title: Judgment of the Court of 20 November 2001 in Joined Cases C-414/99 to C-416/99 [reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division (Patent Court)]: Zino Davidoff SA and A & G Imports Ltd (C-414/99), between Levi Strauss & Co., Levi Strauss (UK) Ltd and Tesco Stores Ltd, Tesco plc (C-415/99), and between Levi Strauss & Co., Levi Strauss (UK) Ltd v Costco Wholesale UK Ltd (Trade marks — Directive 89/104/EEC — Article 7(1) — Exhaustion of the rights conferred by a trade mark — Goods placed on the market outside the EEA — Imported into the EEA — Consent of the trade mark proprietor — Whether consent required to be express or implied — Law governing the contract Presumption of consent — Non-applicability)

text:
C 3/10                 EN                      Official Journal of the European Communities                                            5.1.2002
2.    Annuls the decision of the First Board of Appeal of the Office      the European Economic Area of 2 May 1992 (OJ 1994 L 1,
      for Harmonisation in the Internal market (Trade Marks and           p. 3) — the Court, composed of: G.C. Rodrı́guez Iglesias,
      Designs) of 31 July 1998 (Case R 35/1998-1) in so far as it         President, P. Jann, N. Colneric and S. von Bahr (Presidents of
      refused the application for registration of ‘BABY-DRY’ as a         Chambers), C. Gulmann (Rapporteur), D.A.O. Edward, A. La
      trade mark on the basis of Article 7(1)(c) of Regulation            Pergola, J.-P. Puissochet, L. Sevón, V. Skouris and C.W.A. Tim-
      No 40/94;                                                           mermans, Judges; C. Stix-Hackl, Advocate General; L. Hewlett,
                                                                          Administrator, for the Registrar, has given a judgment on
                                                                          20 November 2001, in which it has ruled:
3.    Orders the Office for Harmonisation in the Internal Market
      (Trade Marks and Designs) to pay the costs both at first
      instance and on appeal.
                                                                          1.   On a proper construction of Article 7(1) of First Council
                                                                               Directive 89/104/EEC of 21 December 1988 to approximate
(1) OJ C 6 of 8.1.2000.
                                                                               the laws of the Member States relating to trade marks, as
                                                                               amended by the Agreement on the European Economic Area of
                                                                               2 May 1992, the consent of a trade mark proprietor to the
                                                                               marketing within the European Economic Area of products
                                                                               bearing that mark which have previously been placed on the
                                                                               market outside the European Economic Area by that proprietor
                                                                               or with his consent may be implied, where it follows from facts
                                                                               and circumstances prior to, simultaneous with or subsequent to
                                                                               the placing of the goods on the market outside the European
                 JUDGMENT OF THE COURT
                                                                               Economic Area which, in the view of the national court,
                                                                               unequivocally demonstrate that the proprietor has renounced
                     of 20 November 2001                                       his right to oppose placing of the goods on the market within
                                                                               the European Economic Area.
in Joined Cases C-414/99 to C-416/99 [reference for a
preliminary ruling from the High Court of Justice of
England and Wales, Chancery Division (Patent Court)]:                     2.   Implied consent cannot be inferred:
Zino Davidoff SA and A & G Imports Ltd (C-414/99),
between Levi Strauss & Co., Levi Strauss (UK) Ltd and
Tesco Stores Ltd, Tesco plc (C-415/99), and between Levi                       —      from the fact that the proprietor of the trade mark has not
Strauss & Co., Levi Strauss (UK) Ltd v Costco Wholesale                               communicated to all subsequent purchasers of the goods
                             UK Ltd (1)                                               placed on the market outside the European Economic
                                                                                Area his opposition to marketing within the European
(Trade marks — Directive 89/104/EEC — Article 7(1) —                                  Economic Area;
Exhaustion of the rights conferred by a trade mark — Goods
placed on the market outside the EEA — Imported into the
EEA — Consent of the trade mark proprietor — Whether                           —      from the fact that the goods carry no warning of a
consent required to be express or implied — Law governing                             prohibition of their being placed on the market within the
  the contract Presumption of consent — Non-applicability)                            European Economic Area;
                           (2002/C 3/13)
                                                                               —      from the fact that the trade mark proprietor has transferred
                                                                                the ownership of the products bearing the trade mark
                   (Language of the case: English)                                    without imposing any contractual reservations and that,
                                                                                according to the law governing the contract, the property
                                                                                right transferred includes, in the absence of such reser-
                                                                                vations, an unlimited right of resale or, at the very least,
In Joined Cases C-414/99 to C-416/99 (reference to the Court                          a right to market the goods subsequently within the
under Article 234 EC) from the High Court of Justice of                               European Economic Area.
England and Wales, Chancery Division (Patent Court) (United
Kingdom of Great Britain and Northern Ireland) for a prelimi-
nary ruling in the proceedings pending before that court                  3.   With regard to exhaustion of the trade mark proprietor’s
between Zino Davidoff SA and A & G Imports Ltd (C-414/99),
                                                                               exclusive right, it is not relevant:
between Levi Strauss & Co., Levi Strauss (UK) Ltd and Tesco
Stores Ltd, Tesco plc (C-415/99), and between Levi Strauss &
Co., Levi Strauss (UK) Ltd v Costco Wholesale UK Ltd, formerly
Costco UK Ltd (C-410/99) — on the interpretation of Article 7                  —      that the importer of goods bearing the trade mark is not
of First Council Directive 89/104/EEC of 21 December 1988                             aware that the proprietor objects to their being placed on
to approximate the laws of the Member States relating to trade                        the market in the European Economic Area or sold there
marks (OJ 1989 L 40, p. 1), as amended by the Agreement on                            by traders other than authorised retailers, or
 ---pagebreak--- 5.1.2002                EN                      Official Journal of the European Communities                                            C 3/11
      —    that the authorised retailers and wholesalers have not                            JUDGMENT OF THE COURT
           imposed on their own purchasers contractual reservations
           setting out such opposition, even though they have been
           informed of it by the trade mark proprietor.                                              (Third Chamber)
(1) OJ C 6 of 8.1.2000; OJ C 79 of 18.3.2000.
                                                                                of 13 November 2001
                                                                           in Case C-427/00: Commission of the European Communi-
                                                                           ties v United Kingdom of Great Britain and Northern
                                                                                Ireland (1)
                 JUDGMENT OF THE COURT
                                                                           (Failure by a Member State to fulfil its obligations —
                         (Sixth Chamber)                                   Quality of bathing water — Inadequate compliance with
                                                                                Directive 76/160/EEC)
                      of 27 September 2001
                                                                                (2002/C 3/15)
in Case C-442/99 P: Cordis Obst und Gemüse Grosshandel
                             GmbH (1)
                                                                                (Language of the case: English)
(Appeal — Common organisation of the market — Bananas
— Imports from ACP States and third countries — Request
for import licences — Transitional measures — Regulation
      (EEC) No 404/93 — Principle of equal treatment)
                           (2002/C 3/14)                                   In Case C-427/00: Commission of the European Communities
                                                                           (Agent: R.B. Wainwright) v United Kingdom of Great Britain
                                                                           and Northern Ireland (Agent: G. Amodeo, assisted by D. Wyatt)
                   (Language of the case: German)                          — application for a declaration that by failing to ensure that
                                                                           bathing water in the United Kingdom complies with the limit
(Provisional translation; the definitive translation will be published     values set in accordance with Article 3 of Council Directive
                   in the European Court Reports)                          76/160/EEC of 8 December 1975 concerning the quality of
                                                                           bathing water (OJ 1976 L 31, p. 1), the United Kingdom has
                                                                           failed to fulfil its obligations under that Directive — the Court
                                                                           (Third Chamber), composed of. C. Gulmann, acting for the
In Case C-442/99 P: Cordis Obst und Gemüse Grosshandel                     President of the Chamber, J.-P. Puissochet and J.N. Cunha
GmbH, established in Ostrau (Germany), (Rechtsanwalt:                      Rodrigues (Rapporteur), Judges; D. Ruiz-Jarabo Colomer,
G. Meier) — appeal against the judgment of the Court of First              Advocate General; R. Grass, Registrar, has given a judgment
Instance of the European Communities (Fifth Chamber) in                    on 13 November 2001, in which it:
Case T-612/97 Cordis v Commission [1999] ECR II-2771,
seeking to have that judgment set aside, the other parties
to the proceedings being: Commission of the European
Communities (Agent: K.-D. Borchardt) and French Republic                   1.    Declares that, since it has not ensured that bathing water
(Agents: K. Rispal-Bellanger and C. Vasak) — the Court                           complied with the limit values set in accordance with Article 3
(Sixth Chamber), composed of: C. Gulmann, President of the                       of Council Directive 761160/EEC of 8 December 1975,
Chamber, J.-P. Puissochet, R. Schintgen, N. Colneric and                         concerning the quality of bathing water, the United Kingdom
J.N. Cunha Rodrigues (Rapporteur), Judges; J. Mischo, Advocate                   of Great Britain and Northern Ireland has failed to fulfil its
General; H. von Holstein, Deputy Registrar, for the Registrar,                   obligations under that Directive.
has given a judgment on 27 September 2001, in which it:
                                                                           2.    Orders the United Kingdom of Great Britain and Northern
1.    Dismisses the appeal;                                                      Ireland to pay the costs.
2.    Orders Cordis Obst und Gemüse Grosshiandel to pay the costs;
3.    Orders the French Republic to bear its own costs.
                                                                           (1) OJ C 28 of 27.1.2001.
(1) OJ C 47 of 19.2.2000.


