title: Case T-113/07: Judgment of the General Court of 12 July 2011 — Toshiba v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Rights of the defence — Proof of the infringement — Single and continuous infringement — Fines — Gravity and duration of the infringement — Statement of reasons — Starting amount — Reference year)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/30

         Judgment of the General Court of 12 July 2011 — Toshiba v Commission
   (Case T-113/07) (1)

   (Competition - Agreements, decisions and concerted practices - Market in gas insulated switchgear projects - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Market-sharing - Rights of the defence - Proof of the infringement - Single and continuous infringement - Fines - Gravity and duration of the infringement - Statement of reasons - Starting amount - Reference year)
   2011/C 252/71
   Language of the case: English

      Parties

      Applicant: Toshiba Corp. (Tokyo, Japan) (represented by: initially J. MacLennan, Solicitor, A. Schulz and J. Borum, lawyers, and subsequently J. MacLennan and A. Schulz)

      Defendant: European Commission (represented by: initially F. Arbault and J. Samnadda, then X. Lewis, and subsequently J. Bourke and F. Ronkes Agerbeek, and finally F. Ronkes Agerbeek and N. Khan, Agents)

      Re:

   APPLICATION, primarily, for the annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) to the extent to which it concerns the applicant and, in the alternative, for the amendment of Articles 1 and 2 of that decision so as to cancel or reduce the fine imposed on the applicant.

      Operative part of the judgment

   The Court:

               1.

               Annuls Article 2(h) and (i) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) in so far as it concerns Toshiba Corp;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders Toshiba to bear three quarters of the costs incurred by the parties before the General Court;

               4.

               Orders the European Commission to bear a quarter of the costs incurred by the parties before the General Court.

      (1)  OJ C 140, 23.6.2007.


title: Case C-462/05: Action brought on  22 December 2005  by the Commission of the European Communities against the Portuguese Republic

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/23

         Action brought on 22 December 2005 by the Commission of the European Communities against the Portuguese Republic
   (Case C-462/05)
   (2006/C 60/45)
   Language of the case: Portuguese
   An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 22 December 2005 by the Commission of the European Communities, represented by Richard Lyal and Margarida Afonso, acting as Agents, with an address for service in Luxembourg.
   The Commission claims that the Court should:

               1)

               declare that, by maintaining in force a reduced rate of value added tax of 5 % applicable to tolls on road crossings of the River Tagus in Lisbon, the Portuguese Republic has failed to fulfil its obligations under Articles 12 and 28 of the Sixth Directive; (1)

               2)

               order the Portuguese Republic to pay the costs.

         Pleas in law and main arguments
   It is apparent from the Court of Justice's judgment in Case C-276/98 Commission v Portugal [1998] ECR I-1699, and it is furthermore impliedly accepted by the Portuguese authorities, that the Sixth Directive contains no provision whatsoever that might allow of the application of a reduced rate of 5 % to the services in question. The Portuguese authorities have none the less deferred indefinitely putting an end to that failure to fulfil obligations which has subsisted since 1 January 1995, falling back on a series of contradictory arguments, and also on equivocal declarations and frequent changes of position on the question whether Article 4(5) of the Sixth Directive is to find application.
   After thorough examination of the arguments of and the various positions adopted by the Portuguese Government on this point during the pre-litigation stage of the procedure, the Commission takes the view that the conditions on which Article 4(5) of the Sixth Directive may be regarded as applicable to the services at issue have not been fulfilled.
   It is clear from Article 12(3)(a) of the Sixth Directive that a reduced rate of value added tax may be applied only to transactions that, while taxable, consist of one of the categories specified in Annex H — which is not the case when the essence of the services is to make available to users a highway infrastructure through the payment of tolls.
   The Commission takes the view that Article 28(2)(e) of the Sixth Directive, relied upon by the Portuguese authorities, entails an obligation not to continue to apply a reduced rate to transactions in respect of which the transition, regarded as desirable, to the field of application of the standard rate of tax has already been possible. As a matter of fact, to accept that a Member State can, as the Portuguese Government argues, again apply a reduced rate after a period of greater or lesser duration in which the standard rate applied would render unfeasible the gradual or progressive approximation of the rates and levels of value added tax judged necessary by the Community legislature.
   In any event, even if the Court should not agree with the restrictive interpretation of Article 28(2)(e) of the Sixth Directive propounded by the Commission, it must still be held that the Portuguese legislation, in providing for the application of a reduced rate of 5 %, or in any case of less than 12 %, to tolls on road crossings of the River Tagus in Lisbon, is not compatible with that provision.

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case C-219/15: Judgment of the Court (First Chamber) of 16 February 2017 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Elisabeth Schmitt v TÜV Rheinland LGA Products GmbH (Reference for a preliminary ruling — Approximation of laws — Industrial policy — Directive 93/42/EEC — Checks on the conformity of medical devices — Notified body appointed by the manufacturer — Obligations of that body — Defective breast implants — Implants manufactured using silicone — Liability of the notified body)

text:
               10.4.2017

               EN

               Official Journal of the European Union

               C 112/5

         Judgment of the Court (First Chamber) of 16 February 2017 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Elisabeth Schmitt v TÜV Rheinland LGA Products GmbH
   (Case C-219/15) (1)

   ((Reference for a preliminary ruling - Approximation of laws - Industrial policy - Directive 93/42/EEC - Checks on the conformity of medical devices - Notified body appointed by the manufacturer - Obligations of that body - Defective breast implants - Implants manufactured using silicone - Liability of the notified body))
   (2017/C 112/08)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Elisabeth Schmitt

      Defendant: TÜV Rheinland LGA Products GmbH

      Operative part of the judgment

               1.

               The provisions of Annex II to Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, read in the light of Article 11(1) and (10) and Article 16(6) of the directive, are to be interpreted as meaning that the notified body is not under a general obligation to carry out unannounced inspections, to examine devices and/or to examine the manufacturer’s business records. However, in the face of evidence indicating that a medical device may not comply with the requirements laid down in Directive 93/42, as amended by Regulation No 1882/2003, the notified body must take all the steps necessary to ensure that it fulfils its obligations under Article 16(6) of the directive and Sections 3.2, 3.3, 4.1 to 4.3 and 5.1 of Annex II to the directive;

               2.

               Directive 93/42, as amended by Regulation No 1882/2003, is to be interpreted as meaning that, in the procedure relating to the EC declaration of conformity, the purpose of the notified body’s involvement is to protect the end users of medical devices. The conditions under which culpable failure by that body to fulfil its obligations under the directive in connection with that procedure may give rise to liability on its part vis-à-vis those end users are governed by national law, subject to the principles of equivalence and effectiveness.

      (1)  OJ C 279, 24.8.2015.


title: Case T-458/05: Action brought on  30 December 2005  — Tegometall International v OHIM

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/46

         Action brought on 30 December 2005 — Tegometall International v OHIM
   (Case T-458/05)
   (2006/C 60/87)
   Language in which the application was lodged: German
   Parties

      Applicant: Tegometall International AG (Lengwil, Switzerland) (represented by: H. Timmann, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Wupperman AG (Leverkusen, Germany)
   Form of order sought
   The applicant claims that the Court should:

               —

               alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 21 October 2005 in Case R 1063/2004-2, served on 2 November 2005, as amended by Corrigendum of 16 November 2005, served on 23 November 2005, and dismiss the application for declaration of invalidity of Community trade mark No 1 227 743 of 23 July 2003;

               —

               in the alternative, annul that decision and refer the case back to the Second Board of Appeal for further deliberation;

               —

               order the applicant in the invalidity proceedings to pay the costs of the proceedings before the Cancellation Division and the Board of Appeal and of the present action.

         Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark TEK for goods in Classes 6 and 20 (shelves and parts of shelves, in particular hanging baskets for shelves, all the aforesaid goods of metal or not of wood) — Community trade mark No 1 227 743

      Proprietor of the Community trade mark: The applicant

      Applicant for the declaration of invalidity: Wupperman AG

      Decision of the Cancellation Division: Dismissal of the application for declaration of invalidity

      Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94, since the facts found by the Board of Appeal do not justify cancellation of the mark. In addition, the Board of Appeal has infringed the applicant's right to a fair hearing.


title: Case C-137/05: Action brought on 24 March 2005 by United Kingdom of Great Britain and Northern Ireland against Council of the European Union

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/16

         Action brought on 24 March 2005 by United Kingdom of Great Britain and Northern Ireland against Council of the European Union
   (Case C-137/05)
   (2005/C 132/30)
   Language of the case: English
   An action against the Council of the European Union was brought before the Court of Justice of the European Communities on 24 March 2005 by United Kingdom of Great Britain and Northern Ireland, represented by C. Jackson, acting as Agent, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               annul Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (1);

               2.

               determine, pursuant to Article 231 EC, that, following the annulment of the Passports Regulation, and pending the adoption of new legislation in this matter, the provisions of the Passports Regulation should remain effective, except in so far as they have the effect of excluding the United Kingdom from participating in the application of the Passport Regulation;

               3.

               order the Council of the European Union to pay the costs.

