court of First Instance of
     18 September 1995 in Case T-548/93 , Ladbroke Racing
     Ltd v. Commission of the European Communities in so             Action brought on 5 December 1995 by the Commission of
     far as that judgment annuls the decision of the                 the European Communities against the Hellenic Republic
     Commission contained in the letter of 29 July 1993
                                                                                ( Case C-380/95 )
     rejecting Ladbroke 's complaint of 29 November
     1989 ,                                                                                ( 96/C 31 /25 )
— uphold the submissions put forward by the Commission               An action against the Hellenic Republic was brought before
     at first instance .                                             the Court of Justice on 5 December 1995 by the
                                                                     Commission of the European Communities , represented by
                                                                     Maria Kontou Durande of its Legal Service, with an address
Pleas in law and main arguments adduced in support:                  for service in Luxembourg at the office of Carlo Gomez de la
                                                                     Cruz, also of the Commission 's Legal Service, Wagner
The French Government considers that the Court of First              Centre, Kirchberg.
Instance erred in law in a number of respects .
                                                                     The applicant claims that the Court should :
In the first place , and principally, the French Government
considers that the Court's reasoning fails to take account of        1 . declare that, by failing to adopt within the prescribed
the case-law on the conduct of undertakings in the context                period the laws, regulations or administrative provisions
of national legislation which leaves no room for autonomy                 necessary to comply with Council Directive 91 /414/EEC
in such conduct .                                                         of 15 July 1991 concerning the placing of plant
                                                                          protection products on the market, the Hellenic
Where such conduct is required by statute, that is to say,                Republic has failed to fulfil its obligations under the
when there is no scope for autonomy as regards conduct                    Treaty and that Directive;
which may be the subject of a complaint, the application of
Articles 85 and 86 to the undertakings responsible must be           2 . order the Hellenic Republic to pay the costs .
excluded as long as the relevant legislation remains in
force .                                                              Pleas in law and main arguments adduced in support:
The French Government considers that when a complaint                Pursuant to the second paragraph of Article 169 of the
based on Articles 85 , 86 and 90 of the Treaty and                   Treaty, the Commission requests the Court to declare that,
concerning both the conduct of undertakings and national              by failing to take the necessary steps within the prescribed
measures relevant thereto has been brought before the                period ( which expired on 25 July 1993 ) to transpose into
Commission, it is bound to ascertain whether the national             Greek law Council Directive 91 /414/EEC of 15 July 1991
measures leave some degree of autonomy to the                        concerning the placing of plant protection products on the
undertakings . If they do not, the Commission must reject             market ('), the Hellenic Republic has failed to fulfil its
that part of the complaint which is based on Articles 85 and          obligations under the Treaty and the Directive .
 86 having to rule on the part of the complaint which
concerns the compatibility of the national measures with the          (') OJ No L 230 , 19 . 8 . 1991 , p . 1 .
Treaty . The Court of First Instance erred in law in its
reasoning, therefore, in deciding that the Commission
 should have completed its examination of the compatibility
 of the French legislation with the Treaty before rejecting the
 part of Ladbroke's complaint concerning Articles 85 and 86
 of the Treaty .                                                      Action brought on 6 December 1995 by the Commission
                                                                      of the European Communities against the Kingdom of
                                                                                Spain
 In the second place , the judgment appealed against takes no
 account of the consistent case-law to the effect that natural                                ( Case C-381 /95 )
 or legal persons who have sought confirmation from the                                            ( 96/C 31 /26 )
 Commission, pursuant to Article 3 ( 2)b of Regulation
 17/62 , that a breach of those articles has occurred are not         An action against the Kingdom of Spain was brought before
 entitled to demand that a decision be made as to whether or          the Court of Justice of the European Communities on
 not the alleged breach exists .                                      6 December 1995 by the Commission of the European
                                                                      Communities , represented by Miguel Diaz-Llanos La
 Lastly, the judgment has the effect of negating the                  Roche, with an address for service in Luxembourg at the
 Commission's discretion in deciding whether to take action           office of Carlos Gomez de la Cruz .


title: Case T-46/09: Action brought on 6 February 2009 — Hellenic Republic v Commission

text:
               18.4.2009

               EN

               Official Journal of the European Union

               C 90/27

         Action brought on 6 February 2009 — Hellenic Republic v Commission
   (Case T-46/09)
   2009/C 90/44
   Language of the case: Greek

      Parties

      Applicant: Hellenic Republic (represented by: V. Kontolaimos, I. Khalkias and S. Kharitaki, State Legal Advisers, and S. Papaioannou, Legal Representative in the State Legal Service)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               annul or alter the contested decision as more specifically set out in the application and order the Commission to pay the costs.

      Pleas in law and main arguments

   This action challenges Commission Decision C(2008) 7820 final of 8 December 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF), notified to the applicant under reference number SG-Greffe (2008) D 207864/09-12-2008.
   The applicant puts forward 12 pleas in support of its claim for annulment.
   More specifically, in the citrus sector, the applicant submits under the first plea for annulment that the Commission misinterpreted and misapplied, with regard to the amount of the proposed correction, Commission documents AGRI VI 5330/97, AGRI 61495/2002/REV I and AGRI/60637/2006 (Calculation of financial consequences when clearing EAGGF accounts — Guidelines — Repeated shortcomings — Recurrence), since there was not a lack of basic controls, nor repeated shortcomings in the citrus aid regime, while the applicant submits in the second plea for annulment that the Commission appraised the factual circumstances incorrectly and imposed a disproportionate financial correction since the administrative and financial controls were effected and payment in cash related to just one instance.
   In the field of cotton aid, under the third plea for annulment the applicant puts forward five more specific submissions: (a) the correction was, in its view, arbitrary and disproportionate because account was not taken of the improvement in the system and the belated change to the cotton aid regime in 2001; (b) the correction had to be different each year, given that the state of the control system was not the same in both periods; (c) the compatibility of the cotton aid regime with the integrated administration and control system (IACS) was ensured; (d) the environmental measures were checked at an appropriate time; and (e) the on-the-spot checks of the areas (5%) were carried out in a timely and effective manner.
   So far as concerns bovine premiums, the applicant asserts under the fourth plea for annulment that the contested decision is vitiated because it was adopted beyond the reasonable period within which the clearance procedure should be completed, and it should be annulled on the basis that it was adopted by an organ which lacked competence ratione temporis and/or that it was adopted in abuse of the Commission’s right in that regard and/or that it infringes the legal certainty enjoyed by the Member States.
   In the fifth plea for annulment, it is submitted in the alternative that the Commission’s decision should be annulled because, in imposing the corrections, it goes back to a time preceding the common conciliation letter or, in the alternative, the last letter of observations.
   In the sixth plea for annulment, regarding, more specifically, the reasons for imposition of corrections, the applicant pleads misinterpretation and misapplication of Article 7 of Regulation (EC) No 1258/99 (1) and the guidelines, misappraisal of the factual circumstances and evidence or, in the alternative, error as to the facts, and a lack of reasoning.
   In the field of olive-oil aid, the applicant submits under the seventh plea for annulment that the contested decision is vitiated because it was adopted beyond the reasonable period within which the clearance procedure should be completed, and it should be annulled on the basis that it was adopted by an organ which lacked competence ratione temporis and/or that it was adopted in abuse of the Commission’s right in that regard and/or that it infringes the legal certainty enjoyed by the Member States.
   In the eighth plea for annulment, it is submitted in the alternative that, in imposing the corrections, the contested decision unlawfully goes back to a time preceding the common conciliation letter or, in the alternative, the last letter of observations.
   In the ninth plea for annulment, regarding, more specifically, the reasons for imposition of a correction, the applicant submits that the contested decision should be annulled for misinterpretation of Regulations (EC) Nos 1258/99 and 1663/95, (2) of the guidelines VI 5330/97 and AGRI 61495/2002, and of the provisions that concern more specifically the regime at issue (Article 16 of Regulation (EEC) No 2261/84, (3) Articles 27 and 28 of Regulation (EEC) No 2366/98 (4) and Articles 2 and 2a of Regulation (EC) No 1638/98), (5) for error as to the facts, for misappraisal of the factual circumstances, for lack of reasoning and for breach of the principle of proportionality.
   Finally, with regard to the exceeding of the financial limits for corrections/late payments, it is submitted in the tenth plea for annulment that, in so far as the contested decision concerns investigation FA/2005/70, it should be annulled for breach of rules governing the procedure for clearance of accounts and of Regulation (EC) No 817/2004, (6) for lack of reasoning and for breach of the principle of proportionality.
   In the eleventh plea for annulment, the applicant submits that the contested decision should also be annulled in respect of the section concerning accounting investigation FA/2006/108 for breach of the rules governing the clearance procedure, misapplication of Regulation (EC) No 296/96, (7) misappraisal of the facts, lack of reasoning and breach of the principle of proportionality, while, finally, the twelfth plea for annulment contests on the basis of insufficient reasoning the section of the contested decision concerning investigation FA/2006/137.

