title: Case C-478/11 P: Appeal lodged on 21 September 2011 by Laurent Gbagbo against the order delivered on 13 July 2011 by the General Court in Case T-348/11 Gbagbo v Council

text:
               7.1.2012

               EN

               Official Journal of the European Union

               C 6/2

         Appeal lodged on 21 September 2011 by Laurent Gbagbo against the order delivered on 13 July 2011 by the General Court in Case T-348/11 Gbagbo v Council

   (Case C-478/11 P)
   2012/C 6/03
   Language of the case: French

      Parties

      Appellant: Laurent Gbagbo (represented by: L. Bourthoumieux, J. Vergès, R. Dumas and M. Ceccaldi, avocats)

      Other party to the proceedings: Council of the European Union

      Form of order sought

               —

               Declare the action brought by Mr Laurent Gbagbo admissible;

               —

               Annul the order in Case T-348/11 of 13 July 2011, after holding it to be time-barred;

               —

               Refer the action back to the General Court in order that the appellant may claim his rights;

               —

               Order the Council of the European Union to pay the costs under Articles 69 and 73 of the Rules of Procedure of the Court.

      Pleas and main arguments

   In support of his appeal, the appellant raises the following pleas in law:

               —

                  Force majeure, the fact of the war interrupting the limitation period. The events with which the appellant had been confronted since November 2010 in Côte d’Ivoire constitute a case of force majeure within the meaning of Article 45 of the Statute of the Court of Justice of the European Union, having regard to the state of war which interrupted the limitation period for acts adopted against him by the Council.

               —

               The present case of force majeure because of the war constitutes an obstacle to the appellant’s freely exercising his right of action against actions which manifestly infringe fundamental rights.

               —

               The fundamental rights and freedoms take priority over the principle of legal certainty. By applying the principle of legal certainty in order to declare the appellant’s application inadmissible, the General Court infringes the fundamental right of access to courts and tribunals and of the rights of the defence. Thus, the appellant has been deprived of his right to be heard by a court having jurisdiction.

               —

               The unenforceability of the time-limit on account of distance and of the time-limit for lodging an appeal in the event of war. The time-limit on account of distance and the time-limit for lodging an appeal cannot be enforced against a person residing in a State at open war. Such time-limits apply only in peacetime and on the continent of Europe. The appellant is located on another continent and, therefore, the strict application of Article 102 of the Rules of Procedure of the General Court to the present case is indisputably in breach of Article 6(1) of European Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 263 of the Treaty on the Functioning of the European Union.

               —

               The primacy of Article 263 of the Treaty on the Functioning of the European Union. Article 102 of the Rules of Procedure of the General Court would render inoperable any obligation of notification as provided for in the Treaty on the Functioning of the European Union which provides that the period for lodging an appeal starts to run with effect from the publication or notification to the plaintiff of the measure or the day on which it came to his knowledge. Article 102 of the Rules of Procedure avoids the obligation of notification and does not take into account the day on which the application effectively became aware of the measure, thus restricting the letter and the spirit of Article 263 TFEU. Accordingly, Article 102 calls into question the rights laid down and protected by the Treaty, which is of higher legal standing and which is mandatory for the institutions comprising the European Union. Consequently, since the contested measures were not notified to the appellant, in breach of Article 263(5) of the Treaty on the Functioning of the European Union, the period for lodging an appeal can start only from when he became aware of the measures adopted against him.

               —

               A serious infringement of fundamental rights and freedoms. The principle of legal certainty as stated by the General Court seriously calls into question legal certainty as a whole since citizens seeking justice who reside outside the European Union and who reside in a country at war have sanctions issued against them against which they cannot effectively exercise their rights since they do not know of the sanction.

               —

               In the alternative, the appellant seeks the annulment of the measures adopted against him by the Council on the ground of the seriousness of the breach of fundamental rights and freedoms. Since the contested measures infringe fundamental freedoms protected by different international treaties, it is for the Court of Justice to annul those measures in so far as their unlawfulness contravenes the established European legal order and on the ground that no time-limit for lodging an appeal can be enforced because of the seriousness of the breach of the protected fundamental rights and freedoms.


title: Case C-342/11: Reference for a preliminary ruling from the Tribunal Administratif de Montreuil (France) lodged on 4 July 2011 — SICAV KBC Select Immo v Ministre du budget, des comptes publiques, de la fonction publique et de la réforme de l’Etat

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/34

         Reference for a preliminary ruling from the Tribunal Administratif de Montreuil (France) lodged on 4 July 2011 — SICAV KBC Select Immo v Ministre du budget, des comptes publiques, de la fonction publique et de la réforme de l’Etat
   (Case C-342/11)
   2011/C 269/68
   Language of the case: French

      Referring court

   Tribunal Administratif de Montreuil

      Parties to the main proceedings

      Applicant: SICAV KBC Select Immo

      Defendant: Ministre du budget, des comptes publiques, de la fonction publique et de la réforme de l’Etat

      Questions referred

               1.

               Must the situation of the shareholders be taken into account together with that of undertakings for collective investments in transferable securities (UCITS)?

               2.

               If so, what are the conditions under which the withholding tax at issue may be regarded as consistent with the principle of free movement of capital?


title: Case C-445/06: Judgment of the Court (Grand Chamber) of 24 March 2009 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Danske Slagterier v Bundesrepublik Deutschland (Measures having equivalent effect — Animal health — Intra-Community trade — Fresh meat — Veterinary checks — Non-contractual liability of a Member State — Limitation period — Determination of the loss or damage)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/2

         Judgment of the Court (Grand Chamber) of 24 March 2009 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Danske Slagterier v Bundesrepublik Deutschland
   (Case C-445/06) (1)

   (Measures having equivalent effect - Animal health - Intra-Community trade - Fresh meat - Veterinary checks - Non-contractual liability of a Member State - Limitation period - Determination of the loss or damage)
   2009/C 113/03
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Danske Slagterier

      Defendant: Bundesrepublik Deutschland

      Re:

   Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 28 EC and of Articles 5(1)(o) and 6(1)(b)(iii) of Council Directive 64/433/EEC of 26 June 1964 on health conditions for the production and marketing of fresh meat (OJ, English Special Edition 1963-64, p. 185), as amended by Council Directive 91/497/EEC of 29 July 1991 (OJ 1991 L 268, p. 69), in conjunction with Articles 5(1), 7 and 8 of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (OJ 1989 L 395, p. 13) — Interpretation of Community law concerning a Member State’s non-contractual liability for breach of Community law — Limitation period — Determination of the loss or damage for which reparation may be granted and of the obligations on the injured party

      Operative part of the judgment

               1.

               Individuals who have been harmed by the incorrect transposition and application of Council Directive 64/433/EEC of 26 June 1964 on health conditions for the production and marketing of fresh meat, as amended by Council Directive 91/497/EEC of 29 July 1991, and Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market may rely on the right to the free movement of goods in order to be able to render the State liable for the breach of Community law.

               2.

               Where the Commission of the European Communities has brought infringement proceedings under Article 226 EC, Community law does not require the limitation period laid down by national legislation for a claim seeking reparation on account of State liability for breach of Community law to be interrupted or suspended during those proceedings.

               3.

               Community law does not preclude the limitation period applicable to an action for damages against the State for incorrect transposition of a directive from beginning to run on the date on which the first injurious effects of the incorrect transposition have been produced and the further injurious effects thereof are foreseeable, even if that date is prior to the correct transposition of the directive.

               4.

               Community law does not preclude the application of national legislation which lays down that an individual cannot obtain reparation for loss or damage which he has wilfully or negligently failed to avert by utilising a legal remedy, provided that utilisation of that remedy can reasonably be required of the injured party, a matter which is for the referring court to determine in light of all the circumstances of the main proceedings. The likelihood that a national court will make a reference for a preliminary ruling under Article 234 EC or the existence of infringement proceedings pending before the Court of Justice cannot, in itself, constitute a sufficient reason for concluding that it is not reasonable to have recourse to a legal remedy.