title: Case C-371/99: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that court of 23 June 1999 in the case of Liberexim B.V. v Inspecteur Belastingdienst/Douane District Arnhem

text:
18.12.1999             EN                    Official Journal of the European Communities                                         C 366/17
On a proper construction of Article 1 thereof, is Council                        lation; is it relevant whether in this operation there is
Regulation (EC) No 3295/94 of 22 December 1994 laying                            an intention to bring the goods — inter alia through
down measures to prohibit the release for free circulation,                      completion of the operation — into circulation within
export, re-export or entry for a suspensive procedure of                         the Community contrary to the Community pro-
counterfeit and pirated goods (Official Journal of the European                  visions; or
Communities L 341 of 30 December 1994) also applicable to
situations in which goods of the type specified therein are, in             (c) should the words ‘cease to be covered’ be construed as
the course of transit between two countries not belonging to                     referring to the totality of the operations which result
the European Community, temporarily detained by the cus-                         in the goods being brought into circulation within the
toms authorities in a Member State on the basis of that                          Community otherwise than in a regular manner?
regulation, at the request of a holder of rights who claims that
his rights have been infringed and whose undertaking has                2. If the answer to the first question is in accordance with
its registered office in a Member State of the European                     heading (c), where does this cessation occur: does it occur
Community?                                                                  in the place where the first irregular operation is carried
                                                                            out, or in the place where a subsequent operation is carried
                                                                            out, in particular the place where the goods — in the
                                                                            present case following breaking of the seals — are unloaded
                                                                            from the means of transport?
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that court of 23 June 1999
in the case of Liberexim B.V. v Inspecteur Belasting-                   Action brought on 7 October 1999 by the Kingdom of
                dienst/Douane District Arnhem                           Spain against the Commission of the European Communi-
                                                                                ties
                         (Case C-371/99)
                                                                                (Case C-374/99)
                         (1999/C 366/27)                                                           (1999/C 366/28)
Reference has been made to the Court of Justice of the                  An action against the Commission of the European Communi-
European Communities by judgment of the Hoge Raad der                   ties was brought before the Court of Justice on 7 October
Nederlanden (Supreme Court of the Netherlands) of 23 June               1999 by the Kingdom of Spain, represented by Mónica
1999, received at the Court Registry on 4 October 1999, for a           López-Monı́s Gallego, Abogado del Estado, with an address for
preliminary ruling in the case of Liberexim B.V. v Inspecteur           service in Luxembourg at the Spanish Embassy, 4-6 Boulevard
Belastingdienst/Douane District Arnhem (Tax Inspector-                  E. Servais.
ate/Arnhem Customs District) on the following questions:
                                                                        The applicant claims that the Court of Justice should:
1. What is to be understood by the words ‘cease to be
    covered’ (‘onttrekken’) by the external transit arrangements        — Annul the Commission’s decision of 28 July 1999
    within the meaning of Article 7(3) of the Sixth Directive, if           amending Decision 99/187/EC (1) as regards the financial
    such cessation does not occur in a regular manner — that                adjustments imposed on the Kingdom of Spain and
    is to say, otherwise than by the goods being declared for               contested in the application, and
    free circulation:
                                                                        — order the defendant institution to pay the costs.
    (a) is this the first operation which, in relation to the
         goods, is carried out contrary to any provision connec-        Pleas in law and main arguments
         ted with those arrangements, and is it relevant whether
         in this operation there is an intention to bring the
         goods — inter alia through completion of the oper-             The Kingdom of Spain challenges the contested decision as
         ation — into circulation within the Community con-             regards the financial adjustments imposed in the following
         trary to that provision; or                                    sectors:
    (b) does such cessation occur (only) once the goods — in
         the present case following breaking of the seals —             1. A i d f o r t h e c o n s u m p t i o n o f o l i v e o i l
         have been unloaded from the means of transport
         without compliance with the obligation to produce the          PTE 6 206 113 141 corresponding to an adjustment of 10 %
         goods with documentation at the office of destination          of the expenditure incurred by Spain for the 1994 and 1995
         in accordance with Article 22(1) of the transit regu-          financial years.


title: Case T-120/99: Action brought on 19 May 1999 by C. Kik against the Office for Harmonisation in the Internal Market (trade marks and designs)

text:
28.8.1999              EN                    Official Journal of the European Communities                                      C 246/35
Commission to offset against debts owed by it, arising from             The applicant argues that the aforementioned Article 115 and
non-contractual prescriptive obligations, contractual debts due         Rule 1(1)(j) are invalid and lack binding force because they
to it which are governed by the laws of a Member State — in             infringe Article 12 EC (ex Article 6) and Article 1 of Council
this case, Belgium — to which the MED-URBS contracts refer.             Regulation No 1 (2). While the Community trade mark may be
                                                                        lodged in the Dutch language, one of the five working
The applicant also pleads breaches of the principles of legal           languages of the Office must be used during the subsequent
certainty and of the protection of legitimate expectations, and         procedure and in opposition proceedings. This rule on
of the obligation to provide a statement of reasons for                 languages places the applicant at a disadvantage vis-à-vis trade
measures adopted.                                                       mark agents from Member States whose languages feature
                                                                        among the official working languages of the Office.
                                                                        (1) Commission Regulation (EC) No 2868/95 of 13 December
                                                                            1995 implementing Council Regulation (EC) No 40/94 on the
                                                                            Community trade mark (OJ 1995 L 303, p. 1).
                                                                        (2) Council Regulation of 15 April 1958 determining the languages
                                                                            to be used by the European Economic Community (OJ, English
Action brought on 19 May 1999 by C. Kik against the                         Special Edition 1952-1958, p. 59).
Office for Harmonisation in the Internal Market (trade
                       marks and designs)
                        (Case T-120/99)
                        (1999/C 246/71)
                                                                        Action brought on 21 May 1999 by Enrique Gutiérrez de
                   (Language of the case: Dutch)                            Quijano y Llorens against the European Parliament
An action against the Office for Harmonisation in the Internal                                   (Case T-125/99)
Market (trade marks and designs) was brought before the
Court of First Instance of the European Communities on 19                                        (1999/C 246/72)
May 1999 by C. Kik, trade mark agent, The Hague, represented
by G.L. Kooy, of the Bar of The Hague, with an address for
service in Luxembourg at the Chambers of N. Decker, 16                                     (Language of the case: Spanish)
Avenue Marie-Thérèse.
                                                                        An action against the European Parliament was brought before
The applicant claims that the Court should:                             the Court of First Instance of the European Communities on
                                                                        21 May 1999 by Enrique Gutiérrez de Quijano y Llorens,
1. declare her application to be well founded;                          represented by Juan Ramón Iturriagagoitia, with an address for
                                                                        service in Luxembourg at the Chambers of Stephan Le Goueff,
2. annul, or review, the decision of the Board of Appeal,               9 Avenue Guillaume, 1651 Luxembourg.
     Third Chamber, rejecting her application for registration
     of the (Community) trade mark KIK and, ruling afresh,
     annul the decision taken by the Office on 19 March 1999;           The applicant claims that the Court should:
3. in the alternative, rule that all formal requirements were           — partially annul Notice of Open Competition PE/215/LA of
     satisfied with regard to the application for registration of            the General Secretariat of the European Parliament — as
     the trade mark KIK;                                                     regards ‘option 2’ — published in Official Journal of the
                                                                             European Communities No C-53 A of 24 February 1999;
4. in the further alternative, rule that the applicant is not
     obliged to submit only one of the Office’s official working        — order the European Parliament to pay the costs.
     languages as a second language;
5. order the Office to pay the costs of the proceedings.                Pleas in law and main arguments
                                                                        The applicant, an official of the Court of Justice and a former
Pleas in law and main arguments                                         official of the European Parliament, contests Notice of Open
                                                                        Competition PE/215/LA in that, in one of its options, that
The applicant’s application for registration of the trade mark          notice provides for the drawing up of a reserve list of
KIK for ‘providing advice on situations of unfair competition           Spanish-language interpreters. It must be remembered in this
on the European Community market (Class 42)’ was submitted              connection that, by judgment of 22 May 1996 (1), upheld on
in the Dutch language. Dutch was also indicated as the second           appeal by judgment of the Court of Justice of 19 November
language. The application was rejected on the ground that it            1998 (2), the Court of First Instance annulled the decision of
failed to comply with Rule 1(1)(j) of Regulation No 2868/95 (1)         the defendant institution rejecting the applicant’s complaint
and Article 115(3) of Regulation No 40/94 with regard to the            against the rejection of his candidature for the post advertised
second language. The Board of Appeal confirmed the decision             in Notice PE/LA91 for the recruitment by transfer of a
of the examiner.                                                        Spanish-language interpreter.