      (1)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103).

      (2)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ 1995 L 158, p. 6).

      (3)  Council Regulation (EEC) No 2261/84 of 17 July 1984 laying down general rules on the granting of aid for the production of olive oil and of aid to olive oil producer organisations (OJ 1984 L 208, p. 3).

      (4)  Commission Regulation (EC) No 2366/98 of 30 October 1998 laying down detailed rules for the application of the system of production aid for olive oil for the 1998/99, 1999/2000 and 2000/01 marketing years (OJ 1998 L 293, p. 50).

      (5)  Council Regulation (EC) No 1638/98 of 20 July 1998 amending Regulation No 136/66/EEC on the establishment of a common organisation of the market in oils and fats (OJ 1998 L 210, p. 32).

      (6)  Commission Regulation (EC) No 817/2004 of 29 April 2004 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2004 L 153, p. 31).

      (7)  Commission Regulation (EC) No 296/96 of 16 February 1996 on data to be forwarded by the Member States and the monthly booking of expenditure financed under the Guarantee Section of the Agricultural Guidance and Guarantee Fund (EAGGF) and repealing Regulation (EEC) No 2776/88 (OJ 1996 L 39, p. 5).


title: Case T-174/10: Judgment of the General Court of 22 September 2011 — ara v OHIM — Allrounder (A with two rectangular motifs) (Community trade mark — Opposition procedure — International registration covering the European Community — Figurative mark A with two triangular motifs — Earlier national word mark A — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               29.10.2011

               EN

               Official Journal of the European Union

               C 319/18

         Judgment of the General Court of 22 September 2011 — ara v OHIM — Allrounder (A with two rectangular motifs)
   (Case T-174/10) (1)

   (Community trade mark - Opposition procedure - International registration covering the European Community - Figurative mark A with two triangular motifs - Earlier national word mark A - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2011/C 319/36
   Language of the case: French

      Parties

      Applicant: ara AG (Langenfeld, Germany) (represented initially by M. Gial, then by M. Gial and H. Pernez, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Allrounder SARL (Sarrebourg, France) (represented by: N. Boespflug, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 26 January 2010 (Case R 481/2009-1) concerning opposition proceedings between ara AG and Allrounder SARL.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders ara AG to pay the costs.

      (1)  OJ C 179, 3.7.2010.


title: Case C-211/13: Action brought on 19 April 2013 — European Commission v Federal Republic of Germany

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/23

         Action brought on 19 April 2013 — European Commission v Federal Republic of Germany
   (Case C-211/13)
   2013/C 171/45
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: W. Mölls and W. Roels, acting as Agents)

      Defendant: Federal Republic of Germany

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that, by adopting and retaining provisions under which only a low tax-free allowance is granted when inheritance and gift tax are applied to immoveable property situated in Germany if the donor or the deceased person and the acquiring party were resident in another Member State at the time of the inheritance or gift, whereas a considerably higher tax-free allowance is granted if at least one of the two parties concerned was resident in Germany at that time, the Federal Republic of Germany has failed to fulfil its obligations under Article 63 TFEU;

               —

               order the Federal Republic of Germany to pay the costs.

      Pleas in law and main arguments

   The taxation of inheritances and gifts is mitigated under German law by relatively high tax-free allowances, particularly in the case of inheritances and gifts between spouses, between parents and children and between certain relatives. These high tax-free allowances are, however, applicable only if Germany exercises an unrestricted right to tax whereas only a low, flat-rate tax-free allowance is applicable if the right to tax is restricted. According to the criteria which the Court of Justice set out in Mattner
       (1), those rules are incompatible with Article 63 TFEU.

      (1)  Judgment in Case C-510/08 Mattner [2010] ECR I-3553.


title: Case C-134/15: Request for a preliminary ruling from the Sächsisches Oberverwaltungsgericht (Germany) lodged on 19 March 2015 — Lidl Dienstleistungs-GmbH & Co. KG v Freistaat Sachsen

text:
               22.6.2015

               EN

               Official Journal of the European Union

               C 205/15

         Request for a preliminary ruling from the Sächsisches Oberverwaltungsgericht (Germany) lodged on 19 March 2015 — Lidl Dienstleistungs-GmbH & Co. KG v Freistaat Sachsen
   (Case C-134/15)
   (2015/C 205/20)
   Language of the case: German

      Referring court

   Sächsisches Oberverwaltungsgericht

      Parties to the main proceedings

      Appellant: Lidl Dienstleistungs-GmbH & Co. KG

      Respondent: Freistaat Sachsen

      Questions referred

               1.

               Is Article 5(4)(b) of Regulation (EC) No 543/2008 (1) compatible with the first subparagraph of Article 6(1) of the Treaty on European Union (TEU), in conjunction with Articles 15(1) and 16 of the Charter of Fundamental Rights of the European Union?

               2.

               Is Article 5(4)(b) of Regulation (EC) No 543/2008 compatible with the second subparagraph of Article 40(2) TFEU?

