title: Judgment of the Court (Sixth Chamber) of 12 October 2000 in Case C-372/98 (reference for a preliminary ruling from the High Court of Justice (England & Wales), Queen's Bench Division (Divisional Court) (United Kingdom): The Queen v Ministry of Agriculture, Fisheries and Food (Common Agricultural Policy — Regulation (EEC) No 1765/92 — Regulation (EC) No 762/94 — Aids linked to the area down to arable crops and set-side — Meaning of an "area which has been cultivated in the previous year with a view to harvest")

text:
C 355/4                 EN                      Official Journal of the European Communities                                          9.12.2000
2.   National rules concerning the determination of the date on            Justice (England & Wales), Queen’s Bench Division (Divisional
     which a vehicle was first authorised for use on the public            Court) (United Kingdom) for a preliminary ruling in the
     highway, such as the Regeling houdende vaststelling van regels        proceedings pending before that court between The Queen
     omtrent de wijze waarop de datum van eerste toelating tot de          and Ministry of Agriculture, Fisheries and Food, ex parte:
     openbare weg op het kentekenbewijs, dan wel het registratiebe-        J.H. Cooke & Sons — on the interpretation of the first
     wijs van een voertuig wordt bepaald, do not fall within the           paragraph of Article 2 of Commission Regulation (EC)
     scope of Directive 83/189, as amended by Directive 88/182.            No 762/94 of 6 April 1994 laying down detailed rules for the
                                                                           application of Council Regulation (EEC) No 1765/92 with
3.   National rules which provide that the date on which an                regard to the set-side scheme (OJ 1994 L 90, p. 8) — the Court
     imported vehicle was first authorised for use on the public           (Sixth Chamber), composed of: C. Gulmann, President of the
     highway is to be fixed at the date on which its registration          Chamber, V. Skouris and R. Schintgen (Rapporteur), Judges;
     certificate was issued only where the vehicle has not been            P. Léger, Advocate General; H. von Holstein, Deputy Registrar,
     registered for more than two days in another Member State             has given a judgment on 12 October 2000, in which it has
     constitute a measure having an effect equivalent to a quantitative    ruled:
     restriction on imports for the purposes of Article 30 of the EC
     Treaty (now, after amendment, Article 28 EC).                         The first paragraph of Article 2 of Commission Regulation (EC)
                                                                           No 762/94 of 6 April 1994 laying down detailed rules for the
4.   Such national rules may, in spite of their restrictive effects on     application of Council Regulation (EEC) No 1765/92 with regard
     the free movement of goods, be justified by imperative require-       to the set-aside scheme must be interpreted as meaning that the
     ments such as road safety and/or protection of the environment        expression ‘an area which has been cultivated in the previous year
     if it can be shown that the resulting restriction is necessary to     with a view to a harvest’ covers land previously under grass that has
     ensure road safety and/or protection of the environment and           subsequently been cut and used for silage.
     that the restriction is not disproportionate to those objectives,
     particularly in the sense that no other, less restrictive, measures
                                                                           (1) OJ C 397 of 19.12.1998.
     are available.
(1) OJ C 327 of 24.10.1998.
                                                                                JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                                                                                of 12 October 2000
                 JUDGMENT OF THE COURT
                                                                           in Case C-480/98: Kingdom of Spain v Commission of the
                          (Sixth Chamber)                                                     European Communities (1)
                                                                           (State aid — Aid granted to undertakings in the Magefesa
                       of 12 October 2000
                                                                                group)
in Case C-372/98 (reference for a preliminary ruling from                                            (2000/C 355/07)
the High Court of Justice (England & Wales), Queen’s
Bench Division (Divisional Court) (United Kingdom): The
  Queen v Ministry of Agriculture, Fisheries and Food (1)                                     (Language of the case: Spanish)
(Common Agricultural Policy — Regulation (EEC)                             (Provisional translation; the definitive translation will be published
No 1765/92 — Regulation (EC) No 762/94 — Aids linked                                          in the European Court Reports)
to the area down to arable crops and set-side — Meaning of
an ‘area which has been cultivated in the previous year with
                         a view to harvest’)                               In Case C-480/98: Kingdom of Spain (Agent: R. Silva de
                                                                           Lapuerta) v Commission of the European Communities
                                                                           (Agents: G. Rozet and R. Vidal Puig) — application for
                          (2000/C 355/06)                                  annulment of Commission Decision 1999/509/EC of 14 Octo-
                                                                           ber 1998 concerning aid granted by Spain to companies in the
                                                                           Magefesa group and their successors (OJ 1999 L 198, p. 15)
                   (Language of the case: English)                         — the Court (Sixth Chamber), composed of: C. Gulmann,
                                                                           President of the Chamber, V. Skouris and J.-P. Puissochet
                                                                           (Rapporteur), Judges; J. Mischo, Advocate General; H.A. Rühl,
In Case C-72/98: reference to the Court under Article 177 of               Principal Administrator, for the Registrar, has given a judgment
the EC Treaty (now Article 234 EC) from the High Court of                  on 12 October 2000, in which it:


title: Case C-301/11: Judgment of the Court (Seventh Chamber) of 31 January 2013 — European Commission v Kingdom of the Netherlands (Tax legislation — Transfer of a residence for tax purposes — Freedom of establishment — Article 49 TFEU — Taxation of unrealised capital gains — Immediate exit tax)

text:
               23.3.2013

               EN

               Official Journal of the European Union

               C 86/4

         Judgment of the Court (Seventh Chamber) of 31 January 2013 — European Commission v Kingdom of the Netherlands
   (Case C-301/11) (1)

   (Tax legislation - Transfer of a residence for tax purposes - Freedom of establishment - Article 49 TFEU - Taxation of unrealised capital gains - Immediate exit tax)
   2013/C 86/05
   Language of the case: Dutch

      Parties

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

      Defendant: Kingdom of the Netherlands (represented by: C.Wissels, J. Langer and M. de Ree, acting as Agents)

      Interveners in support of the defendant: Federal Republic of Germany (represented by: T. Henze and K. Petersen, acting as Agents), Kingdom of Spain (represented by: A. Rubio González, acting as Agent), Portuguese Republic (représentant: L. Inez Fernandes, acting as Agent)

      Re:

   Failure of a Member State to fulfil obligations — Interpretation of Article 49 TFEU — Exit tax for undertakings ceasing to have their tax residence in the Netherlands — Taxation of unrealised capital gains in the case of changing the undertaking’s residency, moving its permanent establishment or transferring its shares to another Member State

      Operative part of the judgment

   The Court:

               1.

               Declares that, by adopting and maintaining in force a national rule providing for the taxation of unrealised capital gains on the transfer of an undertaking or when transferring a company’s registered office or actual head office to another Member State, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 49 TFEU;

               2.

               Orders the Kingdom of the Netherlands to pay the costs;

               3.

               Orders the Federal Republic of Germany, the Kingdom of Spain and the Portuguese Republic to bear their own costs.

      (1)  OJ C 252, 27.8.2011.


title: Action brought on 26 November 1996 by Salini Costruttori SpA against the Commission of the European Communities (Case T-187/96)