title: Case C-202/07 P: Appeal brought on 16 April 2007 by France Télécom SA against the judgment of the Court of First Instance (Fifth Chamber, Extended Composition) of 30 January 2007 in Case T-340/03 France Télécom SA v Commission of the European Communities

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/9

         Appeal brought on 16 April 2007 by France Télécom SA against the judgment of the Court of First Instance (Fifth Chamber, Extended Composition) of 30 January 2007 in Case T-340/03 France Télécom SA v Commission of the European Communities
   (Case C-202/07 P)
   (2007/C 170/16)
   Language of the case: French
   Parties

      Appellant: France Télécom SA, formerly Wanadoo Interactive SA (represented by: O.W. Brouwer, H. Calvet, J. Philippe and T. Janssens, avocats)

      Other party to the proceedings: Commission of the European Communities
   Forms of order sought

               —

               set aside the judgment of the Court of First Instance of the European Communities in Case T-340/03 France Télécom SA v Commission of the European Communities, which dismissed the appeal against the Commission of the European Communities decision of 16 July 2003 relating to a proceeding under Article 82 [EC] (Case COMP/38.233 — Wanadoo Interactive);

               —

               accordingly:

                           —

                           either refer the case back to the Court of First Instance for a fresh decision;

                           —

                           or give final judgment and annul the decision of the Commission of the European Communities of 16 July 2003 relating to a proceeding under Article 82 [EC] (Case COMP/38.233 — Wanadoo Interactive), by granting the forms of order sought in the application filed by the appellant at first instance;

               —

               order the Commission of the European Communities to pay the costs.

         Pleas in law and main arguments
   The appellant puts forward seven grounds in support of its appeal.
   By its first ground of appeal the appellant claims that the Court of First Instance failed to comply with its duty to provide reasons both as regards the possibility for recoupment of losses, which must be proven, and as regards the right to align prices with those of competitors, which the Court ruled out without explanation.
   By its second ground of appeal the appellant claims that the Court infringed Article 82 EC by refusing Wanadoo the right to align its prices, in good faith, with those of its competitors. That right is enshrined in the decision-making practice of the Commission and the case-law of the Court, as well as in the French Competition doctrine and authorities, and furthermore is the only means for the appellant to remain competitive in the market.
   By its third ground of appeal the appellant claims that the Court also infringed Article 82 in failing to find fault with the Commission's method for calculating cost recovery, which involved a distortion of the test of predation required by the Court. The method which the Commission used made it impossible to know whether the Wanadoo subscribers generated a profit or loss for that business during their subscription period.
   By its fourth ground of appeal the appellant claims that, by deciding that the costs and revenues subsequent to the period of the alleged infringement should not be taken into account, the Court misconstrued both Article 82 EC and its duty to provide reasons. The Commission wrongly concluded there had been an infringement on the basis of that temporal limitation on costs and revenues to be taken into account.
   By its fifth ground of appeal the appellant also alleges the Court infringed Article 82 EC, and its duty to give reasons, by holding that a price may be predatory even when it is accompanied by a considerable reduction in the market share of the relevant undertaking. Such a price cannot be regarded as likely to lead to the exclusion of competitors.
   By its sixth ground of appeal the appellant claims that, as regards the alleged plan of predation, the Court distorted the facts and the evidence submitted for its consideration, and at the same time infringed Article 82 EC. That article requires an objectively identifiable plan to remove competitors and cannot, in any circumstances, be satisfied by a subjective test of the concept of an abuse of a dominant position.
   Finally by its seventh ground of appeal the appellant alleges that the Court infringed Article 82 EC not only in holding that proving the possibility for recoupment of losses was not a pre-requisite for finding predatory pricing, but also in confusing the Commission's evidence on the possibility of recoupment of those losses with the relevant undertaking's evidence on the impossibility of recoupment of those losses.


title: Case C-33/99: Reference for a preliminary ruling from the Arrondissementsrechtbank te Amsterdam by judgment of that court of 28 January 1999 in the case of H. Fahmi (Case No AKW 97/5082/24) and M. M. Esmoris Cerdeiro-Pinedo Amado (Case No AKM 97/7018/24) againts Bestuur van de Sociale Verzekeringsbank

text:
1.5.1999                EN                    Official Journal of the European Communities                                       C 121/9
Reference for a preliminary ruling from the Arrondisse-                               nationals and who are pursuing their studies in the
mentsrechtbank te Amsterdam by judgment of that court                                 Netherlands?
of 28 January 1999 in the case of H. Fahmi (Case No AKW                      2. Must Article 48 or Article 52 of the EEC Treaty
97/5082/24) and M. M. Esmoris Cerdeiro-Pinedo Amado
                                                                                be interpreted as meaning that the restriction of
(Case No AKW 97/7018/24) against Bestuur van de Sociale
                                                                                entitlement to receive from the national authorities a
                        Verzekeringsbank
                                                                                contribution to the cost of maintaining student chil-
                                                                                dren aged 18 or over results, for nationals of Member
                          (Case C-33/99)                                          States other than the Netherlands who move to the
                                                                                Netherlands or for the children of such nationals, in
                                                                                an obstacle to freedom of movement for workers,
                         (1999/C 121/16)                                          alternatively to freedom of establishment, which is
                                                                                such as to render that restriction incompatible with
                                                                                those Articles or either of them?
Reference has been made to the Court of Justice of the
European Communities by judgment of the Arrondissements-
                                                                         (1) OJ L 28, 30.1.1997, p. 1 (consolidated version).
rechtbank te Amsterdam (Amsterdam District Court) of 28 Jan-             (2) OJ, English special Edition 1968 (II), p. 475.
uary 1999, receveid at the Court Registry on 8 February 1999,
for a preliminary ruling in the case of H. Fahmi and M. M.
Esmoris Cerdeiro-Pinedo Amado against Bestuur van de Sociale
Verzekeringsbank on the following questions:
                                                                         Reference for a preliminary ruling by the Hoge Raad der
— In the case of H. Fahmi (Case No AKW 97/5082/24):                      Nederlanden by judgment of 5 January 1999 in the
                                                                                criminal proceedings against R. Donkersteeg
    1. a) Must Article 41(1) of the Cooperation Agreement
            be interpreted as meaning that a Moroccan worker                                        (Case C-37/99)
            may rely on the prohibition of discrimination laid
            down in that provision if he no longer resides on                                      (1999/C 121/17)
            the territory of a Member State of the European
            Community?                                                   Reference has been made to the Court of Justice of the
                                                                         European Communities by judgment of 5 January 1999 by
                                                                         the Hoge Raad der Nederlanden (Supreme Court of the
        b) If so, does Article 41(3) of the Cooperation Agree-           Netherlands), which was received at the Court Registry on
             ment preclude reliance on Article 41(1) thereof by          10 February 1999, for a preliminary ruling in the criminal
             a Moroccan worker whose children reside outside             proceedings against R. Donkersteeg on the following ques-
             the Community?                                              tions:
    2. If a worker such as the first plaintiff may rely on the           1. Is Article 1 of Council Directive 83/189/EEC (1) to be
        prohibition of discrimination laid down in Article                   interpreted as meaning that the provision in Article 2(1) of
        41 (1) of the Cooperation Agreement, does that                       the Verordening Minimumeisen Varkesnhouderij 1993
        prohibition have the effect of rendering the abolition               (1993 Regulation on the minimum requirements for pig
        of the entitlement to receive child allowance imper-                 keeping) referred to under heading 4, which states that:
        missible if the effect of that abolition is such that                The operator is required to ensure that one or more proper
        that right is replaced by an entitlement to receive a                disinfectant containers or appropriate cleaning facilities for
        contribution to (inter alia) the cost of maintaining                 disinfecting footwear are present on his holding, must be
        student children aged 18 or over which far more                      regarded as a technical regulation within the meaning of
        frequently benefits Netherlands nationals or persons                 that Directive?
        insured under the AKW who reside in the Netherlands              2. Is Article 1 of Directive 83/189/EEC to be interpreted as
        than workers such as the first plaintiff?                            meaning that the provision in Article 2(1) of the Verorde-
                                                                             ning Bestrijding Ziekte van Aujeszky 1993 (1993 Regu-
— In the case of M. M. Esmoris Cerdeiro-Pinedo Amado (Case                   lation on the combating of Aujeszky’s disease) referred to
    No AKW 97/7018/24):                                                      under heading 8, which states that: Every operator is
                                                                             required to have pigs present on his holding vaccinated
    1. a) Does Article 3 of Council Regulation (EEC) No                      against Aujeszky’s disease in accordance with the vacci-
            1408/71 (1), or any other provision of that Regu-                nation scheme set up for the animal species concerned
            lation, preclude the abolition of the right to child             and the individual areas by the Afdeling (pig breeding
            allowance for student children over the age of 18 if             department) on the recommendation of the Stichting
            eligibility for the entitlement which replaces that              (veterinary care association), must be regarded as a techni-
            right is in principle enjoyed only by students who               cal regulation within the meaning of that Directive?
            are Netherlands nationals and who are pursuing               3. Where a draft technical regulation within the meaning
            their studies in the Netherlands?                                of Directive 83/189/EEC is not communicated to the
                                                                             Commission pursuant to Articles 8 and 9 of that Directive,
        b) Must Article 7(1) of Council Regulation (EEC)                     does that render such a regulation inapplicable to the
             No 1612/68 (2) be interpreted as precluding the                 extent to which it constitutes a barrier to trade or the free
             abolition of the right to child allowance for student           movement of goods in a particular case, or should it be
             children over the age of 18 if eligibility for the              ruled that such a provision cannot be applied where the
             entitlement which replaces that right is in principle           regulation constitutes, or may constitute, a barrier to trade
             enjoyed only by students who are Netherlands                    in general irrespective of the particular case?