      (1)  Commission Regulation (EC) No 543/2008 of 16 June 2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultrymeat (OJ 2008 L 157, p. 46).


title: Judgment of the Court 29 January 2002 in Case C-162/00 (Reference for a preliminary ruling from the Bundesarbeitsgericht): Land Nordrhein-Westfalen v Beata Pokrzeptowicz-Meyer (External relations — Europe Agreement between the Communities and Poland — Interpretation of the first indent of Article 37(1) — Prohibition of discrimination based on nationality as regards conditions of employment or dismissal for Polish workers legally employed in a Member State — Fixed-term contract of employment of a foreign-language assistant — Effect on such a contract of the entry into force of the Europe Agreement)

text:
20.4.2002               EN                      Official Journal of the European Communities                                                  C 97/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                             and their Member States, of the one part, and the Republic of
                                                                                Poland, of the other part, concluded and approved on behalf of
                         29 January 2002                                           the Community by Decision 93/743/Euratom, ECSC, EC of
                                                                                the Council and the Commission of 13 December 1993, which
in Case C-162/00 (Reference for a preliminary ruling from                          has direct effect, precludes the application to Polish nationals of
the Bundesarbeitsgericht): Land Nordrhein-Westfalen v                              a national provision according to which positions for foreign-
                 Beata Pokrzeptowicz-Meyer (1)                                     language assistants may be filled by means of fixed-term
                                                                                contracts of employment, whereas, for other teaching staff
(External relations — Europe Agreement between the Com-                            performing special duties, recourse to such contracts must be
munities and Poland — Interpretation of the first indent of                        individually justified by an objective reason.
Article 37(1) — Prohibition of discrimination based on
nationality as regards conditions of employment or dismissal                 2.    The first indent of Article 37(1) of the Europe Agreement
for Polish workers legally employed in a Member State —                            applies, from the date of entry into force of that agreement, to
Fixed-term contract of employment of a foreign-language                            a fixed-term contract of employment which was concluded prior
assistant — Effect on such a contract of the entry into force                      to the date of its entry into force but which is due to expire after
                    of the Europe Agreement)                                       that date.
                          (2002/C 97/01)                                     (1) OJ C 211 of 22.7.2000.
                   (Language of the case: German)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                                                  ORDER OF THE COURT
                                                                                (Fifth Chamber)
In Case C-162/00: Reference to the Court under Article 234
EC by the Bundesarbeitsgericht (Germany) for a preliminary                                             of 22 January 2002
ruling in the proceedings pending before that court between                  in Case C-447/00 (Reference for a preliminary ruling from
Land Nordrhein-Westfalen and Beata Pokrzeptowicz-Meyer,                                 the Landesgericht Salzburg): Holto Ltd (1)
on the interpretation of Article 37(1) of the Europe Agreement
establishing an association between the European Communi-                    (Reference for a preliminary ruling — Registration of a
ties and their Member States, of the one part, and the Republic              company branch established in a Member State in the
of Poland, of the other part, concluded and approved on behalf               commercial register of that State, the company having its
of the Community by Decision 93/743/Euratom, ECSC, EC of                     seat in another Member State where it conducts no economic
the Council and the Commission of 13 December 1993                                    activities — Lack of jurisdiction of the Court)
(OJ 1993 L 348, p. 1), the Court, composed of: G.C. Rodrı́guez
Iglesias, President, P. Jann, F. Macken, N. Colneric and S. von                                           (2002/C 97/02)
Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward,
A. La Pergola (Rapporteur), J.-P. Puissochet, J.N. Cunha Rodri-                                  (Language of the case: German)
gues and C.W.A. Timmermans, Judges; F.G. Jacobs, Advocate                    (Provisional translation; the definitive translation will be published
General; L. Hewlett, Administrator, Registrar, has given a                                        in the European Court Reports)
judgment on 29 January 2002, in which it has ruled:
1.    The first indent of Article 37(1) of the Europe Agreement              In Case C-447/00: Reference to the Court under Article 234 EC
      establishing an association between the European Communities           by the Landesgericht Salzburg (Austria) for a preliminary


title: Case C-259/08: Action brought on 17 June 2008 — Commission of the European Communities v Hellenic Republic

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/32

         Action brought on 17 June 2008 — Commission of the European Communities v Hellenic Republic
   (Case C-259/08)
   (2008/C 209/48)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: M. Patakia and D. Recchia)

      Defendant: Hellenic Republic
   Form of order sought
   The Court is asked to:

               —

               declare that, by failing to take the requisite measures to transpose fully and/or correctly the requirements resulting from Article 3(1) and (2), Article 4(1), Article 5 and Article 8(1) of Council Directive 79/409/EEC (1) of 2 April 1979 on the conservation of wild birds, the Hellenic Republic has failed to fulfil its obligations under those provisions;

               —

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments

               1.

               The Commission has examined the compatibility of the measures taken by the Hellenic Republic to transpose Directive 79/409/EEC. That check showed that certain provisions of the directive have not been fully and/or correctly transposed.

               2.

               In particular the Commission considers that the Hellenic Republic has not transposed Article 3(1) of Directive 79/409/EEC, because it has not taken all the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all the species of birds referred to in Article 1.

               3.

               The Commission also considers that Article 3(2) of Directive 79/409/EEC has not been fully and/or correctly transposed, since the transposing measure does not permit review of the lawfulness of the designation of an area as a special protection area (SPA), does not contain any provision for the protection of habitats outside the SPAs but in their vicinity and also makes no provision as regards re-establishment of destroyed biotopes and the creation of biotopes, despite their being important objectives of the directive.

               4.

               The Commission maintains in addition that Article 4(1) of Directive 79/409/EEC has not been transposed correctly because no formal procedure for designating areas as SPAs has been provided for, there is no express reference and link between the species in Annex I and the requirement to designate SPAs and there is no reference to the requirement to take into account trends and variations in population levels of protected species.

               5.

               The Commission then finds that Article 5 of Directive 79/409/EEC has not been transposed fully and correctly because the Greek legislation contains no general requirement of species protection as laid down by the directive but is oriented towards hunting. Furthermore, the prohibition of deliberate killing of protected species and deliberate taking of their eggs has not been transposed.

               6.

               Lastly, the Commission considers that Article 8(1) of Directive 79/4409/EEC has not been transposed correctly, because in the Greek legislation there is no general prohibition of the use of all means, arrangements or methods used for the large-scale or non-selective capture or killing of birds or capable of causing the local disappearance of a species.

               7.

               The Commission accordingly considers that the Hellenic Republic has not transposed fully and/or correctly the requirements resulting from Articles 3(1) and (2), 4(1), 5 and 8(1) of Directive 79/409/EEC on the conservation of wild birds.

      (1)  OJ L 103 of 25.4.1979, p. 1.


title: Case C-416/99: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division (Patent Court), by order of that court of 22 July 1999, in the case of 1) Levi Strauss & Co. (a US corporation existing under the laws of the State of Delaware) and 2) Levi Strauss (UK) Ltd against Costco UK Ltd