text:
 No C 26/ 10          EN                 Official Journal of the European Communities                                 25 . 1 . 97
 Action brought on 21 November 1996 by Mutual Aid                   tender were issued for the supply of the goods and their
 Administration Services NV against the Commission of the           transport. The suppliers of the products failed to respect
                    European Communities                            the prescribed loading schedule, a fact of which the
                        Case T-l 86/96                              applicant apprised the Commission on repeated occasions.
                         ( 97/C 26/17)                              ( 1 ) OJ No L 62, 13 . 3 . 1996 .
                                                                    ( 2 ) OJ No L 30 , 8 . 2 . 1996 .
                 (Language of the case: Dutch)
 An action against the Commission of the European
 Communities was brought before the Court of First
 Instance of the European Communities on 21 November
 1996 by Mutual Aid Administration Services NV, of                  Action brought on 26 November 1996 by Salini
Antwerp (Belgium ), represented by J. Tritsmans, of the             Costruttori SpA against the Commission of the European
                                                                                Communities
Antwerp Bar, with an address for service in Luxembourg
at the Chambers of R. Faltz, 6 rue Heinrich Heine .                                             (Case T-l 87/96 )
                                                                                ( 97/C 26/18 )
The applicant claims that the Court should:
                                                                                (Language of the case: French)
— annul the contested decision, a copy of which is
     included among the documents annexed to the present
     application, and accordingly rule that the applicant          An action against the Commission of the European
     was entitled, when the account was being settled, to          Communities was brought before the Court of First
     Bfrs 836 328 and was entitled to US $ 41 000 in               Instance of the European Communities on 26 November
     respect of the costs of chartering the third ship, the         1996 by Salini Costruttori SpA, whose registered office
     Tuschino,                                                     is at Rome, represented by Jean-Pierre Cuny, of the
                                                                   Versailles Bar ( France ).
— accordingly order the Commission of the European
     Communities to pay to the applicant Bfrs 644 385              The applicant claims that the Court should :
     (that is to say, Bfrs 836 328 less the amount of
     Bfrs 191 970 already granted by the contested
                                                                   — annul the contested decision .
     decision ) and US $ 41 000, plus interest calculated on
     the basis of the current statutory interest rate in
     Belgium of 7 % per annum as from 1 September 1 996 ,
                                                                   Pleas in law and main arguments adduced in support:
— order the Commission to pay the costs of the
     proceedings .                                                 By a complaint of 3 April 1996 , the applicant informed
                                                                   the Commission of the serious discrimination which it had
                                                                   suffered, as had all the other undertakings in the
Pleas in law and main arguments adduced in support:                construction industry established in the Mezzogiorno, as a
                                                                   result of the Law on projects in the Mezzogiorno, adopted
                                                                   by the Decree of the President of the Italian Republic of
By Regulation ( EC ) No 449/96 of 12 March 1996 ( a ), the         6 March 1978 . In that complaint, the applicant considers
Commission initiated an open tendering procedure                   that it is paradoxical that the Law creates conditions less
concerning transport for the free supply to Armenia and            favourable to local undertakings than to those which,
Azerbaijan of fruit juice, fruit jams and common wheat             coming from other regions or other countries of the
flour.                                                             Union, undertake activities in the relevant areas of
                                                                   the Mezzogiorno . Moreover, that Law allows such
                                                                   undertakings to compete in Italy, at an advantage in
When the ships were being loaded, problems arose                   relation to undertakings of the Mezzogiorno and, in
because the packaging of the products did not meet the             view of the interpretation of the Italian authorities,
requirements of Commission Regulation (EC ) No 228/96              undertakings originating in the Mezzogiorno or which
of 7 February 1996 ( 2). The applicant was for that reason         have long been active there are, alone, penalized. For that
obliged to provide a third ship.                                   reason the applicant requests in particular that the
                                                                   Commission adopt a decision with regard to the Italian
                                                                   Republic on the basis of Articles 93 and 101 of the EC
The Commission also imposed fines on the applicant for             Treaty.
late shipment. The applicant claims that the Commission
itself failed from the outset to comply with the shipment
programme laid down in Regulation ( EC ) No 449/96 . It            By way of the contested act of 26 September 1996 the
should be borne in mind that separate invitations to               Commission informed the applicant that a measure which
 ---pagebreak--- 25 . 1 . 97          EN                  Official Journal of the European Communities                               No C 26/ 11
consists in excluding the construction industry from the            Council of the European Union and Commission of the
scope of the regional scheme for the reduction of social            European Communities .
charges in the Mezzogiorno falls outside the scope of
Articles 92 and 93 of the EC Treaty.                                0 ) OJ No C 299 , 11 . 11 . 1995 .
By the present action, the applicant alleges that the
defendant has breached provisions of the EC Treaty and
general principles of law, in particular the principle of
non-discrimination, and that the statement of reasons of
the decision are defective .
                                                                          Partial removal from the register of T-154/96 (*)
                                                                                ( 97/C 26/20 )
                                                                                (Language of the case: French)
           Removal from the register of T-162/95 ( ] )
                                                                    By order of 12 November 1996 the President of the Fifth
                        ( 97/C 26/19 )                              Chamber of the Court of First Instance of the European
               (Language of the case: German)                       Communities has ordered the removal from the register of
                                                                    Antoinette Losch's name from the list of applicants in
By order of 8 October 1996 the President of the First               Case T-154/96 : Christiane Chvatal and Others v. Court of
Chamber of the Court of First Instance of the European              Justice of the European Communities .
Communities has ordered the removal from the register of
Case T-162/95 : Hubertus Freiherr von Marschalck v.                 (!) OJ No C 354 , 23 . 11 . 1996 .


title: Case F-10/16: Action brought on 17 February 2016 — ZZ v European Ombudsman

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/51

         Action brought on 17 February 2016 — ZZ v European Ombudsman
   (Case F-10/16)
   (2016/C 191/74)
   Language of the case: Greek

      Parties

      Applicant: ZZ (represented by: M. Vasileios A. Christianos, lawyer)

      Defendant: European Ombudsman

      Subject-matter and description of the proceedings

   Annulment of the decision of the European Ombudsman not to appoint the applicant to the post of Secretary-General of the Ombudsman’s office and an order that the defendant pay damages in respect of the material and non-pecuniary losses allegedly suffered by the applicant.

      Form of order sought

               —

               Annul the contested decision of 9 November 2015 of the European Ombudsman, by which it rejected the applicant’s administrative claims;

               —

               Annul the decision of 10 April 2015, which denied the applicant an interview, and the decision of 16 July 2015 appointing B.G. to the post of Secretary-General of the Ombudsman’s office;

               —

               Order the European Ombudsman to pay the applicant the sum of EUR 112 472,64 as compensation for the material loss suffered by him;

               —

               Order the European Ombudsman to pay the applicant the sum of thirty thousand euros (EUR 30 000) as compensation for the non-pecuniary loss suffered by him;

               —

               Order the European Ombudsman to pay all the applicant’s costs.


title: Case C-420/17: Action brought on 12 July 2017 — European Commission v French Republic

text:
               11.9.2017

               EN

               Official Journal of the European Union

               C 300/25

         Action brought on 12 July 2017 — European Commission v French Republic
   (Case C-420/17)
   (2017/C 300/29)
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: O. Beynet and C. Hermes, acting as Agents)

      Defendant: French Republic

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that, by failing to take all the necessary measures to establish a general system of protection for the ortolan bunting in Landes, the French Republic has failed to fulfil its obligations under Article 5 of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds;

               —

               order the French Republic to pay the costs.

      Pleas in law and main arguments

   The Commission considers that France has never taken the necessary coherent and coordinated protective measures to establish a system of protection for the ortolan bunting, and has thus failed to fulfil its obligations under Directive 2009/147/EC. (1)

      (1)  OJ L 20, 26.1.2010, p. 7.


title: Case C-458/05: Judgment of the Court (Fourth Chamber) of 13 September 2007 (reference for a preliminary ruling from the Oberster Gerichtshof, Austria) — Mohamed Jouini, Okay Gönen, Hasan Bajric, Gerald Huber, Manfred Ortner, Sükran Karacatepe, Franz Mühlberger, Nakil Bakii, Hannes Kranzler, Jürgen Mörth, Anton Schneeberger, Dietmar Susteric, Sascha Wörnhör, Aynur Savci, Elena Peter, Egon Schmöger, Mehmet Yaman, Dejan Preradovic, Andreas Mitter, Wolfgang Sorger, Franz Schachenhofer, Herbert Weiss, Harald Kaineder, Ognen Stajkovski, Jovica Vidovic v Princess Personal Service GmbH (PPS) (Social policy — Directive 2001/23/EC — Safeguarding of employees' rights — Transfer of undertakings — Concept of Transfer — Temporary employment business)

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/10

         Judgment of the Court (Fourth Chamber) of 13 September 2007 (reference for a preliminary ruling from the Oberster Gerichtshof, Austria) — Mohamed Jouini, Okay Gönen, Hasan Bajric, Gerald Huber, Manfred Ortner, Sükran Karacatepe, Franz Mühlberger, Nakil Bakii, Hannes Kranzler, Jürgen Mörth, Anton Schneeberger, Dietmar Susteric, Sascha Wörnhör, Aynur Savci, Elena Peter, Egon Schmöger, Mehmet Yaman, Dejan Preradovic, Andreas Mitter, Wolfgang Sorger, Franz Schachenhofer, Herbert Weiss, Harald Kaineder, Ognen Stajkovski, Jovica Vidovic v Princess Personal Service GmbH (PPS)
   (Case C-458/05) (1)

   (Social policy - Directive 2001/23/EC - Safeguarding of employees' rights - Transfer of undertakings - Concept of ‘Transfer’ - Temporary employment business)
   (2007/C 269/20)
   Language of the case: German
   Referring court
   Oberster Gerichtshof
   Parties to the main proceedings

      Applicant: Mohamed Jouini, Okay Gönen, Hasan Bajric, Gerald Huber, Manfred Ortner, Sükran Karacatepe, Franz Mühlberger, Nakil Bakii, Hannes Kranzler, Jürgen Mörth, Anton Schneeberger, Dietmar Susteric, Sascha Wörnhör, Aynur Savci, Elena Peter, Egon Schmöger, Mehmet Yaman, Dejan Preradovic, Andreas Mitter, Wolfgang Sorger, Franz Schachenhofer, Herbert Weiss, Harald Kaineder, Ognen Stajkovski, Jovica Vidovic.