title: Case T-191/10: Action brought on 20 April 2010 — Greenwood Houseware (Zhuhai) and others v Council

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/44

         Action brought on 20 April 2010 — Greenwood Houseware (Zhuhai) and others v Council
   (Case T-191/10)
   2010/C 179/78
   Language of the case: English

      Parties

      Applicants: Greenwood Houseware (Zhuhai) Ltd (Zhuhai City, China), Brabantia S&S Ltd (Hong Kong, China), Brabantia S&L Belgium NV (Overpelt, Belgium), Brabantia Belgium NV (Overpelt, Belgium), Brabantia Netherlands BV (Valkenswaard, Netherlands) and Brabantia (U.K.) Ltd (Bristol, United Kingdom), (represented by: E. Vermulst and Y. van Gerven, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Implementing Regulation (EU) No 77/2010 of 19 January 2010 (1);

               —

               Order the Council to pay the costs of the proceedings; and

               —

               Order the interveners, if any, to pay their own costs.

      Pleas in law and main arguments

   By means of its application, the applicants seek, pursuant to Article 263 TFUE, the annulment of Council Implementing Regulation (EU) No 77/2010 of 19 January 2010 amending Regulation (EC) No 452/2007 imposing a definitive anti-dumping duty on imports of ironing boards originating, inter alia, in the People’s Republic of China.
   In support of its submissions, the applicants put forward the following pleas in law:

               Firstly, by issuing the additional disclosure after the publication of the contested regulation, the Council violated Article 20(4) of the Council Regulation (EC) No 1225/2009 (2) and the rights of defence of the applicants. The institutions of the European Union failed to inform the applicants before the contested regulation was finalized and sent to the Council for adoption, about the new facts and considerations underlying the change in the anti-dumping duty and did not provide the applicants any opportunity to present new arguments or to clarify the previously provided information which could have led to a further reduction of the anti-dumping duty.

               Secondly, the Council made a manifest error of appraisal and violated Articles 2(9) and 11(10) of Council Regulation (EC) No 1225/2009 while constructing the export price. The Union institutions erroneously deducted the 38,1 % anti-dumping duty in the process of construction of the export price because the requirement of Article 11(10) of the said regulation is not to be proved in case of a new exporter. Moreover, the Union institutions’ assessment of the deduction of the anti-dumping duty was based on an erroneous appreciation of the facts.

               Thirdly, the Council committed a manifest error of appraisal, breached the principles of diligence and sound administration and non-discrimination, and erred in the application of Article 2(10) of Council Regulation (EC) No 1225/2009 by making incorrect adjustments to the export price and normal value. The Union institutions erroneously deducted from the export price direct costs not paid by the applicants in relation to a portion of the exports of the product concerned, and wrongly increased the normal value to account for the non-refundable VAT on export sales, even though no such adjustment was made in the original investigation.

               Finally, the Union institutions committed a manifest error of appraisal, breached the principles of diligence and sound administration, and non-discrimination, and erred in the application of Articles 2(7)(b), 2(7)(c) of Council Regulation (EC) No 1225/2009, by denying market economy treatment to Greenwood Houseware (Zhuhai) Ltd. The Union institutions’ refusal of market economy treatment to the applicant Greenwood Houseware (Zhuhai) Ltd. was based on an erroneous appraisal of facts and evidence submitted. Furthermore, there was an absence of diligence and due care on the part of the Union institutions in the assessment of all the relevant aspects concerning the application of criteria 2 and 3 of Article 2(7)(c) of the said regulation.

      (1)  Council Implementing Regulation (EU) No 77/2010 of 19 January 2010 amending Regulation (EC) No 452/2007 imposing a definitive anti-dumping duty on imports of ironing boards originating, inter alia, in the People’s Republic of China (OJ L 24, p. 1).

      (2)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, p. 51).


title: Order of the Court of First Instance of 27 May 2002 in Case T-18/01 Anthony Goldstein v Commission of the European Communities (Application initiating proceedings — Formal requirements — Competition — Rejection of complaint — Action manifestly inadmissible or manifestly unfounded)