text:
C 79/6                   EN                 Official Journal of the European Communities                                        18.3.2000
          (g) a contractual restriction has or has not been            the Court Registry on 20 December 1999, for a preliminary
              imposed by the proprietor and made legally bind-         ruling in the case of Georg and Helga Heininger against
              ing upon the first purchaser prohibiting sale for        Bayerische Hypo- und Vereinsbank AG on the following
              the purposes of resale to anyone other than the          questions:
              ultimate consumer.
                                                                       1. Does Council Directive 85/577/EEC of 20 December 1985
     B. does the issue of whether or not there was consent by               to protect the consumer in respect of contracts negotiated
          the proprietor to the placing of those goods on the               away from business premises (OJ 1985 L 372, p. 31 —
          market within the EEA. within the meaning of the                  ‘directive on doorstep-selling’ also cover mortgages on
          Directive, depend on some further or other factor or              land (S.3(2)(2) of the Verbraucherkreditgesetz — consumer
          factors, and if so which?                                         credit law) and, as regards the right of cancellation provided
                                                                            for in Article 5, does it take precedence over Council
(1) First Council Directive 89/104/EEC of 21 December 1988 to               Directive 87/102/EEC of 22 December 1986 for the
    approximate the laws of the Member States relating to trade             approximation of the laws, regulations and administrative
    marks (OJ L 40 of 11. 2.1 989, p. 1).                                   provisions of the Member States concerning consumer
                                                                            credit (OJ 1987 L 42, p. 48 ‘consumer-credit directive’)?
                                                                       2. If the Court answers Question 1 in the affirmative,
                                                                            Is the national legislature precluded by the directive on
                                                                            doorstep-selling from applying the time-limit placed in
Reference for a preliminary ruling by the High Court of                     S. 7(2)(3) of the consumer credit law on the right of
Justice (England & Wales), Chancery Division (Patent                        cancellation also in cases where the subject-matter of a
Court), by order of that court of 22 July 1999, in the case                 doorstep transaction was the grant of a mortgage loan
of 1) Levi Strauss & Co. (a US corporation existing under                   within the meaning of S. 3(2)(2) of the consumer credit
the laws of the State of Delaware) and 2) Levi Strauss                      law and where the disclosure of information, as provided
                 (UK) Ltd against Costco UK Ltd                             for in Article 4 of the directive, was not made?
                           (Case C-416/99)
                            (2000/C 79/11)
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division (Patent Court),           Action brought on 21 December 1999 by the Commission
of 22 July 1999, which was received at the Court Registry on           of the European Communities against the French Republic
29 October 1999, for a preliminary ruling in the case of 1)
Levi Strauss & Co. (a US corporation existing under the laws                                     (Case C-483/99)
of the State of Delaware) and 2) Levi Strauss (UK) Ltd against
Costco UK Ltd on questions which are identical to those in
                                                                                (2000/C 79/13)
Case   C-415/99 (1),   1) Levi Strauss & Co. (a US corporation
existing under the laws of the State of Delaware) and 2) Levi          An action against the French Republic was brought before the
Strauss (UK) Ltd against 1) Tesco Stores Ltd and 2) Tesco plc.         Court of Justice on 21 December 1999 by the Commission of
                                                                       the European Communities, represented by Maria Patakia, of
                                                                       its Legal Service, acting as Agent, with an address for service
(1) See p. 5 of this Official journal.
                                                                       in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                       Wagner Centre, Kirchberg.
                                                                       The applicant claims that the Court should:
                                                                       (1) declare that, by maintaining in force Articles 2(1) and
Reference for a preliminary ruling by the Bundesgerichts-                   (2)(iii) of Decree 93-1298 of 13 December 1993, accord-
hof by order of that court of 30 November 1999 in the                       ing to which the following rights attach to the ‘golden
case of Georg and Helga Heininger against Bayerische                        share’ held by the French State in the State company
                   Hypo- und Vereinsbank AG                                 Elf-Aquitaine:
                           (Case C-481/99)                                  (a) any shareholding which exceeds the ceilings applying
                                                                                to the direct or indirect holding by a natural or legal
                            (2000/C 79/12)                                       person, acting alone or in conjunction with others, of
                                                                                one tenth, one fifth or one third of the capital of, or
Reference has been made to the Court of Justice of the                           voting rights in, the company must first be approved
European Communities by order of the Bundesgerichtshof                           by the Minister for Economic Affairs (Article 2(1) of
(Federal Supreme Court) of 30 November 1999, received at                         the Decree);


title: Case C-311/06: Judgment of the Court (Second Chamber) of 29 January 2009 (reference for a preliminary ruling from the Consiglio di Stato — Italy) — Consiglio Nazionale degli Ingegneri v Ministero della Giustizia, Marco Cavallera (Recognition of diplomas — Directive 89/48/EEC — Homologation of an educational qualification — Engineer)

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/3

         Judgment of the Court (Second Chamber) of 29 January 2009 (reference for a preliminary ruling from the Consiglio di Stato — Italy) — Consiglio Nazionale degli Ingegneri v Ministero della Giustizia, Marco Cavallera
   (Case C-311/06) (1)

   (Recognition of diplomas - Directive 89/48/EEC - Homologation of an educational qualification - Engineer)
   (2009/C 69/03)
   Language of the case: Italian
   Referring court
   Consiglio di Stato
   Parties to the main proceedings

      Applicant: Consiglio Nazionale degli Ingegneri

      Defendants: Ministero della Giustizia, Marco Cavallera
   Re:
   Reference for a preliminary ruling — Consiglio di Stato — Interpretation of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (OJ 1989 L 19, p. 16) — Whether applicable in the case of an Italian national who is registered in the Spanish professional register following recognition of equivalence of his engineering degree but who has never pursued that profession in Spain and who applies, on the basis of the Spanish qualification authorising him to pursue that profession, to be entered in the professional register in Italy
   Operative part of the judgment
   The provisions of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration cannot be relied on, for the purpose of gaining access to a regulated profession in a host Member State, by the holder of a certificate issued by an authority of another Member State which does not attest any education or training covered by the education system of that Member State and is not based on either an examination taken or professional experience acquired in that Member State.

      (1)  OJ C 249, 14.10.2006.


title: Action brought on 17 July 1998 by the Commission of the European Communities against the Kingdom of Spain (Case C-274/98)

text:
5.9.98                 EN                  Official Journal of the European Communities                                    C 278/29
31 March 1998, which were received at the Court                       Action brought on 17 July 1998 by the Commission of the
Registry on 20 July 1998, for a preliminary ruling in the                 European Communities against the Kingdom of Spain
cases of Salvat Editores SA and J. CompanÄ Calbuig                                              (Case C-274/98)
(C-265/98), Salvat Editores SA and G. Caminati (C-266/
98), OceÂano Grupo Editorial SA and R. Bogas CardenÄosa                                          (98/C 278/54)
(Case C-267/98), OceÂano Grupo Editorial SA and M.
Casas MingueÂlez (C-268/98), Planeta CreÂdito SA and A.
Villar Castelao (C-269/98), Artel SA and P. López Aznar               An action against the Kingdom of Spain was brought
(C-270/98), Salvat Editores SA and J. A. Serrano Garrido              before the Court of Justice on 17 July 1998 by the
(C-271/98), and Artel SA and F. Arencom Salazar (C-272/               Commission of the European Communities, represented
98).                                                                  by Eric Gippini Fournier and Francisco de Sousa Fialho,
                                                                      of its Legal Service, acting as Agents, with an address for
                                                                      service in Luxembourg at the office of Carlos Gómez de la
                                                                      Cruz, Wagner Centre, Kirchberg.
The grounds of the order for reference and the question
on which a ruling is sought by Juzgado de Primera
Instancia No 35, Barcelona, are similar to those in Joined            The applicant claims that the Court of Justice should:
Cases C-240/98 to C-244/98 (1).
                                                                      Ð declare that, by failing to establish action programmes
                                                                           pursuant to Article 5 of Council Directive 91/676/EEC
( ) See p. 21 of this Official Journal.
 1
                                                                           of 12 December 1991 concerning the protection of
                                                                           waters against pollution caused by nitrates from
                                                                           agricultural sources (1), the Kingdom of Spain has
                                                                           failed to fulfil its obligations under the EC Treaty;
                                                                      Ð order the defendant to pay the costs.
Reference for a preliminary ruling by the Bundesfinanzhof
by order of that court of 14 May 1998 in the case of                  Pleas in law and main arguments adduced in support:
      Hans-Josef Schlebusch against Hauptzollamt Trier
                         (Case C-273/98)                              The binding nature of the third paragraph of Article 189
                                                                      and of Article 5 of the EC Treaty means that Member
                           (98/C 278/53)                              States must adopt the measures necessary to give effect to
                                                                      the Directive before the end of the period appointed for
                                                                      that purpose. Since the initial designation of vulnerable
                                                                      zones was to be effected within two years after
Reference has been made to the Court of Justice of the                notification of the Directive (Article 3(2)), the period for
European Communities by order of the Seventh Senate of                drawing up the action programmes provided for in
the Bundesfinanzhof (Federal Finance Court) of 14 May                 Article 5 expired in December 1995.
1998, received at the Court Registry on 20 July 1998, for
a preliminary ruling in the case of Hans-Josef Schlebusch
                                                                      (1) OJ L 375, 31.12.1991, p. 1; corrigendum: OJ L 92,
against Hauptzollamt (Principal Customs Office) Trier on                  16.4.1993, p. 51.
the following question:
Is the first sentence of Article 3a(3) of Council Regulation
(EEC) No 857/84 (1), as amended by Regulation (EEC)
No 1639/91 (2), to be interpreted as meaning that a milk
                                                                      Reference for a preliminary ruling by Klagenñvnet
producer is to be allocated a definitive special reference
                                                                      for Udbud, by an order of 15 July 1998 in the case
quantity even where, in the period laid down in that
                                                                      of Unitron Scandinavia A/S and 3-S A/S, Danske
provision, he did not use the special reference quantity
                                                                      Svineproducenters Serviceselskab v. Ministeriet for
provisionally allocated to him for a corresponding increase
                                                                                Fùdevarer, Landbrug og Fiskeri
in his milk production, but temporarily transferred to
another business that part of his milk quota corresponding                                      (Case C-275/98)
to the original reference quantity held by his business in                                       (98/C 278/55)
addition to the provisionally allocated special reference
quantity?
                                                                      Reference has been made to the Court of Justice of the
                                                                      European Communities by an order of Klagenñvnet for
( ) Council Regulation (EEC) No 857/84 adopting general rules
 1
    for the application of the levy referred to in Article 5c of      Udbud (Danish Procurement Review Board), which was
    Regulation (EEC) No 804/68 in the milk and milk products          received at the Court Registry on 20 July 1998, for a
    sector (OJ L 90, 1.4.1984, p. 13).                                preliminary ruling in the case of Unitron Scandinavia A/S
(2) OJ L 150, 15.6.1991, p. 35.                                       and 3-S A/S, Danske Svineproducenters Serviceselskab v.
                                                                      Ministeriet for Fùdevarer, Landbrug og Fiskeri (Ministry
                                                                      of Foodstuffs, Agriculture and Fisheries) on the following
                                                                      questions:


