title: Case C-173/16: Reference for a preliminary ruling from Court of Appeal (Ireland) made on 29 March 2016 — M.H. v M.H.

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/31

      Reference for a preliminary ruling from Court of Appeal (Ireland) made on 29 March 2016 — M.H. v M.H.
      (Case C-173/16)
      (2016/C 211/41)
      Language of the case: English

         Referring court

      Court of Appeal

         Parties to the main proceedings

         Applicant: M.H.

         Defendant: M.H.

         Question referred

      Is ‘the time when the document instituting the proceedings … is lodged with the court’ in Article 16.1(a) of Regulation 2201/2003 (1) to be interpreted as meaning:-

                  i)

                  the time at which the document instituting the proceedings is received by the court even if such receipt does not of itself immediately commence the proceedings in accordance with national law; or

                  ii)

                  the time at which, following receipt of the document instituting the proceedings by the court, the proceedings are commenced in accordance with national law.

         (1)  Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 OJ L 338, p. 1


title: Case T-144/07: Action brought on 7 May 2007 — ThyssenKrupp Liften Ascenseurs v Commission

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/29

         Action brought on 7 May 2007 — ThyssenKrupp Liften Ascenseurs v Commission
   (Case T-144/07)
   (2007/C 155/55)
   Language of the case: Dutch
   Parties

      Applicant: ThyssenKrupp Liften Ascenseurs NV/SA (Brussels, Belgium) (represented by: V. Turner and D. Mes, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the contested decision in so far as it relates to the applicant;

               —

               in the alternative, reduce the amount of the fine for which the applicant is held to be jointly and severally liable;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicant is challenging Commission Decision C(2007) 512 final (Case COMP/E-1/38.823 — PO/Elevators and Escalators). It seeks the annulment of the decision to the extent to which the latter concerns it, or alternatively a reduction in the fine imposed on it.
   In support of its action the applicant first of all submits that the Commission was not empowered to apply Article 81 EC inasmuch as the infringement did not have any significant effect on inter-State trade within the EU.
   In the alternative, the applicant submits that the Commission was not the appropriate competition authority for the application of Article 81 EC within the terms of the Commission Notice on cooperation within the network of competition authorities (1). According to the applicant, by initiating yet another set of proceedings, the Commission infringed the legitimate expectations which the applicant was able to derive from the application of that notice.
   Third, by instituting proceedings and imposing a fine, the Commission infringed the ne bis in idem principle, the principle of legal certainty, the principle of the protection of legitimate expectations and the principle of sound administration inasmuch as the Belgian competition authority had conferred on the applicant immunity from fines with regard to participation in the cartel-related offence which forms the subject-matter of the contested decision.
   Further, it is alleged that the Commission improperly concluded that the applicant, ThyssenKrupp Elevators AG and ThyssenKrupp AG were jointly and severally liable for the infringement which the applicant itself had committed.
   The applicant also submits that, in fixing the fine to be imposed, the Commission infringed Article 23 of Regulation No 1/2003 (2), the Commission's guidelines on setting fines (3), the principle of equality and the principle of proportionality. The Commission, it alleges, also failed to comply with the maximum level for fines laid down in Article 23.
   The applicant further submits that the Commission breached the leniency notice (4) and the principle of equality when determining the amount of the reduction in the fine to be imposed on the applicant by reason of its cooperation within the framework of the leniency notice.
   Finally, the applicant alleges that the Commission infringed the principles of equality, proportionality, protection of legitimate expectations and sound administration when determining the amount of the reduction in the fine to be imposed on the applicant by reason of its cooperation outwith the framework of the leniency notice.

      (1)  OJ 2004 C 101, p. 43.

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

      (3)  Commission notice: Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3).

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


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/33

         Removal from the register of Case C-225/01 (1)

   (2004/C 94/75)
   By order of 26 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-225/01 (Reference for a preliminary ruling by the Tribunale civile di Genova): Off-Road Action sas Model Toys di Luca Luperini v Prefetto di Genova.

      (1)  OJ C 227 of 11.08.2001.


title: Joined Cases C-43/13 and C-44/13: Judgment of the Court (Fourth Chamber) of 3 April 2014 (requests for a preliminary ruling from the Bundesfinanzhof — Germany) — Hauptzollamt Köln v Kronos Titan GmbH (C-43/13), Hauptzollamt Krefeld v Rhein-Ruhr Beschichtungs-Service GmbH (C-44/13) (Directive 2003/96/EC — Taxation of energy products — Products not listed in Directive 2003/96/EC — Meaning of ‘equivalent heating fuel or motor fuel’ )

text:
               26.5.2014

               EN

               Official Journal of the European Union

               C 159/9

         Judgment of the Court (Fourth Chamber) of 3 April 2014 (requests for a preliminary ruling from the Bundesfinanzhof — Germany) — Hauptzollamt Köln v Kronos Titan GmbH (C-43/13), Hauptzollamt Krefeld v Rhein-Ruhr Beschichtungs-Service GmbH (C-44/13)
   (Joined Cases C-43/13 and C-44/13) (1)

   ((Directive 2003/96/EC - Taxation of energy products - Products not listed in Directive 2003/96/EC - Meaning of ‘equivalent heating fuel or motor fuel’))
   2014/C 159/11
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Appellants: Hauptzollamt Köln (C-43/13), Hauptzollamt Krefeld (C-44/13)

      Respondents: Kronos Titan GmbH (C-43/13), Rhein-Ruhr Beschichtungs-Service GmbH (C-44/13)

      Re:

   Request for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 2(3) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51) — Taxation of energy products other than those for which a level of taxation is specified in the directive — Meaning of equivalent heating fuel or motor fuel — Possibility of applying to a product used as heating fuel the tax rate laid down for a product which has the closest chemical composition, where that product is subject to a higher rate of taxation than that laid down for heating fuel since it may be used as motor fuel

      Operative part of the judgment

   The condition, laid down in Article 2(3) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, according to which energy products other than those for which a level of taxation is specified in the directive are to be taxed according to use, at the rate for the equivalent heating fuel or motor fuel, must be construed as meaning that it must be determined, first, whether the product at issue is used as heating fuel or motor fuel, before identifying, secondly, for which of the motor fuels or the heating fuels, as the case may be, listed in the corresponding table in Annex I to that directive the product at issue is in fact a substitute in terms of use or, failing that, which of those motor fuels or those heating fuels is, by its properties and intended use, the closest to it.