text:
10.8.2002              EN                      Official Journal of the European Communities                                           C 191/25
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               with an address for service in Luxembourg, supported by
                                                                          Eurobrom BV, established in Rijswijk (Netherlands), Lonza
                          of 5 June 2002                                  GmbH, established in Wuppertal (Germany), Arch Chemi-
                                                                          cals SA, established in Paris, Troy Chemical Company BV,
in Case T-198/00: Hershey Foods Corporation v Office                      established in Maassluis (Netherlands), represented by K. Van
for Harmonisation in the Internal Market (Trade Marks                     Maldegem and C. Mereu, lawyers, with an address for service
                     and Designs) (OHIM) (1)                              in Luxembourg, against Commission of the European Com-
                                                                          munities (Agents: R. Wainwright and L. Ström) — application
(Community trade mark — Figurative mark ‘Kiss device                      for annulment of Commission Regulation (EC) No 1896/2000
with plume’ — Right to be heard — Article 73 of Regulation                of 7 September 2000 on the first phase of the programme
(EC) No 40/94 — Prior registration of the mark in certain                 referred to in Article 16(2) of Directive 98/8/EC of the
                          Member States)                                  European Parliament and of the Council on biocidal products
                                                                          (OJ 2000 L 228, p. 6) — the Court of First Instance
                                                                          (Second Chamber), composed of R.M. Moura Ramos, President,
                         (2002/C 191/42)
                                                                          J. Pirrung and A.W.H. Meij, Judges; H. Jung, Registrar, has
                                                                          made an order on 29 April 2002, the operative part of which
                   (Language of the case: English)                        is as follows:
In Case T-198/00, Hershey Foods Corporation, established in               1.    The action is dismissed as being inadmissible.
Hershey, Pennsylvania (United States), represented by
R. Wyand, lawyer, with an address for service in Luxembourg,              2.    The applicant shall pay its own costs and those of the
v Office for Harmonisation in the Internal Market (Trade Marks                  Commission, including those relating to the proceedings for
and Designs) (OHIM) (Agents: A. von Mühlendahl, J. Miranda                      interim measures, but with the exception of those attributable
de Sousa and A. Di Carlo): Action brought against the decision                  to the interventions.
of the Third Board of Appeal of the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) of 29 May                3.    The interveners shall pay their own costs, and shall jointly and
2000 (Case R 391/1999-3), the Court of First Instance (Second                   severally pay those incurred by the defendant as a result of their
Chamber), composed of: R.M. Moura Ramos, President, J. Pir-                     interventions.
rung and A.W.H. Meij, Judges; J. Plingers, Administrator, for
the Registrar, has given a judgment on 5 June 2002, in which
it:                                                                       (1) OJ C 4 of 6.1.2001.
1.    Dismisses the application;
2.    Orders the applicant to pay the costs.
(1) OJ C 302 of 21.10.2000.
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 27 May 2002
      ORDER OF THE COURT OF FIRST INSTANCE                                in Case T-18/01 Anthony Goldstein v Commission of the
                                                                                European Communities (1)
                        of 29 April 2002
                                                                          (Application initiating proceedings — Formal requirements
in Case T-339/00: Bactria Industriehygiene-Service Ver-
                                                                          — Competition — Rejection of complaint — Action mani-
waltungs GmbH v Commission of the European Com-
                                                                                festly inadmissible or manifestly unfounded)
                            munities (1)
(Regulation (EC) No 1896/2000 — Directive 98/8/EC —                                                 (2002/C 191/44)
Biocidal products — Action for annulment — Inadmissibility
               — Person individually concerned)
                                                                                (Language of the case: English)
                         (2002/C 191/43)
                   (Language of the case: English)                        In Case T-18/01 Anthony Goldstein, residing at Harrow,
                                                                          Middlesex (United Kingdom), represented by R. St. John
                                                                          Murphy, Solicitor, against Commission of the European Com-
In Case T-339/00: Bactria Industriehygiene-Service Verwal-                munities (Agent: P. Oliver), action for annulment of the
tungs GmbH, established in Kirchheimbolanden (Germany),                   Commission’s decision of 12 January 2001 rejecting the
represented by K. Van Maldegem and C. Mereu, lawyers,                     applicant’s complaint concerning the alleged infringement of
 ---pagebreak--- C 191/26                EN                       Official Journal of the European Communities                                       10.8.2002
Articles 81 and 82 EC by the General Council of the Bar of                  ORDER OF THE PRESIDENT OF THE COURT OF FIRST
England and Wales — the Court of First Instance (Fourth                                                  INSTANCE
Chamber), composed of: M. Vilaras, President, V. Tiili and
P. Mengozzi, Judges; H. Jung: Registrar, has made an order in                                         of 7 May 2002
which it:
                                                                            in Case T-306/01 R Abdirisak Aden and Others v Council
1.    Dismisses the application.                                            of the European Union and Commission of the European
                                                                                Communities
2.    Orders the applicant to bear his own costs, incurred both in
      these proceedings and in the proceedings for interim relief in        (Proceedings for interim measures — Common foreign
      Cases T-18/01 R and T-18/01 R III, and pay the costs                  and security policy — Sanctions against the Taliban of
      incurred by the Commission in these proceedings and in the                    Afghanistan — Freezing of funds — Urgency)
      proceedings for interim relief in Case T-18/01 R.
                                                                                (2002/C 191/46)
(1) OJ C 108 of 7.4.2001.                                                                     (Language of the case: Swedish)
                                                                            In Case T-306/01 R: Abdirisak Aden, resident in Spånga
                                                                            (Sweden), Abdulaziz Ali, resident in Järfälla (Sweden), Ahmed
                                                                            Yusuf, resident in Spånga, Al Barakaat International Foun-
                                                                            dation, established in Spånga, represented by L. Silbersky and
                                                                            T. Olsson, lawyers, against Council of the European Union
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                                (Agents: M. Vitsentzatos and I. Rådestad) and Commission of
                              INSTANCE                                      the European Communities (Agents: A. Van Solinge and
                                                                            J. Enegren) — application for suspension of the implemen-
                       of 19 February 2002                                  tation of Council Regulation (EC) No 467/2001 of 6 March
                                                                            2001 prohibiting the export of certain goods and services to
                                                                            Afghanistan, strengthening the flight ban and extending the
in Case T-302/01 R: Gerhard Birkhoff v Commission of                        freeze of funds and other financial resources in respect of the
                  the European Communities                                  Taliban of Afghanistan, and repealing Regulation (EC) No 337/
                                                                            2000 (OJ 2001 L 67, p. 1) and of Commission Regulation (EC)
                                                                            No 2199/2001 of 12 November 2001 amending, for the
(Procedure for interim relief — Officials — Dependent child                 fourth time, Regulation No 467/2001 (OJ 2001 L 295, p. 16)
allowance — Suspension of operation of a measure —                          in so far as they apply to the applicants, until there has been a
                         Urgency — None)                                    ruling on the substance — the President of the Court of First
                                                                            Instance has made an order on 7 May 2002, the operative part
                          (2002/C 191/45)                                   of which is as follows:
                                                                            1.   The application for interim measures is dismissed.
                    (Language of the case: Italian)
                                                                            2.   The costs are reserved.
In Case T-302/01 R: Gerhard Birkhoff, a former official of
the Commission of the European Communities, residing at
Weitnau (Germany), represented by V. Salvatore, lawyer, v
Commission of the European Communities (Agents: J. Currall                  Action brought on 9 May 2002 by Villiger Söhne GmbH
and A. Dal Ferro) — application for suspension of operation                          against the Council of the European Union
of the Commission’s decision of 26 September 2001 rejecting
the complaint lodged by the applicant, and of the decision of
4 July 2001 by which the Commission suspended payment to                                             (Case T-154/02)
the applicant of the dependent child allowance in favour of his
daughter — the President of the Court of First Instance made                                         (2002/C 191/47)
an order on 19 September 2002, the operative part of which
is as follows:                                                                                (Language of the case: German)
1.    The application for interim measures is dismissed.
                                                                            An action against the Council of the European Union was
                                                                            brought before the Court of First Instance of the European
2.    The costs are reserved.
                                                                            Communities on 9 May 2002 by Villiger Söhne GmbH,
                                                                            Waldshut-Tiengen (Germany), represented by B. Wägenbaur,
                                                                            lawyer.


title: Case C-196/09: Judgment of the Court (Grand Chamber) of 14 June 2011 (reference for a preliminary ruling from the Chambre de recours des écoles européennes) — Paul Miles and Others v European Schools (Reference for a preliminary ruling — Concept of ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU — Complaints Board of the European Schools — System of remuneration of teachers seconded to the European Schools — No adjustment of remuneration following depreciation in sterling — Compatibility with Articles 18 TFEU and 45 TFEU)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/4

         Judgment of the Court (Grand Chamber) of 14 June 2011 (reference for a preliminary ruling from the Chambre de recours des écoles européennes) — Paul Miles and Others v European Schools
   (Case C-196/09) (1)

   (Reference for a preliminary ruling - Concept of ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU - Complaints Board of the European Schools - System of remuneration of teachers seconded to the European Schools - No adjustment of remuneration following depreciation in sterling - Compatibility with Articles 18 TFEU and 45 TFEU)
   2011/C 232/06
   Language of the case: French

      Referring court

   Chambre de recours des écoles européennes

      Parties to the main proceedings

      Applicants: Paul Miles, Robert Watson Mac Donald

      Defendant: European Schools

      Re:

   Reference for a preliminary ruling — Complaints Board of the European Schools — Interpretation of Articles 12, 39 and 234 of the EC Treaty — Meaning of national court or tribunal for the purposes of Article 234 EC — Remuneration system for teachers on secondment to the European Schools — No arrangements for adapting the remuneration by reason of the pound sterling being devalued — Infringement of the principles of equal treatment and the freedom of movement for workers

      Operative part of the judgment

   The Court of Justice has no jurisdiction to rule on a reference for a preliminary ruling from the Complaints Board of the European Schools.

      (1)  OJ C 193, 15.8.2009.


title: Case C-467/12: Action brought on 19 October 2012 — Christophe Gassiat v Ordre des avocats de Paris

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/13

         Action brought on 19 October 2012 — Christophe Gassiat v Ordre des avocats de Paris
   (Case C-467/12)
   2013/C 108/25
   Language of the case: French

      Parties

      Applicant: Christophe Gassiat

      Defendant: Ordre des avocats de Paris
   By order of 21 February 2013, the Court (Seventh Chamber) declared that it clearly has no jurisdiction to rule on the present action. Consequently the action is declared inadmissible. The Court ordered Mr Christophe Gassiat to bear his own costs.


title: Case T-57/06: Judgment of the Court of First Instance of 7 November 2007 — Marly v OHIM — Erdal (Top iX) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Top iX — Earlier international word mark TOFIX — Relative ground for refusal — Absence of likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Request for proof of genuine use of the earlier mark submitted for the first time before the Court — Inadmissibility)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/37

         Judgment of the Court of First Instance of 7 November 2007 — Marly v OHIM — Erdal (Top iX)
   (Case T-57/06) (1)

   (Community trade mark - Opposition proceedings - Application for figurative Community trade mark Top iX - Earlier international word mark TOFIX - Relative ground for refusal - Absence of likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Request for proof of genuine use of the earlier mark submitted for the first time before the Court - Inadmissibility)
   (2007/C 315/69)
   Language of the case: French
   Parties

      Applicant: NV Marly SA (Brussels, Belgium) (represented by: B. Mouffe and O. Rodesch, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Petrequin and A. Rassat, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Erdal GmbH (Hallein, Austria) (represented by: M. Thewes and V. Wiot, lawyers)
   Re:
   Action brought against the decision of the Second Board of Appeal of OHIM of 14 December 2005 (Case R 1147/2004-2) concerning opposition proceedings between Erdal GmbH and NV Marly SA.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders NV Marly SA to pay the costs.

      (1)  OJ C 96, 22.4.2006.