title: Case C-74/11: Action brought on 21 February 2011 — European Commission v Republic of Finland

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/9

         Action brought on 21 February 2011 — European Commission v Republic of Finland
   (Case C-74/11)
   2011/C 113/18
   Language of the case: Finnish

      Parties

      Applicant: European Commission (represented by I. Koskinen and D. Triantafyllou, acting as Agents)

      Defendant: Republic of Finland

      Form of order sought

               —

               declare that, by allowing persons other than taxable persons to join a value added tax group and by limiting the group registration system to providers of finance and insurance services, the Republic of Finland has failed to fulfil its obligations under Articles 9 and 11 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1)

               —

               order the Republic of Finland to pay the costs.

      Pleas in law and main arguments

   Article 11 of Directive 2006/112/EC on the common system of value added tax allows Member States to treat as a single taxable person several persons who, while legally independent, are closely bound to one another by financial, economic and organisational links. Article 9(1) of the directive defines ‘taxable person’ for the purposes of value added tax.
   The Commission submits that Directive 2006/112/EC does not allow persons who are not taxable persons to be included in a value added tax group and the rights and obligations of taxable persons thereby to be extended to non-taxable persons. The Finnish legislation which allows the inclusion of non-taxable persons in value added tax groups is therefore in conflict with the directive. The Commission’s interpretation is also consistent with the objective of Article 11 of simplifying administration and preventing abuse.
   The group registration laid down in the Finnish legislation is also contrary to Article 11 of Directive 2006/112/EC in so far as the Finnish value added tax legislation limits the scope of group registration to undertakings active in the finance and insurance sector. The Commission submits that the group registration system should be applicable to all undertakings established in a Member State, regardless of the kind of activity the undertaking carries on. The common system of value added tax is a uniform system, and if a special arrangement is brought into use within that system the principle is that the arrangement must be generally applicable. Nothing in the wording of Article 11 of Directive 2006/112/EC indicates that a Member State may limit the application of the value added tax group registration system to certain groups active in certain sectors. Also on the basis of the objective of Article 11, the provision must be interpreted as concerning all undertakings regardless of sector. By limiting group registration to certain groups, the provisions of the Finnish value added tax legislation are also in conflict with the general European Union law principle of equal treatment.

      (1)  OJ 2006 L 347, p. 1.


title: Case F-131/07: Judgment of the Civil Service Tribunal (First Chamber) of 2 December 2008 — Baniel-Kubinova v European Parliament (Staff case — Members of the temporary staff and members of the auxiliary staff appointed probationary officials — Article 10 of Annex VII to the Staff Regulations — Right to the daily allowance after receiving part of the installation allowance)

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/37

         Judgment of the Civil Service Tribunal (First Chamber) of 2 December 2008 — Baniel-Kubinova v European Parliament
   (Case F-131/07) (1)

   (Staff case - Members of the temporary staff and members of the auxiliary staff appointed probationary officials - Article 10 of Annex VII to the Staff Regulations - Right to the daily allowance after receiving part of the installation allowance)
   (2009/C 19/72)
   Language of the case: French
   Parties

      Applicants: Barbora Baniel-Kubinova (Alzingen, Luxembourg) and thirteen other officials of the European Parliament (represented by: S. Orlandi, J.-N. Louis and E. Marchal, lawyers)

      Defendant: European Parliament (represented by: R. Ignătescu and S. Seyr, agents)
   Re:
   Annulment of several of the decisions of the Appointing Authority of the European Parliament refusing to grant the applicants the daily allowance referred to in Article 10 of Annex VII to the Staff Regulations of Officials.
   Operative part of the judgment
   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 183, 19.7.2008, p. 32.


title: ORDER OF THE COURT OF FIRST INSTANCE of 11 July 1995 in Case T-23/90 - Article 92 and T-9/92 - Article 92, Automobiles Peugeot SA and Peugeot SA v. Commission of the European Communities (Taxation of costs)