         Pleas in law and main arguments

               1.

               The United Kingdom was denied the right to take part in the adoption of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (the Passport Regulation) despite having given notice of its wish to do so pursuant to Article 5(1) of the Protocol integrating the Schengen acquis into the framework of the European Union (the Schengen Protocol) and to Article 3(1) of the Protocol on the position of the United Kingdom and Ireland. The annulment of the Passports Regulation is sought on the grounds that the exclusion of the United Kingdom from its adoption entails the infringement of an essential procedural requirement and/or the infringement of the Treaty, within the meaning of Article 230, second paragraph, EC.

               2.

               The main contention of the United Kingdom is that, in so excluding it from the adoption of the Passports Regulation, the Council acted on the basis of an erroneous interpretation of the relationship between Article 5 and Article 4 of the Schengen Protocol. It is contended more particularly as follows:

                           (a)

                           The Council's interpretation, according to which the right of participation conferred by Article 5 of the Schengen Protocol applies only to measures building on provisions of the Schengen acquis in which the United Kingdom participates pursuant to a Council decision adopted on the basis of Article 4, is contradicted by the structure and language of those Articles, by the very nature of the Article 5 mechanism, and by the Declaration on Article 5 that was annexed to the Final Act of the Treaty of Amsterdam.

                           (b)

                           The Council's interpretation of Article 5 of the Schengen Protocol is not required to enable the ‘without prejudice’ rule in Article 7 of the Protocol on the Position of the United Kingdom and Ireland to have useful effect. Nor is such an interpretation required to preserve the integrity of the Schengen acquis. Indeed, as a means of safeguarding the acquis, its adverse impact on the United Kingdom would be grossly disproportionate.

                           (c)

                           Given the broad and loose conception of measures building on the Schengen acquis which the Council employs in its practice, the mechanism of Article 5 of the Schengen Protocol, as interpreted by the Council, would be liable to function in a way that violates the principle of legal certainty and the fundamental principles governing enhanced cooperation.

               3.

               In the alternative, the United Kingdom contends that, if the Council's interpretation of the relationship between Article 5 and Article 4 of the Schengen Protocol were correct, this would necessarily entail taking a narrow view of the notion of a measure that builds upon the Schengen acquis within the meaning of Article 5, as a measure inextricably connected with the acquis; and the Passports Regulation is not such a measure.

      (1)  OJ L 385, p. 1.


title: Case T-391/09: Action brought on 5 October 2009 — Evonik Degussa and AlzChem Hart v Commission

text:
               5.12.2009

               EN

               Official Journal of the European Union

               C 297/24

         Action brought on 5 October 2009 — Evonik Degussa and AlzChem Hart v Commission
   (Case T-391/09)
   2009/C 297/36
   Language of the case: German

      Parties

      Applicants: Evonik Degussa GmbH (Essen, Germany) and AlzChem Hart GmbH (Trostberg, Germany) (represented by: C. Steinle, O. Andresen and I. Hermeneit, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Annul Commission Decision C (2009) 5791 final of 22 July 2009 (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) in so far as it concerns the applicants;

               —

               in the alternative, reduce the fine imposed on the applicants under Article 2(g) and (h) of the decision referred to;

               —

               in the alternative, in the event that point 1 of the application is dismissed, amend Article 2(g) and (h) of the decision in such a way as to make SKW Stahl-Metallurgie GmbH jointly and severally liable for the full amount of the fine imposed on the applicants;

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

   The applicants contest Commission Decision C (2009) 5791 final of 22 July 2009 in case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries. The contested decision imposed a fine on the applicants and on other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a single and continuous infringement in the calcium carbide and magnesium sector in the EEA, except in Spain, Portugal, Ireland and the United Kingdom, which consisted in market sharing, agreements on quotas, customer allocations, price fixing and exchange of sensitive information relating to prices, customers and sales volumes.
   In support of their action, the applicants submit, first, that they have not infringed Article 81 EC. In that regard, they submit, in particular, that they cannot be held liable for an infringement committed by their former subsidiary, SKW Stahl-Metallurgie GmbH, since neither they nor their legal predecessors formed an economic unit with that company. Instead, the applicants have proved that their legal predecessors did not exercise decisive influence over SKW Stahl-Metallurgie GmbH. Accordingly, the defendant has also infringed the principle of personal responsibility, the presumption of innocence, the fault principle and the fault requirement.
   Furthermore, the applicants also object to the fine imposed on them. In that regard, they submit that the contested decision is contrary to Article 23(3) of Regulation (EC) No 1/2003 (1) and to the Guidelines on setting fines, (2) as well as to the Leniency Notice, (3) the principle of equal treatment and the principle of proportionality.
   Finally, the applicants submit that the Commission failed to fulfil its obligation to state reasons in accordance with Article 253 EC in respect of its findings concerning the joint and several liability of SKW Stahl-Metallurgie GmbH.

      (1)  Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

      (2)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).

      (3)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).


title: Case C-246/04: Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 26 May 2004 in the case Turn- und Sportunion Waldburg against Finanzlandesdirektion für Tirol

text:
               9.10.2004

               EN

               Official Journal of the European Union

               C 251/2

         Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 26 May 2004 in the case Turn- und Sportunion Waldburg against Finanzlandesdirektion für Tirol
   (Case C-246/04)
   (2004/C 251/03)
   Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgerichtshof (Higher Administrative Court) (Austria), of 26 May 2004, which was received at the Court Registry on 10 June 2004, for a preliminary ruling in the case of Turn- und Sportunion Waldburg against Finanzlandesdirektion für Tirol.
   The Verwaltungsgerichtshof asks the Court of Justice to give a preliminary ruling on the following questions:

               1.

               May a Member State exercise its discretion under Article 13 C of the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (‘the directive’) to give taxable persons the right, despite the tax exemption for the letting of property provided for in Article 13 B(b) of the directive, to opt for taxation only in a uniform manner or may the Member State distinguish by reference to the type of turnover or the group of taxable persons?

               2.

               Does Article 13 B(b) in conjunction with C(a) of the directive permit Member States' legislation, like Paragraph 6(1)(14) of the Umsatzsteuergesetz 1994 (Law on turnover tax; hereinafter ‘UStG 1994’) in conjunction with Paragraph 6(1)(16) of the UStG 1994, under which the possibility of opting for taxation of turnover from leasing and letting is limited in such a way that non-profit-making sport clubs do not have that option?

               3.

               Does Article 13 B(b) in conjunction with C(a) of the directive permit Member States' legislation, like Paragraph 2(5)(2) of the UStG 1994 in conjunction with Paragraph 1(2)(1) of the version of the Hobbies Order in BGBl Nr 33/1993 (Bundesgesetzblatt; Austrian Official Journal), under which the possibility of opting for taxation of turnover from letting does not exist where the letting does not lead within a foreseeable period of time to an overall profit or surplus in income and concerns a building suitable for use as a private dwelling?

      (1)  OJ L 145, p. 1.


title: Joined Cases C-186/11 and C-209/11: Judgment of the Court (Fourth Chamber) of 24 January 2013 (requests for a preliminary ruling from the Symvoulio tis Epikrateias — Greece) — Stanleybet International LTD (C-186/11), William Hill Organization Ltd (C-186/11), William Hill Plc (C-186/11), Sportingbet plc (C-209/11) v Ypourgos Oikonomias kai Oikonomikon, Ypourgos Politismou (Articles 43 and 49 EC — National legislation granting an exclusive right for the running, management, organisation and operation of games of chance to a single undertaking, in the form of a public limited company listed on the stock exchange — Advertising of the games and expansion in other Member States of the European Union — State controls)

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/3

         Judgment of the Court (Fourth Chamber) of 24 January 2013 (requests for a preliminary ruling from the Symvoulio tis Epikrateias — Greece) — Stanleybet International LTD (C-186/11), William Hill Organization Ltd (C-186/11), William Hill Plc (C-186/11), Sportingbet plc (C-209/11) v Ypourgos Oikonomias kai Oikonomikon, Ypourgos Politismou
   (Joined Cases C-186/11 and C-209/11) (1)

   (Articles 43 and 49 EC - National legislation granting an exclusive right for the running, management, organisation and operation of games of chance to a single undertaking, in the form of a public limited company listed on the stock exchange - Advertising of the games and expansion in other Member States of the European Union - State controls)
   2013/C 71/04
   Language of the case: Greek

      Referring court

   Symvoulio tis Epikrateias

      Parties to the main proceedings

      Applicants: Stanleybet International Ltd (C-186/11), William Hill Organization Ltd (C-186/11), William Hill Plc (C-186/11), Sportingbet plc (C-209/11)

      Defendants: Ypourgos Oikonomias kai Oikonomikon, Ypourgos Politismou

      Intervener: Organismos prognostikon agonon podosfairou AE (OPAP)

      Re:

   Request for a preliminary ruling — Symvoulio tis Epikrateias — Interpretation of Articles 49 and 56 TFEU (Articles 43 and 49 EC) — National legislation under which, for the purpose of restricting games of chance, an exclusive right to run, manage, organise and operate games of chance is granted to a single undertaking, in the form of a public limited company listed on the stock exchange — Advertising of the games by that company and expansion in other countries of the European Union

      Operative part of the judgment

               1.