      (1)  OJ C 326, 30.12.2006.


title: Case C-564/08 P: Judgment of the Court (Fourth Chamber) of 12 November 2009 — SGL Carbon AG v Commission of the European Communities (Appeal — Competition — Agreements, decisions and concerted practices — Article 81 EC and Article 53 of the EEA Agreement — Market for electrical and mechanical carbon and graphite products — Article 15(2) of Regulation No 17 — Guidelines on the method of setting fines — Turnover and share of the relevant market — Value of captive use — Principle of equal treatment — Principle of proportionality)

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/6

         Judgment of the Court (Fourth Chamber) of 12 November 2009 — SGL Carbon AG v Commission of the European Communities
   (Case C-564/08 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - Article 81 EC and Article 53 of the EEA Agreement - Market for electrical and mechanical carbon and graphite products - Article 15(2) of Regulation No 17 - Guidelines on the method of setting fines - Turnover and share of the relevant market - Value of ‘captive’ use - Principle of equal treatment - Principle of proportionality)
   2010/C 11/09
   Language of the case: German

      Parties

      Appellant: SGL Carbon (represented by: M. Klusmann, Rechtsanwalt)

      Other party to the proceedings: Commission of the European Communities (represented by: F. Castillo de la Torre and W. Mölls, Agents)

      Re:

   Appeal brought against the judgment of the Court of First Instance (Fifth Chamber) of 8 October 2008 in Case T-68/04 SGL Carbon v Commission, in which the Court of First Instance dismissed the application brought by the appellant for the annulment of Commission Decision 2004/420/EC of 3 December 2003 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement concerning an agreement in the market for electrical and mechanical carbon and graphite products and, in the alternative, an application for the reduction of the fine imposed on the appellant — Failure to take into consideration, by classifying it as a new complaint that is inadmissible, the appellant’s argument concerning the taking into account of the value of the captive use in calculating the turnover and market shares of the undertakings concerned — Infringement of the principles of proportionality and equal treatment

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Carbon AG to pay the costs.

      (1)  OJ C 69 of 21.03.2009


title: Case F-98/14: Action brought on 29 September 2014 — ZZ v Council

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/50

         Action brought on 29 September 2014 — ZZ v Council
   (Case F-98/14)
   (2014/C 431/79)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: M. Velardo, lawyer)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Action seeking (i) the partial annulment of two Council Staff Notes in so far as they link obtaining reimbursement of travel expenses from the place of employment to the place of origin and obtaining travelling time to the expatriation and foreign residence allowances and (ii) an order for the defendant to pay damages for the material and non-material harm which the applicant claims to have suffered.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               Pursuant to Article 270 TFEU, annul the decision in Staff Note (‘SN’) 13/14 of 9 January 2014 (Decision No 2/2014), amending the rules on travelling time following the date of application (1 January 2014) of Article 7 of Annex V to the Staff Regulations, and annul the decision in Staff Note (‘SN’) 9/14 (Decision No 12/2014), amending the rules on travel expenses following the date of application (1 January 2014) of Article 8 of Annex VII to the Staff Regulations, as amended by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union, published in Official Journal
                  L 287 of 29 October 2013. The application for annulment is limited to the part of the SNs which links the right to travel expenses and travelling time to the expatriation and foreign residence allowances and to Article 6 of SN 9/14, which introduced new criteria for determining the place of origin;

               —

               order the Council to pay the applicant EUR 1 65  596,42 for the material damage suffered and EUR 40  000 for the non-material damage suffered;

               —

               order the Council to pay default and compensatory interest at a rate of 6,75 % for the material and non-material damage suffered;

               —

               order the Council to pay the costs.


title: Case T-427/12: Judgment of the General Court of 28 January 2016 — Austria v Commission (State Aid — Banking sector — Aid implemented by Germany and Austria for the benefit of Bayerische Landesbank in the course of its restructuring — Decision declaring the aid compatible with the internal market, provided that certain conditions are met — Repeal of the initial decision drawn up in a language other than that of the Member State — Action for annulment — Challengeable act — Admissibility — Definition of State aid — Advantage — Rights of defence — Obligation to state reasons)

text:
               7.3.2016

               EN

               Official Journal of the European Union

               C 90/13

         Judgment of the General Court of 28 January 2016 — Austria v Commission
   (Case T-427/12) (1)

   ((State Aid - Banking sector - Aid implemented by Germany and Austria for the benefit of Bayerische Landesbank in the course of its restructuring - Decision declaring the aid compatible with the internal market, provided that certain conditions are met - Repeal of the initial decision drawn up in a language other than that of the Member State - Action for annulment - Challengeable act - Admissibility - Definition of State aid - Advantage - Rights of defence - Obligation to state reasons))
   (2016/C 090/17)
   Language of the case: German

      Parties

      Applicant: Republic of Austria (represented by: C. Pesendorfer, M. Windisch, W. Peschorn and S. Ullreich, acting as Agents)

      Defendant: European Commission (represented by: L. Flynn, T. Maxian Rusche and R. Sauer, acting as Agents)

      Re:

   Action for the annulment of Article 1(1)(d) and 1(2) of Commission Decision C (2012) 5062 final of 25 July 2012 on State aid SA.28487 granted by Germany and Austria to Bayerische Landesbank (C 16/09, ex N 254/09), and, following the repeal of that decision by Article 1 of Commission Decision (EU) 2015/657 of 5 February 2013 on State aid granted by Germany and Austria to Bayerische Landesbank (Case SA.28487 (C 16/09, ex N 254/09)) (OJ 2015 L 109, p. 1), for the annulment of Article 2(1)(d) and 2(2) of the latter decision.

      Operative part of the judgment

   The Court hereby:

               1.

               Dismisses the action;

               2.

               Orders the Republic of Austria to pay the costs.

      (1)  OJ C 373, 1.12.2012.


title: Case T-327/05: Action brought on 11 August 2005 — Thierry v Commission

text:
               12.11.2005

               EN

               Official Journal of the European Union

               C 281/27

         Action brought on 11 August 2005 — Thierry v Commission
   (Case T-327/05)
   (2005/C 281/51)
   Language of the case: French
   Parties

      Applicant(s): Michel Thierry (Howald, Luxembourg) (represented by: G. Bounéou and F. Frabetti, lawyers)

      Defendant(s): Commission of the European Communities
   Form of order sought
   The applicant(s) claim(s) that the Court should:

               —

               annul the list of officials promoted in 2004 in so far as that list does not include the applicant's name and, indirectly, the preparatory measures for that decision;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   By his action, the applicant challenges the decision of the Commission not to promote him to Grade A5 in 2004. He submits that the new system of promotion based on priority points attributed to the official, applied by the Commission in the present case, places too much weight on seniority as the promotion criterion. Therefore, the applicant considers that, in his case, there was no consideration of the comparative merits in breach of Article 45 of the Staff Regulations, of the general provisions implementing that article, of the Administrative Guide on appraisal and promotion and of the principle of equality. On the same basis, he also alleges a breach of the principle precluding arbitrary proceedings, of the duty to state reasons, of legitimate expectations, of the ‘patere legem quam ipse fecisti’ rule and abuse of power.


title: Case C-262/88 INT: Application for interpretation of judgment of 17 May 1990 , Barber (C-262/88), lodged on 26 May 2010 by Manuel Enrique Peinado Guitart

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/18

         Application for interpretation of judgment of 17 May 1990, Barber (C-262/88), lodged on 26 May 2010 by Manuel Enrique Peinado Guitart
   (Case C-262/88 INT)
   2011/C 63/35
   Language of the case: Spanish

      Parties

      Applicant: Manuel Enrique Peinado Guitart
   By order of 17 December 2010, the Court of Justice (Seventh Chamber) declared the application for interpretation inadmissible.


title: Case T-471/10: Action brought on 28 September 2010 — Gill v Commission

text:
               2.4.2011

               EN

               Official Journal of the European Union

               C 103/22

         Action brought on 28 September 2010 — Gill v Commission
   (Case T-471/10)
   2011/C 103/40
   Language of the case: English

      Parties

      Applicant: Brendan Gill (Lifford, Ireland) (represented by: A.M. Collins SC, N.J. Travers, Barrister and D.P. Barry, Solicitor)

      Defendant: European Commission

      Form of order sought

               —

               Annul Commission Decision notified under document C(2010) 4752 of 13 July 2010 as a letter to Ireland, and which was notified to the applicant on 16 July 2010, to reject safety capacity applications to lengthen the MFV Brendelen and to replace the lengthened MFV Brendelen with a proposed new pelagic fishing vessel, and to replace the decision regarding the said applications contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of Commission Decision notified under document C(2010) 4752 of 13 July 2010 as a letter to Ireland, and which was notified to the applicant on 16 July 2010, to reject safety capacity applications to lengthen the MFV Brendelen and to replace the lengthened MFV Brendelen with a proposed new pelagic fishing vessel, and to replace the decision regarding the said applications contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699.
   In support of his application, the applicant submits the following pleas in law:

               Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision.

               Secondly, the applicant submits that the Commission breached an essential procedural requirement. The applicant submits that the impugned decision, under Council Decision No 97/413/EC, should have been adopted pursuant to the management committee procedure and that, in choosing to adopt the decision on an ad hoc basis, the Commission acted in breach of essential procedural requirements.