text:
No C 286/ 14          EN                   Official Journal of the European Communities                                 28 . 10 . 95
    ORDER OF THE COURT OF FIRST INSTANCE                              H. Jung, Registrar, made the following order on 11 July
                       of 11 July 1995                                1995 , the operative part of which is as follows :
in Case T-23/90 — Article 92 and T-9/92 — Article 92 ,
Automobiles Peugeot SA and Peugeot SA v. Commission of                the total amount of the costs to be reimbursed by Peugeot to
                                                                      Eco System is fixed at FF 320 000.
               the European Communities ( J )
                      (Taxation of costs)                             (') OJ No C 129 , 24 . 5 . 1990 .
                         95/C 286/33 )
               (Language of the case: French)
                                                                           ORDER OF THE COURT OF FIRST INSTANCE
In Case T-23/90 — Article 92, Automobiles Peugeot SA and                                  of 11 September 1995
Peugeot SA, companies governed by French law and having               in Case T-286/94 : Z v. Economic and Social Committee of
their registered offices in Paris, represented by Xavier de                          the European Communities ( 1 )
Roux, of the Paris Bar, with an address for service in
Luxembourg at the Chambers of Guy Loesch, 8 Rue Zithe,                 (Officials — Promotion — Retirement — Inadmissibility)
v. Commission of the European Communities ( Agents:                                             ( 95/C 286/34 )
initially Jacques Bourgeois, then Giuliano Marenco and
Francis Herbert ), supported by Eco System SA, a company                            (Language of the case: German)
governed by French law, having its registered office in
Rouen, France, represented by Robert Collin, of the Paris             In Case T-286/94 : Z, a former official of the Economic and
Bar, and Nicolas Decker, of the Luxembourg Bar, with an               Social Committee of the European Communities, residing in
address for service in Luxembourg at the latter's Chambers,           Brussels, represented by W. G. Grupp, of the Brussels Bar,
16 Avenue Marie Therese, and Bureau Européen des Unions               with an address for service in Luxembourg at the offices of
de Consommateurs ( BEUC ), an association governed by                 Intergest, 3 Rue des Foyers, v. Economic and Social
Belgian law, having its office in Brussels, represented by            Committee of the European Communities ( Agents : Bermejo
Philip Bentley, Barrister, of Lincoln 's Inn, and Konstantinos        Garde and Denis Waelbroeck ) — application, first, for the
Adamantopolous, of the Athens Bar, with an address for                annulment of the decision of 6 October 1993 rejecting the
service in Luxembourg at the Chambers of Arsène                       applicant's application for vacancy No 61 /92 and the
Kronshagen , 12 Boulevard de la Foire, and by the United              implied rejection of his complaint and, second, for an order
Kingdom Government ( Agent: Hussein A. Kaya ),                        requiring the Economic and Social Committee to pay him
application for taxation of the costs to be reimbursed by the         compensation for the damage allegedly suffered by him —
applicants to the intervener Eco System SA following the              the Court of First Instance (Third Chamber ), composed of J.
order made on 2 1 May 1 990 by the President of the Court of          Biancarelli, President, and C. P. Briët and C. W. Bellamy,
First Instance on an application for interim measures in Case         Judges; made an order on 11 September 1995 , the operative
T-23/90 R [ 1991 ] ECR 11-195 and the judgment of the                 part of which is as follows:
Court of First Instance ( First Chamber ) of 12 July 1991 in
Case T-23/90 [ 1991 ] ECR 11-653 , and in Case T-9/92 —                1 . the    application       is    dismissed as   manifestly
Article 92 , Automobiles Peugeot SA and Peugeot SA,                        inadmissible;
companies governed by French law and having their
registered offices in Paris, represented by Xavier de Roux, of        2 . the parties are ordered to bear their own costs.
the Paris Bar, with an address for service in Luxembourg at
the Chambers of Guy Loesch, 8 Rue Zithe, v. Commission                 (') OJ No C 316 , 12 . 11 . 1994 .
 of the European Communities ( Agents : Giuliano Marenco
 and Francis Herbert ), supported by Eco System SA, a
 company governed by French law, having its registered
 office in Rouen, France, represented by Robert Collin, of the
 Paris Bar, and Nicolas Decker, of the Luxembourg Bar, with                ORDER OF THE COURT OF FIRST INSTANCE
 an address for service in Luxembourg at the latter's
 Chambers, 16 Avenue Marie Therese, and Bureau Européen                                      of 16 August 1995
 des Unions de Consommateurs ( BEUC ), an association                  in Case T-290/94 : Kaysersberg SA v. Commission of the
 governed by Belgian law, having its office in Brussels,                                 European Communities (')
 represented by Philip Bentley, Barrister, of Lincoln's Inn,                            (Rules governing languages)
 and Konstantinos Adamantopolous, of the Athens Bar, with
 an address for service in Luxembourg at the Chambers of                                         ( 95/C 286/35 )
 Arsène Kronshagen, 12 Boulevard de la Foire, application
 for taxation of the costs to be reimbursed by the applicants                         (Language of the case: French)
 to the intervener Eco System SA following the judgment of
 the Court of First Instance ( Second Chamber ) of 22 April            In Case T-290/94 : Kaysersberg SA, established in
 1993 in Case T-9/92 [ 1993 ] ECR 11-493 , the Court of                Kaysersberg ( France ), represented by Dominique Voillemot
 First Instance ( First Chamber, Extended Composition ),               and Jacques-Philippe Gunther, of the Paris Bar, with an
 composed of J. L. Cruz Vilaça , President, D. P. M.                   address for service in Luxembourg at the chambers of
 Barrington, A. Saggio, H. Kirschner and V. Tiili , Judges;            Jacques Loesch, 11 Rue Goethe, v. Commission of the


title: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 7 July 1998 in the case of Hauptzollamt Neubrandenburg against Leszek Labis trading as Przedsiebiorstwo Transportowo-Handlowe 'Met-Trans', PL-Reda (Case C-310/98)

text:
C 312/6               EN                  Official Journal of the European Communities                                  10.10.98
Regulation. On the other hand, it must presumably, be                1. What should the requirements be for furnishing proof
open to the Commission to bring proceedings in respect of                 of the place where an irregularity or offence was
decisions of the President of the Office directly under                   actually committed in the course of a transport
Article 173. That the Member States should be differently                 operation carried out under cover of a TIR carnet
situated from the Commission in the matter of challenging                 (first subparagraph of Article 454(3) of Commission
such decisions seems constitutionally anomalous.                          Regulation (EEC) No 2454/93 (OJ L 253, 11.10.1993,
                                                                          p. 1))? Is a statement from the carnet holder and the
(1) OJ C 199, 28.6.1997, p. 39.                                           testimony of the lorry driver who has effected the
(2) Case 294/83, [1986] ECR 1339.                                         transport for the carnet holder sufficient or must the
(3) Joined Cases 193/87 and 194/87, [1989] ECR 1045.                      proof comprise documents which unambiguously show
                                                                          that the competent authorities in the other Member
                                                                          State reached the conclusion that the irregularity or
                                                                          offence was committed on their territory?
Reference for a preliminary ruling by the Finanzgericht              2. If the Court of Justice takes the view that the actual
München by order of that court of 24 June 1998 in the                     place where the irregularity or offence was commited
case of Holz Geenen GmbH against Oberfinanzdirektion                      can be proved on the basis of statements of the carnet
                           München                                        holder and the testimony of the lorry driver who
                                                                          effected the transport operation, are the third and
                       (Case C-309/98)                                    fourth subparagraphs of Article 454(3) of Directive
                         (98/C 312/10)                                    (EEC) No 2454/93 to be interpreted as meaning that
                                                                          they also apply in cases where the charges were
                                                                          recovered in the Member State where the irregularity
                                                                          or offence was detected, even though it has been
Reference has been made to the Court of Justice of the
                                                                          proved that the irregularity or offence was actually
European Communities by order of the Third Senate of
                                                                          commited in another Member State?
the Finanzgericht München (Finance Court, Munich) of
24 June 1998, received at the Court Registry on 10 August
1998, for a preliminary ruling in the case of Geenen
GmbH against Oberfinanzdirektion München (Principal
Revenue Office, Munich) on the following question:
Is Commission Regulation (EC) No 1509/97 of 30 July
1997 concerning the classification of certain goods in the           Appeal brought on 14 August 1998 by the Union Euro-
Combined Nomenclature (OJ L 204, 31.7.1997, p. 8) Ð                  peÂenne de l'Artisanat et des Petites et Moyennes Entrepri-
in this case rectangular wood blocks, 48 or 85 mm wide              ses (UEAPME) against the judgment delivered on 17 June
72 mm high, used in the construction of window frames,               1998 by the Fourth Chamber, Extended Composition, of
consisting of layers of wood glued together with the grain           the Court of First Instance of the European Communities
running parallel and with slightly rounded edges Ð                   in Case T-135/96 between the Union EuropeÂenne de
invalid?                                                             l'Artisanat et des Petites et Moyennes Entreprises
                                                                     (UEAPME), supported by ConfeÂdeÂration GeÂneÂrale des
                                                                     Petites et Moyennes Entreprises et du Patronat ReÂel
                                                                     (CGPME), Union Professionnelle Artisanale (UPA), Natio-
                                                                     naal Christelijk Middenstandsverbond (NCMV), Konink-
                                                                     lijke Vereniging MKB-Nederland, FeÂdeÂration des Artisans,
                                                                     Confederazione Generale Italiana del Artigianato (Confar-
Reference for a preliminary ruling by the Bundesfinanzhof            tigianato), Wirtschaftskammer Österreich, Bundesvereini-
by order of that court of 7 July 1998 in the case of Haupt-          gung der Fachverbände des Deutschen Handwerks eV
zollamt Neubrandenburg against Leszek Labis trading                  (BFH), and the Council of the European Union, supported
as Przedsiebiorstwo Transportowo-Handlowe Met-Trans',                     by the Commission of the European Communities
                            PL-Reda                                                        (Case C-316/98 P)
                       (Case C-310/98)
                                                                                (98/C 312/12)
                         (98/C 312/11)
Reference has been made to the Court of Justice of the               An appeal against the judgment delivered on 17 June 1998
European Communities by order of the Bundesfinanzhof                 by the Fourth Chamber, Extended Composition, of the
(Federal Finance Court) of 7 July 1998, received at the              Court of First Instance of the European Communities in
Court Registry on 10 August 1998, for a preliminary                  Case T-135/96 between the Union EuropeÂenne de l'Artisa-
ruling in the case of Hauptzollamt Neubrandenburg                    nat et des Petites et Moyennes Entreprises (UEAPME),
against Leszek Labis trading as Przedsiebiorstwo                     supported by ConfeÂdeÂration GeÂneÂrale des Petites et
Transportowo-Handlowe Met-Trans', PL-Reda on the                    Moyennes Entreprises et du Patronat ReÂel (CGPME),
following questions:                                                 Union Professionnelle Artisanale (UPA), Nationaal Christe-