               Articles 43 EC and 49 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which grants the exclusive right to run, manage, organise and operate games of chance to a single entity, where, firstly, that legislation does not genuinely meet the concern to reduce opportunities for gambling and to limit activities in that domain in a consistent and systematic manner and, secondly, where strict control by the public authorities of the expansion of the sector of games of chance, solely in so far as is necessary to combat criminality linked to those games, is not ensured. It is for the national court to ascertain whether this is the case.

               2.

               In the event that the national legislation governing the organisation of games of chance is incompatible with the Treaty provisions on the freedom to provide services and the freedom of establishment, the national authorities may not refrain from considering applications, such as those at issue in the main proceedings, for permission to operate in the sector of games of chance, during a transitional period.

               3.

               In circumstances such as those of the main proceedings, the competent national authorities may examine applications for permission to organise games of chance submitted to them according to the level of consumer protection and the preservation of order in society that they intend to uphold solely on the basis of objective, non-discriminatory criteria.

      (1)  OJ C 186, 25.6.2011.

      OJ C 194, 2.7.2011.


title: Case T-332/99: Action brought on 24 November 1999 by Paul Jestädt against the Council of the European Union and the Commission of the European Communities

text:
4.3.2000              EN                     Official Journal of the European Communities                                        C 63/27
Action brought on 24 November 1999 by Paul Jestädt                      Action brought on 26 November 1999 by Henkel KGaA
against the Council of the European Union and the                       against the Office for Harmonisation in the Internal
         Commission of the European Communities                                       Market (Trade Marks and Designs)
                        (Case T-332/99)
                                                                                (Case T-335/99)
                         (2000/C 63/53)
                                                                                (2000/C 63/54)
                  (Language of the case: German)
An action against the Council of the European Union and the                               (Language of the case: German)
Commission of the European Communities was brought
before the Court of First Instance of the European Communities
                                                                        An action against the Office for Harmonisation in the Internal
on 24 November 1999 by Paul Jestädt, of Grossenlüder
                                                                        Market (Trade Marks and Designs) was brought before the
(Federal Republic of Germany), represented by Rainer Seimetz,
                                                                        Court of First Instance of the European Communities on
Rechtsanwalt, of Wälchtersbach (Federal Republic of Ger-
                                                                        26 November 1999 by Henkel KGaA, of Düsseldorf (Germ-
many), with an address for service in Luxembourg at the
                                                                        any), represented by Holger Friedrich Wissel and Christian
Chambers of François Jacques, 51 Rue Albert ler.
                                                                        Osterrieth, Rechtsanwälte, of Messrs Pünder, Volhard, Weber
                                                                        & Axter, Düsseldorf (Germany), with an address for service in
The applicant claims that the Court should:                             Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue.
(a) order the defendants to pay to him DM 67 522,36 together
    with interest from 1 July 1985;                                     The applicant claims that the Court should:
(b) order the defendants to pay the costs.
                                                                        (1) annul the decision adopted on 21 September 1999 by the
                                                                            Third Board of Appeal of the Office for Harmonisation in
                                                                            the Internal Market in the appeal proceedings (R
Pleas in law and main arguments
                                                                            70/1999-3) concerning Community trade mark regis-
                                                                            tration application No 716 831;
The applicant is a milk producer in Germany. He claims
damages in a sum equivalent to certain rates of compensation,
specified in detail, which he alleges to have been unlawfully           (2) order the Office for Harmonisation in the Internal Market
withheld from him in respect of the period from 1 July 1985                 to pay the costs.
to 1 March 1993. He bases his claim on the argument that he
has been prevented, on account of the unlawful failure to take
so-called ‘SLOM III’ farmers into account in the Community              Pleas in law and main arguments
milk quota rules, from producing milk following the expiry of
the non-marketing period relating to the leased land taken
over by him. By analogy with the judgment of the Court of               The trade mark con-           Three-dimensional mark using
First Instance of the European Communities in Joined Cases              cerned:                       the colours white and red —
T-195/94 and T-202/94, a compensation offer has been made                                             application No 716 381
to the applicant in respect of the period from 9 February 1993.
The European Commission has rejected any claims in excess
of that, relying on the limitation provision contained in               Goods or service con-         Class 3, washing and dish-wash-
Article 43 of the EC Statute of the Court of Justice of the             cerned:                       ing detergent in tablet form
European Communities.
                                                                        Decision        contested     Refusal of registration by the
                                                                        before the Board of           examiner
By the present action, the applicant is contesting the determi-
                                                                        Appeal:
nation of the commencement of the compensation period. He
maintains that he could not have filed his claims at an earlier
point in time, since an application made in that regard would           Grounds of claim:             — Infringement of Article 7(1)(b)
not have been certain of success. It was not until a decision —                                           of Regulation (EC) No 40/94
contested by the applicant — had been delivered by the
                                                                                — Misuse        of    discretionary
Verwaltungsgericht Kassel that he could assume that he was
                                                                                powers
entitled to a SLOM III reference quantity. Following the
delivery of that decision, he lodged his claims without delay.                                        — Infringement of procedural
Consequently, his action cannot be opposed on the ground of                                               law
his having previously refrained from filing an application on
account of its having no prospect of success.


title: Case T-364/11: Order of the General Court (Third Chamber) of 4 December 2012 — Arla Foods v OHIM — Artax (Lactofree)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/69

         Order of the General Court (Third Chamber) of 4 December 2012 — Arla Foods v OHIM — Artax (Lactofree)
   (Case T-364/11) (1)

   2013/C 26/136
   Language of the case: German
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 282, 24.9.2011.


title: Case C-276/13: Request for a preliminary ruling from the Juzgado de lo Mercantil de Pontevedra (Spain) lodged on 21 May 2013 — Pablo Acosta Padín v Hijos de J. Barreras, S.A.

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/32

         Request for a preliminary ruling from the Juzgado de lo Mercantil de Pontevedra (Spain) lodged on 21 May 2013 — Pablo Acosta Padín v Hijos de J. Barreras, S.A.
   (Case C-276/13)
   2013/C 207/54
   Language of the case: Spanish

      Referring court

   Juzgado de lo Mercantil de Pontevedra

      Parties to the main proceedings

      Applicant: Pablo Acosta Padín

      Defendant: Hijos de J. Barreras, S.A.

      Questions referred

               1.

               Are Article 101 TFEU (formerly Article 81 of the EC Treaty, read in conjunction with Article 10 thereof) and Article 4(3) TEU compatible with rules such as those laid down in the regulation on the tariff for Procuradores de los Tribunales (Real Decreto 1373/2003 of 7 November 2003), under which procuradores are remunerated in accordance with a minimum tariff or scale, which can be varied, upwards or downwards, only by 12 % — in light of the fact that it is not really possible for the authorities of the Member State, including the courts, to depart from the minimum levels laid down in the statutory scale if exceptional circumstances arise?

               2.

               For the purposes of applying the tariff without applying the minimum levels laid down therein: may the fact that the fees payable under the scale or tariff are markedly disproportionate to the work actually carried out be regarded as exceptional circumstances?

               3.

               Is Article 56 TFEU (formerly Article 49 [of the EC Treaty]) compatible with Real Decreto 1373/2003 of 7 November 2003, the regulation on the tariff applying to procuradores?

               4.

               Do those rules meet the requirements of necessity and proportionality referred to in Article 15(3) of Directive 2006/123/EC? (1)

               5.

               Does Article 6 of the European Convention on Human Rights, entrenching the right to a fair trial, encompass the right to be able to mount a proper defence in a situation where the figure at which the fees of a procurador are set is disproportionately high and does not reflect the work actually carried out?

               6.

               If so, is the Spanish Ley de Enjuiciamiento Civil compatible with Article 6 of the European Convention on Human Rights in so far as it prevents the party ordered to pay costs from challenging the fees claimed by the procurador on the grounds that they are excessively high and do not reflect the work actually carried out?