               Thirdly, the applicant submits that by misinterpreting Article 4(2) of Council Decision No 97/413/EC, the Commission exceeded its powers, in particular in relying upon irrelevant criteria and ignoring the definition of “fishing effort” provided in Council Decision No 97/413/EC and in Community fisheries legislation applicable at the time of the applicant’s application for safety tonnage in December 2001.

               In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, it is submitted that the Commission’s decision to refuse the applicant’s application because of the greater volume under the main deck of the proposed new vessel compared to the Brendelen is manifestly flawed, as is its assumption that the proposed new vessel’s “fishing effort” will be greater than that of the original and the lengthened Brendelen.

               Finally, the applicant alleges that the Commission breached the applicant’s right to equal treatment. The applicant submits that Commission’s rejection of his application because of the greater volume under the main deck of his proposed new vessel constitutes gross difference in treatment amounting to impermissible discrimination against him compared to the wholly different approach adopted regarding the treatment of some of the applications for additional safety tonnage accepted in Decision No 2003/245, as well as regarding one of the applications initially rejected in that decision but then accepted in the decision contained in Commission Document C(2010) 4765 of 13 July 2010.


title: Case T-209/10: Action brought on 5 May 2010 — Deutscher Ring v OHIM (Deutscher Ring Sachversicherungs-AG)

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/54

         Action brought on 5 May 2010 — Deutscher Ring v OHIM (Deutscher Ring Sachversicherungs-AG)
   (Case T-209/10)
   2010/C 179/92
   Language in which the application was lodged: German

      Parties

      Applicant: Deutscher Ring Sachversicherungs-AG (Hamburg, Germany) (represented by A. Busse, lawyer)

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

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 March 2010 in Case R 1290/2009-1 and register the trade mark applied for; and

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘Deutscher Ring Sachversicherungs-AG’ for services in Class 36.

      Decision of the Examiner: Rejection of the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009, (1) since the Community trade mark concerned is distinctive and not merely descriptive.

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


title: Case C-297/09: Order of the President of the Court of 5 November 2009 (reference for a preliminary ruling from the Gerechtshof te Amsterdam (Netherlands)) — Criminal proceedings against X

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/45

         Order of the President of the Court of 5 November 2009 (reference for a preliminary ruling from the Gerechtshof te Amsterdam (Netherlands)) — Criminal proceedings against X
   (Case C-297/09) (1)

   2010/C 63/79

      Language of the case: Dutch

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

      (1)  OJ C 11, 16.1.2010.


title: Case T-278/13: Action brought on 15 May 2013 — Now Wireless/OHIM — Starbucks (HK) (now)

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/50

         Action brought on 15 May 2013 — Now Wireless/OHIM — Starbucks (HK) (now)
   (Case T-278/13)
   2013/C 207/82
   Language in which the application was lodged: English

      Parties

      Applicant: Now Wireless Ltd (Guildford, United Kingdom) (represented by: T. Alkin, Barrister)

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

      Other party to the proceedings before the Board of Appeal: Starbucks (HK) Ltd (Hong Kong, China)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision; and

               —

               Order Community Trade Mark Registration No 1421700 to be revoked on grounds of non-use;

               —

               Order the registered proprietor to pay the costs incurred by the applicant.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which an application for revocation has been made: The figurative mark containing the word element ‘now’ for services in classes 35, 41 and 42 — Community trade mark No 1 421 700

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

      Party applying for revocation of the Community trade mark: The applicant

      Decision of the Cancellation Division: Partially revoked the Community trade mark registration

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 51(1)(a) and (2) of Council Regulation No 207/2009.


title: Case C-402/17 P: Appeal brought on 04/07/2017 by JYSK sp. z o.o. against the judgment of the General Court (Seventh Chamber) delivered on 04/05/2017 in Case T-403/15: JYSK sp. z o.o. v European Commission

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/29

         Appeal brought on 04/07/2017 by JYSK sp. z o.o. against the judgment of the General Court (Seventh Chamber) delivered on 04/05/2017 in Case T-403/15: JYSK sp. z o.o. v European Commission
   (Case C-402/17 P)
   (2017/C 309/38)
   Language of the case: English

      Parties

      Appellant: JYSK sp. z o.o. (represented by: H. Sønderby Christensen, advokat)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant submits that the judgment of the General Court declaring its action inadmissible on the ground that it is not directly and individually concerned by Commission decision C (2015) 3228 final of 11 May 2015 should be set aside on the ground that it violates the principle of effective judicial protection.

      Pleas in law and main arguments

   The appellant argues that indirect access to the Court of Justice via a reference for a preliminary ruling from the Polish courts does not provide the protection envisaged by article 6(1) of the European Convention on Human Rights.
   The appellant maintains that it is directly and individually concerned by the aforementioned Commission decision.


title: Case C-606/13: Judgment of the Court (Seventh Chamber) of 1 October 2015 (request for a preliminary ruling from the Kammarrätten i Sundsvall — Sweden) — OKG AB v Skatteverket (Reference for a preliminary ruling — Directive 2003/96/EC — Articles 4 and 21 — Directive 2008/118/EC — Directive 92/12/EEC — Article 3(1) — Scope — Rules of a Member State — Levying of a tax on the thermal power of nuclear reactors)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/4

         Judgment of the Court (Seventh Chamber) of 1 October 2015 (request for a preliminary ruling from the Kammarrätten i Sundsvall — Sweden) — OKG AB v Skatteverket
   (Case C-606/13) (1)

   ((Reference for a preliminary ruling - Directive 2003/96/EC - Articles 4 and 21 - Directive 2008/118/EC - Directive 92/12/EEC - Article 3(1) - Scope - Rules of a Member State - Levying of a tax on the thermal power of nuclear reactors))
   (2015/C 381/03)
   Language of the case: Swedish

      Referring court

   Kammarrätten i Sundsvall

      Parties to the main proceedings

      Applicant: OKG AB

      Defendant: Skatteverket

      Operative part of the judgment

               1.

               Articles 4(2) and 21(5) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as not precluding a national rule, such as the one at issue in the main proceedings, which provides for the levying of a tax on the thermal power of nuclear reactors, in so far as such a tax does not come within the scope of that directive.

               2.

               Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products must be interpreted as meaning that a tax on the thermal power of a nuclear reactor is not an excise duty for the purposes of that directive.

      (1)  OJ C 39, 8.2.2014.


title: Judgment of the Court of First Instance of 27 February 2003 in Case T-329/00, Bonn Fleisch Ex- und Import GmbH v Commission of the European Communities (Customs duties — Imports of beef from South America — Article 13(1) of Regulation (EEC) No 1430/79 — Application for recovery of import duties — Rights of the defence — Special situation)