title: Case T-155/06: Judgment of the General Court of 9 September 2010 — Tomra Systems and Others v Commission (Competition — Abuse of dominant position — Market for machines for the collection of used beverage containers — Decision finding an infringement of Article 82 EC and Article 54 of the EEA Agreement — Exclusivity agreements, quantity commitments and loyalty rebates forming part of a strategy of excluding competitors from the market — Fine — Proportionality)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/31

      Judgment of the General Court of 9 September 2010 — Tomra Systems and Others v Commission
      (Case T-155/06) (1)

      (Competition - Abuse of dominant position - Market for machines for the collection of used beverage containers - Decision finding an infringement of Article 82 EC and Article 54 of the EEA Agreement - Exclusivity agreements, quantity commitments and loyalty rebates forming part of a strategy of excluding competitors from the market - Fine - Proportionality)
      (2010/C 288/58)
      Language of the case: English

         Parties

         Applicants: Tomra Systems ASA (Asker, Norway); Tomra Europe AS (Asker); Tomra Systems GmbH (Hilden, Germany); Tomra Systems BV (Apeldoorn, Netherlands); Tomra Leergutsysteme GmbH (Vienna, Austria); Tomra Systems AB (Sollentuna, Sweden); and Tomra Butikksystemer AS (Asker) (represented by: initially, A. Ryan, Solicitor, and J. Midthjell, lawyer, and, subsequently, by A. Ryan and N. Frey, Solicitors)

         Defendant: European Commission (represented by: É. Gippini Fournier, acting as Agent)

         Re:

      Application for annulment of Commission Decision C(2006) 734 final of 29 March 2006 relating to proceedings under Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/E 1/38.113 — Prokent Tomra)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Tomra Systems ASA, Tomra Europe AS, Tomra Systems GmbH, Tomra Systems BV, Tomra Leergutsysteme GmbH, Tomra Systems AB and Tomra Butikksystemer AS to bear their own costs and to pay those incurred by the European Commission.

         (1)  OJ C 190, 12.8.2006.


title: Case C-480/09 P: Appeal brought on 26 November 2009 by AceaElectrobal Produzione SpA against the judgment delivered by the Court of First Instance (First Chamber) on 8 September 2009 in Case T-303/05 AceaElectrabel Produzione SpA v Commission of the European Communities

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/40

         Appeal brought on 26 November 2009 by AceaElectrobal Produzione SpA against the judgment delivered by the Court of First Instance (First Chamber) on 8 September 2009 in Case T-303/05 AceaElectrabel Produzione SpA v Commission of the European Communities
   (Case C-480/09 P)
   2010/C 24/70
   Language of the case: Italian

      Parties

      Appellant: AceaElectrabel Produzione SpA (represented by: L. Radicati di Brozolo, M. Merola, T. Ubaldi and E. Marasà, lawyers)

      Other party to the proceedings: Commission of the European Communities

      Form of order sought

               —

               Set aside the judgment under appeal.

               —

               Grant the form of order sought at first instance or, in the alternative, refer the case back to the General Court pursuant to Article 61 of the Statute of the Court of Justice.

               —

               Order the Commission to pay the costs of both sets of proceedings.

      Pleas in law and main arguments

               1.

               Distortion of the pleas in law, errors in law and irrational and contradictory reasoning, with reference to the identification of the aid recipient and the assessment of the Commission’s discretion for the purpose of defining the aid recipient.
               By its first ground of appeal, the appellant, AceaElectrabel Produzione SpA (‘AEP’ or ‘the appellant’) complains that the judgment is seriously flawed, insofar as the Court of First Instance rejected the plea in law relating to the failure properly to identify the recipient of the aid, which is the subjective condition for the application to the case in question of the principle established in the Deggendorf case-law (according to which, the grant of new aid which in itself is judged to be compatible with the common market may, in certain circumstances, be suspended until previous unlawful aid paid to the same undertaking has been reimbursed). First of all, the appellant disputes the finding that that plea is inadmissible insofar as it relates to infringement of Article 88 of Regulation (EC) No 659/99. (1) AEP submits that the Court of First Instance distorted that part of the plea, which was intended by the appellant simply to indicate that the misidentification of the aid recipient resulted from one of the characteristic defects of the administrative measure. By stating that arguments alleging infringement of the rules governing the recovery of aid have no bearing on the case, the Court of First Instance demonstrated that it had distorted the arguments put forward in support of that part of the plea in law in question.
               Moreover, the appellant challenges the judgment insofar as it failed to declare the decision unlawful, notwithstanding the serious error of identifying AEP (the recipient of the new aid) with the ACEA Group (the recipient of the aid which was not reimbursed), based on the incorrect, illogical and contradictory application of the concept of an economic unit of a group of undertakings developed in Community case-law. The appellant disputes that such a concept can be applied to the case of a joint venture controlled jointly by two separate groups (as is the case with AEP), since the established case-law on economic units of undertakings refers only to cases involving a number of undertakings controlled solely by a single entity. The error is compounded insofar as the Court of First Instance regarded as irrelevant the fact that 70 % of AEP’s capital is in a different economic group, which has nothing whatsoever to do with the recipient of the aid which was not reimbursed. The Court of First Instance also erred in its application of the concept of a functionally autonomous undertaking, since it stated that the appellant cannot be regarded as functionally autonomous because it is subject to the joint control of two undertakings.