      (1)  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).


title: Case C-519/16: Request for a preliminary ruling from the Tribunal Administrativo e Fiscal de Coimbra (Portugal) lodged on 5 October 2016 — Superfoz — Supermercados Lda v Fazenda Pública

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/26

         Request for a preliminary ruling from the Tribunal Administrativo e Fiscal de Coimbra (Portugal) lodged on 5 October 2016 — Superfoz — Supermercados Lda v Fazenda Pública
   (Case C-519/16)
   (2017/C 006/33)
   Language of the case: Portuguese

      Referring court

   Tribunal Administrativo e Fiscal de Coimbra

      Parties to the main proceedings

      Applicant: Superfoz — Supermercados Lda

      Defendant: Fazenda Pública

      Questions referred

               1.

               Can Article 27(10) of Regulation (EC) No 882/2004 (1) of 29 April 2004, or any other rule of law or general principle of the European Union that the Court of Justice of the European Union deems applicable, be interpreted as meaning that they preclude a national provision that introduces a tax to fund official controls related to food safety, to be paid by the owners of food or mixed retail outlets only, where that tax does not correspond to any specific official control that has been caused by, or that is for the benefit of, those taxpayers?

               2.

               Would the answer would be different if, instead of a tax, a financial contribution was introduced in favour of a public body, to be levied on the same taxpayers, intended to cover the costs of food quality controls, although with the sole aim of extending the responsibility for funding such controls to all operators in the food chain?

               3.

               Does the exemption of certain economic operators from a food safety tax, which is levied on certain retail food outlets (essentially large retail food undertakings) and which is intended to fund the costs related to carrying out official controls in the area of food safety, animal protection and animal health, plant protection and plant health, constitute State aid incompatible with the internal market, in so far as it distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods within the meaning of Article 107(1) of the TFEU or, at least, does that tax exemption constitute an integral part of a State aid that is subject to notification to the European Commission within the meaning of Article 108(3) of the TFEU?

               4.

               Do the principles of EU law, notably the principles of equality, non-discrimination, competition (including the prohibition of reverse discrimination) and freedom to conduct business preclude a national provision that:

                           (a)

                           Imposes the obligation to pay the ‘Tax’ on large retail food undertakings only?

                           (b)

                           Excludes from the scope of the ‘Tax’ outlets or micro-enterprises with a sales area of less than 2 000 m2 and which are not integrated in a group, or which do not belong to an undertaking, that uses one or more ensigns and which has, at national level, a cumulative sales area of 6 000 m2 or more?

      (1)  Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (OJ 2004 L 165, p. 1).


title: Case C-464/16 P: Appeal brought on 18 August 2016 by Pénzügyi Ismeretterjesztő és Érdek-képviseleti Egyesület (PITEE) against the order of the General Court (Fourth Chamber) made on 20 July 2016 in Case T–674/15, Pénzügyi Ismeretterjesztő és Érdek-képviseleti Egyesület (PITEE) v European Commission

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/20

         Appeal brought on 18 August 2016 by Pénzügyi Ismeretterjesztő és Érdek-képviseleti Egyesület (PITEE) against the order of the General Court (Fourth Chamber) made on 20 July 2016 in Case T–674/15, Pénzügyi Ismeretterjesztő és Érdek-képviseleti Egyesület (PITEE) v European Commission
   (Case C-464/16 P)
   (2016/C 402/22)
   Language of the case: German

      Parties

      Appellant: Pénzügyi Ismeretterjesztő és Érdek-képviseleti Egyesület (PITEE) (represented by: D. Lazar, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               1.

               set aside the decision of the General Court of 20 July 2016 in Case T–674/15 in its entirety;

               2.

               annul the Commission’s decisions of 9 October 2015 (Ares (2015)4207700) and of 14 August 2015 (Ares (2015)3532556), refusing to provide the appellant with access to documents;

               3.

               order the Commission to make all of the Hungarian Government’s documents relating to EU Pilot Case 6874/14/JUST (CHAP (2015)00353 and CHAP (2015)00555) fully accessible to the appellant, irrespective of whether they are already available or are to be made available only in the future;

               4.

               order the Commission to pay the costs of the proceedings.

      Grounds of appeal and main arguments

   The main grounds of the appeal brought against the abovementioned decision of the General Court are as follows:
   In accordance with the settled case-law of the Court of Justice, a party within the meaning of the Statute of the Court of Justice is not authorised to act on its own before the Court, but must use the services of a third party. (1)

   In addition, lawyers occupying management positions on the executive bodies of a legal person should not defend the interests of those persons before the European Union Courts. (2)

   The settled case-law of the Court of Justice infringes Article 47 of the Charter of Fundamental Rights of the European Union as well as Article 6(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
   It is not clear from the case-law of the Court of Justice which legitimate objective the Court is pursuing by its interpretation of the Statute. Furthermore, it is unclear by means of which interpretation the Court has concluded that the legal representative must be an independent third party. In any event, the Statute does not contain this expression.
   The Statute of the Court of Justice is to be interpreted as meaning that each party and each legal person are free to choose their legal representative.

      (1)  Order of 5 December 1996, Lopes v Court of Justice, C–174/96 P, EU:C:1996:473, paragraph 11; order of 21 November 2007, Correia de Matos v Parliament, C–502/06 P, not published, EU:C:2007:696, paragraph 11; order of 29 September 2010, EREF v Commission, C–74/10 P and C–75/10 P, not published, EU:C:2010:557, paragraph 54.

      (2)  Order of 8 December 1999, Euro-Lex v OHIM (EU-Lex), T–79/99, EU:T:1999:312, paragraph 29; order of 13 January 2005, Suivida v Commission, T–184/04, EU:T:2005:7, paragraph 10; order of 30 November 2012, Activa Preferentes v Council, T–437/12, not published, EU:T:2012:638, paragraph 7.


title: Case C-332/06 P: Judgment of the Court (Fifth Chamber) of 11 October 2007 — Hellenic Republic v Commission of the European Communities (Appeal — EAGGF — Exclusion of expenditure from financing owing to failure to comply with Community rules)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/13

         Judgment of the Court (Fifth Chamber) of 11 October 2007 — Hellenic Republic v Commission of the European Communities
   (Case C-332/06 P) (1)

   (Appeal - EAGGF - Exclusion of expenditure from financing owing to failure to comply with Community rules)
   (2007/C 297/20)
   Language of the case: Greek
   Parties

      Appellant: Hellenic Republic (represented by: V. Kontolaimos and I. Khalkias, Agents)

      Other party to the proceedings: Commission of the European Communities (represented by: M. Condou-Durande and H. Tserepa-Lacombe, Agents)
   Re:
   Appeal brought against the judgment of the Court of First Instance (Second Chamber) of 20 June 2006 in Case T-251/04 Greece v Commission by which the Court dismissed an action seeking annulment of Commission Decision 2004/457/EC of 29 April 2004 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (notified under document number C(2004) 1706) (OJ 2004 L 156, p. 47)
   Operative part of the judgment
   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 224, 16.9.2006.