text:
10.5.2003                EN                            Official Journal of the European Union                                          C 112/27
A. Pisaneschi and S. Zunarelli, lawyers, with an address for                   2.     Orders the Commission to pay the costs.
service in Luxembourg, against Commission of the European
Communities (Agents: initially by L. Visaggio and subsequently
by C. Cattabriga, assisted by M. Moretto) — application for                    (1 ) OJ C 372 of 23.12.00.
annulment of Commission Decision C (2000) 1099 of 3 May
2000 discontinuing aid from the Guidance Section of the
European Agricultural Guidance and Guarantee Fund for
Project No 9 (beneficiary: Massalombarda Colombani SpA)
in the context of operational programme No 91.CT.IT.01,
approved by Commission Decision C (91) 2255/6 of 28 Octo-
ber 1991 — the Court of First Instance (Fifth Chamber),
composed of R. García-Valdecasas, President, P. Lindh and
J.D. Cooke, Judges; J. Palacio González, Principal Adminis-                         JUDGMENT OF THE COURT OF FIRST INSTANCE
trator, for the Registrar, has given a judgment on 11 March
2003, in which it:
                                                                                of 26 February 2003
1.     Dismisses the application;
                                                                               in Cases T-344/00 and T-345/00: CEVA Santé animale SA
2.     Orders the applicant to bear its own costs and pay those of the         and Pharmacia Entreprises SA v Commission of the
       Commission.                                                                                European Communities (1)
( 1) OJ C 285 of 7.10.00.                                                      (Regulation (EEC) No 2377/90 — Veterinary medicinal
                                                                               products — Application for the inclusion of ‘progesterone’
                                                                               in the list of substances for which it does not appear
                                                                               necessary to fix a maximum residue limit — Opinion of the
                                                                               Committee for Veterinary Medicinal Products (CVMP) —
                                                                               Re-examination by the CVMP — Failure by the Commission
                                                                               to adopt a draft of measures to be taken — Action for failure
                                                                               to act — Definition of a position putting an end to a failure
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                   to act — No need to adjudicate — Actions in damages —
                                                                               Liability of the Community — Causal link — Interlocutory
                        of 27 February 2003                                                                judgment)
in Case T-329/00, Bonn Fleisch Ex- und Import GmbH v                                                   (2003/C 112/51)
         Commission of the European Communities ( 1)
(Customs duties — Imports of beef from South America —                                            (Language of the case: English)
Article 13(1) of Regulation (EEC) No 1430/79 — Appli-
cation for recovery of import duties — Rights of the defence
                        — Special situation)
                                                                               In Joined Cases T-344/00 and T-345/00, CEVA Santé animale
                           (2003/C 112/50)                                     SA, established in Libourne (France), and Pharmacia Entreprises
                                                                               SA, formerly Pharmacia & Upjohn SA, established in Luxem-
                                                                               bourg, represented by D. Waelbroeck and D. Brinckman,
                    (Language of the case: German)                             lawyers, with an address for service in Luxembourg, supported
                                                                               by Fédération européenne de la santé animale (Fedesa), estab-
                                                                               lished in Brussels, represented by A. Vandencasteele, lawyer,
                                                                               with an address for service in Luxembourg; Intervener: in Case
In Case T-329/00, Bonn Fleisch Ex- und Import Gmbh,                            T-345/00, Commission of the European Communities (Agents:
established in Troisdorf (Germany), represented by D. Ehle,                    T. Christoforou and M. Shotter): Application for (1) a declar-
lawyer, with an address for service in Luxembourg, against                     ation under Article 232 EC that, by failing to take the necessary
Commission of the European Communities (Agents: X. Lewis                       measures for the inclusion of progesterone in Annex II to
and Núñez-Müller) — application for annulment of the                           Council Regulation (EEC) No 2377/90 of 26 June 1990 laying
Commission Decision of 25 July 2000 finding that the                           down a Community procedure for the establishment of
recovery of import duties is not justified in a special case (REM              maximum residue limits of veterinary medicinal products in
49/99) — the Court of First Instance (Third Chamber),                          foodstuffs of animal origin (OJ 1990 L 224, p. 1), the
composed of M. Jaeger, President and K. Lenaerts and J. Azizi,                 Commission has failed to comply with its obligations under
Judges; D. Christensen, Administrator, for the Registrar, has                  Community law and (2) damages under Article 235 EC and
given a judgment on 27 February 2003, in which it:                             the second paragraph of Article 288 EC, the Court of First
                                                                               Instance (Second Chamber), composed of: R.M. Moura Ramos,
1.     Annuls the Decision of the Commission of 25 July 2000                   President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers,
       finding that recovery of import duties is not justified in a special    Administrator, for the Registrar, has given a judgment on
       case (REM 49/99);                                                       26 February 2003, in which it has ruled:


title: Case C-374/10: Order of the President of the Fifth Chamber of the Court of 12 April 2011 — European Commission v Kingdom of Sweden

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/21

         Order of the President of the Fifth Chamber of the Court of 12 April 2011 — European Commission v Kingdom of Sweden
   (Case C-374/10) (1)

   2011/C 211/43
   Language of the case: Swedish
   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 246, 11.9.2010.


title: Case C-35/14 P: Appeal brought on 23 January 2014 by Enercon GmbH against the judgment of the General Court (Fourth Chamber) delivered on 12 November 2013 in Case T-245/12: Gamesa Eólica, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM)

text:
               7.4.2014

               EN

               Official Journal of the European Union

               C 102/18

         Appeal brought on 23 January 2014 by Enercon GmbH against the judgment of the General Court (Fourth Chamber) delivered on 12 November 2013 in Case T-245/12: Gamesa Eólica, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM)
   (Case C-35/14 P)
   2014/C 102/24
   Language of the case: English

      Parties

      Appellant: Enercon GmbH (represented by: J. Eberhardt, Rechtsanwalt, R. Böhm, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Gamesa Eólica, SL

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the judgment in case T-245/12 handed down by the General Court on 12 November 2013;

               —

               order OHIM to pay the costs of the proceedings.

      Pleas in law and main arguments

   The appellant submits that the contested judgment should be annulled on the following grounds:

               1.

               As a consequence of the fact that the appellant did not lodge a reply in the proceedings before the General Court, that Court did not involve the appellant in the proceedings and did not serve a copy of the judgment on the appellant. It is submitted that the General Court therefore acted in breach of its Rules of Procedure and violated the appellant’s property rights by denial of due legal process.

               2.

               The General Court erred in assuming that the contested mark is a ‘colour mark per se’, and should not have used this categorisation as the sole basis for assessing the distinctiveness of the mark.


title: Case C-47/05: Action brought on 7 February 2005 by the Commission of the European Communities against the Kingdom of Spain

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/15

         Action brought on 7 February 2005 by the Commission of the European Communities against the Kingdom of Spain
   (Case C-47/05)
   (2005/C 82/32)
   Language of the case: Spanish
   An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 7 February 2005 by the Commission of the European Communities, represented by R. Lyal, Legal Adviser, and L. Escobar Guerrero, of the Commission's legal service, with an address for service in Luxembourg.
   The Commission of the European Communities claims that the Court should:

               1.

               declare that, by having adopted and maintained in force, in the matter of life insurance and pensions, a system under which tax concessions (Article 48 of Law 40/1998) are applicable solely to contributions paid under contracts concluded with undertakings established in Spain but not to those paid under contracts concluded with undertakings formed in other Member States, the Kingdom of Spain has failed to fulfil its obligations under Articles 39, 43, 49 and 56 of the Treaty establishing the European Community and Articles 28, 31, 36 and 40 of the EEA Agreement;

               2.

               order the Kingdom of Spain to pay the costs.

         Pleas in law and main arguments
   The fact that tax treatment differs by reference to whether pension plans are taken out with undertakings established in Spain or with undertakings formed in other Member States is a restriction on the fundamental freedoms laid down by the EC Treaty (Articles 39, 43, 49 and 56 EC and Articles 28, 31, 36 and 40 of the EEA Agreement).
   The requirement for establishment, in accordance with national law, which Spanish fiscal legislation imposes on pension managers, constitutes, as well as discrimination restricting the right of undertakings formed in the European Union or the EEA to provide their services freely to persons resident in Spain, a clear restriction on the freedom of movement of workers and of capital and on the freedom of establishment.


title: Case T-657/15: Action brought on 13 November 2015 — Boros v Parliament

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/70

         Action brought on 13 November 2015 — Boros v Parliament
   (Case T-657/15)
   (2016/C 048/78)
   Language of the case: English

      Parties

      Applicant: Crina Boros (London, United Kingdom) (represented by: N. Pirc Musar, lawyer)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               annul decision A(2015)8553 C of the European Parliament of 16 September 2015 rejecting the applicant’s confirmatory application for access to certain documents relating to information on Members’ of the European Parliament travel expenses, subsistence allowances, general expenditure allowances and staffing arrangements expenses;

               —

               order the Parliament to pay the applicant’s costs pursuant to Articles 134 and 140 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a violation of Article 4(1)(b) of Regulation 1049/2001 (1) in conjunction with Article 8(b) of Regulation 45/2001 (2), since the personal data requested are not protected under Community legislation

               2.

               Second plea in law, alleging a violation of Article 4(1)(b) of Regulation 1049/2001 in conjunction with Article 8(b) of Regulation 45/2001, as the access to the requested information was refused, although the conditions for disclosure were met

               3.

               Third plea in law, alleging a violation of the general obligation, under Articles 2 and 4 of Regulation 1049/2001 in conjunction with Article 6(3) of Regulation 1049/2001, to conduct an examination of each individual document

               4.

               Fourth plea in law, alleging a violation of Article 4(6) of Regulation 1049/2001, as the refusal to grant partial access to the requested documents was not justified

               5.

               Fifth plea in law, alleging a violation of the duty to state reasons as required by Articles 7(1) and 8(1) of Regulation 1049/2001, as the Parliament failed to address all the applicant’s arguments

      (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 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).


title: Case C-107/05: Action brought on 3 March 2005 by the Commission of the European Communities against the Republic of Finland

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/22

         Action brought on 3 March 2005 by the Commission of the European Communities against the Republic of Finland
   (Case C-107/05)
   (2005/C 93/42)
   Language of the case: Finnish
   An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 3 March 2005 by the Commission of the European Communities, represented by U. Wölker and P. Aalto, acting as Agents, with an address for service in Luxembourg.
   The Commission claims that the Court should:

               1.

               declare that, by failing to incorporate Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 (1) establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC into its national legislation as regards the province of Åland (Ahvenanmaa), or at least by failing to communicate that to the Commission, the Republic of Finland has failed to fulfil its obligations under the directive;

               2.

               order the Republic of Finland to pay the costs.