      Defendant: Princess Personal Service GmbH (PPS)
   Re:
   Reference for a preliminary ruling — Oberster Gerichtshof — Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16) — Scope of application — Concept of ‘part of an undertaking’ — Transfer between two temporary staff agencies of an office worker, a branch manager, a customer adviser and a manager and a third of the temporary staff together with the clients using those staff.
   Operative part of the Judgment
   Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as applying to a situation where part of the administrative personnel and part of the temporary workers are transferred to another temporary employment business in order to carry out the same activities in that business for the same clients and — which is a matter for the referring court to establish — the assets affected by the transfer are sufficient in themselves to allow the services characterising the economic activity in question to be provided without recourse to other significant assets or to other parts of the business.

      (1)  OJ C 178, 29.7.2006.


title: Case T-78/04: Actionbrought on 17 February 2004 by Sumitomo Chemical(UK) PLC against the Commission of the European Communities

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/75

         Action brought on 17 February 2004 by Sumitomo Chemical (UK) PLC against the Commission of the European Communities
   (Case T-78/04)
   (2004/C 106/148)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 February 2004 by Sumitomo Chemical (UK) PLC, London, United Kingdom, represented by Mr K. Van Maldegem and Mr C. Mereu, lawyers.
   The applicant claims that the Court should:

               —

               order the annulment of Article 3 (and annex II), Article 4(2), Article 5(3), Article 10(2), second paragraph, Article 11(3), Article 13 and Article 14(2) of Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000;

               —

               declare the illegality and the inapplicability vis-à-vis the applicant of Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market;

               —

               declare the illegality and the inapplicability vis-à-vis the applicant of Article 6(2) of Commission Regulation (EC) No 1896/2000 of 7 September 2000 on the first phase of the programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council on biocidal products;

               —

               order the defendant to compensate the applicant in the provisional amount of 1 Euro for damages suffered as a result of the adoption and entry into force of the contested measure, as well as any applicable interest, pending the exact calculation and determination of the exact amount;

               —

               order the defendant to pay all costs and expenses in these proceedings.

      Pleas in law and main arguments:
   The pleas in law and arguments invoked by the applicant are the same as those invoked in Case T-75/04.


title: Case C-82/15 P: Appeal brought on 20 February by PP Nature-Balance Lizenz GmbH against the judgment of the General Court (Fifth Chamber) of 11 December 2014 in Case T-189/13 PP Nature-Balance Lizenz GmbH v European Commission

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/11

         Appeal brought on 20 February by PP Nature-Balance Lizenz GmbH against the judgment of the General Court (Fifth Chamber) of 11 December 2014 in Case T-189/13 PP Nature-Balance Lizenz GmbH v European Commission

   (Case C-82/15 P)
   (2015/C 127/18)
   Language of the case: German

      Parties

      Appellant: PP Nature-Balance Lizenz GmbH (represented by: M. Ambrosius, Rechtsanwalt)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of 11 December 2014 in Case T-189/13;

               —

               annul the contested Implementing Decision C(2013)369 to the extent that it requires the Member States to amend the authorisation so as to remove the locomotory indication;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The appellant relies upon five grounds of appeal.
   First ground of appeal: infringement of Article 116 of Directive 2001/83/EC (1) read in conjunction with the precautionary principle.
   The General Court invokes the precautionary principle in order to raise serious doubts as to the benefit of the medicinal product. The precautionary principle is, however, aimed at the evaluation of risks, rather than the efficacy, of a pharmaceutical product.
   Second ground of appeal: infringement of Article 116 of Directive 2001/83/EC in so far as the General Court accepted four studies as new information
   New information which can be taken into account for the purposes of Article 31 of Directive 2001/83/EC includes only that which is available post-authorisation, such as at the time of the first extension. The General Court was, however, of the opinion that the evaluation undertaken by the Committee for Medicinal Products for Human Use (CHMP) was independent from that undertaken by the national authorities. As a result, any information would prima facie be new whenever a matter had not yet been referred to the Committee.
   Third ground of appeal: infringement of Article 116 of Directive 2001/83/EC with regard to the consideration of the criterion of the unproven efficacy of the medicinal product
   The General Court adopted the view that the existence of studies which are not suitable for proving efficacy was per se sufficient to find that a medicinal product is not beneficial or less beneficial than previously considered to be the case. In fact, the General Court should have found in this context that the grounds which led to the failure of a study ought to be taken into consideration.
   Fourth ground of appeal: distortion of the evidence
   The General Court distorted evidence in that it found there to be no contradiction between the risk assessment of hypersensitive reactions, undertaken by the rapporteur, co-rapporteur and SAG-N, and the evaluation of the CHMP.
   Fifth ground of appeal: infringement of Article 10(a) of and the Annex to Directive 2001/83/EC
   The General Court infringed Article 10(a) of and the Annex to Directive 2001/83/EC in so far as it held that this provision is only applicable in the event of first marketing authorisation procedures. In addition, the General Court infringed Article 10(a) of Directive 2001/83/EC in that it approved the fact that the CHMP concentrated on the assessment of merely four studies, whereas there are over eighty studies in total on tolperisone.

      (1)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67).


title: Judgment of the Court of 20 February 2001 in Case C-192/99 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Crown Office)): The Queen v Secretary of State for the Home Department, ex parte: Manjit Kaur, intervener: Justice (Citizenship of the Union — Nationality of a Member State — Declarations by the United Kingdom concerning the definition of the term "national" — British Overseas Citizen)