5.9.98                EN              Official Journal of the European Communities                              C 278/33
       Removal from the register of Case C-21/98 (1)                   Removal from the register of Case C-123/96 (1)
                        (98/C 278/63)                                                    (98/C 278/67)
By order of 8 May 1998 the President of the Court of
                                                                 By order of 19 May 1998 the President of the Court of
Justice of the European Communities has ordered the
                                                                 Justice of the European Communities has ordered the
removal from the register of Case C-21/98: Commission of
                                                                 removal from the register of Case C-123/96: Kingdom of
the European Communities v. Ireland.
                                                                 Spain v. Commission of the European Communities.
(1) OJ C 72, 7.3.1998.
                                                                 (1) OJ C 180, 22.6.1996.
      Removal from the register of Case C-277/96 (1)
                        (98/C 278/64)                                  Removal from the register of Case C-199/96 (1)
                                                                                (98/C 278/68)
By order of 14 May 1998 the President of the Court
of Justice of the European Communities has ordered
the removal from the register of Case C-277/96 (reference        By order of 19 May 1998 the President of the Court of
for a preliminary ruling from the Hessisches Landes-             Justice of the European Communities has ordered the
arbeitsgericht): Hans-Jörg Dick v. EB-Schulungs-Gesell-          removal from the register of Case C-199/96: Kingdom of
schaft mbH (in liquidation).                                     Spain v. Commission of the European Communities.
(1) OJ C 318, 26.10.1996.                                        (1) OJ C 269, 14.9.1996.
       Removal from the register of Case C-40/97 (1)
                                                                       Removal from the register of Case C-299/97 (1)
                        (98/C 278/65)
                                                                                (98/C 278/69)
By order of 14 May 1998 the President of the Third
Chamber of the Court of Justice of the European                  By order of 20 May 1998 the President of the Court of
Communities has ordered the removal from the register            Justice of the European Communities has ordered the
of Case C-40/97 (reference for a preliminary ruling              removal from the register of Case C-299/97: Commission
from the Sozialgericht, Hamburg): Peter Michael Jordy            of the European Communities v. Portuguese Republic.
v. Techniker Krankenkasse and Techniker Krankenkasse
Pflegeversicherung.
                                                                 (1) OJ C 318, 18.10.1997.
(1) OJ C 94, 22.3.1997.
                                                                       Removal from the register of Case C-282/97 (1)
       Removal from the register of Case C-11/96 (1)                                     (98/C 278/70)
                        (98/C 278/66)
                                                                 By order of 25 May 1998 the President of the Court of
By order of 19 May 1998 the President of the Court of            Justice of the European Communities has ordered the
Justice of the European Communities has ordered the              removal from the register of Case C-282/97: Commission
removal from the register of Case C-11/96: Kingdom of            of the European Communities v. French Republic.
Spain v. Commission of the European Communities.
                                                                 (1) OJ C 295, 27.9.1997.
(1) OJ C 95, 30.3.1996.


No C 351 /22           EN                   Official Journal of the European Communities                               30 . 12 . 95
European Union and Commission of the European                                  Removal from the register of Joined Cases
Communities .                                                                    T- 18 9/94 , T-190/94 and T-191 /94 (')
                                                                                ( 95/C 351 /43 )
(') 0 | No C 312 , 8 . 11 . 1993 .
                                                                                (Language of the case: French)
      Removal from the register of Case T-561 /93 ( )                  By order of 19 October 1995 the President of the First
                                                                       Chamber ( Extended Composition ) of the Court of First
                           ( 95/C 351 /41 )
                                                                       Instance of the European Communities ordered the removal
              (Language of the case: English)                          from the register of Joined Cases T-l 89/94 , T-190/94
                                                                       and T-191 /94 : Philippe Heno, Michel Manchion and
By order of 16 October 1995 the President of the Second                Jean-Michel Tellier v. Council of the European Union and
Chamber, extended composition , of the Court of First                  Commission of the European Communities .
Instance of the European Communities ordered the removal
from the register of Case T-561 /93 : Tiercé Ladbroke SA v.            (') OJ No C 188 , 9 . 7 . 1994 .
Commission of the European Communities .
(') OJ No C 334 , 9 . 12 . 1993 .
       Removal from the register of Case T-66/94 ( )                        Removal from the register of Case T-154/95 H
                           ( 95/C 351 /42 )                                                      ( 95/C 351 /44 )
               (Language of the case: Italian)                                        (Language of the case: Italian)
By order of 8 November 1995 the President of the Fourth
Chamber ( Extended Composition ) of the Court of First                 By order of 21 November 1995 the President of the Fifth
Instance of the European Communities ordered the removal               Chamber of the Court of First Instance of the European
from the register of Case T-66/94 : Auditel Sri v.                     Communities ordered the removal from the register of Case
Commission of the European Communities .                               T-154/95 : Ittima Maremmana Sari v. Commission of the
                                                                       European Communities .
(') 0 } No C 90 , 26 . 3 . 1994 .
                                                                       (') OJ No C 333 , 9 . 12 . 1995 .


title: Reference for a preliminary ruling from the Landgericht Potsdam by order of that court of 27 April 1998 in the case of Berliner Kindl Brauerei AG against Andreas Siepert (Case C-208/98)