         Pleas in law and main arguments
   The period prescribed for implementation of the directive expired on 31 December 2003.

      (1)  OJ L 275 of 25.10.2003, p. 32.


title: Case T-872/16: Action brought on 9 December 2016 — repowermap v EUIPO — Repower (REPOWER)

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/58

         Action brought on 9 December 2016 — repowermap v EUIPO — Repower (REPOWER)
   (Case T-872/16)
   (2017/C 030/67)
   Language in which the application was lodged: French

      Parties

      Applicant: repowermap.org (Bern, Switzerland) (represented by: P. González-Bueno Catalán de Ocón, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Repower AG (Brusio, Switzerland)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: International registration designating the European Union word mark ‘REPOWER’ — International registration designating the European Union No 1 020 351

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Second decision (after revocation) of the Fifth Board of Appeal of EUIPO of 26 September 2016 in Case R 2311/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               alter the contested decision by declaring the mark at issue invalid in respect of all the goods and services not cancelled by the contested decision, with the exception of packaging and storage of goods (Class 39), arrangement of travel (Class 39) and fire extinguishers (Class 9);

               —

               order EUIPO and Repower AG to pay the costs.

      Pleas in law

               —

               Infringement of Article 7(1)(c) Regulation No 207/2009;

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009;

               —

               Infringement of Article 75 of Regulation No 207/2009 in relation with Article 296 TFEU.


title: Case T-452/07: Action brought on 7 December 2007 — Ecolean Research & Development v OHIM

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/45

         Action brought on 7 December 2007 — Ecolean Research & Development v OHIM
   (Case T-452/07)
   (2008/C 51/84)
   Language in which the application was lodged: Swedish
   Parties

      Applicant: Ecolean Research & Development A/S (Copenhagen, Denmark) (represented by L.-E. Ström, lawyer)

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

               —

               Referral back to the Board of Appeal for a fresh examination.

         Pleas in law and main arguments

      Community trade mark concerned: Word mark CAPS for goods in Classes 7, 16 and 17 — application No 4 957 131

      Decision of the Examiner: Rejection of the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: The Board of Appeal infringed essential procedural requirements and Council Regulation No 40/94, in part by failing to declare that the appeal should have been translated into the applicant's first language, Swedish, and in part by upholding the appeal and continuing to correspond in English. The Board of Appeal thus failed to comply with the principles of the protection of legitimate expectations and of the right to equal treatment.


title: Judgment of the Court (Fifth Chamber) of 15 January 2002 in Case C-171/00 P: Alain Libéros v Commission of the European Communities (Appeal — Possibility for the Judge-Rapporteur in the Court of First Instance to hear and determine a case sitting as a single Judge — Member of the temporary staff — Classification in grade — Professional experience)

text:
18.5.2002                EN                     Official Journal of the European Communities                                             C 118/11
                  JUDGMENT OF THE COURT                                                      JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                          (Sixth Chamber)
                                                                                of 15 January 2002
                            12 March 2002
                                                                           in Case C-171/00 P: Alain Libéros v Commission of the
                                                                                European Communities (1)
in Case C-168/00 (Reference for a preliminary ruling
from the Landesgericht Linz): Simone Leitner v TUI
                Deutschland GmbH & Co. KG (1)                              (Appeal — Possibility for the Judge-Rapporteur in the Court
                                                                           of First Instance to hear and determine a case sitting as a
                                                                           single Judge — Member of the temporary staff — Classifi-
                                                                                cation in grade — Professional experience)
(Directive 90/314/EEC — Package travel, package holidays
and package tours — Compensation for non-material dam-
                                  age)                                                                 (2002/C 118/16)
                           (2002/C 118/15)                                                       (Language of the case: French)
                                                                           (Provisional translation; the definitive translation will be published
                   (Language of the case: German)                                               in the European Court Reports)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                         In Case C-171/00 P: Alain Libéros (avocat: M.-A. Lucas) —
                                                                           appeal against the judgment of the Court of First Instance of
                                                                           the European Communities (single judge) of 9 March 2000 in
                                                                           Case T-29/97 Libéros v Commission[2000] ECR SC I-A-43
                                                                           and II-185, seeking to have that judgment set aside, the other
                                                                           party to the proceedings being Commission of the European
In Case C-168/00: Reference to the Court under Article 234                 Communities (Agent: J. Currall, assisted by B. Wägenbaur), the
EC by the Landesgericht Linz (Austria) for a preliminary ruling            Court (Fifth Chamber), composed of: P. Jann, President of the
in the proceedings pending before that court between Simone                Chamber, A. La Pergola, L. Sevón, M. Wathelet and C.W.A.
Leitner and TUI Deutschland GmbH & Co. KG, on the                          Timmermans (Rapporteur), Judges; C. Stix-Hackl, Advocate
interpretation of Article 5 of Council Directive 90/314/EEC of             General; H.A. Rühl, Principal Administrator, for the Registrar,
13 June 1990 on package travel, package holidays and package               gave a judgment on 15 January 2002, in which it:
tours (OJ 1990 L 158, p. 59), the Court (Sixth Chamber),
composed of: N. Colneric, President of the Second Chamber,
acting for the President of the Sixth Chamber, C. Gulmann                  1.    Sets aside the judgment of the Court of First Instance of the
(Rapporteur), J.-P. Puissochet, V. Skouris and J.N. Cunha                        European Communities of 9 March 2000 in Case T-29/97
Rodrigues, Judges; A. Tizzano, Advocate General; H.A. Rühl,                      Libéros v Commission;
Principal Administrator, for the Registrar, has given a judgment
on 12 March 2002, in which it has ruled:
                                                                           2.    Annuls the decisions of the Commission of the European
                                                                                Communities of 15 March 1996, definitively classifying
                                                                                Mr Libéros in Grade A 7, and of 5 November 1996, rejecting
Article 5 of Council Directive 90/314/EEC of 13 June 1990 on                     his complaint against that classification decision;
package travel, package holidays and package tours is to be interpreted
as conferring, in principle, on consumers a right to compensation for
non-material damage resulting from the non-performance or                  3.    Orders the Commission of the European Communities to pay
improper performance of the services constituting a package holiday.             all the costs of the proceedings before the Court of First Instance
                                                                                and the Court of Justice.
(1) OJ C 192 of 8.7.2000.
                                                                           (1) OJ C 192 of 8.7.2000.


title: Case T-522/12: Action brought on 30 November 2012 — Alfa-Beta Vassilopoulos v OHIM — Henkel (AB terra Leaf)

text:
               2.2.2013

               EN

               Official Journal of the European Union

               C 32/22

         Action brought on 30 November 2012 — Alfa-Beta Vassilopoulos v OHIM — Henkel (AB terra Leaf)
   (Case T-522/12)
   2013/C 32/35
   Language in which the application was lodged: English

      Parties

      Applicant: Alfa-Beta Vassilopoulos SA (Gerakas Attikis, Greece) (represented by: N. Lymperis, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Henkel AG & Co. KGaA (Düsseldorf, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 October 2012 in case R 2122/2011-4 and the appeal be upheld so that CTM application AB TERRA LEAF (& device) No 8573651 proceeds to registration for all goods applied for; and

               —

               Order the defendant and the opponent to pay the costs of these proceedings, including those incurred in opposition and appeal proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘AB terra Leaf’ in black and white, for goods in classes 3, 5 and 16 — Community trade mark application No 8573651

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Community trade mark registration No 33472909 of the word mark ‘TERRA’, for goods in classes 3 and 21

      Decision of the Opposition Division: Upheld the opposition for all the contested goods

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Articles 8(1)(b) and 75 of Council Regulation No 207/2009.


title: Case C-51/13: Request for a preliminary ruling from the Rechtbank Rotterdam (Netherlands) lodged on 31 January 2013 — Nationale-Nederlanden Levensverzekering Mij NV v Hubertus Wilhelmus Van Leeuwen

text:
               18.5.2013

               EN

               Official Journal of the European Union

               C 141/10

         Request for a preliminary ruling from the Rechtbank Rotterdam (Netherlands) lodged on 31 January 2013 — Nationale-Nederlanden Levensverzekering Mij NV v Hubertus Wilhelmus Van Leeuwen
   (Case C-51/13)
   2013/C 141/17
   Language of the case: Dutch

      Referring court

   Rechtbank Rotterdam

      Parties to the main proceedings

      Applicant: Nationale-Nederlanden Levensverzekering Mij NV

      Defendant: Hubertus Wilhelmus Van Leeuwen

      Questions referred

               1.