text:
C 173/8                  EN                     Official Journal of the European Communities                                    16.6.2001
                  JUDGMENT OF THE COURT                                    nature of the anti-dumping duty applicable under Article 1(2) of
                                                                           Regulation No 2849/92 to ball bearings manufactured by Nachi
                        of 15 February 2001                                Fujikoshi Corporation and imported by Nachi Europe GmbH.
in Case C-239/99 (reference for a preliminary ruling from
                                                                           (1) OJ C 246 of 28.8.1999.
the Finanzgericht Düsseldorf (Germany)): Nachi Europe
                GmbH v Hauptzollamt Krefeld (1)
(Common commercial policy — Anti-dumping measures —
Article 1(2) of Regulation (EEC) No 2849/92 — Modifi-
cation of the definitive anti-dumping duty on imports of ball
bearings with a greatest external diameter exceeding 30 mm
originating in Japan — Reference for a preliminary ruling
on whether that regulation is valid — Failure by the
plaintiff in the main proceedings to bring an action seeking                               JUDGMENT OF THE COURT
                   annulment of the regulation)
                                                                                of 20 February 2001
                           (2001/C 173/12)
                                                                           in Case C-192/99 (reference for a preliminary ruling from
                                                                           the High Court of Justice of England and Wales, Queen’s
                    (Language of the case: German)                         Bench Division (Crown Office)): The Queen v Secretary
                                                                           of State for the Home Department, ex parte: Manjit Kaur,
                                                                                intervener: Justice (1)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                           (Citizenship of the Union — Nationality of a Member State
                                                                           — Declarations by the United Kingdom concerning the
In Case C-239/99: reference to the Court under Article 177 of              definition of the term ‘national’ — British Overseas Citizen)
the EC Treaty (now Article 234 EC) from the Finanzgericht
(Finance Court) Düsseldorf for a preliminary ruling in the
proceedings pending before that court between Nachi Europe                                         (2001/C 173/13)
GmbH and Hauptzollamt Krefeld — on the validity of
Article 1(2) of Council Regulation (EEC) No 2849/92 of
28 September 1992 modifying the definitive anti-dumping                                      (Language of the case: English)
duty on imports of ball bearings with a greatest external
diameter exceeding 30 mm originating in Japan imposed by
Regulation (EEC) No 1739/85 (OJ 1992 L 286, p. 2) —                        In Case C-192/99: reference to the Court under Article 177 of
the Court, composed of: G.C. Rodriguez Iglesias, President,                the EC Treaty (now Article 234 EC) from the High Court of
C. Gulmann, A. La Pergola (Rapporteur), M. Wathelet and                    Justice of England and Wales, Queen’s Bench Division (Crown
V. Skouris (Presidents of Chambers), D.A.O. Edward,                        Office) (United Kingdom of Great Britain and Northern Ireland)
J.-P. Puissochet, P. Jann, L. Sevón, R. Schintgen and F. Macken,          for a preliminary ruling in the proceedings pending before that
Judges; F.G. Jacobs, Advocate General; H.A. Rühl, Principal                court between The Queen and Secretary of State for the Home
Administrator, for the Registrar, has given a judgment on                  Department, ex parte: Manjit Kaur, intervener: Justice — on
15 February 2001, in which it has ruled:                                   the interpretation of Articles 8 and 8a of the EC Treaty (now,
                                                                           after amendment, Articles 17 EC and 18 EC), of the Declaration
                                                                           by the Government of the United Kingdom of Great Britain
Neither the judgment of the Court of First Instance in Joined Cases
                                                                           and Northern Ireland on the definition of the term ‘nationals’,
T-163/94 and T-165/94 NTN Corporation and Koyo Seiko v
                                                                           annexed to the Final Act of the Treaty concerning the
Council nor that of the Court of Justice in Case C-245/95 P
                                                                           Accession of the Kingdom of Denmark, Ireland and the
Commission v NTN and Koyo Seiko affected the validity of
                                                                           United Kingdom of Great Britain and Northern Ireland to the
Article 1(2) of Council Regulation (EEC) No 2849/92 of 28 Sep-
                                                                           European Communities (OJ 1972 L 73, p. 196), of the new
tember 1992 modifying the definitive anti-dumping duty on imports
                                                                           Declaration by the Government of the United Kingdom of
of ball bearings with a greatest external diameter exceeding 30 mm
                                                                           Great Britain and Northern Ireland on the definition of the
originating in Japan imposed by Regulation (EEC) No 1739/85 in
                                                                           term ‘nationals’ (OJ 1983 C 23, p. 1), and of Declaration No 2
so far as it fixes an anti-dumping duty applicable to ball bearings
                                                                           on nationality of a Member State, annexed to the Final Act of
manufactured by Nachi Fujikoshi Corporation.
                                                                           the Treaty on European Union (OJ 1992 C 191, p. 98) —
                                                                           the Court, composed of: G.C. Rodrı́guez Iglesias, President,
An importer of those products, such as Nachi Europe GmbH, which            C. Gulmann, A. La Pergola, M. Wathelet and V. Skouris
undoubtedly had a right of action before the Court of First Instance       (Presidents of Chambers), D.A.O. Edward, J.-P Puissochet,
to seek the annulment of the anti-dumping duty imposed on those            P. Jann, L. Sevón (Rapporteur), R. Schintgen and F. Macken,
goods, but which did not exercise that right, cannot subsequently          Judges; P. Léger, Advocate General; L. Hewlett, Administrator,
plead the invalidity of that anti-dumping duty before a national           for the Registrar, has given a judgment on 20 February 2001,
court. In such a case, the national court is bound by the definitive       in which it has ruled:
 ---pagebreak--- 16.6.2001                EN                     Official Journal of the European Communities                                             C 173/9
In order to determine whether a person is a national of the United         1.   The combined provisions of Article 1 and Article 4 of Council
Kingdom of Great Britain and Northern Ireland for the purposes of               Regulation (EEC) No 3577/92 of 7 December 1992 applying
Community law, it is necessary to refer to the 1982 Declaration by              the principle of freedom to provide services to maritime transport
the Government of the United Kingdom of Great Britain and                       within Member States (maritime cabotage) permit the provision
Northern Ireland on the definition of the term ‘nationals’ which                of regular maritime cabotage services to, from and between
replaced the 1972 Declaration by the Government of the United                   islands to be made subject to prior administrative authorisation
Kingdom of Great Britain and Northern Ireland on the definition of              only if:
the term ‘nationals’, annexed to the Final Act of the Treaty concerning
the Accession of the Kingdom of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland to the European                   —     a real public service need arising from the inadequacy of
Communities.                                                                          the regular transport services under conditions of free
                                                                                competition can be demonstrated;
(1) OJ C 226 of 7.8.1999.
                                                                                —     it is also demonstrated that that prior administrative
                                                                                authorisation scheme is necessary and proportionate to
                                                                                the aim pursued;
                                                                                —     such a scheme is based on objective, non-discriminatory
                 JUDGMENT OF THE COURT                                                criteria which are known in advance to the undertakings
                                                                                concerned.
                        of 20 February 2001
in Case C-205/99 (reference for a preliminary ruling from
the Tribunal Supremo, Spain): Asociación Profesional de
Empresas Navieras de Lı́neas Regulares (Analir) and                        2.   Community law permits a Member State to include in the
       Others v Administración General del Estado (1)                          conditions for granting and maintaining prior administrative
                                                                                authorisation as a means of imposing public service obligations
                                                                                on a Community shipowner a condition enabling account to be
(Freedom to provide services — Maritime cabotage —
                                                                                taken of his solvency, such as the requirement that he have no
Conditions for the grant and continuation of prior adminis-
                                                                                outstanding tax or social security debts, thus giving the Member
trative authorisation — Concurrent application of the
                                                                                State the opportunity to check the shipowner’s ‘capacity to
methods of imposing public service obligations and of
                                                                                provide the service’, provided that such a condition is applied on
               concluding public service contracts)
                                                                                a non-discriminatory basis.
                           (2001/C 173/14)
                   (Language of the case: Spanish)
                                                                           3.   Article 4(1) of Regulation No 3577/92 is to be interpreted as
                                                                                permitting a Member State to impose public service obligations
                                                                                on some shipping companies and, at the same time, to conclude
(Provisional translation; the definitive translation will be published
                                                                                public service contracts within the meaning of Article 2(3) of
                    in the European Court Reports)
                                                                                the regulation with others for the same line or route in order to
                                                                                ensure the same regular traffic to, from or between islands,
In Case C-205/99: reference to the Court under Article 234                      provided that a real public service need can be demonstrated
EC from the Tribunal Supremo (Supreme Court), Spain, for a                      and in so far as that application of the two methods concurrently
preliminary ruling in the proceedings pending before that                       is on a non-discriminatory basis and is justified in relation to
court between Asociación Profesional de Empresas Navieras                      the public-interest objective pursued.
de Lı́neas Regulares (Analir) and Others and Administración
General del Estado — on the interpretation of Articles 1, 2
and 4 of Council Regulation (EEC) No 3577/92 of 7 December
1992 applying the principle of freedom to provide services to
maritime transport within Member States (maritime cabotage)
(OJ 1992 L 364, p. 7) — the Court, composed of: G.C. Rodrı́-
                                                                           (1) OJ C 204 of 17.7.1999.
guez Iglesias, President, C. Gulmann and M. Wathelet (Presi-
dents of Chambers), D.A.O. Edward, P. Jann, L. Sevón,
R. Schintgen, F. Macken, N. Colneric, S. von Bahr and
C.W.A. Timmermans (Rapporteur), Judges; J. Mischo, Advocate
General; D. Louterman-Hubeau, Head of Division, for the
Registrar, has given a judgment on 20 February 2001, in
which it has ruled:


title: Case T-106/00: Action brought on 27 April 2000 by Streamserve North America Inc., against the Office for Harmonisation in the Internal Market

text:
24.6.2000              EN                     Official Journal of the European Communities                                       C 176/29
Pleas in law and main arguments                                          Pleas in law and main arguments
The present action is directed against the Commission’s
decision refusing payment to the applicant of the daily                  Trade Mark concerned:         ‘STREAMSERVE’ — Application
subsistence allowance and of the second part of an installation                                        No 198398.
allowance for his daughter upon his being transferred to
Brussels.                                                                Product or service:           Computer software and hardware
                                                                                (class numbers 9 and 16 of the
The applicant states in that regard that, having previously been                                       Nice classification).
transferred to Luxembourg, he was then required, in the
context of a new posting, once again to transfer his residence           Contested        Decision     Refusal of registration by the
and place of work to Brussels.                                           before the Board of           Examiner.
                                                                         Appeal:
In support of his claims, he argues that he is in his view
entitled to request that he be paid the daily subsistence                Pleas in law relied on:       — Infringement of Article 7
allowance and an installation allowance, to which any unmar-                                               (1)(b) and (c) of Regulation No
ried official with an officially recognised dependent child is                                             40/94.
automatically entitled. As regards the installation allowance,
this is intended to compensate for the expenses and difficulties                                       — Breach of the principle of non-
occasioned by the need to move house and settle in to a new                                                discrimination.
residence.
Action brought on 27 April 2000 by Streamserve North
America Inc., against the Office for Harmonisation in the
                         Internal Market
                                                                         Action brought on 27 April 2000 by Santiago Gómez-
                         (Case T-106/00)                                 Reino against the Commission of the European Communi-
                                                                                ties
                         (2000/C 176/51)
                                                                                (Case T-108/00)
                   (Language of the case: English)
                                                                                (2000/C 176/52)
An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 27 April 2000 by Streamserve
North America Inc., represented by Magnus Nedstrand and Ulf                                 (Language of the case: French)
Willquist of the Swedish Bar.
The applicant claims that the Court should:                              An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
— annul the contested decision in so far as the Court finds              European Communities on 27 April 2000 by Santiago Gómez-
    that the trade mark STREAMSERVE does not satisfy the                 Reino, residing in Brussels, represented by Jean-Louis Dupont,
    conditions laid down in Article 7(1)(b) and (c) of Council           of the Brussels Bar, and Marc-Albert Lucas and Michel
    Regulation (EC) No 40/94 of 20 December 1993 on the                  Franchimont, of the Liège Bar.
    Community Trade Mark and remit the case back to the
    Examiner;
                                                                         The applicant claims that the Court should:
— in the alternative, annul the contested decision in so far as
    it constitutes a sufficiently apparent breach of the principle
    of non-discrimination and remit the case back to the                 — annul or declare illegal and/or defective the decisions,
    Examiner;                                                                failures to adopt measures required under the Staff Regu-
                                                                             lations or straightforward measures forming the subject-
— order the defendant to pay the applicant’s costs.                          matter of the proceedings;