      (1)  OJ C 123, 27.4.2013.


title: Case T-553/10: Judgment of the General Court of 13 March 2013 — Biodes v OHIM — Manasul Internacional (FARMASUL) (Community trade mark — Opposition proceedings — Application for the Community figurative mark FARMASUL — Earlier Spanish figurative mark MANASUL — Relative ground for refusal — Likelihood of confusion — Distinctive character of the earlier mark — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               27.4.2013

               EN

               Official Journal of the European Union

               C 123/16

         Judgment of the General Court of 13 March 2013 — Biodes v OHIM — Manasul Internacional (FARMASUL)
   (Case T-553/10) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark FARMASUL - Earlier Spanish figurative mark MANASUL - Relative ground for refusal - Likelihood of confusion - Distinctive character of the earlier mark - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2013/C 123/26
   Language of the case: Spanish

      Parties

      Applicant: Biodes, SL (Madrid, Spain) (represented by: E. Manresa Medina, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Manasul Internacional, SL (Ponferrada, Spain) (represented by: M.I. Escudero Pérez, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 3 September 2010 (Case R 1034/2009-1), relating to opposition proceedings between Manasul Internacional, SL and Biodes, SL

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders Biodes, SL to pay the costs.

      (1)  OJ C 30, 29.1.2011.


title: Case T-24/15: Order of the General Court of 5 April 2016 — NICO v Council

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/45

         Order of the General Court of 5 April 2016 — NICO v Council
   (Case T-24/15) (1)

   (2016/C 191/61)
   Language of the case: English
   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 89, 16.3.2015.


title: Case C-136/05: Action brought on 22 March 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/16

         Action brought on 22 March 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg
   (Case C-136/05)
   (2005/C 115/29)
   Language of the case: French
   An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 22 March 2005 by the Commission of the European Communities, represented by Enrico Traversa and Denis Martin, acting as Agents, with an address for service in Luxembourg.
   The Commission of the European Communities claims that the Court should:

               —

               declare that, by having failed to adopt the measures necessary to comply with the judgment delivered by the Court on 6 March 2003 in Case C-478/01 concerning the obligation for patent agents, when supplying services, to opt for domicile with an approved agent, the Grand Duchy of Luxembourg has failed to fulfil its duties under Articles 49 EC and 10 EC,

               —

               order the Grand Duchy of Luxembourg to pay the costs.

         Pleas in law and main arguments
   In its judgment delivered on 6 March 2003 in Case C-478/01, the Court ruled that:

      ‘[H]aving regard to the requirement that patent agents, when supplying services, should elect domicile with an approved agent, and having regard to the fact that the Luxembourg Government did not supply information concerning the precise conditions for the application of Article 85(2) of the Law of 20 July 1992 amending the rules on patents and Articles 19 and 20 of the Law of 28 December 1998 governing access to craft trades, business and industry, and to certain liberal professions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC and Article 10 EC respectively.’

   In accordance with the procedure laid down in Article 228 EC, by letter of 19 December 2003 the Commission reminded the Grand Duchy of Luxembourg that it was required to comply with its obligations under the judgment delivered in Case C-478/01 and invited it to submit observations within a period of two months.
   That letter having gone unanswered, the Commission sent a reasoned opinion to the Luxembourg authorities by letter on 9 July 2004.
   No reply was given to the reasoned opinion either.
   The Luxembourg authorities having answered neither the letter of formal notice nor the reasoned opinion, it is unarguable that they have not, to date, taken the measures necessary to comply with the judgment delivered in Case C-478/01.
   In accordance with the second sentence of the second subparagraph of Article 228(2), the Commission has specified in its application the amount of the lump sum or penalty payment to be paid by the Member State concerned that it considers appropriate in the circumstances.
   In this instance, the Commission takes the view that a penalty payment of EUR 9 100 a day fits the seriousness and duration of the infringement and takes into consideration the need to give this penalty payment the required deterrent effect.


title: Case T-607/13: Judgment of the General Court of 19 May 2015 — Granette & Starorežná Distilleries v OHIM — Bacardi (42 VODKA JEMNÁ VODKA VYRÁBĚNÁ JEDINEČNOU TECHNOLOGIÍ 42 % vol.) (Community trade mark — Opposition proceedings — Application for Community figurative mark 42 VODKA JEMNÁ VODKA VYRÁBĚNÁ JEDINEČNOU TECHNOLOGIÍ 42 % vol — Earlier international figurative mark 42 BELOW — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               29.6.2015

               EN

               Official Journal of the European Union

               C 213/31

         Judgment of the General Court of 19 May 2015 — Granette & Starorežná Distilleries v OHIM — Bacardi (42 VODKA JEMNÁ VODKA VYRÁBĚNÁ JEDINEČNOU TECHNOLOGIÍ 42 % vol.)
   (Case T-607/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community figurative mark 42 VODKA JEMNÁ VODKA VYRÁBĚNÁ JEDINEČNOU TECHNOLOGIÍ 42 % vol - Earlier international figurative mark 42 BELOW - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2015/C 213/53)
   Language of the case: Czech

      Parties

      Applicant: Granette & Starorežná Distilleries a.s, (Ústí nad Labem, Czech Republic) (represented by: T. Chleboun, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially by D. Gája and P. Geroulakos, subsequently by M. Geroulakos and M. Šimandlova, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Bacardi C. Ltd (Vaduz, Liechtenstein) (represented by: M. Reinisch, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 16 September 2013 (Case R 1605/2012-2) relating to opposition proceedings between Bacardi Co. Ltd and Granette & Starorežná Distilleries a.s.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Granette & Starorežná Distilleries .a.s to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and by Bacardi Co. Ltd.