               Does European Union law, and in particular Article 31(3) of the Third Life Assurance Directive, (1) preclude an obligation on the part of a life assurance provider on the basis of the ‘open’ and/or unwritten rules of Netherlands law — such as the reasonableness and fairness which govern the (pre-)contractual relationship between a life assurance provider and a prospective policyholder, and/or a general and/or specific duty of care — to provide policyholders with more information on costs and risk premiums of the insurance than was prescribed in 1999 by the provisions of Netherlands law by which the Third Life Assurance Directive was implemented (in particular, Article 12(2)(q) and (r) of the RIAV [(Netherlands Regulation regarding the provision of information to policyholders)] 1998)?

               2.

               Are the consequences, or possible consequences, under Netherlands law, of a failure to provide that information relevant for the purposes of answering question 1?

      (1)  Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (OJ 1992 L 360, p. 1).


title: Case F-19/07: Action brought on 5 March 2007 — Kerelov v Commission

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/58

         Action brought on 5 March 2007 — Kerelov v Commission
   (Case F-19/07)
   (2007/C 95/117)
   Language of the case: French
   Parties

      Applicant: Georgi Kerelov (Pazardzhik, Bulgaria) (represented by: Angel Kerelov, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the decision of 6 December 2006 of the selection board for competition EPSO/AD/43/06-CJ not to include the applicant on the reserve list for that competition;

               —

               declare null and void, and if necessary annul as unlawful, the decision of 2 February 2007 of the selection board for competition EPSO/AD/43/06-CJ to exclude the applicant from that competition;

               —

               order the defendant to pay the applicant fixed damages assessed on equitable principles at EUR 120 491,28 (two years' salary) with statutory interest from the date on which the application in respect of the material and non-material damage suffered by the applicant as a result of those illegal decisions by the competition selection board was lodged;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   Concerning the first decision under appeal, the applicant puts forward 10 pleas:

               (1)

               the ordinary members of the selection board were not able to make a free assessment of the candidates in so far as the chairman and the alternate chairman were their hierarchical superiors;

               (2)

               the members of the selection board were not familiar with the main language of the competition (Bulgarian), contrary to the requirements resulting from well-established case-law;

               (3)

               the length and difficulty of the texts which the candidates had to translate were not comparable as between the source languages chosen;

               (4)

               the marking of the written tests was arbitrary, since the selection board did not know Bulgarian;

               (5)

               the duration of the oral test varied greatly depending on the candidate;

               (6), (7) and (8)

               first, the criteria applied by the selection board to assess the oral tests did not correspond to the purpose of those tests and, secondly, several candidates were awarded marks which were arbitrary;

               (9)

               candidates were denied their right to have their submissions re-marked, in so far as the reserve list had been definitively drawn up and put into circulation before the expiry of the 20-day period laid down in the competition notice for the purpose of the exercise of that right;

               (10)

               the selection board assessed the applicant's tests, in particular his oral test, improperly, justifying the marks by incoherent, inconsistent and irrelevant reasons.

         Concerning the second decision under appeal, the applicant raises 3 pleas:

               (1)

               he disputes the relevance of the facts on which the selection board based its decision, namely the fact that he tried to contact members of the selection board;

               (2)

               he disputes that the selection board has the power to exclude a candidate from a competition for such reasons, since, he submits, EPSO alone has that power;

               (3)

               he maintains that, even if the selection board does have such a power, it cannot exercise it after the reserve list has been drawn up.


title: Case C-315/11: Reference for a preliminary ruling from the Rechtbank Breda (Netherlands) lodged on 27 June 2011 — A. T. G. M. Van de Ven & M. A. H. T. Van de Ven-Janssen v Koninklijke Luchtvaart Maatschappij N.V.

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/27

         Reference for a preliminary ruling from the Rechtbank Breda (Netherlands) lodged on 27 June 2011 — A. T. G. M. Van de Ven & M. A. H. T. Van de Ven-Janssen v Koninklijke Luchtvaart Maatschappij N.V.
   (Case C-315/11)
   2011/C 269/51
   Language of the case: Dutch

      Referring court

   Rechtbank Breda

      Parties to the main proceedings

   Applicants:

               A. T. G. M. Van de Ven

               M. A. H. T. Van de Ven-Janssen

         Defendant: Koninklijke Luchtvaart Maatschappij N.V.

      Questions referred

               1.

               Is a right to compensation in case of delay, as described in Article 7 of Regulation No 261/2004, (1) consistent with the last sentence of Article 29 of the Montreal Convention, (2) given the fact that, according to the first sentence of Article 29 of the Montreal Convention, actions for damages founded in contract, in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in the Montreal Convention?

               2.

               If a right to compensation in case of delay, as described in Article 7 of Regulation No 261/2004, is not consistent with Article 29 of the Montreal Convention, are any limitations then imposed in respect of the moment when the ruling of the Court of Justice enters into effect as regards the present case and/or in general?

      (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1)

      (2)  See Council Decision 2001/539/EC of 5 April 2001 on the conclusion by the European Community of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) (OJ 2001 L 194, p. 38)


title: Case C-228/14: Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 12 May 2014  — DHL Hub Leipzig GmbH v Hauptzollamt Braunschweig

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/7

         Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 12 May 2014 — DHL Hub Leipzig GmbH v Hauptzollamt Braunschweig
   (Case C-228/14)
   2014/C 303/09
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: DHL Hub Leipzig GmbH

      Defendant: Hauptzollamt Braunschweig

      Question referred

               —

               Is import VAT for goods which have been reexported under customs supervision as non-Community goods for which, however, a customs debt is incurred due to a breach of obligation under Article 204 of the Customs Code (1) — in this case: failure to discharge in due time the external Community transit procedure by presentation at the competent customs office before the introduction into the third country — to be considered to be not legally owed within the meaning of Article 236(1) of the Customs Code in conjunction with the provisions of Directive 2006/112/EC, (2) at least where the person used as the debtor is the person on whom the breached obligation was incumbent without him being entitled to dispose of the goods?

      (1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, OJ 1992 L 302, p. 1.

      (2)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, OJ 2006 L 347, p. 1.


title: Case T-237/09: Judgment of the General Court of 1 February 2012 — Région wallonne v Commission (Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — National emission allowance allocation plan for Belgium in respect of the period from 2008 to 2012 — Article 44 of Regulation (EC) No 2216/2004 — Subsequent correction — New entrant — Decision instructing the Central Administrator of the Community independent transaction log to enter a correction into the national allocation plan table)

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/26

         Judgment of the General Court of 1 February 2012 — Région wallonne v Commission
   (Case T-237/09) (1)

   (Environment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National emission allowance allocation plan for Belgium in respect of the period from 2008 to 2012 - Article 44 of Regulation (EC) No 2216/2004 - Subsequent correction - New entrant - Decision instructing the Central Administrator of the Community independent transaction log to enter a correction into the national allocation plan table)
   2012/C 73/50
   Language of the case: French

      Parties

      Applicant: Région wallonne (Belgium) (represented by: J.-M. De Backer, A. Lepièce, I.-S. Brouhns and S. Engelen, lawyers)

      Defendant: European Commission (represented by: E. White and O. Beynet, Agents)

      Re:

   Application for partial annulment of the Commission’s decision of 27 March 2009 relating to the national plan for the allocation of greenhouse gas emission allowances notified by the Kingdom of Belgium for the period from 2008 to 2012, instructing the Central Administrator to enter a correction to the Belgian national allocation plan table into the Community independent transaction log.

      Operative part of the judgment

   The Court:

               1.

               Annuls the Commission’s decision of 27 March 2009 instructing the Central Administrator to enter a correction to the Belgian national allocation plan table into the Community independent transaction log, in so far as it contains a refusal to instruct the Central Administrator to enter an allowance allocation correction in favour of installation No 116 named ‘Arcelor-Cockerill Sambre_HF6_Seraing’, as requested by the Kingdom of Belgium in its letter of 18 February 2009;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 193, 15.8.2009.


title: Case C-418/16 P: Appeal brought on 28 July 2016 by mobile.de GmbH, formerly mobile.international GmbH, against the judgment of the General Court (Eighth Chamber) delivered on 12 May 2016 in Joined Cases T-322/14 and T-325/14, mobile.international v EUIPO — Rezon

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/28

         Appeal brought on 28 July 2016 by mobile.de GmbH, formerly mobile.international GmbH, against the judgment of the General Court (Eighth Chamber) delivered on 12 May 2016 in Joined Cases T-322/14 and T-325/14, mobile.international v EUIPO — Rezon
   (Case C-418/16 P)
   (2016/C 419/37)
   Language of the case: German

      Parties

      Appellant: mobile.de GmbH, formerly mobile.international GmbH (represented by: T. Lührig, Rechtsanwalt)

      Other parties to the proceedings: European Union Intellectual Property Office, Rezon OOD

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the Eighth Chamber of the General Court of 12 May 2012 in Joined Cases T-322/14 and T-325/14;

               —

               order the European Union Intellectual Property Office to pay the costs of the proceedings.