20.11.1999              EN                   Official Journal of the European Communities                                    C 333/21
Communities in case T-14/98 between Heidi Hautala, Member                     Removal from the register of Case C-316/98 P (1)
of the European Parliament, supported by the Republic of
Finland and the Kingdom of Sweden, and the Council of the                                        (1999/C 333/46)
European Union, supported by the French Republic, was
brought before the Court of Justice of the European Communi-            By order of 2 February 1999 the President of the Court of
ties on 22 September 1999 by the Council of the European                Justice of the European Communities has ordered the removal
Union, represented by Mrs Jill Aussant, Director, Mr Giorgio            from the register of Case C-316/98 P: Union Européenne de
Maganza, Director, and Mr Martin Bauer, Legal Adviser, acting           l’Artisanat et des Petites et Moyennes Entreprises (UEAPME) v
as agents, with an address for service in Luxembourg at the             Council of the European Communities.
office of Mr Alessandro Morbilli, Director of the Legal Affairs
Directorate of the European Investment Bank, 100 Boulevard
Konrad Adenauer, Kirchberg.                                             (1) OJ C 312 of 10.10.1998.
The Appellant claims that the Court should:
— set aside the decision of the Court of First Instance of
      19 July 1999 by which it:
                                                                               Removal from the register of Case C-335/98 (1)
      — annuls the Council’s decision of 4 November 1997
          refusing the Respondent access to the report of the                                    (1999/C 333/47)
          Working group on Conventional Arms Exports;
                                                                        By order of 21 May 1999 the President of the Court of Justice
                                                                        of the European Communities has ordered the removal from
      — orders the Council to pay the costs of the proceedings;         the register of Case-335/98: Commission of the European
                                                                        Communities v Italian Republic.
— decide to give final judgment in the matter, dismiss the
      Application at First Instance as unfounded and order the          (1) OJ C 327 of 24.10.1998.
      Applicant at First Instance to pay the costs of the
      proceedings before the Court of First Instance;
— decide on the costs of this appeal as it sees fit.
                                                                               Removal from the register of Case C-388/98 (1)
Pleas in law and main arguments
                                                                                (1999/C 333/48)
The Council’s appeal is based on the ground that the Court of
First Instance committed a fundamental error of law in                  By order of 11 June 1999 the President of the Court of Justice
interpreting Article 4(1) of the decision (2) on public access to       of the European Communities has ordered the removal from
Council documents as legally requiring the Council to consider          the register of Case C-388/98: Commission of the European
whether access should be given to parts of a document to                Communities v Hellenic Republic.
which access is requested.
                                                                        (1) OJ C 397 of 19.12.1998.
According to the Council, the Court of First Instance:
i)    incorrectly construed the legal effect of the decision on
      public access to Council documents;
ii) misconstrued the objective of the decision on public access                Removal from the register of Case C-338/96 (1)
      to Council documents;
                                                                                (1999/C 333/49)
iii) misapplied the principle of proportionality.
                                                                        By order of 21 June 1999 the President of the Court of Justice
                                                                        of the European Communities has ordered the removal from
                                                                        the register of Case C-338/96 (reference for a preliminary
(1) OJ C 72, 7.3.1998, p. 27.                                           ruling from Genova): Ignazio Messina & C. SpA v Amministra-
(2) Council Decision 93/731/EC of 20.12.1993 (OJ L 340,                 zione delle Finanze dello Stato.
     31.12.1993, p. 43).
                                                                        (1) OJ C 370 of 7.12.1996.


title: Case C-480/13: Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 9 September 2013 — Sysmex Europe GmbH v Hauptzollamt Hamburg-Hafen

text:
               30.11.2013

               EN

               Official Journal of the European Union

               C 352/3

         Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 9 September 2013 — Sysmex Europe GmbH v Hauptzollamt Hamburg-Hafen
   (Case C-480/13)
   2013/C 352/04
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: Sysmex Europe GmbH

      Defendant: Hauptzollamt Hamburg-Hafen

      Question referred

   Should a product have been classified, in 2005, under heading 3212 of the Combined Nomenclature (1) as a dye or colouring matter where it is composed of solvents and of a polymethine substance which can have a certain colouring effect — which, on textiles at least, is not permanent — but which, in the case of the product to be classified, serves to obtain information on particles (white blood cells) contained in a test solution (pre-treated blood) by means of a process in which, through the deposition of ions in defined components of the particles (nucleic acids), the substance forms molecular structures which, when exposed to laser light on a certain wavelength, become fluorochromatic for a limited period and this state and its extent are measured with the aid of a special photoelectric cell?

      (1)  The Combined Nomenclature in Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004 amending Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2004 L 327, p. 1).


title: Case T-269/13 P: Appeal brought on 19 May 2013 by Markus Brune against the judgment of the Civil Service Tribunal of 21 March 2013 in Case F-94/11 Brune v Commission

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/45

         Appeal brought on 19 May 2013 by Markus Brune against the judgment of the Civil Service Tribunal of 21 March 2013 in Case F-94/11 Brune v Commission
   (Case T-269/13 P)
   2013/C 207/76
   Language of the case: German

      Parties

      Appellant: Markus Brune (Brussels, Belgium) (represented by H. Mannes, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

   In addition to maintaining the form of order sought at first instance, the appellant claims that the Court should:

               —

               set aside the judgment of the Civil Service Tribunal of 21 March 2013 in Case F-94/11;
               in the alternative, refer the case back to the Civil Service Tribunal for determination;

               —

               order the respondent/defendant to pay the costs of the appeal proceedings and of the proceedings at first instance.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies in particular on the following pleas in law:

               1.

               Defects in the assessment of the obligation to repeat the test

                           —

                           The judgment under appeal fails to recognise that the repetition of the oral test pursuant to the judgment of the Civil Service Tribunal of 29 September 2010 in Case F-5/08 Brune v Commission (‘the judgment in Brune’) breaches the principles of equal treatment and of objectivity in marking as well as Article 266 TFEU;

                           —

                           the grounds of the judgment include incorrect findings of law and an erroneous, in part contradictory, assessment of the facts, particularly in the light of the requirements of Article 266 TFEU, the principle of non-discrimination and the requirement of uniform assessment criteria.

               2.

               Failure to consider alternative solutions

                           —

                           The judgment under appeal rejects alternative solutions put forward pursuant to the judgment in Brune which, according to settled case-law, are required in the present case, and does so on grounds that are wrong in law;

                           —

                           in assessing alternative solutions, the judgment under appeal, in particular, misinterprets the principles of equal treatment and of objectivity in marking, Article 27 of the Staff Regulations and the notice of competition.

               3.

               In the alternative: erroneous assessment of the procedural defects in the preparation of the new test

                           —

                           The statements in the judgment under appeal regarding the correct timing of the invitation [to the test] and the requisite information concerning the composition of the selection board and the relevant law reveal substantial errors in the assessment of the facts and of the respondent’s organisational duties;

                           —

                           the judgment under appeal fails to assess whether there has been unequal treatment of the appellant, in view of the additional information provided to another candidate in a parallel procedure;

                           —

                           as regards the complaint of bias in the selection board, the judgment under appeal confines itself to examining the lack of proof of discrimination against the appellant in the original procedure, without addressing the concern as to bias in the selection board in the context of the new test.

               4.

               Erroneous dismissal of the appellant’s third, fourth and fifth heads of claim as inadmissible

                           —

                           The judgment under appeal disregards the possibility of making general findings that are not in the nature of a specific obligation of the institutions of the European Union;

                           —

                           the judgment under appeal interprets the appellant’s claims for the damage suffered to be made good as meaning that no compensation is sought, although that was explicitly clarified at the hearing;

                           —

                           the judgment under appeal disregards the obligation arising from Article 266 TFEU to make good — including of [the institution’s] own motion, without an express application — the damage suffered.

               5.

               Discriminatory costs decision

         The judgment under appeal discriminates against the appellant in comparison with the applicant in Case F-42/11 Honnefelder v Commission, in so far as the Tribunal failed to assess what was deemed in that case to be a relevant circumstance for the purposes of Article 87(2) of the Rules of Procedure in a manner favourable to the appellant.


title: Case T-713/15: Order of the General Court of 16 March 2016 — Pharm-a-care Laboratories v OHIM — Pharmavite (VITAMELTS) (Community trade mark — Invalidity proceedings — Withdrawal of the application for a declaration of invalidity — No need to adjudicate)

text:
               17.5.2016

               EN

               Official Journal of the European Union

               C 175/16

         Order of the General Court of 16 March 2016 — Pharm-a-care Laboratories v OHIM — Pharmavite (VITAMELTS)
   (Case T-713/15) (1)

   ((Community trade mark - Invalidity proceedings - Withdrawal of the application for a declaration of invalidity - No need to adjudicate))
   (2016/C 175/18)
   Language of the case: English

      Parties

      Applicant: Pharm-a-care Laboratories Pty. Ltd (Sydney, Australia) (represented by: I.A. De Freitas, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: E. Zaera Cuadrado, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Pharmavite LLC (California, United States)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 10 September 2015 (Cases R 2649/2014-1) concerning invalidity proceedings between Pharmvite LLC and Pharm-a-care Laboratories Pty. Ltd.

      Operative part of the order

               1.

               There is no longer any need to adjudicate in the action.

               2.

               Pharm-a-care Laboratories Pty. Ltd shall bear its own costs and shall pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

      (1)  OJ C 38, 1.2.2016.


title: Judgment of the Court (Grand Chamber) of 10 May 2005 in Case C-400/99: Italian Republic v Commission of the European Communities (Action for annulment — State aid — Measures regarding maritime transport undertakings — Public service contracts — No aid, existing aid or new aid — Initiation of the procedure under Article 88(2) EC — Obligation to suspend)

text:
               9.7.2005

               EN

               Official Journal of the European Union

               C 171/1

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 10 May 2005
   in Case C-400/99: Italian Republic v Commission of the European Communities (1)

   (Action for annulment - State aid - Measures regarding maritime transport undertakings - Public service contracts - No aid, existing aid or new aid - Initiation of the procedure under Article 88(2) EC - Obligation to suspend)
   (2005/C 171/01)
   Language of the case: Italian
   In Case C-400/99: Italian Republic (Agents: U. Leanza, I. Braguglia assisted by P.G. Ferri and M. Fiorilli) v Commission of the European Communities (Agents: E. De Persio, D. Triantafyllou and V. Di Bucci) — Action for annulment under Article 230 EC, brought on 18 October 1999 — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans and A. Rosas, Presidents of Chambers, J.-P. Puissochet (Rapporteur), R. Schintgen, N. Colneric, S. von Bahr and J. N. Cunha Rodrigues, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 10 May 2005, in which it:

               1.