      (1)  OJ C 45, 15.2.2014.


title: Case T-159/06: Order of the Court of First Instance of 13 December 2007 — Estancia Piedra v OHIM — Franciscan Vineyards (ESTANCIA PIEDRA)

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/60

         Order of the Court of First Instance of 13 December 2007 — Estancia Piedra v OHIM — Franciscan Vineyards (ESTANCIA PIEDRA)
   (Case T-159/06) (1)

   (2008/C 51/109)

      Language of the case: English

   The President of the Court of First Instance (Fifth Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 190, 12.8.2006


title: Appeal brought on 18 December 1995 by Geotronics SA against the judgment delivered on 26 October 1995 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-185/94 between Geotronics SA and the Commission of the European Communities (Case C-395/95 P)

text:
No C 46/8             EN                   Official Journal of the European Communities                                      17 . 2 . 96
Action brought on 15 December 1995 by the European                    Geotronics SA, represented by Tommy Petterson, of the
   Parliament against the Council of the European Union               Swedish Bar, with an address for service in Luxembourg at
                       ( Case C-392/95 )                              the Chambers of Arendt & Medernach, 8— 10, rue Mathias
                                                                      Hardt .
                          ( 96/C 46/12 )
An action against the Council of the European Union was               The Appellant claims that the Court should :
brought before the Court of Justice of the European
Communities on 15 December 1995 by the European                       1 . set aside the abovementioned judgment of the Court of
Parliament, represented by Johann Schoo and Jose-Luis                       First Instance (the CFI );
Rufas Quintana , acting as Agents, with an address for
service in Luxembourg at the General Secretariat of the               2. annul the decision addressed to Geotronics taken by the
European Parliament, Tower Building.                                        Commission rejecting Geotronics' tender as notified in a
                                                                            telefax received by Geotronics on 10 March 1994 ;
The applicant claims that the Court should:
                                                                      3.    in the alternative declare that the Commission should
— annul, pursuant to Article 173 of the EC Treaty, Council                  compensate Geotronics for the damage Geotronics has
     Regulation No 2317/95 of 25 September 1995                             suffered as a result of the decision, at the amount of ECU
     determining the third countries whose nationals must be                500 400 plus interest for each calendar month
     in possession of visas when crossing the external borders              corresponding to Libor 30 days plus 1 % on that
     of the Member States ( M ,                                             amount as from the date on which Geotronics was
                                                                            notified of the Commission's decision until payment is
— order the defendant to pay the costs .                                    made;
Pleas in law and main arguments                                       4 . order the Commission to pay all the costs of the
                                                                            proceedings, including those incurred in the proceedings
Infringement of essential procedural requirements : in                      before the CFI .
adopting the contested regulation, the Council substantially
amended the proposal of the Commission on which the
Parliament had delivered its opinion pursuant to                      Pleas in law and main arguments
Article 100c of the EC Treaty. The Parliament should have
been reconsulted on                                                   Admissibility
— the right reserved to the Member States in Article 2 ( 1 ) of       The Court of First Instance rejected Geotronics' claim for
     the regulation to require the possession of a visa by             annulment of the Commission's decision of 10 March 1994
     nationals of third countries not on the common list,              is inadmissible. The Court of First Instance thereby erred in
     which disregards the objective of the harmonization of            law by not regarding the Commission's decision as an act or
     visa policy,                                                      decision which may be the subject of an action under
                                                                       Article 173 of the EC Treaty. The Commission's decision
— the mutual non-recognition of visas issued by each                   produced binding legal effects on Geotronics that affected
      Member State ( resulting from the removal of Article 2 of        its interests by distinctly changing its legal position and,
      the Commission's proposal ).                                     therefore, constitutes a decision which may be the subject of
                                                                       an action under Article 173 .
 (>) OJ No L 234, 1995 , p . 1 .
                                                                       Substance
                                                                       The Court of First Instance concluded that, in the absence of
                                                                       any unlawful conduct whatever on the part of the
                                                                        Commission, Geotronics' claim for compensation must be
 Appeal brought on 18 December 1995 by Geotronics SA                   rejected as unfounded. The Court of First Instance therefore
 against the judgment delivered on 26 October 1995 by the              erred in law by not upholding Geotronics' view that the
 Fourth Chamber of the Court of First Instance of the
                                                                        Commission had infringed the EEA Agreement by
 European Communities in Case T-185/94 ( ] ) between                    discriminating against goods of EEA origin. The
 Geotronics SA and the Commission of the European
                           Communities
                                                                        Commission is bound by the EEA Agreement in accordance
                                                                        with Article 228 ( 7 ) of the EC Treaty.
                       ( Case C-395 /95 P)
                            ( 96/C 46/13 )                              The issue of retroactivity
  An appeal against the judgment delivered on 26 October                The Court of First Instance found that the Commission was
  1995 by the Fourth Chamber of the Court of First Instance             right to rely on the general conditions laid down by it in the
  of the European Communities in Case T-185/94 between                  invitation to tender before the entry into force of the EEA