      Grounds of appeal and main arguments

   The judgment under appeal infringes Article 57(2) of Regulation (EC) No 207/2009, (1) read in conjunction with Rules 22(2) and 40(6) of Regulation (EC) No 2868/95, (2) because it interprets the well-defined concept of ‘proof of use’ in Article 57(2) of Regulation No 207/2009 and in Rules 22(2) and 40(6) of Regulation No 2868/95 differently, contrary to the generally recognised interpretative principles of legal methodology. The divergent interpretation of the same term in Regulation No 207/2009 and in Regulation No 2868/95 is incompatible with the principles of legal certainty and legal clarity. Moreover, the General Court disregards the fact that Rules 40(6) and 22(2) of Regulation No 2868/95 exclude a late submission of evidence of use in cancellation proceedings and that EUIPO has no discretion in that regard. Article 57(1) of Regulation No 207/2009 is not applicable and EUIPO has not made use of it, with the result that the decision of the Boards of Appeal and of the General Court cannot be based on it.
   The judgment under appeal also infringes Article 76(2) of Regulation No 207/2009 inasmuch as the General Court erred in law by assuming that Article 76(2) of Regulation No 207/2009 was applicable, even though Rules 40(6) and 22(2) of Regulation No 2868/95 preclude its applicability to invalidity proceedings due to the systematic interpretation of Rule 50(1)(3) of Regulation No 2868/95.
   Moreover, the requirements of Article 76(2) of Regulation No 207/2009 were not satisfied because the intervener did not at any point in the proceedings put forward any legitimate reason for the late submission of the invoices that had been available to it from the outset. The General Court therefore incorrectly applied Article 76(2) of Regulation No 207/2009, because the stage of the proceedings reached and the surrounding circumstances already meant that no account could be taken of the evidence that had been submitted late. In addition, the General Court distorted the facts by wrongly setting out the factual background, with the result that the invoices submitted at the appeal stage did not constitute ‘additional’ or ‘clarifying’ evidence in that regard.
   The General Court did not examine either the phonetic or the conceptual differences between the signs actually used and, on the whole, did not base itself on the overall impression of the signs, but rather took into account only individual elements, therefore incorrectly applying Article 15(1)(a) of Regulation No 207/2009.
   The General Court took into account manifestly irrelevant evidence, even though that evidence was undated or fell outside the relevant period. By doing so, the General Court incorrectly applied Article 57(2) of Regulation No 207/2009, read in conjunction with Rule 22(3) and (4) of Regulation No 2868/95.
   The General Court erred in law in assuming that it was not required to examine the objection of abuse of law. The General Court failed entirely to examine the objection of prescription.
   Finally, the judgment under appeal infringes Article 64(1) of Regulation No 207/2009 since the General Court disregarded the fact that the Boards of Appeal ought logically to have set aside and remitted the decisions of the Cancellation Division only in respect of the services consisting of ‘advertising related to vehicles’ and, with regard to the remaining services in respect of which use had not been proved, ought to have given a final decision and ought to have expressed the partial rejection of the requests for cancellation on the ground of absence of proof of use by way of a ruling capable of having legal force.

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

      (2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).


title: Case C-320/12: Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 2 July 2012 — Malaysia Dairy Industries Pte. Ltd v Ankenævnet for Patenter og Varemærker

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/14

         Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 2 July 2012 — Malaysia Dairy Industries Pte. Ltd v Ankenævnet for Patenter og Varemærker
   (Case C-320/12)
   2012/C 258/22
   Language of the case: Danish

      Referring court

   Højesteret

      Parties to the main proceedings

      Applicant: Malaysia Dairy Industries Pte. Ltd

      Defendant: Ankenævnet for Patenter og Varemærker

      Questions referred

               1.

               Is the concept of bad faith in Article 4(4)(g) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (1) an expression of a legal standard which may be filled out in accordance with national law, or is it a concept of European Union law which must be given a uniform interpretation throughout the European Union?

               2.

               If the concept of bad faith in Article 4(4)(g) of Directive 2008/95/EC is a concept of European Union law, must the concept be understood as meaning that it may suffice that the applicant knew or should have known of the foreign mark at the time of filing the application, or is there a further requirement concerning the applicant’s subjective position in order for registration to be denied?

               3.

               Can a Member State choose to introduce a specific protection of foreign marks which, in relation to the requirement of bad faith, differs from Article 4(4)(g) of Directive 2008/95/EC, for example by laying down a special requirement that the applicant knew or should have known of the foreign mark?

      (1)  Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25).


title: Case T-471/04: Judgment of the Court of First Instance of  23 February 2006  — Karatzoglou v EAR (Member of the temporary staff — Termination of contract — Article 47(2)(a) of the Conditions of Employment of Other Servants of the European Communities — Observance of the provisions of the contract — Legitimate expectations)

text:
               22.4.2006

               EN

               Official Journal of the European Union

               C 96/13

         Judgment of the Court of First Instance of 23 February 2006 — Karatzoglou v EAR
   (Case T-471/04) (1)

   (Member of the temporary staff - Termination of contract - Article 47(2)(a) of the Conditions of Employment of Other Servants of the European Communities - Observance of the provisions of the contract - Legitimate expectations)
   (2006/C 96/24)
   Language of the case: English
   Parties

      Applicant: Georgios Karatzoglou (Ioannina, Greece), represented by S. Pappas, lawyer)

      Defendant: European Agency for Reconstruction (EAR) (represented by J.-N. Louis, S. Orlandi, X. Martin and C. Manolopoulos, lawyers)
   Application
   for annulment of the decision of the EAR of 26 February 2004 to terminate the applicant's contract of employment
   Operative part of the judgment
   The Court:

               1.

               Annuls the decision of the European Agency for Reconstruction (EAR) of 26 February 2004 terminating the applicant's contract of employment;

               2.

               Orders the EAR to pay the costs.

      (1)  OJ C 57, 5.3.2005.


               5.2.2015

               EN

               Official Journal of the European Union

               C 39/4

         Action brought on 1 December 2014 by Kimek Offshore AS against the EFTA Surveillance Authority
   (Case E-23/14)
   (2015/C 39/04)
   An action against the EFTA Surveillance Authority was brought before the EFTA Court on 1 December 2014 by Kimek Offshore AS, represented by Bjørnar Alterskjær, advokat, and Robert Lund, advokat, ALT Law Firm, Fridtjof Nansens plass 6, N-0160 Oslo, Norway.
   The applicant requests the EFTA Court:

               1.

               To annul the EFTA Surveillance Authority’s Decision No 225/14/COL of 18 June 2014 on regionally differentiated social security contributions 2014-2020;

               2.

               To order the EFTA Surveillance Authority to bear the costs of the proceedings.

      Legal and factual background and pleas in law adduced in support:

               —

               The applicant, Kimek Offshore, is part of the Kimek Group. Kimek Offshore is a service company in the oil and gas business and hires out mainly welders, pipe welders, mechanics and engineers. Its administration and management is located in Kirkenes, Norway.

               —

               The case concerns an application for annulment of a decision by the EFTA Surveillance Authority approving regional aid in Norway for the period 2014-2020.