               Annuls the Commission decision, notified to the Italian authorities by letter SG(99) D/6463, of 6 August 1999, to initiate the procedure under Article 88(2) EC concerning State aid C 64/99 (ex NN 68/99) to the extent to which it entailed, until notification to the Italian authorities of the decision closing the procedure in relation to the undertaking concerned (Commission Decision C(2001) 1684 of 21 June 2001 or Commission Decision C(2004) 470 final of 16 March 2004) suspension of the tax treatment applied for the supply of fuel and lubricating oil to the vessels of Gruppo Tirrenia di Navigazione;

               2.

               For the rest, dismisses the application;

               3.

               Orders the parties to bear their own costs.

      (1)  OJ C 20 of 22.01.2000.


title: Case T-384/05: Order of the Court of First Instance of 14 November 2008 — Abruzzo v Commission

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/43

         Order of the Court of First Instance of 14 November 2008 — Abruzzo v Commission
   (Case T-384/05) (1)

   (2009/C 6/84)

      Language of the case: Italian

   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 330, 24.12.2005.


title: Case C-286/11 P: Judgment of the Court (Grand Chamber) of 22 January 2013 — European Commission v Tomkins plc (Appeal — Competition — Agreements, decisions and concerted practices — European market for copper and copper alloy fittings — Liability of the parent company stemming solely from the unlawful conduct of its subsidiary — Principle of ‘ne ultra petita’ — Effect on the legal situation of the parent company of an annulment determined by a judgment concerning a subsidiary)

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/4

         Judgment of the Court (Grand Chamber) of 22 January 2013 — European Commission v Tomkins plc
   (Case C-286/11 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - European market for copper and copper alloy fittings - Liability of the parent company stemming solely from the unlawful conduct of its subsidiary - Principle of ‘ne ultra petita’ - Effect on the legal situation of the parent company of an annulment determined by a judgment concerning a subsidiary)
   2013/C 71/06
   Language of the case: English

      Parties

      Appellant: European Commission (represented by: F. Castillo de la Torre, V. Bottka and R. Sauer, Agents)

      Other party to the proceedings: Tomkins plc (represented by: K. Bacon, Barrister, instructed by S. Jordan, Solicitor)

      Re:

   Appeal against the judgment of the General Court (Eighth Chamber) of 24 March 2011 in Case T-382/06 Tomkins v Commission annulling in part Commission Decision 2007/691/EC of 20 September 2006 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) (notified under C(2006) 4180) concerning a cartel relating to fixing prices, agreeing on discounts and rebates, agreeing on implementation mechanisms for introducing price increases, allocating customers and exchanging commercial information, in the European market for copper fittings, particularly copper alloy fittings (OJ 2007 L 283, p.63), and reducing the fine imposed on Tomkins plc.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 238, 13.8.2011.


title: Case C-520/11: Judgment of the Court (Sixth Chamber) of 18 July 2013 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Decision 2009/726/EC — Non-compliance — Imports of milk and milk products — Origin — At-risk holdings in terms of cases of spongiform encephalopathies — National prohibitions)

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/8

         Judgment of the Court (Sixth Chamber) of 18 July 2013 — European Commission v French Republic
   (Case C-520/11) (1)

   (Failure of a Member State to fulfil obligations - Decision 2009/726/EC - Non-compliance - Imports of milk and milk products - Origin - At-risk holdings in terms of cases of spongiform encephalopathies - National prohibitions)
   2013/C 260/14
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: F. Jimeno Fernández and D. Bianchi, acting as Agents)

      Defendant: French Republic (represented by: G. de Bergues and S. Menez, and by C. Candat and R. Loosli-Surrans, acting as Agents)

      Re:

   Failure to fulfil obligations — Infringement of Arts 4(3) TEU and 288 TFEU — Failure to comply with Commission Decision 2009/726/EC of 24 September 2009 concerning interim protection measures taken by France as regards the introduction onto its territory of milk and milk products coming from a holding where a classical scrapie case is confirmed (OJ 2009 L 258, p. 27)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to comply with Commission Decision 2009/726/EC of 24 September 2009 concerning interim protection measures taken by France as regards the introduction onto its territory of milk and milk products coming from a holding where a classical scrapie case is confirmed, the French Republic has failed to fulfil its obligations under Articles 4(3) TEU and 288 TFEU.

               2.

               The French Republic is ordered to pay costs.

      (1)  OJ C 362, 10.12.2011.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/35

         Removal from the register of Case C-430/02 (1)

   (2004/C 94/94)
   By order of 23 December 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-430/02: Commission of the European Communities v Italian Republic.

      (1)  OJ C 19 of 25.01.2003.


title: Case T-438/14: Action brought on 13 June 2014 — Silec Cable and General Cable v Commission

text:
               25.8.2014

               EN

               Official Journal of the European Union

               C 282/44

         Action brought on 13 June 2014 — Silec Cable and General Cable v Commission
   (Case T-438/14)
   2014/C 282/58
   Language of the case: English

      Parties

      Applicants: Silec Cable (Montereau Fault Yonne, France); and General Cable Corp. (Wilmington, United States) (represented by: I. Sinan, Barrister)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               Set aside Article 1 of the Commission Decision C (2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement, Case COMP/AT.39610 — Power Cables (the ‘Decision’) as it pertains to Silec Cable and General Cable;

               —

               In the alternative, amend Article 2 of the Decision and reduce the amount of the fine imposed on Silec Cable and General Cable in light of the arguments put forward in support of the application;

               —

               Order the European Commission to pay all of the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicants rely on five pleas in law.

               1.

               First plea in law, alleging that the Commission committed an error of law and did not satisfy its burden of proof under Article 2 of Council Regulation No 1/2003.

               2.

               Second plea in law, alleging that the Commission committed an error of law and infringed the principles of burden of proof and presumption of innocence in asserting that Silec Cable was under a positive obligation to publicly distance itself from the alleged cartel.

               3.

               Third plea in law, alleging that the Commission committed a manifest error of assessment and infringed the principle of equal treatment in concluding that Silec Cable directly participated in the alleged cartel as of 30 November 2005.

               4.

               Fourth plea in law, alleging that the Commission committed a manifest error of assessment and infringed the principle of equal treatment in treating Silec Cable differently and inconsistently with the way it treated other recipients of the Decision.

               5.

               Fifth plea in law, alleging that, at a minimum, the Commission committed a manifest error of assessment and infringed the principle of equal treatment and proportionality in not characterizing Silec Cable as a fringe player.


title: Case T-643/13: Action brought on 3 December 2013 — Rogesa v Commission

text:
               15.2.2014

               EN

               Official Journal of the European Union

               C 45/39

         Action brought on 3 December 2013 — Rogesa v Commission
   (Case T-643/13)
   2014/C 45/69
   Language of the case: German

      Parties

      Applicant: Rogesa Roheisengesellschaft Saar mbH (Dillingen, Germany) (represented by: S. Altenschmidt and P. Schütter, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission’s decision of 25 September 2013 (Ref GestDem No 2013/1504), and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               Right of access to the contested documents and lack of grounds for refusal under Article 4 of Regulation (EC) No 1049/2001 (1)

                           —

                           The applicant claims that the contested decision infringes Article 3(1) of Regulation No 1367/2006 (2) and Article 2(1) of Regulation No 1049/2001, as it has a right of access to the documents requested by it and grounds for refusing access do not exist.

                           —

                           The applicant maintains that the requested documents do not contain commercially sensitive data within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001 and that in any event an overriding public interest justifying disclosure of the documents exists.

                           —

                           The applicant further submits that the ground for refusal pursuant to Article 4(3) of Regulation No 1049/2001 does not apply, as the decision-making process, on which the Commission relies, was not available when the contested decision was made. The relevant Commission decision (2013/448/EU) was issued on 5 September 2013.

                           —

                           The applicant also claims that the Commission, in any event, had to grant partial access, if necessary by redacting identification characteristics. The Commission’s decision also infringes the principle of proportionality under Article 5(4) TUE.

               2.

               Procedural irregularity

                           —

                           The applicant submits that Article 8 of Regulation No 1049/2001 has been infringed as the Commission did not observe the time-limit laid down by the provision.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

      (2)  Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).