  Geotronics SA and the Commission of the European                      Agreement. As a result thereof the Commission was entitled
  Communities, was brought before the Court of Justice of               to discriminate against Geotronics' products on grounds of
  the European Communities on 18 December 1995 by                       their provenance .
 ---pagebreak--- 17 . 2 . 96            EN                   Official Journal of the European Communities                                    No C 46/9
The decision to reject Geotronics' tender on grounds of                answer is in the affirmative, is that rule justified on grounds
origin was undoubtedly taken after the entry into force of             of the general interest in maintaining industrial peace in the
the EEA Agreement. The EEA Agreement applies to all legal              sensitive area of the supply of tourist services, in respect of
situations which arise after its entry into force . Geotronics         which the Greek State, as a country for which tourism is
therefore contends that there is no retroactivity in the               important, has a reasonable and justifiable interest in
present case .                                                         intervening by regulation ?
The scope of the EEA Agreement
The Court of First Instance ruled that the EEA Agreement
cannot apply to the contract at issue since one of the parties
of the Contract, Romania , is not a party to the EEA                   Reference for a preliminary ruling by the Sø- og Handelsret
Agreement. This is a formalistic conclusion which overlooks            by order of that court of 19 December 1995 in the case of
the economic reality of the situation. That reality is that            Handels- og Kontorfunktionærernes Forbund i Danmark,
there is in fact, as a result of the Commission's decision ,           acting on behalf of Helle Elisabeth Larsson, v. Dansk
discrimination between two EEA producers of equivalent                 Handel & Service, acting on behalf of Føtex Supermarked
products . The economic reality of the transaction and the                                                A/S
actions taken in relation thereto should be decisive .                                           ( Case C-400/95 )
                                                                                ( 96/C 46/15 )
It is submitted that the present situation falls within the
scope of the EEA Agreement. Geotronics further maintains
that the Commission has discriminated in a manner likely to            Reference has been made to the Court of Justice of the
distort competition between products originating in the EC             European Communities by order of the Sø- og Handelsret
and EFTA states by giving an unfair competitive advantage              ( Maritime and Commercial Court) of 19 December 1995 ,
to the former . Such discrimination hinders the free                   which was received at the Court Registry on 21 December
movement of goods contrary to Articles 8 , 11 and 65 ( 1 ) of          1995 , for a preliminary ruling in the case of Handels- og
the EEA Agreement.                                                     Kontorfunktionærernes Forbund i Danmark (Union of
                                                                       Commercial and Clerical Employees in Denmark ), acting on
                                                                       behalf of Helle Elisabeth Larsson, v. Dansk Handel &
 (•) OJ No C 333 , 9 . 12 . 1995 , p . 33 .                            Service ( Danish Commercial and Service-Industries
                                                                       Association ), acting on behalf of Føtex Supermarked A/S, on
                                                                       the following question:
                                                                       Does Article 5 ( 1 ), in conjunction with Article 2 ( 1 ), of
                                                                       Council Directive 76/207/EEC of 9 February 1976 on the
                                                                       implementation of the principle of equal treatment for men
 Reference for a preliminary ruling by the Simvoulio tis               and women as regards access to employment, vocational
 Epikratias tis Ellados ( Council of State, Greece ), by a             training and promotion, and working conditions ( x ), cover
 decision of that court of 7 November 1995 in the case of              dismissal as a result of absence following the end of
 Sindesmos ton en Elladi Touristikon kai Taxidiotikon                  maternity leave if the absence is attributable to an illness
              Grafion v. Minister of Employment                        which arose during pregnancy and continued during and
                         ( Case C-398/95 )
                                                                        after maternity leave, it being assumed that the dismissal
                                                                        took place after the end of the maternity leave ?
                            ( 96/C 46/14 )
                                                                        (') OJ No L 39 , 14 . 2 . 1976 , p . 40 .
 Reference has been made to the Court of Justice of the
 European Communities by a decision of the Simvoulio tis
 Epikratias tis Ellados of 7 November 1995 , which was
 received at the Court Registry on 18 December 1995 , for a
 preliminary ruling in the case of Sindesmos ton en Elladi
 Touristikon kai Taxidiotikon Grafion (Association of                   Reference for a preliminary ruling from the Rechtbank van
 Tourist and Travel Agencies in Greece ) v. Minister of                 Eerste Aanleg te Brussel, by judgment of that court of
 Employment, supported by the Somatio Diplomatoukhon                    12 December 1995 , in the case of B. R. D. (Bureau RIK
 Xenagon ( Association of Certified Tourist Guides ) and the            DECAN-Business Research & Development ) NV v. Belgian
 Panellinia Omospondia Xenagon ( Panhellenic Federation of                                                State
 Tourist Guides ) on the following question:
                                                                                Case C-401 /95 )
 Is the rule in Article 37 of Law No 1545/1985 which, in the                                         ( 96/C 46/ 16 )
 circumstances referred to therein, prescribes a mandatory
  legal form of a relationship of non-independent                       Reference has been made to the Court of Justice of the
  employment between the parties — the legal form under                 European Communities by judgment of the Rechtbank van
  which it is usual for the services of tourist guides to be            Eerste Aanleg te Brussel ( Court of First Instance, Brussels ),
  provided in the circumstances described in that Article —              by judgment of that court of 12 December 1995 , which was
  contrary to Articles 59 et seq. of the EC Treaty ? If the             received at the Court Registry on 21 December 1995 , for a