         The applicant claims that the EFTA Surveillance Authority has:

               —

               breached its obligation to open the formal investigation procedure provided for in Article 1(2) of Part I of Protocol 3 and Article 6(1) in Section II of Protocol 3 to the Surveillance and Court Agreement (SCA) (Article 4(4) of Section II of Protocol 3 SCA);

               —

               breached its obligation to state the reasons on which a decision is made with regard to rules on social security taxation pertaining to the hiring of workers, according to Article 16 SCA.


title: Case T-462/08: Order of the Court of First Instance of 21 April 2009 — Winzer Pharma v OHIM — Alcon (OFTAL CUSI) (Community trade mark — Annulment of the decision of the Board of Appeal — No need to adjudicate)

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/11

         Order of the Court of First Instance of 21 April 2009 — Winzer Pharma v OHIM — Alcon (OFTAL CUSI)
   (Case T-462/08) (1)

   (Community trade mark - Annulment of the decision of the Board of Appeal - No need to adjudicate)
   2009/C 167/24
   Language of the case: Spanish

      Parties

      Applicant: Dr. Robert Winzer Pharma GmbH (Berlin, Germany) (represented by: S. Schneller, 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 intervening before the Court of First Instance: Alcon Inc. (Hünenberg, Switzerland) (represented by: J. Isern Jara and M. Vidal-Quadras Trias de Bes, lawyers)

      Re:

   Action brought against the decision of the Board of Appeal of OHIM of 17 July 2008 (case R 1471/2007-1), relating to opposition proceedings between Dr. Robert Winzer Pharma GmbH and Alcon Inc.

      Operative part of the order

               1.

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

               2.

               The defendant is ordered to bear its own costs and the costs incurred by the applicant.

               3.

               The intervener is ordered to bear its own costs.

      (1)  OJ C 327 of 20.12.2008.


title: Case C-125/10: Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 9 March 2010 — Merck & Co Inc v Deutsches Patent- und Markenamt

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/17

      Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 9 March 2010 — Merck & Co Inc v Deutsches Patent- und Markenamt
      (Case C-125/10)
      (2010/C 161/24)
      Language of the case: German

         Referring court

      Bundespatentgericht

         Parties to the main proceedings

         Applicant: Merck & Co Inc

         Defendant: Deutsches Patent- und Markenamt

         Question referred

      Can a supplementary protection certificate for medicinal products (1) be granted if the period of time between the filing of the application for the basic patent and the date of first authorisation for marketing in the Community is shorter than five years?

         (1)  Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (codified version); OJ 2009 L 152, p. 1


title: Case F-67/08: Action brought on 6 August 2008 — Visser-Fornt Raya v Europol

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/55

         Action brought on 6 August 2008 — Visser-Fornt Raya v Europol
   (Case F-67/08)
   (2008/C 285/99)
   Language of the case: Dutch
   Parties

      Applicant: Maria Teresa Visser-Fornt Raya (The Hague, Netherlands) (represented by: P. Casparis, lawyer)

      Defendant: European Police Office (Europol)
   Subject-matter and description of the proceedings
   Annulment of the decision of 4 October 2007 by which Europol informed the applicant that there was no possibility of offering her a permanent post
   Form of order sought

               —

               Annul the decision of 4 October 2007 by which the defendant informed the applicant that there was no possibility of offering her a permanent post, the decision of 29 April 2008 rejecting the complaint against the earlier decision and the decision of 12 June 2008, which follows on from that of 4 October 2007;

               —

               Order Europol to pay the costs.


title: Case F-90/13: Order of the Civil Service Tribunal (Second Chamber) of 19 March 2015 — Marcuccio v Commission (Exclusion of the representative of a party from the proceedings — Failure to designate a new representative — Applicant no longer responding to communications from the Tribunal — No need to adjudicate)

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/49

         Order of the Civil Service Tribunal (Second Chamber) of 19 March 2015 — Marcuccio v Commission
   (Case F-90/13) (1)

   ((Exclusion of the representative of a party from the proceedings - Failure to designate a new representative - Applicant no longer responding to communications from the Tribunal - No need to adjudicate))
   (2015/C 146/67)
   Language of the case: Italian

      Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: A., lawyer)

      Defendant: European Commission (represented by: C. Berardis-Kayser and G. Gattinara, acting as Agents)

      Re:

   Application for annulment of the decision rejecting the applicant’s requests for compensation for the harm suffered as a result of the infringement alleged of the applicant’s right to confidentiality caused by the defendant’s sending a letter concerning him to a lawyer who did not represent him.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action in Case F-90/13 Marcuccio v Commission.

               2.

               Mr Marcuccio shall bear his own costs and pay the costs incurred by the European Commission.

      (1)  OJ C 24, 25.1.2014, p. 40.


title: Case C-144/03: Action brought on 31 March 2003 by Commission of the European Communities against Portuguese Republic

text:
C 146/26               EN                        Official Journal of the European Union                                            21.6.2003
Action brought on 31 March 2003 by Commission of the                     (National Social Security Institute) (INSS) on the following
    European Communities against Portuguese Republic                     questions:
                         (Case C-144/03)
                                                                         1.      Are Form E-111 and in particular Form E-112, the issue
                         (2003/C 146/43)                                         of which is provided for in Articles 22(1)(c) of Regulation
                                                                                No 1408/71 (1) and Article 22(1) and (3) of Regulation
                                                                                No 574/72 ( 2), binding on the competent institution
An action against the Portuguese Republic was brought before                     which issues them (in this case the Spanish Social
the Court of Justice of the European Communities on 31 March                     Security) as regards the diagnosis made by the institution
2003 by the Commission of the European Communities,                              of the place of residence (in this case the German Public
represented by M. França and J. Flett, acting as Agents, with an                 Health Service), and specifically the conclusions reached
address for service in Luxembourg.                                               therein that the worker required an immediate surgical
                                                                                operation as the only treatment capable of saving her life
                                                                                and that the operation could only be carried out by a
The applicant claims that the Court should:                                      hospital in a country not belonging to the European
                                                                                Union, namely the University Clinic in Zurich, Switzer-
—     Declare that, by failing to adopt and bring into force the                 land, so that the institution of the place of residence may
      laws, regulations and administrative provisions necessary                  send the worker to that hospital without the competent
      to comply with Commission Directive 2000/52/EC (1) of                      institution being authorised to require the worker to
      26 July 2000 amending Directive 80/723/EEC on the                          return so that it can carry out the medical examinations
      transparency of financial relations between Member                         it considers appropriate and offer him [her] the care
      States and public undertakings, the Portuguese Republic                    options appropriate for the pathology which he [she]
      has failed to fulfil its obligations under Article 2 of                    presents?
      Directive 2000/52/EC;
—     declare in any event that, by failing to communicate
      forthwith those provisions to the Commission, the Portu-           2.      Is the principle of equal treatment laid down in Article 3
      guese Republic has failed to fulfil its obligations under                  of Regulation No 1408/71, which provides that workers
      Article 2 of Directive 2000/52/EC;                                         are to ‘... enjoy the same benefits under the legislation of
                                                                                any Member State as the nationals of that State’, in
—     order the Portuguese Republic to pay the costs.                            conjunction with Articles 19(1)(a) and 22(1)(i) of that
                                                                                regulation, which provide that a worker residing in the
                                                                                territory of another Member State is to be entitled to
Pleas in law and main arguments                                                  benefits in kind provided on behalf of the institution of
                                                                                the place of stay or residence in accordance with the
                                                                                provisions which it applies, as though he were insured
The period prescribed for implementation of the directive                        with it, to be interpreted as meaning that the competent
expired on 31 July 2001.                                                         institution is required to assume the costs of the health
                                                                                care provided by a country outside the European Union
( 1) OJ L 193 of 29.7.2000, p. 75.                                               when it is established that if the worker had been affiliated
                                                                                to or been insured by the institution of the place of
                                                                                residence he would have been entitled to that health
                                                                                benefit, when in addition the said health care — that is,
                                                                                health care in cases of life-threatening emergency pro-
                                                                                vided by private centres, including those in countries not
                                                                                belonging to the European Union — is among the
Reference for a preliminary ruling by the Juzgado de lo                          benefits provided for by the legislation of the competent
Social by order of that Court of 6 November 2002 in the
                                                                                State?
social security proceedings brought by Ms Annette Keller
against Instituto Nacional de la Salud (INSALUD) and
       Instituto Nacional de la Seguridad Social (INSS)
                                                                         (1 ) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on
                         (Case C-145/03)
                                                                              the application of social security schemes to employed persons
                                                                              and their families moving within the Community (OJ L 149 of
                         (2003/C 146/44)                                      05.07.1971, p. 2).
                                                                         (2 ) Regulation (EEC) No 574/72 of the Council of 21 March 1972
                                                                              fixing the procedure for implementing Regulation (EEC) No 1408/
Reference has been made to the Court of Justice of the                        71 on the application of social security schemes to employed
                                                                              persons and their families moving within the Community (OJ
European Communities by order of the Juzgado de lo Social                     L 74 of 27.03.1972, p. 1).
(Social Court) of 6 November 2002, received at the Court
Registry on 31 March 2003, for a preliminary ruling in the
social security proceedings brought by Ms Annette Keller
against Instituto Nacional de la Salud (National Health Institute)
(INSALUD) and Instituto Nacional de la Seguridad Social