text:
25.7.98                 EN                 Official Journal of the European Communities                                C 234/21
     naturally used predominantly by goods vehicles in                Reference for a preliminary ruling from the Landesarbeits-
     regional and local traffic, registered in Austria. For           gericht (Regional Labour Court) Mecklenburg-Vorpom-
     traffic on those part sections, significantly, there has         mern by order of that court of 16 April 1998 in the case of
     not even been an adjustment for inflation.                        Silke-Karin Mahlburg v Land Mecklenburg-Vorpommern
                                                                                (Case C-207/98)
                                                                                (98/C 234/40)
     There is also an indirect difference of treatment on
     grounds of the nationality of the carrier in the fact
     that the two toll increases together apply only to
     goods vehicles of more than three axles, whereas for
     goods vehicles of up to three axles no toll increases            Reference has been made to the Court of Justice of the
     have been introduced even for the whole Brenner                  European Communities by an order of the Landesarbeits-
     motorway route, since in the latter category vehicles of         gericht Mecklenburg-Vorpommern of 16 April 1998,
     Austrian registration are clearly dominant. The                  which was received at the Court Registry on 2 June 1998,
     different treatment cannot be justified on the basis of          for a preliminary ruling in the case of Silke-Karin
     greater wear on the roads, since not only the number             Mahlburg v Land Mecklenburg-Vorpommern on the
     of axles but also factors such as the total tonnage in           following question:
     proportion to the number of axles, the axle load and
     the suspension system of the driving axles play a
     decisive role in this respect.
                                                                      Is there unlawful discrimination on grounds of sex within
                                                                      the meaning of Article 2(1) of Directive 76/207/EEC of
                                                                      9 February 1976 (1) where an employer does not employ
     Finally, the Brenner motorway toll system also                   an applicant in a vacant post, which she is qualified to
     indirectly differentiates according to the origin and            hold, because she is pregnant and cannot from the outset
     destination of goods vehicles. The imposition of quite           and for the duration of her pregnancy be employed in the
     disproportionately high tolls on the whole route as              post, which is intended to be occupied permanently,
     opposed to the part sections affects especially transit          because of a prohibition on employment under the
     traffic, that is, traffic whose origin and destination are       Mutterschutzgesetz (Maternity Law)?
     both outside Austria. The converse applies to the
     exemption from the toll increase of goods vehicles of
                                                                      (1) OJ L 39 of 14.2.1976, p. 40.
     not more than three axles.
Ð Infringement of Article 7(h) of the directive: Under
     Article 7(h) of the directive, toll increases must be
     related to increased costs of the toll roads themselves.
     In the present case this is quite evidently the case only
     to a very limited extent. The operating company's                Reference for a preliminary ruling from the Landgericht
     expenditure on the Brenner motorway, according to                Potsdam by order of that court of 27 April 1998 in the
     information from the Austrian Government, has partly             case of Berliner Kindl Brauerei AG against Andreas
     fallen considerably in recent years, yet in the same                                          Siepert
     period markedly higher toll income has been received.
                                                                                (Case C-208/98)
     The      Austrian      Government      wrongly    adduces
     expenditure by the financing company ASFINAG for                                         (98/C 234/41)
     other motorways and expressways in Austria. The
     term network' in Article 7(h) of the directive, in the
     context of the provisions relating to tolls, can only
     mean those roads for whose use tolls are lawfully
     charged. Since Austria levies a general user charge for          Reference has been made to the Court of Justice of the
     motor vehicles with a maximum permitted weight of                European Communities by order of the Landgericht
     not less than 12 tonnes (fourth indent of Article 2 of           Potsdam (Regional Court, Potsdam) of 27 April 1998,
     the directive), that means in the present case only the          received at the Court registry on 2 June 1998, for a
     Brenner motorway itself, in so far as it is to be                preliminary ruling in the case of Berliner Kindl Brauerei
     regarded as a series of bridges, tunnels and mountain           AG v Andreas Siepert on the following question:
     passes'.
(1) OJ L 279 of 12.11.1993, p. 32.                                    Does a contract of guarantee concluded by a natural
(2) [1995] ECR I-1827.                                                person not acting in the course of a trade or profession
                                                                      fall within the scope of Council Directive 87/102/EEC of
                                                                      22 December 1986 for the approximation of the laws,
                                                                      regulations and administrative provisions of the Member
                                                                      States concerning consumer credit (OJ L 42 of 12.2.1987,
 ---pagebreak--- C 234/22              EN                 Official Journal of the European Communities                                    25.7.98
p. 48) if it serves to secure the repayment of a debt which                   system as described in Question 1(a) to be
the principal debtor did not incur in the course of a trade                   established, where that system and the obligation
or profession already being pursued by him?                                   for waste producers to use the system are based
                                                                              on the interest in promoting recovery of the waste
                                                                              covered by the system, including the interest in
                                                                              ensuring necessary treatment capacity?
Reference for a preliminary ruling by the éstre Landsret            2. Must Article 10 of Directive 75/442/EEC, as amended
by order of 27 May 1998 in the case of FFAD Ð                            by Directive 91/156/EEC (see Articles 13 and 2(j) of
Entreprenùrforeningens Affalds/Miljùsektion, acting on                   Regulation (EEC) No 259/93), be construed as
behalf of Sydhavnens Sten & Grus ApS v The Commune                       meaning that public authorities are under an
of Copenhagen, Fifth Section of the Communal Authority                   obligation to treat equally undertakings which have
                  Ð Environmental Control                                obtained a permit as described in that provision in
                       (Case C-209/98)                                   relation to the conclusion of agreements concerning
                                                                         the receipt and recovery of environmentally non-
                         (98/C 234/42)                                   hazardous building waste?
Reference has been made to the Court of Justice of the
European Communities by order of 27 May 1998 from                   3. (a) Must Article 7(3) of Directive 75/442/EEC, as
the éstre Landsret (Eastern Regional Court), which was                        amended by Directive 91/156/EEC, be construed
received at the Court Registry on 8 June 1998, for a                          as meaning that that provision and the power it
preliminary ruling in the case of FFAD Ð                                      grants to prevent movements of waste allow a
Entreprenùrforeningens Affalds/Miljùsektion, acting on                        communal system such as that described in
behalf of Sydhavnens Sten & Grus ApS v The Commune                            Question 1(a) and thereby allow the commune to
of Copenhagen, Fifth Section of the Communal Authority                        prevent the movement of environmentally non-
Ð Environmental Control on the following questions:                           hazardous building waste destined for recovery, if
                                                                              such movement is contrary to the waste plan
1. (a) Disregarding possible application of Article 36 of                     drawn up by the commune?
         the Treaty or any other valid considerations (see
         Question 1(c)), must Article 90 of the Treaty, in
                                                                         (b) Must Article 7(3) of Directive 75/442/EEC, as
         conjunction with Articles 34 and 86 thereof, be
                                                                              amended by Directive 91/156/EEC, be construed
         construed as precluding the establishment of a
                                                                              as meaning that measures which a Member State
         communal system which Ð with a view to
                                                                              or a competent authority in that Member State
         ensuring that specially selected undertakings will
                                                                              has adopted, and which are necessary to prevent
         have sufficiently large access to environmentally
                                                                              movements of waste not in accordance with the
         non-hazardous building waste destined for
                                                                              waste plans of the authority, are valid and
         recovery from private builders to enable those
                                                                              enforceable against individuals or undertakings to
         undertakings to exploit that waste on an
                                                                              which the measures are relevant only if the EC
         economically justifiable and rational basis Ð
                                                                              Commission has been notified of those measures?
         excludes other undertakings from collecting and
         receiving the same type of waste from building
         work within the area of the commune in question,           (1) Council Directive of 75/442/EEC 15 July 1975 on waste
         even though these other undertakings have                      (OJ L 194 of 25.7.1975, p. 39).
         obtained a permit to treat the type of waste in            (2) Council Directive of 18 March 1991 (OJ L 78 of 26.3.1991,
                                                                        p. 32).
         question in accordance with Article 10 of
         Directive 75/442/EEC (1), as amended by Directive
         91/156/EEC (2)?
    (b) (If Question 1(a) is answered in the affirmative):
         Would a system such as that described in
         Question 1(a) be contrary to Article 90 of the EC          Action brought on 9 June 1998 by the Commission of the
         Treaty, in conjunction with Articles 34 and 86                         European Communities against Ireland
         thereof, if the communal provision forming the
                                                                                (Case C-212/98)
         basis of that system provides that waste which is
         exported or imported is not covered by the                                          (98/C 234/43)
         communal system mentioned in Question 1(a)?
    (c) (If Question 1(a) is answered in the affirmative):
                                                                    An action against Ireland was brought before the Court of
         Does Article 36 of the Treaty or any other valid           Justice of the European Communities on 9 June 1998
         considerations, such as the concern that                   by the Commission of the European Communities,
         environmental damage should be rectified at                represented by Karen Banks, a member of its Legal
         source and the establishment of any necessary              Service, with an address for service in Luxembourg at the
         treatment      and     disposal    facilities    (see      office of Mr Carlos Gómez de la Cruz, a member of its
         Article 130r(2) of the Treaty), allow a communal           Legal Service, Centre Wagner, Kirchberg, Luxembourg.


title: Case T-47/07: Action brought on 21 February 2007 — ratiopharm GmbH v OHIM (BioGeneriX)

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/50

         Action brought on 21 February 2007 — ratiopharm GmbH v OHIM (BioGeneriX)
   (Case T-47/07)
   (2007/C 82/104)
   Language of the case: German
   Parties

      Applicant: ratiopharm GmbH (Ulm, Germany) (represented by Rechtsanwalt S. Völker)

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

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 20 December 2006 in appeal No. R1047/2004-4 concerning Community trade mark application No. 001701762.

               —

               Order the Office for Harmonisation in the Internal Market to pay its own costs.

         Pleas in law and main arguments

      Community trade mark concerned: the word mark BioGeneriX for goods and services in the classes 5, 35, 40 and 42 (Application No. 1 701 762).

      Decision of the Examiner: Refusal to register.

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

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No. 40/94 (1), on the basis that the trade mark applied for demonstrates the minimum distinctive character required and that there is no specific need for availability.

      (1)  Council Regulation No. 40/94 of 20 December 1993 on the Community trade mark (OJ 1994, L 11, p. 1).


title: Case C-155/13: Judgment of the Court (Fourth Chamber) of 13 March 2014 (request for a preliminary ruling from the Commissione tributaria regionale di Venezia-Mestre — Italy) — Società Italiana Commercio e Servizi srl (SICES), in liquidation, Agrima KG D. Gritsch Herbert & Gritsch Michael & Co., Agricola Lusia srl, Romagnoli Fratelli SpA, Agrimediterranea srl, Parini Francesco, Duoccio srl, Centro di Assistenza Doganale Triveneto Service srl, Novafruit srl, Evergreen Fruit Promotion srl v Agenzia Dogane Ufficio delle Dogane di Venezia (Agriculture  — Regulation (EC) No 341/2007  — Article 6(4)  — Tariff quotas  — Garlic of Chinese origin  — Import licences  — Non-transferable nature of rights deriving from certain import licences  — Circumvention  — Abuse of rights)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/16

         Judgment of the Court (Fourth Chamber) of 13 March 2014 (request for a preliminary ruling from the Commissione tributaria regionale di Venezia-Mestre — Italy) — Società Italiana Commercio e Servizi srl (SICES), in liquidation, Agrima KG D. Gritsch Herbert & Gritsch Michael & Co., Agricola Lusia srl, Romagnoli Fratelli SpA, Agrimediterranea srl, Parini Francesco, Duoccio srl, Centro di Assistenza Doganale Triveneto Service srl, Novafruit srl, Evergreen Fruit Promotion srl v Agenzia Dogane Ufficio delle Dogane di Venezia
   (Case C-155/13) (1)

   ((Agriculture - Regulation (EC) No 341/2007 - Article 6(4) - Tariff quotas - Garlic of Chinese origin - Import licences - Non-transferable nature of rights deriving from certain import licences - Circumvention - Abuse of rights))
   2014/C 135/17
   Language of the case: Italian

      Referring court

   Commissione tributaria regionale di Venezia-Mestre

      Parties to the main proceedings

      Applicants: Società Italiana Commercio e Servizi srl (SICES), in liquidation, Agrima KG D. Gritsch Herbert & Gritsch Michael & Co., Agricola Lusia srl, Romagnoli Fratelli SpA, Agrimediterranea srl, Parini Francesco, Duoccio srl, Centro di Assistenza Doganale Triveneto Service srl, Novafruit srl, Evergreen Fruit Promotion srl

      Defendant: Agenzia Dogane Ufficio delle Dogane di Venezia

      Re:

   Request for a preliminary ruling — Commissione tributaria regionale di Venezia-Mestre — Interpretation of Article 6 of Commission Regulation (EC) No 341/2007 of 29 March 2007 opening and providing for the administration of tariff quotas and introducing a system of import licences and certificates of origin for garlic and certain other agricultural products imported from third countries (OJ 2007 L 90, p. 12) — Non-transferable nature of rights deriving from ‘A’ certificates — Companies holding import licences which purchased, before importation, Chinese garlic via a company which does not hold such licences and which resold the garlic in question, after payment of customs duties, to that company.