title: Judgment of the Court (Fifth Chamber) of 23 October 2003 in Case C-245/01 (Reference for a preliminary ruling from the Niedersächsisches Oberverwaltungsgericht): RTL Television GmbH v Niedersächsische Landesmedienanstalt für privaten Rundfunk (Directive 89/552/EEC — Article 11(3) — Television broadcasting — Television advertising — Advertising breaks in audiovisual works — Definition of "series")

text:
13.12.2003               EN                           Official Journal of the European Union                                                C 304/3
2.    Refers the case back to the Court of First Instance;                    2.    The connections which must link films in order that they can
                                                                                come within the exception laid down for ‘series’ by Article 11(3)
3.    Reserves the costs.                                                           of Directive 89/552 must relate to the content of the films
                                                                                concerned, such as, for example, the development of the same
                                                                                story from one episode to another or the reappearance of one or
(1) OJ C 200 of 14.07.2001.
                                                                                more characters in different episodes.
                                                                              (1) OJ C 289 of 13.10.2001.
                  JUDGMENT OF THE COURT
                           (Fifth Chamber)
                        of 23 October 2003
                                                                                JUDGMENT OF THE COURT
in Case C-245/01 (Reference for a preliminary ruling from
the Niedersächsisches Oberverwaltungsgericht): RTL
Television GmbH v Niedersächsische Landesmedienan-                                                   of 21 October 2003
                 stalt für privaten Rundfunk (1)
                                                                              In Joined Cases C-261/01 and C-262/01 (Reference for a
(Directive 89/552/EEC — Article 11(3) — Television broad-                     preliminary ruling from the Hof van Beroep te Antwer-
casting — Television advertising — Advertising breaks in                      pen): Belgische Staat v Eugene Van Calster, Felix Cleeren
          audiovisual works — Definition of ‘series’)                         (C-261/01) and between Belgische Staat and Openbaar
                                                                                Slachthuis NV (C-262/01) (1)
                           (2003/C 304/04)
                                                                              (Aid financed by parafiscal charges — Compulsory charges
                   (Language of the case: German)                             to finance a fund for animal health and livestock production
                                                                              — Retroactive effect of the charges — Validity of a
(Provisional translation; the definitive translation will be published        Commission decision concerning State aid — Powers of the
                    in the European Court Reports)                                                        Commission)
                                                                                (2003/C 304/05)
In Case C-245/01: Reference to the Court under Article 234
EC by the Niedersächsisches Oberverwaltungsgericht (Ger-
many) for a preliminary ruling in the proceedings pending                                         (Language of the case: Dutch)
before that court between RTL Television GmbH and Nieder-
sächsische Landesmedienanstalt für privaten Rundfunk, on the
interpretation of Article 11(3) of Council Directive 89/552/                  (Provisional translation; the definitive translation will be published
EEC of 3 October 1989 on the coordination of certain                                             in the European Court Reports)
provisions laid down by law, regulation or administrative
action in Member States concerning the pursuit of television
broadcasting activities (OJ 1989 L 298, p. 23), as amended by
Directive 97/36/EC of the European Parliament and of the                      In Joined Cases C-261/01 and C-262/01: Reference to the
Council of 30 June 1997 (OJ 1997 L 202, p. 60), the                           Court under Article 234 EC by the Hof van Beroep te
Court (Fifth Chamber), composed of: C.W.A. Timmermans                         Antwerpen (Belgium) for a preliminary ruling in the proceed-
(Rapporteur), President of the Fourth Chamber, acting for the                 ings pending before that court between Belgische Staat and
President of the Fifth Chamber, D.A.O. Edward and P. Jann,                    Eugene Van Calster, Felix Cleeren (C-261/01) and between
Judges; F.G. Jacobs, Advocate General; M.-F. Contet, Principal                Belgische Staat and Openbaar Slachthuis NV (C-262/01), on
Administrator, for the Registrar, has given a judgment on                     the interpretation of Community law, in particular of
23 October 2003, in which it has ruled:                                       Article 93 of the EC Treaty (now Article 88 EC) and Article 173
                                                                              of the EC Treaty (now, after amendment, Article 230 EC) and
1.    Films which have been made for television and which provide,            of the Commission Decision of 9 August 1996 relating to aid
      from their conception, for breaks for the insertion of advertising      measure No N 366/96, the Court, composed of: V. Skouris,
      are covered by the term ‘films made for television’ in                  President, P. Jann, C.W.A. Timmermans (Rapporteur), C. Gul-
      Article 11(3) of Council Directive 89/552/EEC of 3 October              mann, J.N. Cunha Rodrigues and A. Rosas (Presidents of
      1989 on the coordination of certain provisions laid down by             Chambers), D.A.O. Edward, A. La Pergola, J.-P. Puissochet,
      law, regulation or administrative action in Member States               R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges;
      concerning the pursuit of television broadcasting activities, as        F.G. Jacobs, Advocate General; H. von Holstein, Deputy
      amended by Directive 97/36/EC of the European Parliament                Registrar, has given a judgment on 21 October 2003, in which
      and of the Council of 30 June 1997.                                     it has ruled:


title: Case T-399/08: Action brought on 18 September 2008 — Clearwire Corporation v OHIM (CLEARWIFI)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/51

         Action brought on 18 September 2008 — Clearwire Corporation v OHIM (CLEARWIFI)
   (Case T-399/08)
   (2008/C 301/86)
   Language of the case: English
   Parties

      Applicant: Clearwire Corporation (Kirkland, United States) (represented by G. Konrad, 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 30 June 2008 in case R 706/2008-1; and

               —

               Order OHIM to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: The word mark CLEARWIFI for services in class 38 — international registration No W00 934 594