title: Case T-88/00: Action brought on 13 April 2000 by Mag Instrument, Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
10.6.2000              EN                    Official Journal of the European Communities                                    C 163/31
The pleas in law and arguments adduced are essentially the              Action brought on 13 April 2000 by Mag Instrument, Inc.
same as in Case T-76/00.                                                against the Office for Harmonisation in the Internal
                                                                                Market (Trade Marks and Designs)
                                                                                (Case T-88/00)
                                                                                (2000/C 163/62)
Action brought on 11 April 2000 by the Bank für Arbeit
und Wirtschaft Aktiengesellschaft against the Office for
Harmonisation in the Internal Market (Trade Marks and                                     (Language of the case: German)
                            Designs)
                                                                        An action against the Office for Harmonisation in the Internal
                         (Case T-87/00)                                 Market (Trade Marks and Designs) was brought before the
                                                                        Court of First Instance of the European Communities on
                        (2000/C 163/61)                                 13 April 2000 by Mag Instrument, Inc., of Ontario, California,
                                                                        United States of America, represented by Wedig von der
                                                                        Osten-Sacken, Rechtsanwalt, of Messrs Hoffmann Eitle, Mu-
                  (Language of the case: German)                        nich (Federal Republic of Germany).
An action against the Office for Harmonisation in the Internal          The applicant claims that the Court should:
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
11 April 2000 by the Bank für Arbeit und Wirtschaft,                    — annul the decision adopted on 14 February 2000 by the
Vienna, represented by Guido Kucsko, Rechtsanwalt, of Messrs                Second Board of Appeal with regard to
Schönherr Barfuss Torggler & Partner, Vienna.
                                                                            — application No R 0237/1999-2: Mini Maglite pocket
The applicant claims that the Court should:                                      torch manufactured by the applicant;
— annul the decision adopted on 31 January 2000 by the
                                                                            — application No R 0238/1999-2: MagLite 3C Cell
    Third Board of Appeal of the Office for Harmonisation in
                                                                                pocket torch manufactured by the applicant;
    the Internal Market concerning application No 000387233
    for the registration of ‘EASYBANK’ as a Community trade
    mark;                                                                   — application No R 0239/1999-2: MagLite 3D Cell
                                                                                pocket torch manufactured by the applicant;
— order the Office for Harmonisation in the Internal Market
    to pay the costs.
                                                                            — application No R 0240/1999-2: Mag Charger pocket
                                                                                torch manufactured by the applicant;
Pleas in law and main arguments
                                                                            — application No R 0241/1999-2: Solitaire pocket torch
The trade mark con-           the verbal mark ‘EASYBANK’ —                       manufactured by the applicant;
cerned:                       application No 387233
                                                                        — order the defendant to pay the costs.
Goods or service con-         goods and services in Class 36
cerned:                       (direct banking services, in par-
                              ticular electronic banking ser-
                              vices)                                    Pleas in law and main arguments
Decision contested be-        refusal of registration by the
fore the Board of Ap-         examiner                                  The trade marks con-          three-dimensional marks in the
peal:                                                                   cerned:                       form of pocket torches — appli-
                                                                                cation Nos 139527, 119552,
Grounds of claim:             — misapplication of Article                                             206789, 206689, 206870
                                  7(1)(b) of Regulation (EC) No
                                  40/94                                 Goods or service con-         Goods in Classes 9 and 11 (in
                              — misapplication of Article               cerned:                       particular, pocket torches with
                                  7(1)(c) of Regulation (EC) No                                       accessories)
                                  40/94
                                                                        Decision contested be-        Refusal of registration by the
                                                                        fore the Board of Ap-         examiner
                                                                        peal:
 ---pagebreak--- C 163/32              EN                     Official Journal of the European Communities                                     10.6.2000
Grounds of claim:            — joinder of five appeal cases by          The application is based on the following pleas in law:
                                  the Board of Appeal without
                                  the consent of the party con-
                                                                        — The Council committed a manifest error of assessment in
                                  cerned
                                                                            determining the date for the retroactive application of the
                             — misapplication of Article 4 of               regulation. As it is stated in recital 134 of the regulation,
                                  Regulation (EC) No 40/94                  the anti-dumping proceedings were terminated in order to
                             — misapplication of Article                    respect the principle of non-discrimination with regard to
                                  7(1)(b) of Regulation (EC) No             imports from other third countries. The applicant submits
                                  40/94                                     that this discrimination has existed since the expiry of the
                                                                            original measures against Japan on 4th December 1997.
                             — misapplication of Article                    The retroactive termination of the proceedings should
                                  7(1)(c) of Regulation (EC) No             therefore apply from that date onwards.
                                  40/94
                                                                        — The Council has failed to provide sufficient reasoning for
                                                                            its determination of the date by which the contested
                                                                            regulation should apply.
                                                                        (1) OJ L 22, 21.1.2000, p. 1.
Action brought on 14 April 2000 by Europe Chemi-Con
(Deutschland) GmbH against the Council of the European
                             Union
                         (Case T-89/00)
                        (2000/C 163/63)
                                                                        Action brought on 18 April 2000 by Lars Bo Rasmussen
                                                                          against the Commission of the European Communities
                  (Language of the case: English)
                                                                                (Case T-90/00)
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 14 April 2000 by Europe Chemi-Con                                                (2000/C 163/64)
(Deutschland) GmbH (Nürnberg, Germany), represented by
Dr. Konstantinos Adamantopoulos and Mr. Juan José Gutiérrez
Gisbert, of Hammond Suddards, Brussels.
                                                                                (Language of the case: French)
The applicant claims that the Court should:
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
— annul the last indent of Article 3 of Council Regulation              European Communities on 18 April 2000 by Lars Bo Rasmus-
    (EC) No 173/2000 in so far as it does not state that                sen, residing at Dalheim, Grand Duchy of Luxembourg,
    the retroactive effect of the regulation shall apply from           represented by Michel Karp and Joëlle Choucroun, of the
    4 December 1997 onwards;                                            Luxembourg Bar.
— order the Council to bear the costs.
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments                                         — annul the decision of the Commission of 2 August 1999
                                                                            to apply Article 85 of the Staff Regulations to the mission
                                                                            undertaken by the applicant from 7 to 11 March 1998 to
The applicant seeks the annulment of Article 3 of Council                   Dublin;
Regulation (EC) No 173/2000 of 24 January 2000 terminating
the anti-dumping proceedings concerning imports of certain
                                                                        — order the defendant to pay token damages of one franc as
large aluminium electrolytic capacitors originating in Japan,
                                                                            compensation for the non-material damage suffered;
the Republic of Korea and Taiwan(1). It challenges the date
which the Council fixed for the retroactive application of the
regulation, namely 28 February 1999.                                    — order the defendant to pay the costs.


title: Case C-554/10 P: Appeal brought on 26 November 2010 by Lagardère SCA against the judgment of the General Court (Sixth Chamber) delivered on 13 September 2010 in Case T-452/04 Editions Jacob v European Commission

text:
               12.2.2011

               EN

               Official Journal of the European Union

               C 46/5

         Appeal brought on 26 November 2010 by Lagardère SCA against the judgment of the General Court (Sixth Chamber) delivered on 13 September 2010 in Case T-452/04 Editions Jacob v European Commission

   (Case C-554/10 P)
   2011/C 46/08
   Language of the case: French

      Parties

      Appellant: Lagardère SCA (represented by: A. Winckler, F. de Bure et J.-B. Pinçon, avocats)

      Other parties to the proceedings: Éditions Odile Jacob SAS, European Commission, Wendel Investissement SA

      Form of order sought

               —

               set aside the judgment of 13 September 2010 in Case T-452/04 in so far as that judgement annulled the European Commission's Decision of 30 July 2004 approving Wendel Investissement as purchaser of the assets sold in merger control procedure No COMP/M.2978 — Lagardère/Natexis/VUP;

               —

               dismiss Odile Jacob's action brought before the General Court against that decision;

               —

               order Odile Jacob to pay all the costs of these proceedings, both at first instance and in this appeal.