      Operative part of the judgment

   Article 6(4) of Commission Regulation (EC) No 341/2007 of 29 March 2007 opening and providing for the administration of tariff quotas and introducing a system of import licences and certificates of origin for garlic and certain other agricultural products imported from third countries must be interpreted as not precluding, in principle, transactions by which an importer, holding reduced rate import licences, purchases goods outside the European Union from an operator, itself a traditional importer within the meaning of Article 4(2) of that regulation, but having exhausted its own reduced rate import licences, then resells them to that operator after having imported them into the European Union. However, such transactions constitute an abuse of rights where they are artificially created with the essential aim of benefiting from the preferential rate of duty. The checking for abuse requires the referring court to take into account all the facts and circumstances of the case, including the commercial transactions preceding and following the import at issue.

      (1)  OJ C 178, 22.6.2013.


title: Joined Cases C-357/10 to C-359/10: Judgment of the Court (Second Chamber) of 10 May 2012 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia (Italy)) — Duomo Gpa Srl (C-357/10), Gestione Servizi Pubblici Srl (C-358/10), Irtel Srl (C-359/10) v Comune di Baranzate (C-357/10 and C-358/10), Comune di Venegono Inferiore (C-359/10) (Articles 3 EC, 10 EC, 43 EC, 49 EC and 81 EC — Freedom of establishment — Freedom to provide services — Directive 2006/123/EC — Articles 15 and 16 — Concession relating to the assessment, verification and collection of taxes and other local authority revenue — National legislation — Minimum share capital — Obligation)

text:
               30.6.2012

               EN

               Official Journal of the European Union

               C 194/2

         Judgment of the Court (Second Chamber) of 10 May 2012 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia (Italy)) — Duomo Gpa Srl (C-357/10), Gestione Servizi Pubblici Srl (C-358/10), Irtel Srl (C-359/10) v Comune di Baranzate (C-357/10 and C-358/10), Comune di Venegono Inferiore (C-359/10)
   (Joined Cases C-357/10 to C-359/10) (1)

   (Articles 3 EC, 10 EC, 43 EC, 49 EC and 81 EC - Freedom of establishment - Freedom to provide services - Directive 2006/123/EC - Articles 15 and 16 - Concession relating to the assessment, verification and collection of taxes and other local authority revenue - National legislation - Minimum share capital - Obligation)
   2012/C 194/03
   Language of the case: Italian

      Referring court

   Tribunale amministrativo regionale per la Lombardia

      Parties to the main proceedings

      Applicants: Duomo Gpa Srl (C-357/10), Gestione Servizi Pubblici Srl (C-358/10), Irtel Srl (C-359/10)

      Defendants: Comune di Baranzate (C-357/10 and C-358/10), Comune di Venegono Inferiore (C-359/10)

      Intervener in support of the defendants: Agenzia Italiana per le Pubbliche Amministrazioni SpA (AIPA)

      Re:

   Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Lombardia — Interpretation of Articles 15 and 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) and Articles 3, 10, 43, 49 and 81 EC — Commercial communications by the regulated professions — The award of services relating to the assessment, verification and collection of taxes and other local authority revenue — Minimum share capital required under national legislation

      Operative part of the judgment

   Articles 43 EC and 49 EC must be interpreted as precluding a provision such as that at issue in the main proceedings, under which:

               —

               economic operators, except companies in which all or a majority of the share capital is in public ownership, are required, if necessary, to increase their fully paid up capital to a minimum of EUR 10 million in order to be entitled to pursue the activities of assessment, verification and collection of taxes and other local authority revenue;

               —

               the award of those services to operators who fail to satisfy the minimum requirement of share capital is to be null and void, and

               —

               it is prohibited to obtain new contracts or participate in tender procedures for the operation of those services until the abovementioned requirement to adjust share capital has been met.

      (1)  OJ C 260, 25.9.2010


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 18 December 1997 in Case T-178/94: Asociación Telefónica de Mutualistas (ATM) v. Commission of the European Communities (State aid - Reduction in social charges - Closure of the file on the complaint - Interest in bringing proceedings - Inadmissibility)

text:
20.2.98               EN                  Official Journal of the European Communities                                   C 55/25
  JUDGMENT OF THE COURT OF FIRST INSTANCE                            Berrisch) and Commission of the European Communities
                    of 18 December 1997                              (Agents: Eric White and Claus-Michael Happe) Ð
                                                                     application for taxation of costs following the judgment of
in Case T-178/94: Asociación Telefónica de Mutualistas               the Court of 18 September 1995 in Case T-167/94: Nölle
  (ATM) v. Commission of the European Communities (1)                v. Council and Commission [1995] ECR II-2589 Ð the
(State aid Ð Reduction in social charges Ð Closure of the            Court of First Instance (Second Chamber, Extended
file on the complaint Ð Interest in bringing proceedings             Composition), composed of: A. Kalogeropoulos, President,
                      Ð Inadmissibility)                             C. P. BrieÈt, C. W. Bellamy, A. Potocki and J. Pirrung,
                                                                     Judges; H. Jung, Registrar, has made an order on
                         (98/C 55/51)                                12 December 1997, the operative part of which is as
                                                                     follows:
                (Language of the case: Spanish)
                                                                     The total amount of the costs to be reimbursed by the
In Case T-178/94: Asociación Telefónica de Mutualistas               applicant to the Council, including the costs incurred by
(ATM), established in Madrid, represented by Juan                    the parties for the purpose of the present proceedings, is
Eugenio Blanco Rodríguez and Bernardo Vicente                        fixed at DEM 20 000.
HernaÂndez Bataller, of the Madrid Bar and by Lydie
Lorang, of the Luxembourg Bar, with an address for
                                                                     (1) OJ C 222, 18.8.1993.
service in Luxembourg at the Chambers of AndreÂ
SeÂreÂbriacoff, 11 rue Goethe, against Commission of the
European Communities (Agents: during the written
procedure initially by Francisco Enrique GonzaÂlez Diaz
and Michel Nolin, then by Francisco Santaolalla and
Michel Nolin, and during the oral procedure by Fernando
Castillo de la Torre) Ð application for annulment of the             Action brought on 17 September 1997 by Kurt Giegerich
Commission's decision, communicated to the Asociación                   against the Commission of the European Communities
Telefónica de Mutualistas by the Commission's letter                                       (Case T-253/97)
No D/30508 of 15 February 1994, to close the file on the
complaint lodged by that association objecting to the State                                   (98/C 55/53)
aid allegedly received by a public limited company,
CompanÄía Telefónica de EspanÄa SA Ð the Court of First                             (Language of the case: German)
Instance (First Chamber, Extended Composition),
composed of: A. Saggio, President, A. Kalogeropoulos, V.             An action against the Commission of the European
Tiili, R. M. Moura Ramos and J. Pirrung, Judges; B.                  Communities was brought before the Court of First
Pastor, Principal Administrator, for the Registrar, has given        Instance of the European Communities on 17 September
a judgment on 18 December 1997, in which it:                         1997 by Kurt Giegerich, residing at Osmate/VA (Italy),
                                                                     represented by Bernd Potthast, Hans-Josef Rüber and
1. dismisses the application as inadmissible;                        Albert Potthast, Rechtsanwälte, Cologne, with an address
                                                                     for service in Luxembourg at the Chambers of Ernest
2. orders the applicant to bear its own costs and to pay             Arendt, 8Ð10 rue Mathias Hardt.
      those of the Commission.
                                                                     The applicant claims that the Court should:
(1) OJ C 174, 25.6.1994.
                                                                     Ð annul the defendant's decision of 18 October 1996,
                                                                     Ð order the defendant to pay to the applicant
                                                                         compensation for the damage suffered by him as a
      ORDER OF THE COURT OF FIRST INSTANCE                               result of his not having been promoted to grade A 3
                                                                         with effect from 25 March 1991, in the form of a sum
                    of 12 December 1997                                  representing the difference between the levels of
in Case T-167/94 (92): Detlef Nölle v. Council of the                    remuneration payable to grade A 4 officials and
European Union and Commission of the European                            grade A 3 officials for the period from April 1991 to
                       Communities (1)                                   date, and declare, as regards the future, that an
                                                                         adjustment should be made to compensate for the
                      (Taxation of costs)
                                                                         corresponding damage arising from the receipt by the
                         (98/C 55/52)                                    applicant of a smaller pension and the possible receipt
                                                                         by his wife of a smaller widow's pension,
                (Language of the case: German)
                                                                     Ð alternatively, order the defendant to pay to the
In Case T-167/94 (92): Detlef Nölle, trading as Eugen                   applicant compensation for the damage suffered by
Nölle', of Remscheid (Germany), represented by Frank                     him as a result of his not having been promoted to
Montag and Hans-Joachim Prieû, Rechtsanwälte, Brussels,                  grade A 3 with effect from 1 November 1995,
against Council of the European Union (Agents: Jorge                     covering his period of active employment and the
Monteiro, Jürgen Huber, Hans-Jürgen Rabe and Georg M.                    period during which he is in receipt of his pension and