      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 Council Regulation No 40/94 as the grounds for refusal put forward by the Board of Appeal do not preclude registration.


title: Case T-165/13: Action brought on 20 March 2013 — Talanton v Commission

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/44

         Action brought on 20 March 2013 — Talanton v Commission
   (Case T-165/13)
   2013/C 156/83
   Language of the case: Greek

      Parties

      Applicant: Talanton AE — Simvouleftiki-Ekpaideftiki Etairia Dianomon, Parochis Ipiresion Marketigk kai Dioikisis Epicheiriseon (Talanton SA Business Consulting and Marketing Services) (Athens, Greece) (represented by M. Angelopoulos and K Damis, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               Declare that the rejection by the European Commission of the applicant’s costs amounting to Five hundred and seventy eight thousand, nine hundred and thirty seven euros (EUR 578 937), in respect of the contract for the project ‘A sophisticated multi-parametric system for the continuous — effective assessment and monitoring of motor status in Parkinson’s disease and other neurodegenerative diseases (PERFORM)’ on the basis of the audit report 11 ΒΑ135-006 constitutes a breach of its contractual obligations; and that the applicant should repay to the European Commission the sum of Twenty one thousand one hundred and seventy one euros (EUR 21 171 EUR) and not the sum of Four hundred and eighty seven thousand one hundred and one euros (EUR 487 101) and the sum of liquidated damages which will be determined by the European Commission and

               —

               Declare that the rejection by the European Commission of the applicant’s costs amounting to One hundred and fifty three thousand, one hundred and seventeen euros (EUR 153 117 EUR), in respect of the contract for the project ‘Point-of-Care MONitoring and Diagnostics for Autoimmune Diseases (POCEMON)’ on the basis of the audit report 11-ΒΑ135-006 constitutes a breach of its contractual obligations and that the applicant should repay to the European Commission the sum of One hundred and forty three thousand, six hundred and seventy one euros (EUR 143 671) and not the sum of Two hundred and seventy three thousand, five hundred and fifty nine euros and 63 cents (EUR 273 559,63) and the sum of liquidated damages which will be determined by the European Commission.

      Pleas in law and main arguments

   By this action, the applicant combines two actions.
   First, an action in respect of the Commission’s liability under contract No FP7-215952 for the implementation of the project ‘A sophisticated multi-parametric system for the continuous — effective assessment and monitoring of motor status in Parkinson’s disease and other neurodegenerative diseases (PERFORM)’ and under audit report 11-ΒΑ135-006, in accordance with Article 272 TFEU. In particular, the applicant maintains that the European Commission is liable because of breach of its contractual obligations and because of infringement of the principles of legitimate expectations and proportionality.
   Second, an action in respect of the Commission’s liability under contract No FP7-216088 for the implementation of the project ‘Point-of-Care MONitoring and Diagnostics for Autoimmune Diseases (POCEMON)’ and under audit report 11-ΒΑ135-006, in accordance with Article 272 TFEU. In particular, the applicant maintains that the European Commission is liable because of breach of its contractual obligations and because of infringement of the principles of legitimate expectations and proportionality.


title: Case T-290/13: Order of the General Court of 10 November 2014  — CMBG v Commission and ECB (Action for annulment and compensation — Stability support programme for Cyprus — Memorandum of Understanding on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the ESM — Jurisdiction of the General Court — Causal link — Action in part inadmissible and in part manifestly lacking any foundation in law)

text:
               26.1.2015

               EN

               Official Journal of the European Union

               C 26/29

         Order of the General Court of 10 November 2014 — CMBG v Commission and ECB
   (Case T-290/13) (1)

   ((Action for annulment and compensation - Stability support programme for Cyprus - Memorandum of Understanding on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the ESM - Jurisdiction of the General Court - Causal link - Action in part inadmissible and in part manifestly lacking any foundation in law))
   (2015/C 026/35)
   Language of the case: English

      Parties

      Applicant: CMBG Ltd (Tortola, British Virgin Islands, United Kingdom) (represented by: C. Paschalides, Solicitor, and A. Paschalides, lawyer)

      Defendants: European Commission (represented by: B. Smulders and J.-P. Keppenne, Agents); and European Central Bank (ECB) (represented by: A. Sáinz de Vicuña Barroso, N. Lenihan and F. Athanasiou, Agents, and by W. Bussian, W. Devroe and D. Arts, lawyers)

      Re:

   First, application for annulment of paragraphs 1.23 to 1.27 of the Memorandum of Understanding on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM) on 26 April 2013, and, second, for compensation for damage allegedly suffered by the applicant as a result of the inclusion of paragraphs 1.23 to 1.27 in the Memorandum of Understanding and an infringement of the Commission’s supervisory obligation.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               CMBG Ltd shall bear its own costs and pay those incurred by the European Commission and by the European Central Bank (ECB).