      Pleas in law and main arguments

   The appellant puts forward two grounds in support of its appeal.
   By its first ground of appeal, Lagardère alleges that the General Court erred in law by relying on the unlawfulness of the decision approving the trustee as a basis for annulling the approval decision.
   By its second ground of appeal, which contains four parts, the appellant submits that the General Court erred in law in holding that the presence of the trustee's representative on the executive board of Editis as an independent third party could justify the annulment of the approval decision. That flows from the misinterpretation of certain facts, manifest failures to state reasons and several errors of law: the General Court thus erred in law by interpreting incorrectly the concept of independence (first part); the General Court failed to show in its statement of reasons how the links between the trustee's representative and Editis could have vitiated the content of the report submitted by the trustee to the Commission (second part); the General Court misinterpreted the facts and vitiated the judgment under appeal by a manifest failure to state reasons in finding that the trustee's report had exercised a ‘decisive influence’ on the approval decision (third part) and, lastly, the General Court erred in annulling the approval decision without showing how that decision would have differed in content in the absence of the alleged irregularities (fourth part).


title: Case T-101/13: Action brought on 14 February 2013 — Aer Lingus v Commission

text:
               6.4.2013

               EN

               Official Journal of the European Union

               C 101/31

         Action brought on 14 February 2013 — Aer Lingus v Commission
   (Case T-101/13)
   2013/C 101/60
   Language of the case: English

      Parties

      Applicant: Aer Lingus Ltd (Dublin, Ireland) (represented by: D. Piccinin, Barrister, and A. Burnside, Solicitor)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the European Commission dated 14 November 2012, taken under clause 1.4.9 of the Commitments given by International Consolidated Airlines Group (‘IAG’) to the Commission as a condition for the Commission’s approval of IAG’s acquisition of British Midlands Limited (‘bmi’) under Council Regulation 139/2004 (1), evaluating bids for take-off and landing slots at Heathrow Airport that IAG was required to divest under the Commitments, and ranking the bid submitted Virgin Atlantic Airways (‘Virgin’) for slots for the London Heathrow — Edinburgh route above the bid submitted by Aer Lingus Limited (‘Aer Lingus’) for those slots;

               —

               Order that the Commission should pay the applicant’s costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an error in the interpretation of the Commitments. The applicant argues that the Commission erred in its interpretation of the criterion for evaluating the bids set out in clause 1.4.10(c) of the Commitments, concerning the bidding airline’s plans to offer feed to third party carriers. The Commission interpreted that criterion as encompassing Virgin’s plans to carry passengers on the London Heathrow — Edinburgh route on its own connecting flights to long haul origins/destinations, whereas that criterion is in fact limited to the provision of connecting passengers to third party carriers.

               2.

               Second plea in law, alleging failure to take appropriate account of advice from the Monitoring Trustee (2). The applicant argues that the Commission failed in its duty to take appropriate account of advice from the Monitoring Trustee, and/or to give adequate reasons for departing from that advice in four respects:

                           —

                           The Commission failed to take due account of or give reasons for departing from the Monitoring Trustee's advice on Aer Lingus’ advantages in respect of interlining;

                           —

                           The Commission failed to take due account of or give reasons for departing from the Monitoring Trustee's advice on Aer Lingus’ advantages in respect of operating costs and sensitivity analysis;

                           —

                           The Commission failed to take due account of or give reasons for departing from the Monitoring Trustee’s advice on how the various measures should be analysed in combination to produce an overall ranking; and

                           —

                           The Commission failed to seek advice from the Monitoring Trustee in relation to the relative advantages of awarding the slots as a single package.

               3.

               Third plea in law, alleging manifest error of assessment. The applicant argues that the Commission manifestly erred in reaching its conclusion that Aer Lingus’ bid did not offer competitive constraints that were at least ‘essentially similar’ to those offered by Virgin’s bid. The Commission erred both in its appraisal of the competitive constraints that the competing bids offered on the London Heathrow — Edinburgh route, and in its appraisal of the benefits that would flow from awarding all of the routes to a single carrier rather than awarding the London Heathrow — Edinburgh route to Aer Lingus and the remaining routes to Virgin.

      (1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1)

      (2)  Person appointed in the framework of the IAG’s acquisition of bmi in order to perform the functions of monitoring IAG’s fulfilment of the Commitments


title: Judgment of the Court (Sixth Chamber) of 10 February 2000 in Joined Cases C-234/96 and C-235/96 (references for preliminary rulings from the Landesarbeitsgericht Hamburg): Deutsche Telekom AG v Agnes Vick (C-234/96), Ute Conze (C-235/96) (Equal pay for men and women — Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC )— Protocol concerning Article 119 of the EC Treaty — Occupational social security schemes — Exclusion of part-time workers affiliated to a supplementary occupational retirement pension scheme — Retroactive membership — Entitlement to a pension — Relationship between national law and Community law)