               2.

               Distortion of the pleas in law, error in law and contradictory and inadequate reasoning, with reference to the arguments put forward by the appellant concerning the scope of the Deggendorf case-law for the purpose of the assessment of the case in question.
               By its second ground of appeal, the appellant submits that the judgment incorrectly applied the Deggendorf case-law insofar as it also supported the Commission’s assessment regarding the existence of the objective requirement for the application of the Deggendorf case-law. The appellant disputes in particular the reasoning of the Court of First Instance in the part in which it finds that the Commission was not required to adduce precise, detailed evidence to show that the combined effect of the first and second aid would adversely affect intra-Community trade in such a way as to render the new aid incompatible with the common market. The burden of proof for the purpose of determining whether notified aid is incompatible cannot be rebutted at will, in particular where the Commission has failed to make use of the instruments which the rules of procedure make available to it. The Court of First Instance failed to address those issues raised by the appellant and uncritically confirmed the Commission’s decision. Lastly, the Court of First Instance neither understood nor addressed the plea raised by the appellant insofar as it maintained that the Deggendorf case-law is not intended to establish a means of penalising undertakings which have not reimbursed previous aid but simply to prevent the combined effect of more than one grant of aid to a single undertaking adversely affecting intra-Community trade in such a manner as to render the new aid incompatible, until such time as the previous aid has been repaid.

      (1)  Council Regulation (EC) No 659/99 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).


title: Judgment of the Court of First Instance of 29 September 2000 in Case T-55/99: Confederación Española de Transporte de Mercancías (CETM) v Commission of the European Communities (State aid — Aid within the meaning of Article 92(1) of the EC Treaty (now, after amendment, Article 87(1) EC) — Statement of reasons — Obligation to recover aid — Legitimate expectations of recipients — Principle of proportionality)

text:
C 355/22                EN                     Official Journal of the European Communities                                         9.12.2000
of the Brussels Bar, with an address for service in Luxembourg            aid illegal and incompatible with the common market and
at the Chambers of J. Loesch, 11 rue Goethe, against Com-                 order its recovery — the Court of First Instance (Third
mission of the European Communities (Agents: V. Kreuschitz                Chamber, Extended Composition), composed of: K. Lenaerts,
and N. Khan) — application for compensation to make good                  President, J. Azizi, R.M. Moura Ramos, M. Jaeger and P. Men-
the damage allegedly suffered as a consequence of the adoption            gozzi, Judges; J. Palacio González, Administrator, for the
of Commission Regulation (EC) No 2529/97 of 16 December                   Registrar, has given a judgment on 29 September 2000, in
1997 imposing provisional anti-dumping and countervailing                 which it:
duties on certain imports of farmed Atlantic salmon originat-
ing in Norway (OJ 1997 L 346, p. 63) — the Court of First                 1.    Dismisses the application;
Instance (Third Chamber, Extended Composition), composed
of K. Lenaerts, President, J. Azizi, R.M. Moura Ramos, M. Jaeger          2.    Orders the applicant to pay the costs.
and P. Mengozzi, Judges; J. Palacio González, Administrator,
for the Registrar, gave a judgment on 24 October 2000, in
which it:                                                                 (1) OJ C 174 of 19.6.99.
1.    Orders the Commission to pay to the applicant NOK 431 000;
2.    Dismisses the remainder of the application;
3.    Orders the Commission to bear its own costs and to pay three
      quarters of the applicant’s costs;
4.    Orders the applicant to bear one quarter of its own costs.              JUDGMENT OF THE COURT OF FIRST INSTANCE
(1) OJ No C 160 of 5.6.99.
                                                                                of 3 October 2000
                                                                          in Case T-130/99: David Crabbe v European Centre for
                                                                           the Development of Vocational Training (CEDEFOP) (1)
                                                                          (Officials — Establishment of linguist posts — No need to
                                                                                adjudicate)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (2000/C 355/50)
                      of 29 September 2000
                                                                                (Language of the case: French)
in Case T-55/99: Confederación Española de Transporte
de Mercancı́as (CETM) v Commission of the European
                          Communities (1)                                 In Case T-130/99: David Crabbe, an official at the European
                                                                          Centre for the Development of Vocational Training (CEDE-
(State aid — Aid within the meaning of Article 92(1) of the               FOP), residing in Thessaloniki, Greece, represented by
EC Treaty (now, after amendment, Article 87(1) EC) —                      M.-A. Lucas, of the Liège Bar, with an address for service in
Statement of reasons — Obligation to recover aid —                        Luxembourg at the offices of Société de gestion fiduciaire
Legitimate expectations of recipients — Principle of pro-                 SARL, 13, avenue du Bois, against European Centre for
                            portionality)                                 the Development of Vocational Training (CEDEFOP) (Agent:
                                                                          B. Wägenbaur) — application for the annulment of CEDEFOP’s
                                                                          implied decision not to create linguist posts in its organisation
                          (2000/C 355/49)                                 — the Court of First Instance (Fifth Chamber), composed of
                                                                          R. Garcı́a-Valdecasas, President, P. Lindh and J.D. Cooke,
                                                                          Judges; J. Palacio González, Administrator, for the Registrar,
                    (Language of the case: Spanish)                       gave a judgment on 3 October 2000, the operative part of
                                                                          which is as follows:
In Case T-55/99: Confederación Española de Transporte de
Mercancı́as (CETM) having its registered office in Madrid,                1.    There is no need to adjudicate on the present application.
represented by J. Pérez Villar, of the Madrid Bar, 322 Calle
López de Hoyos, Madrid, against Commission of the European               2.    CEDEFOP is ordered to pay the costs.
Communities (Agents: J. Guerra Fernández and D. Triantafyllou
) — application for annulment of Commission Decision
98/693/EC of 1 July 1998 concerning the Spanish Plan Renove               (1) OJ No C 226 of 7.8.99.
Industrial system of aid for the purchase of commercial
vehicles (August 1994 — December 1996) (OJ 1998 L 329,
p. 23) in that Articles 3 and 4 of that decision declare certain


title: Case T-517/15: Judgment of the General Court of 16 February 2017 — Gruppe Nymphenburg Consult v EUIPO (Limbic® Sales) (EU trade mark — Application for the EU word mark Limbic® Sales — Lack of distinctive character — Absolute ground for refusal — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/47

         Judgment of the General Court of 16 February 2017 — Gruppe Nymphenburg Consult v EUIPO (Limbic® Sales)
   (Case T-517/15) (1)

   ((EU trade mark - Application for the EU word mark Limbic® Sales - Lack of distinctive character - Absolute ground for refusal - Article 7(1)(c) of Regulation (EC) No 207/2009))
   (2017/C 104/66)
   Language of the case: German

      Parties

      Applicant: Gruppe Nymphenburg Consult AG (Munich, Germany) (represented by: R. Kunze and G. Würtenberger, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: M. Fischer, acting as Agent)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 23 June 2015 (Case R 1972/2014-1), concerning an application for registration of the word sign Limbic® Sales as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 June 2015 (Case R 1972/2014-1);

               2.

               Orders that EUIPO shall bear its own costs as well as those incurred by Gruppe Nymphenburg Consult AG.

      (1)  OJ C 354, 26.10.2015.