      (1)  OJ C 226, 3.8.2013.


title: Action brought on 19 August 1997 by the Commission of the European Communities against the Portuguese Republic (Case C-299/97)

text:
18 . 10 . 97             EN                  Official Journal of the European Communities                                   C 318/7
Action brought on 13 August 1997 by the Commission of                   The applicant claims that the Court should:
 the European Communities against the Kingdom of Spain
                           ( Case C-298/97 )                            — declare that, by failing to adopt within the prescribed
                                                                             period all the provisions necessary to comply fully and
                             ( 97/C 318/11 )                                 properly with Council Directive 86/609/EEC of
                                                                             24 November 1986 on the approximation of laws,
                                                                             regulations and administrative provisions of the
An action against the Kingdom of Spain was brought                           Member States regarding the protection of animals
before the Court of Justice of the European Communities                      used for experimental and other scientific purposes (')
on 13 August 1997 by the Commission of the European                          and in particular Articles 19 ( 5 ) and 6 ( 1 ) of the
Communities, represented by Fernando Castillo de la                          Directive, the Portuguese Republic has failed to fulfil
Torre, acting as Agent, with an address . for service in                     its obligations pursuant to the third paragraph of
Luxembourg at the office of Carlos Gomez de la Cruz, of                      Article 189 of the EC Treaty and Article 25 ( 1 ) of
its Legal Service, Wagner Centre C 254 .                                     Directive 86/609/EEC,
The applicant claims that the Court should:                             — declare, in the alternative, that, by failing to inform
                                                                             the Commission forthwith of such measures, the
                                                                             Portuguese Republic failed to fulfil its obligations
— declare that, by failing to draw up or communicate to                      under those provisions,
     the Commission, within the period prescribed therefor,
     the programmes provided for ip Article 6 of Council                — order the Portuguese Republic to pay the costs .
     Directive 91 / 157/EEC of 18 March 1991 on batteries
     and accumulators containing certain dangerous
     substances ('), the Kingdom of Spain has failed to                 Pleas in law and main arguments adduced in support:
     fulfil its obligations thereunder,
                                                                        Under the third paragraph of Article 189 of the EC Treaty,
                                                                        a Directive is to be binding, as to the result to be
— order the Kingdom of Spain to pay the costs .                         achieved, upon each Member State to which it is
                                                                        addressed. The Commission finds that, despite the expiry
                                                                        of the time limits laid down in Article 25 of Directive 86/
Pleas in law and main arguments adduced in support:                     609/EEC on 24 November 1989, the Portuguese Republic
                                                                        has still not adopted all the implementing provisions into
                                                                        its legal system .
The mandatory nature of the provisions of the third
paragraph of Article 189 and the first paragraph of Article
5 of the EC Treaty requires Member States to adopt the                  H OJ L 358 , 18 . 12 . 1986 , p. 1 .
measures necessary to transpose Directives addressed to
them into their domestic law before the expiry of the
period prescribed for doing so . That period expired on
17 September 1992 without Spain having communicated
the programmes which should have been drawn up for an
initial period of four years as from March 1993 .                       Appeal brought on 20 August 1997 by Tierce Ladbroke
                                                                        SA against the judgment delivered on 12 June 1997 by the
C ) OJ L 78 , 26 . 3 . 1991 , p . 38 .                                  Second Chamber ( extended composition ) of the Court
                                                                        of First Instance of the European Communities in
                                                                        Case T-504/93 between Tierce Ladbroke SA and the
                                                                        Commission of the European Communities, supported
                                                                        by the Societe d'encouragement et des steeple-chases de
                                                                                France and others
                                                                                ( Case C-300/97 P)
Action brought on 19 August 1997 by the Commission                                                ( 97/C 318/13 )
of the European Communities against the Portuguese
                                  Republic
                           ( Case C-299/97)                             An appeal against the judgment delivered on 12 June 1997
                                                                        by the Second Chamber ( extended composition ) of the
                             ( 97/C 318/12 )                            Court of First Instance of the European Communities in
                                                                        Case T-504/93 between Tierce Ladbroke SA and the
                                                                        Commission of the European Communities, supported by
An action against the Portuguese Republic was brought                   the Societe d'encouragement et des steeple-chases de
before the Court of Justice of the European Communities                 France and others, was brought before the Court of
on 19 August 1997 by the Commission of the European                     Justice of the European Communities on 20 August 1997
Communities, represented by Lena Strom and Francisco                    by Tierce Ladbroke SA, represented by Christopher Vajda,
de Sousa Fialho, of its Legal Service, acting as Agents,                QC, and Stephen Kon, Solicitor, with an address for
with an address for service in Luxembourg at the office of              service in Luxembourg at the Chambers of Winandy &
Carlos Gomez de la Cruz, Wagner Centre, Kirchberg.                      Err, 60, avenue Gaston Diderich .


title: Case T-67/08: Action brought on 11 February 2008 — Hedgefund Intelligence v OHIM — Hedge Invest (InvestHedge)

text:
               26.4.2008

               EN

               Official Journal of the European Union

               C 107/30

         Action brought on 11 February 2008 — Hedgefund Intelligence v OHIM — Hedge Invest (InvestHedge)
   (Case T-67/08)
   (2008/C 107/50)
   Language in which the application was lodged: English
   Parties

      Applicant: Hedgefund Intelligence Ltd (London, United Kingdom) (represented by: J. Reed, Barrister, and G. Crofton Martin, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Hedge Invest SGR P.A. (Milan, Italy)
   Form of order sought

               —

               The decision of the Second Board of Appeal dated 28 November 2007 in Case R 148/2007-2 dismissing the appeal shall be annulled;

               —

               the Opponent's opposition be dismissed;

               —

               the Office and the other party shall bear their own costs, and the other party shall pay those of the applicant before the Opposition Division, the Board of Appeal and this Court.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘InvestHedge’ for goods and services in classes 9, 16, 36 and 41 — application No 3 081 081

      Proprietor of the mark or sign cited in the opposition proceedings: Hedge Invest SGR P.A.