text:
C 102/6                  EN                       Official Journal of the European Communities                                           8.4.2000
proceedings pending before that court between Deutsche                                        JUDGMENT OF THE COURT
Telekom AG, formerly Deutsche Bundespost Telekom, and
Lilli Schröder — on the interpretation of 119 of the EC Treaty
(Articles 117 to 120 of the EC Treaty have been replaced by                                            (Sixth Chamber)
Articles 136 EC to 143 EC) and of the Protocol concerning
Article 119 of the Treaty establishing the European Com-
munity, annexed to the EC Treaty — the Court (Sixth                                                  of 10 February 2000
Chamber), composed of. R. Schintgen (Rapporteur), President
of the Second Chamber, acting for the President of the Sixth
Chamber, G. Hirsch and H. Ragnemalm, Judges; G. Cosmas,                      in Joined Cases C-234/96 and C-235/96 (references for
Advocate General; H.A. Rühl, Principal Administrator, for the                preliminary rulings from the Landesarbeitsgericht Ham-
Registrar, has given a judgment on 10 February 2000, in                      burg): Deutsche Telekom AG v Agnes Vick (C-234/96),
which it has ruled:                                                                               Ute Conze (C-235/96) (1)
1. The exclusion of part-time workers from an occupational pension           (Equal pay for men and women — Article 119 of the EC
     scheme such as that at issue in the main proceedings constitutes        Treaty (Articles 117 to 120 of the EC Treaty have been
     discrimination prohibited by Article 119 of the EC Treaty               replaced by Articles 136 EC to 143 EC ) — Protocol
     (Articles 117 to 120 of the EC Treaty have been replaced by             concerning Article 119 of the EC Treaty — Occupational
     Articles 136 EC to 143 EC) if that measure affects a considerably       social security schemes — Exclusion of part-time workers
     higher percentage of female workers than male workers and is            affiliated to a supplementary occupational retirement pen-
     not justified on objective grounds unrelated to any discrimination      sion scheme — Retroactive membership — Entitlement to a
     based on sex.                                                           pension — Relationship between national law and Com-
                                                                                munity law)
2. Where the exclusion of part-time workers from an occupational
     pension scheme constitutes indirect discrimination prohibited by
     Article 119 of the Treaty, the possibility of relying on the direct                                (2000/C 102/09)
     effect of that article is subject to a limitation in time whereby
     periods of service of such workers are to be taken into account
     only from 8 April 1976, the date of the judgment in Case
     43/75 Defrenne II [1976] ECR 455, for the purposes of their                                 (Language of the case: German)
     retroactive membership of such a scheme and calculation of the
     benefits to which they are entitled, except in the case of workers
     or those claiming under them who have before that date initiated
     legal proceedings or introduced an equivalent claim.                    (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
3. The limitation in time of the possibility of relying on the direct
     effect of Article 119 of the Treaty, resulting from the judgment        In Joined Cases C-234/96 and C-235/96: references to the
     in Defrenne II, does not preclude national provisions which lay         Court under Article 177 of the EC Treaty (now Article 234
     down a principle of equal treatment by virtue of which, in              EC) from the Landesarbeitsgericht Hamburg (Germany) for
     circumstances like those of the main proceedings, part-time             preliminary rulings in the proceedings pending before that
     workers are entitled to retroactive membership of an occupational       court between Deutsche Telekom AG and Agnes Vick
     pension scheme and to receive a pension under that scheme.              (C-234/96), Ute Conze (C-235/96) — on the interpretation of
                                                                             Article 119 of the EC Treaty (Articles 117 to 120 of the EC
                                                                             Treaty have been replaced by Articles 136 EC to 143 EC) and
4. Community law, in particular the principle of non-discrimination          of the Protocol on Article 119 of the Treaty establishing the
     on grounds of nationality and Article 119 of the Treaty, does           European Community, annexed to the EC Treaty — the Court
     not preclude provisions of a Member State which lay down a              (Sixth Chamber), composed of: R. Schintgen (Rapporteur),
     principle of equal treatment by virtue of which, in circumstances       President of the Second Chamber, acting for the President of
     like those of the main proceedings, part-time workers are entitled      the Sixth Chamber, G. Hirsch and H. Ragnemalm, Judges;
     to retroactive membership of an occupational pension scheme             G. Cosmas, Advocate General; H.A. Rühl, Principal Adminis-
     and to receive a pension under that scheme, notwithstanding the         trator, for the Registrar, has given a judgment on 10 February
     risk of distortions of competition between economic operators of        2000, in which it has ruled:
     the various Member States to the detriment of employers
     established in the first Member State.
                                                                             1. The limitation in time of the possibility of relying on the direct
                                                                                effect of Article 119 of the EC Treaty (Articles 117 to 120 of
                                                                                the EC Treaty have been replaced by Articles 136 EC to 143
                                                                                EC), resulting from the judgment in Case 43/75 Defrenne v
(1) OJ C 133 of 4.5.1996.
                                                                                Sabena [1976] ECR 455, does not preclude national provisions
                                                                                which lay down a principle of equal treatment by virtue of which,
                                                                                in circumstances like those of the main proceedings, all part-time
                                                                                workers are entitled to retroactive membership of an occupational
                                                                                pension scheme and to receive a pension under that scheme.
 ---pagebreak--- 8.4.2000                 EN                     Official Journal of the European Communities                                             C 102/7
2. The fact that the relevant national provisions prohibit all                  EC), resulting from the judgment in Case 43/75 Defrenne v
    discrimination against workers by reason of the fact that they              Sabena [1976] ECR 455, does not preclude national provisions
    work part time, and not by reason of their sex, does not affect the         which lay down a principle of equal treatment by virtue of which,
    answer to be given to the first question.                                   in circumstances like those of the main proceedings, all part-time
                                                                                workers are entitled to retroactive membership of an occupational
                                                                                pension scheme and to receive a pension under that scheme.
(1) OJ C 269 of 14.9.1996.
                                                                           2. Article 119 of the Treaty does not preclude provisions of a
                                                                                Member State which lay down a principle of equal treatment by
                                                                                virtue of which, in circumstances like those of the main
                                                                                proceedings, all part-time workers are entitled to retroactive
                                                                                membership of a private occupational pension scheme and to
                                                                                receive a pension under that scheme, notwithstanding the risk of
                 JUDGMENT OF THE COURT                                          distortions of competition between economic operators of the
                                                                                various Member States to the detriment of employers established
                          (Sixth Chamber)                                       in the first Member State.
                        of 10 February 2000                                3. National courts are required to interpret their national law as far
                                                                                as possible in the light of the wording and purpose of the relevant
in Joined Cases C-270/97 and C-271/97 (references for                           Community provisions, in particular Article 119 of the Treaty,
preliminary rulings from the Landesarbeitsgericht Nieder-                       in order to ensure application of the principle of equal pay for
sachsen): Deutsche Post AG v Elisabeth Sievers                                  men and women.
         (C-270/97), Brunhilde Schrage (C-271/97) (1)
                                                                           (1) OJ C 271 of 6.9.1997.
(Equal pay for men and women — Article 119 of the EC
Treaty (Articles 117 to 120 of the EC Treaty have been
replaced by Articles 136 EC to 143 EC) — Protocol
concerning Article 119 of the EC Treaty — Occupational
social security schemes — Exclusion of part-time workers
affiliated to a supplementary occupational retirement pen-
sion scheme — Retroactive membership — Entitlement to a
pension — Relationship between national law and Com-
munity law — Interpretation consonant with Community                                          JUDGMENT OF THE COURT
                                 law)
                                                                                (Sixth Chamber)
                           (2000/C 102/10)
                                                                                of 10 February 2000
                    (Language of the case: German)
                                                                           in Case C-340/97 (reference for a preliminary ruling from
                                                                           the Bayerisches Verwaltungsgericht Ansbach): Ömer
(Provisional translation; the definitive translation will be published         Nazli, Caglar Nazli, Melike Nazli v Stadt Nürnberg (1)
                    in the European Court Reports)
In Joined Cases C-270/97 and C-271/97: references to the                   (EEC-Turkey Association Agreement — Freedom of move-
Court under Article 177 of the EC Treaty (now Article 234                  ment for workers — Articles 6(1) and 14(1) of Decision
EC) from the Landesarbeitsgericht Niedersachsen (Germany)                  No 1/80 of the Association Council — Registration as duly
for preliminary rulings in the proceedings pending before                  belonging to the labour force of a Member State — Turkish
that court between Deutsche Post AG and Elisabeth Sievers                  worker detained pending trial and subsequently sentenced to
(C-270/97), Brunhilde Schrage (C-271/97) — on the interpret-               a suspended term of imprisonment — Expulsion on general
ation of Article 119 of the EC Treaty (Articles 117 to 120 of                                        preventive grounds)
the EC Treaty have been replaced by Articles 136 EC to 143
EC) and of the Protocol concerning Article 119 of the Treaty                                           (2000/C 102/11)
establishing the European Community, annexed to the EC
Treaty — the Court (Sixth Chamber), composed of: R. Schint-
gen (Rapporteur), President of the Second Chamber, acting for                                   (Language of the case: German)
the President of the Sixth Chamber, G. Hirsch and H. Ragne-
malm, Judges; G. Cosmas, Advocate General; H.A. Rühl, Princi-
pal Administrator, for the Registrar, has given a judgment on              (Provisional translation; the definitive translation will be published
10 February 2000, in which it has ruled:                                                        in the European Court Reports)
1. The limitation in time of the possibility of relying on the direct
    effect of Article 119 of the EC Treaty (Articles 117 to 120 of         In Case C-340/97: reference to the Court under Article 177 of
    the EC Treaty have been replaced by Articles 136 EC to 143             the EC Treaty (now Article 234 EC) from the Bayerisches


title: Judgment of the Court of First Instance of 14 May 2002 in Case T-80/00: Associação Comercial de Aveiro v Commission of the European Communities (Social policy — European Social Fund — Application for annulment — Reduction of financial assistance — Statement of reasons — Principle of proportionality — Assessment of facts)

text:
27.7.2002              EN                      Official Journal of the European Communities                                          C 180/21
                                                        COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                   JUDGMENT OF THE COURT OF FIRST INSTANCE
                         of 14 May 2002                                                             of 14 May 2002
                                                                          in Case T-80/00: Associação Comercial de Aveiro v
in Case T-126/99: Graphischer Maschinenbau GmbH,                                 Commission of the European Communities (1)
KBA-Berlin GmbH v Commission of the European Com-
                            munities (1)
                                                                          (Social policy — European Social Fund — Application for
                                                                          annulment — Reduction of financial assistance — State-
(State aids — Restructuring aid — Action for annulment —                  ment of reasons — Principle of proportionality — Assess-
                 Manifest errors of assessment)                                                       ment of facts)
                         (2002/C 180/34)                                                            (2002/C 180/35)
                                                                                (Language of the case: Portuguese)
                  (Language of the case: German)
                                                                          In Case T-80/00, Associação Comercial de Aveiro, established
In Case T-126/99, Graphischer Maschinenbau GmbH, estab-                   in Aveiro (Portugal), represented by J. Amaral e Almeida and
lished in Berlin (Germany), represented by A. Bach, avocat,               B. Diniz de Ayala, lawyers, with an address for service in
with an address for service in Luxembourg, v Commission of                Luxembourg, v Commission of the European Communities
the European Communities (Agents: D. Triantafyllou and                    (Agents: H. Speyart and M. França): Application for annulment
P. Nemitz): Application for the partial annulment of Com-                 of Commission Decision C(99) 3684 of 30 November 1999
mission Decision 1999/690/EC of 3 February 1999 on State                  reducing the European Social Fund assistance granted in the
aid which Germany is planning to introduce for Graphischer                framework of project No 890365/P 1 to Associação Comercial
Maschinenbau GmbH, Berlin (OJ 1999 L 272, p. 16), the                     de Aveiro, the Court of First Instance (Fifth Chamber),
Court of First Instance (First Chamber, Extended Composition),            composed of: J.D. Cooke, President, R. Garcı́a-Valdecasas and
composed of: B. Vesterdorf, President, P. Mengozzi, J. Pirrung,           P. Lindh, Judges; J. Plingers, Administrator, for the Registrar,
M. Vilaras and N.J. Forwood, Judges; D. Christensen, Adminis-             has given a judgment on 14 May 2002, in which it:
trator, for the Registrar, has given a judgment on 14 May
2002, in which it:
                                                                          1.    Annuls Commission Decision C(96) 3684 of 30 November
                                                                                1999 reducing the European Social Fund assistance granted to
1.    Annuls Commission decision 1999/690/EC of 3 February                      the Associação Comercial de Aveiro in the context of project
      1999 on State aid which Germany is planning to introduce for              No 890365/P 1 in so far as it reduces the amount of the
      Graphischer Maschinenbau GmbH, Berlin to the extent to                    services invoiced by SI, — Sistemas de Informação Ld.a under
      which it declares the part of the planned aid exceeding the               subheading 14.3.9, hire and rental charges;
      amount of DEM 4 435 million incompatible with the common
      market and prohibits it;                                            2.    Dismisses the remainder of the application;
2.    Dismisses the remainder of the application;                         3.    Orders the Commission to bear its own costs and to pay one
                                                                                third of those incurred by the applicant;
3.    Orders the Commission to pay the costs.
                                                                          4.    Orders the applicant to bear two thirds of its own costs.
(1) OJ C 226 of 7.8.1999.
                                                                          (1) OJ C 176 of 24.6.2000.