               19.2.2005

               EN

               Official Journal of the European Union

               C 45/19

         Removal from the register of Case C-146/03 P (1)

   (2005/C 45/37)

      (Language of the case: English)

   By order of 17 November 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-146/03 P: Philip Morris International Inc. v Commission of the European Communities.

      (1)  OJ C 146 of 21.06.2003.


title: Case C-192/03 P: Appeal brought on 12 May 2003 by Alcon Inc., formerly Alcon Universal Ltd, against the judgment delivered on 5 March 2003 by the Second Chamber of the Court of First Instance of the European Communities in case T-237/01 between Alcon Inc., formerly Alcon Universal Ltd and the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)

text:
5.7.2003                 EN                          Official Journal of the European Union                                           C 158/13
2.     If the answer to question 1 is in the affirmative, is it              was brought before the Court of Justice of the European
       contrary to Directive 76/207 for an employer to offset                Communities on 12 May 2003 by Alcon Inc., formerly
       against an employee’s total entitlement to benefit under              Alcon Universal Ltd, established in Hünenberg (Switzerland),
       an occupational sick-leave scheme, a period of absence                represented by S. Clark, Solicitor, and C. Morcom QC, with an
       from work due to incapacity caused by a pregnancy                     address for service in Luxembourg.
       related illness arising during pregnancy?
3.     If the answer to question 1 is in the affirmative, does
       Directive 76/207 require an employer to have in place                 The Appellant claims that the Court should:
       special arrangements to cover absence from work due to
       incapacity caused by pregnancy related illness arising                —     set aside the judgment of the Court of First Instance
       during pregnancy?                                                           delivered on 5 March 2003, and that the contested
                                                                                decisions of the Cancellation Division dated 15 December
4.     Does the operation of a sick leave scheme which treats                      1999 and of the First Board of Appeal dated 13 July
       employees suffering from pregnancy related illness and                      2001 be annulled;
       pathological illness come within the scope of Article 141
       of the EC Treaty and Directive 75/117 (2) ?
                                                                             —     make an order for the payment of its costs.
5.     If the answer to question 4 is in the affirmative, is it
       contrary to Article 141 of the Treaty and Directive 75/
       117 for an employer to reduce a woman’s pay after she
       has been absent from work for a designated period where
       the absence is caused by incapacity due to a pregnancy                Pleas in law and main arguments
       related illness arising during pregnancy in circumstances
       in which a non pregnant woman or a man absent from
       work for the same period as a result of incapacity due                The appellant submits that the decision of the Court of First
       to purely pathological illness would suffer the same                  Instance of 5 March 2003 was wrong in law in a number of
       reduction?                                                            respects. In particular the Court
( 1) Council Directive 76/207/EEC of 9 February 1976 on the                  (i)   failed to consider adequately or at all the specific require-
     implementation of the principle of equal treatment for men and                ments of Article 7(1)(d) of the Community Trade Mark
     women as regards access to employment, vocational training and                Regulation as to customary use, in the current language
     promotion, and working conditions (OJ L 039, 14.2.1976, p. 40-                or in the bona fide and established practices of the trade;
     42).
( 2) Council Directive 75/117/EEC of 10 February 1975 on the
     approximation of the laws of the Member States relating to the          (ii)  wrongly proceeded upon the assumption that mere
     application of the principle of equal pay for men and women (OJ               entries in directories or other reference sources by
     L 045, 19.2.1975, p. 19-20).                                                  themselves satisfied the requirements of Article 7(1)(d);
                                                                             (iii) wrongly took into consideration material not published
                                                                                or not shown to have been published within the European
                                                                                Union prior to 1 April 1996 and in so doing failed to
                                                                                address the distinction between the requirements of
                                                                                Articles 7(1)(d) and 50(1)(b) of the Regulation, the former
Appeal brought on 12 May 2003 by Alcon Inc., formerly                              alone being material for the purposes of the application
Alcon Universal Ltd, against the judgment delivered on                             for a declaration of invalidity;
5 March 2003 by the Second Chamber of the Court of
First Instance of the European Communities in case T-237/
01 (1) between Alcon Inc., formerly Alcon Universal Ltd                      (iv) failed to take into account the evidence of Alcon’s
and the Office for Harmonization in the Internal Market                            substantial policing of the trade mark BSS over a very
               (Trade Marks and Designs) (OHIM)                                    considerable period of time;
                          (Case C-192/03 P)                                  (v)   alternatively wrongly rejected the case put forward on
                                                                                behalf of Alcon, that the mark BSS had in fact acquired
                           (2003/C 158/22)                                         distinctive character as a result of use, thus meeting the
                                                                                requirements of Article 51(2) of the Regulation.
An appeal against the judgment delivered on 5 March 2003
                                                                             (1 ) OJ C 369, 22.12.2001, p. 13.
by the Second Chamber of the Court of First Instance of the
European Communities in case T-237/01 between Alcon Inc.,
formerly Alcon Universal Ltd and the Office for Harmonization
in the Internal Market (Trade Marks and Designs) (OHIM),


title: Case C-411/16 P: Appeal brought on 22 July 2016 by Holistic Innovation Institute, SLU against the judgment of the General Court (Sixth Chamber) delivered on 12 May 2016 in Case T-468/14 Holistic Innovation Institute v Commission

text:
               3.10.2016

               EN

               Official Journal of the European Union

               C 364/10

      Appeal brought on 22 July 2016 by Holistic Innovation Institute, SLU against the judgment of the General Court (Sixth Chamber) delivered on 12 May 2016 in Case T-468/14 Holistic Innovation Institute v Commission
      (Case C-411/16 P)
      (2016/C 364/05)
      Language of the case: Spanish

         Parties

         Appellant: Holistic Innovation Institute, SLU (represented by: J.J. Marín López, abogado)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court of Justice should:

                  —

                  Set aside the judgment of the General Court (Sixth Chamber) of 12 May 2016 in Case T-468/14 Holistic Innovation Institute, SLU v Commission, in so far as it held that the action for annulment of Commission Decision ARES (2014) 710158 of 13 March 2014, excluding the applicant’s participation in the eDIGIREGION project, was brought before the General Court out of time;

                  —

                  Refer the case back to the General Court for judgment on the substance of the action brought by Holistic Innovation Institute, SLU for annulment of Commission Decision ARES (2014) 710158 of 13 March 2014 excluding the applicant’s participation in the eDIGIREGION project;

                  —

                  Set aside the judgment of the General Court (Sixth Chamber) of 12 May 2016 in Case T-468/14 Holistic Innovation Institute, SLU v Commission, in so far as it dismissed the claim for compensation, and instead hold that the Commission must compensate the appellant in the terms set out in the application, or, should the Court of Justice uphold the two heads of claim set out previously, refer the case back to the General Court for it to adjudicate anew on the applicant’s claim for compensation.

         Pleas in law and main arguments

                  1.

                  Error of law: the judgment under appeal failed to mention that the original of the application for annulment of the contested decision, lodged at the General Court Registry on 6 June 2014 (paragraph 29 of the judgment under appeal), was sent on 2 June 2014 from Pozuelo de Alarcón (Madrid), where the appellant has its registered office, by recorded delivery with acknowledgement of receipt.

                  2.

                  Error of law: the judgment under appeal did not include an adequate statement of reasons since, first, it stated that the original of the application did not bear the handwritten signature of the applicant’s lawyer, but only a copy of the lawyer’s signature (paragraph 30) and, secondly, it denies any legal effect to the original of the application signed by the lawyer by way of a digital certificate (paragraph 35).

                  3.

                  Error of law: in finding that the applicant’s application for annulment was lodged out of time (paragraphs 29, 34 and 45), the judgment under appeal infringes the fundamental right to effective judicial protection enshrined in Article 47(1) of the Charter of Fundamental Rights of the European Union, understood in the light of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, and of the case-law of the European Court of Human Rights interpreting Article 6(1).

                  4.

                  Error of law: the judgment under appeal dismissed, in paragraphs 55, 59, 63 and 64 (relating to economic loss) and paragraphs 77 and 84 (relating to non-material damage), the claim for compensation lodged by the applicant.


title: Case C-160/11: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland) lodged on 1 April 2011 — Bawaria Motors Spółka z o.o. and Minister Finansów

text:
               9.7.2011

               EN

               Official Journal of the European Union

               C 204/13

         Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland) lodged on 1 April 2011 — Bawaria Motors Spółka z o.o. and Minister Finansów
   (Case C-160/11)
   2011/C 204/25
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Appellants: Bawaria Motors Spółka z o.o., Minister Finansów

      Question referred

   Are the provisions of Articles 313(1) and 314 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) (‘Directive 2006/112’), in conjunction with Articles 136 and 315 thereof, to be interpreted as permitting the application of the special ‘margin’ scheme for taxable dealers in relation to supplies of second-hand goods also where they resell the purchased passenger vehicles and other motor vehicles to which the tax exemption for the supply of passenger vehicles and other vehicles by taxable persons who only have a partial right to deduct input tax on the purchase thereof, as laid down in Article 86(3) of the Ustawa o podatku od towarów i usług (Law on the tax on goods and services) of 11 March 2004 (Dziennik Ustaw No 54, item 535, as amended; hereinafter: ‘Law on VAT’), was applied pursuant to the Polish national provisions laid down in Paragraph 13(1)(5) of the Decree of the Minister for Finance of 28 November 2008 on the implementation of certain provisions of the Law on the tax on goods and services (Dziennik Ustaw No 212, item 1336, as amended), where those passenger vehicles and motor vehicles were second-hand goods within the meaning of Article 43(2) of the Law on VAT and Article 311(1)(1) of Directive 2006/112?

      (1)  OJ 2006 L 347 p. 1.


               5.3.2005

               EN

               Official Journal of the European Union

               C 57/41

         Removal from the Register of Case T-103/04 (1)

   (2005/C 57/70)

      (Language of the case: French)

   By order of 23 November 2004, the President of the Fourth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-103/04, Peter Ritzmann v Commission of the European Communities.

      (1)  OJ C 106 of 30.4.2004.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 22 October 1998 in Case C-301/95: Commission of the European Communities v. Federal Republic of Germany (Failure of a Member State to fulfil its obligations - Incorrect transposition of Directive 85/337/EEC)

text:
19.12.98               EN                Official Journal of the European Communities                                      C 397/1
                                                                 I
                                                           (Information)
                                             COURT OF JUSTICE
                                                       COURT OF JUSTICE
                JUDGMENT OF THE COURT                                        27 June 1985 on the assessment of the effects of
                        (Sixth Chamber)                                      certain public and private projects on the
                                                                             environment within the prescribed period,
                      of 22 October 1998
       in Case C-301/95: Commission of the European
      Communities v. Federal Republic of Germany (1)                     Ð by failing to communicate to the Commission all
                                                                             the measures which it has taken to comply with
(Failure of a Member State to fulfil its obligations Ð                       that directive,
      Incorrect transposition of Directive 85/337/EEC)
                         (98/C 397/01)
                                                                         Ð by not requiring an environmental impact
                                                                             assessment for all projects on which such an
                (Language of the case: German)                               assessment had to be carried out in compliance
                                                                             with that directive, where the consent procedure
 (Provisional translation; the definitive translation will be                was commenced after 8 July 1988, and
           published in the European Court Reports)
                                                                         Ð by excluding in advance from the environmental
In Case C-301/95: Commission of the European                                 impact assessment requirement whole classes of
Communities (Agent: Götz zur Hausen) v. Federal                              projects listed in Annex II to that directive,
Republic of Germany (Agent: Ernst Röder, assisted by
Dieter Sellner) Ð application for a declaration that the
Federal Republic of Germany has failed to comply with its
obligations under Articles 5 and 189 of the EC Treaty and                the Federal Republic of Germany has failed to fulfil its
under Council Directive 85/337/EEC of 27 June 1985 on                    obligations under Articles 2(1), 4(2) and 12(1) and (2)
the assessment of the effects of certain public and private              of that directive;
projects on the environment (OJ L 175, 5.7.1985, p. 40),
in particular Articles 2, 3, 5(2), 6(2), 8, 9 and 12(1) and
(2) thereof Ð the Court (Sixth Chamber), composed of:                2. Dismisses the remainder of the application;
P. J. G. Kapteyn, President of the Chamber, G. F. Mancini,
J. L. Murray, H. Ragnemalm and K. M. Ioannou
(Rapporteur), Judges; J. Mischo, Advocate General; H. A.
                                                                     3. Orders the Federal Republic of Germany to bear the
Rühl, Principal Administrator, for the Registrar, gave a
                                                                         costs.
judgment on 22 October 1998, in which it:
1. Declares that,                                                    (1) OJ C 299, 11.11.1995.
     Ð by failing to take the necessary measures to
          comply with Council Directive 85/337/EEC of


title: Case T-22/12: Action brought on 16 January 2012 — Fomanu v OHIM (Qualität hat Zukunft)

text:
               17.3.2012

               EN

               Official Journal of the European Union

               C 80/22

         Action brought on 16 January 2012 — Fomanu v OHIM (Qualität hat Zukunft)
   (Case T-22/12)
   2012/C 80/37
   Language of the case: German

      Parties

      Applicant: Fomanu AG (Neustadt a.d. Waldnaab, Germany) (represented by T. Raible)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 October 2011 in Case R 1518/2011-1;

               —

               order OHIM to pay the costs of the these proceedings and those incurred before the Board of Appeal.

      Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘Qualität hat Zukunft’ for goods and services in Classes 9, 16 and 40.

      Decision of the Examiner: Registration refused.

      Decision of the Board of Appeal: Appeal dismissed.

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


title: Case C-258/08: Judgment of the Court (Second Chamber) of 3 June 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Ladbrokes Betting & Gaming Ltd, Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator (Article 49 EC — Restrictions on the freedom to provide services — Games of chance — Offer of games of chance via the internet — Legislation reserving a licence to a single operator — Refusal to grant an operating licence to an operator who is licensed in other Member States — Justification — Proportionality — Review of each specific measure applying national legislation)

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/5

         Judgment of the Court (Second Chamber) of 3 June 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Ladbrokes Betting & Gaming Ltd, Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator
   (Case C-258/08) (1)

   (Article 49 EC - Restrictions on the freedom to provide services - Games of chance - Offer of games of chance via the internet - Legislation reserving a licence to a single operator - Refusal to grant an operating licence to an operator who is licensed in other Member States - Justification - Proportionality - Review of each specific measure applying national legislation)
   2010/C 209/06
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicants: Ladbrokes Betting & Gaming Ltd, Ladbrokes International Ltd

      Defendant: Stichting de Nationale Sporttotalisator

      Re:

   Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 49 EC — National legislation prohibiting the unlicensed organisation of gaming and collection of bets and reserving a licence to one single operator in order to safeguard social wellbeing and public health — Refusal to issue a licence to an (internet) operator which is already licensed in other Member States, including that in which it has its registered office — overriding reasons in the public interest

      Operative part of the judgment

               1.

               National legislation, such as that at issue in the main proceedings, which seeks to curb addiction to games of chance and to combat fraud, and which in fact contributes to the achievement of those objectives, can be regarded as limiting betting activities in a consistent and systematic manner even where the holder(s) of an exclusive licence are entitled to make what they are offering on the market attractive by introducing new games and by means of advertising. It is for the national court to determine whether unlawful gaming activities constitute a problem in the Member State concerned which might be solved by the expansion of authorised and regulated activities, and whether that expansion is on such a scale as to make it impossible to reconcile with the objective of curbing such addiction.

               2.

               For the purpose of applying legislation of a Member State on games of chance which is compatible with Article 49 EC, the national courts are not required to determine, in each case, whether the implementing measure intended to ensure compliance with that legislation is suitable for achieving the objective of that legislation and is compatible with the principle of proportionality, in so far as that measure is necessary to ensure the effectiveness of that legislation and does not include any additional restriction over and above that which arises from the legislation itself. Whether that implementing measure was adopted as a result of action by the public authorities to ensure compliance with national legislation or of an application by an individual in the context of a civil action to protect his rights under that legislation has no bearing on the outcome of the dispute before the national court.

               3.

               Article 49 EC must be interpreted as not precluding legislation of a Member State, such as the legislation at issue in the main proceedings, under which exclusive rights to organise and promote games of chance are conferred on a single operator, and which prohibits any other operator, including an operator established in another Member State, from offering via the internet services within the scope of that regime in the territory of the first Member State.

      (1)  OJ C 223, 30.08.2008.


title: Case C-460/08: Action brought on 21 October 2008 — Commission of the European Communities v Hellenic Republic

text:
               20.12.2008

               EN

               Official Journal of the European Union

               C 327/19

         Action brought on 21 October 2008 — Commission of the European Communities v Hellenic Republic
   (Case C-460/08)
   (2008/C 327/32)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: G. Rozet and D. Triantafillou)

      Defendant: Hellenic Republic
   Form of order sought

               —

               declare that, by retaining in its legislation the requirement of Greek nationality for access to the posts of captain and officer (chief mate) on all vessels flying the Greek flag, the Hellenic Republic has failed to fulfil its obligations under Article 39 of the EC Treaty;

               —

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments
   Justification on the basis of Article 39(4) is lacking since no public powers are in fact usually exercised by captains and chief mates.