title: Case C-558/15: Judgment of the Court (Sixth Chamber) of 15 December 2016 (request for a preliminary ruling from the Tribunal da Relação do Porto — Portugal) — Alberto José Vieira Azevedo and Others v CED Portugal Unipessoal Lda, Instituto de Seguros de Portugal — Fundo de Garantia Automóvel (Reference for a preliminary ruling — Insurance against civil liability in respect of the use of motor vehicles and enforcement of the obligation to insure against such liability — Directive 2000/26/EC — Article 4(5) — Insurance undertaking — Claims representative — Sufficient powers of representation — Notifications of proceedings before the courts)

text:
               13.2.2017

               EN

               Official Journal of the European Union

               C 46/7

         Judgment of the Court (Sixth Chamber) of 15 December 2016 (request for a preliminary ruling from the Tribunal da Relação do Porto — Portugal) — Alberto José Vieira Azevedo and Others v CED Portugal Unipessoal Lda, Instituto de Seguros de Portugal — Fundo de Garantia Automóvel
   (Case C-558/15) (1)

   ((Reference for a preliminary ruling - Insurance against civil liability in respect of the use of motor vehicles and enforcement of the obligation to insure against such liability - Directive 2000/26/EC - Article 4(5) - Insurance undertaking - Claims representative - Sufficient powers of representation - Notifications of proceedings before the courts))
   (2017/C 046/08)
   Language of the case: Portuguese

      Referring court

   Tribunal da Relação do Porto

      Parties to the main proceedings

      Applicants: Alberto José Vieira Azevedo, Maria da Conceição Ferreira da Silva, Carlos Manuel Ferreira Alves, Rui Dinis Ferreira Alves, Vítor José Ferreira Alves

      Defendants: CED Portugal Unipessoal Lda, Instituto de Seguros de Portugal — Fundo de Garantia Automóvel

      Intervening parties: Institituto de Seguros de Portugal — Fundo de Acidentes de Trabalho

      Operative part of the judgment

   Article 4 of Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth motor insurance Directive), as amended by Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005, must be interpreted as not requiring Member States to provide that the claims representative appointed pursuant to that article may itself be sued, instead of the insurance undertaking which it represents, in the national court before which an action for damages was brought by an injured party falling within the scope of Article 1 of Directive 2000/26, as amended by Directive 2005/14.

      (1)  OJ C 16, 18.1.2016.


title: Case C-45/11 P: Appeal brought on 2 February 2011 by Deutsche Bahn AG against the judgment of the General Court (Eighth Chamber) delivered on 12 November 2010 in Case T-404/09 Deutsche Bahn AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/9

         Appeal brought on 2 February 2011 by Deutsche Bahn AG against the judgment of the General Court (Eighth Chamber) delivered on 12 November 2010 in Case T-404/09 Deutsche Bahn AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-45/11 P)
   2011/C 130/18
   Language of the case: German

      Parties

      Appellant: Deutsche Bahn AG (represented by: K. Schmidt-Hern, Rechtsanwalt)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: G. Schneider, acting as Agent)

      Form of order sought

               —

               Set aside the judgment of the General Court of the European Union of 12 November 2010 in Case T-404/09;

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 (Case R 379/2009-1);

               —

               Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to pay the costs of both sets of proceedings.

      Pleas in law and main arguments

   The present appeal is against the judgment of the General Court by which that Court dismissed the appellant’s action for annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 July 2009 relating to the rejection of its application for registration of a figurative mark, which consists of a horizontal combination of the colours grey and red.
   The appellant relies on four grounds of appeal in support of its appeal, which is based on infringement of Article 7(1)(b) of Regulation (EC) No 207/2009.
   First of all, the General Court based its examination of distinctive character on a sign other than the mark applied for. The General Court did not examine the sign in its entirety, but merely based that examination on a random combination of the colours light grey and traffic-light red. The specific features of the colour system were not taken into account in the present case although the specific arrangement of those colours in the mark at issue is a part of the trade mark application and makes the sign specific.
   Secondly, in the course of the assessment of distinctive character, the General Court did not consider for which specific services the trade mark application has been filed and examined its inability to be protected with regard to completely different goods. The alleged lack of distinctive character of the mark was deduced in the judgment from the circumstance that particular items or goods usually bear the colours in question (parts of railway engines and safety enclosures for electrical equipment beside railway lines; traffic signs; level crossing barriers and rail transport traffic signs; trains and the borders of railway platforms). The trade mark application in respect of the mark at issue has not however been filed in respect of those goods. The General Court did not state a reason why the circumstance that the mark at issue may possibly be incapable of being protected in respect of certain goods from the transport or rail transport sector should also provide a reason why the mark applied for in the present case in respect of services should be incapable of being protected.
   Thirdly, the General Court based its assessment of the mark’s distinctive character on incorrect legal bases in that it assessed the distinctive character of marks in respect of goods and marks in respect of services in the same way. The General Court failed to recognise that the public does not necessarily perceive different categories of signs in the same way. Whereas the consumer may not be accustomed to deducing the origin of the goods from their colour or packaging in the absence of graphical or word elements since goods and packaging are usually coloured, the situation is completely different as regards services. As services are by nature colourless, the consumer’s perception of colours for services is totally different from his perception of colours for goods. Consequently, a difference should be made between goods and services in assessing the distinctive character of colours.
   Fourthly, in assessing the distinctive character of the mark in question the General Court distorted the relevant facts and did not sufficiently state the reasons for its judgment. The General Court assumed without any grounds that horizontal bands of colour are usually used as decorative elements on trains. In doing so, it failed to recognise that the present case relates to an assessment of the distinctive character of a specific colour mark and not to stripes on railway wagons in general. Likewise, the General Court failed to recognise that the trade mark application in respect of mark at issue was not filed in respect of railway wagons, but in respect of services in Class 39. Lastly, the appellant made extensive submissions on the point that colour elements in the rail transport sector are not understood as decorative elements, but as indications of origin. The General Court did not assess those arguments put forward by the appellant.


title: Case T-194/09: Action brought on 13 May 2009 — Lan Airlines v OHIM — Air Nostrum (LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM)

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/18

         Action brought on 13 May 2009 — Lan Airlines v OHIM — Air Nostrum (LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM)
   (Case T-194/09)
   2009/C 167/36
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Lan Airlines, SA (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Air Nostrum, Líneas Aéreas del Mediterráneo, SA (Manises, Spain)

      Form of order sought

               —

               declare, in view of the lodging of this pleading and the documents attached to it, that the action against the decision of the Fourth Board of Appeal of the Office of 19 February 2009 in Case R 0107/2008-4 has been lodged within the prescribed period and in the correct form and, following the appropriate procedural steps, deliver judgment annulling the said decision and expressly order the Office to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Air Nostrum, Líneas Aéreas del Mediterráneo, SA

      Community trade mark concerned: Word mark ‘LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM’ (Application No 4 448 061) for services in class 39.

      Proprietor of the mark or sign cited in the opposition proceedings: Lan Airlines, SA.

      Mark or sign cited in opposition: Community word mark ‘LAN’ (No 3 350 899) for services in classes 35, 39 and 43; and the Community figurative mark constituted by the word ‘LAN’ flanked by a star (No 3 694 957) for services in class 39.

      Decision of the Opposition Division: Rejection of the opposition in its entirety.

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

      Pleas in law: Incorrect application of Article 8(1)(b) of Regulation No 40/94 (replaced by Regulation No 207/2009).