      Mark or sign cited: The Community figurative mark ‘HEDGE INVEST’ for services in class 36

      Decision of the Opposition Division: Opposition upheld for all the contested services in classes 36 and 41; the trade mark application allowed to proceed for the non-contested goods in classes 9 and 16

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: The applicant submits that when determining the visual similarity of the respective marks in the eyes of non-English speaking consumers, the Board of Appeal was wrong to take account of the ‘commercial impression’ and to consider that the commercial impression of the conflicting trade marks was the same.
   When assessing the aural similarity of the conflicting trade marks to the ears of non-English speaking consumers, the Board of Appeal improperly put the burden of proof on the applicant.
   Finally, the Board of Appeal failed to apply, at the relevant stage, the uncontested finding that there was only a very limited and/or remote degree of similarity between the services in classes 36 and 41.


title: Case T-442/03: Judgment of the Court of First Instance of 26 June 2008 — SIC v Commission (State aid — Measures taken by the Portuguese Republic for the public service broadcaster RTP in order to finance its public service remit — Decision declaring that certain measures do not constitute State aid and that the others are compatible with the common market — Classification as State aid — Compatibility with the common market — Obligation to undertake a diligent and impartial investigation)

text:
               2.8.2008

               EN

               Official Journal of the European Union

               C 197/20

         Judgment of the Court of First Instance of 26 June 2008 — SIC v Commission
   (Case T-442/03) (1)

   (State aid - Measures taken by the Portuguese Republic for the public service broadcaster RTP in order to finance its public service remit - Decision declaring that certain measures do not constitute State aid and that the others are compatible with the common market - Classification as State aid - Compatibility with the common market - Obligation to undertake a diligent and impartial investigation)
   (2008/C 197/33)
   Language of the case: Portuguese
   Parties

      Applicant: SIC — Sociedade Independente de Comunicação, SA (Carnaxide, Portugal) (represented by C. Botelho Moniz, E. Maia Cadete and M. Rosado da Fonseca, lawyers)

      Defendant: Commission of the European Communities (represented initially by M. Balta and F. Florindo Gijón, subsequently by M. Niejahr, J. Buendía Sierra and G. Braga da Cruz, and latterly by B. Martenczuk and G. Braga da Cruz, Agents)
   Re:
   Application for annulment of Commission Decision 2005/406/EC of 15 October 2003 on ad hoc measures implemented by Portugal for RTP (OJ 2005 L 142, p. 1) inasmuch as that decision declares that certain of those measures do not constitute State aid and that the others are compatible with the common market.
   Operative part of the judgment
   The Court:

               1.

               Annuls Article 1 of Commission Decision 2005/406/EC of 15 October 2003 on ad hoc measures implemented by Portugal for RTP;

               2.

               Annuls Article 2 of Decision 2005/406 in so far as it found that the exemption from registration charges does not constitute State aid;

               3.

               Dismisses the action as to the remainder;

               4.

               Orders the Commission to bear its own costs and to pay four fifths of the costs of SIC — Sociedade Independente de Comunicação, SA;

               5.

               Orders SIC to bear one fifth of its own costs.

      (1)  OJ C 71, 20.3.2004.


title: Case T-95/06: Judgment of the Court of First Instance of 31 January 2008 — Federación de Cooperativas Agrarias de la Comunidad Valenciana v CPVO (Plant varieties — Appeal to the Board of Appeal of the Community Plant Variety Office — Inadmissibility — Lack of individual concern — Effective judicial protection — Obligation to state reasons)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/35

         Judgment of the Court of First Instance of 31 January 2008 — Federación de Cooperativas Agrarias de la Comunidad Valenciana v CPVO
   (Case T-95/06) (1)

   (Plant varieties - Appeal to the Board of Appeal of the Community Plant Variety Office - Inadmissibility - Lack of individual concern - Effective judicial protection - Obligation to state reasons)
   (2008/C 64/56)
   Language of the case: Spanish
   Parties

      Applicant: Federación de Cooperativas Agrarias de la Comunidad Valenciana (Valencia, Spain) (represented by: S. Roig Girbes, R. Ortega Bueno and M. Delgado Echevarría, lawyers)

      Defendant: Community Plant Variety Office (CPVO) (represented by: M. Ekvad, acting as Agent, assisted by D. O'Keefe, Solicitor, J. Rivas de Andrés and M. Canal Fontcuberta, lawyers)

      Other party to the proceedings before the Board of Appeal of CPVO intervening before the Court of First Instance: Nador Cott Protection SARL (Saint-Raphaël, France) (represented by: M. Fernández Mateos, S. González Malabia and M. Marín Bataller, lawyers)
   Re:
   Action brought against the decision of the Board of Appeal of CPVO of 8 November 2005 (Case A 001/2005) concerning the grant of a Community plant variety right in regard to the mandarin variety Nadorcott.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Federación de Cooperativas Agrarias de la Comunidad Valenciana to pay the costs.

      (1)  OJ C 131, 3.6.2006.


title: Case T-113/05: Action brought on 28 February 2005 by Angel Angelidis against the European Paliament

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/32

         Action brought on 28 February 2005 by Angel Angelidis against the European Paliament
   (Case T-113/05)
   (2005/C 115/58)
   Language of the case: French
   An action against the European Parliament was brought before the Court of First Instance of the European Communities on 28 February 2005 by Angel Angelidis, residing in Luxembourg, represented by Eric Boigelot, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision taken by the Secretary-General of Parliament on 24 March 2004 to reject the candidature of the applicant for the A2 post of Director D (Budgetary Affairs) in the ‘Internal Policies’ DG (Notice of Vacancy No 10069) to which another candidate was appointed;

               —

               annul the appointment of the other candidate for the post;

               —

               annul the decision of the appointing authority of 23 November 2004 rejecting the complaint lodged under Article 90(2) of the Staff Regulations against the decision rejecting his candidature and against the decision to appoint another candidate to the post;

               —

               order compensation to be paid for the non-material damage suffered, assessed on an equitable basis at EUR 5 000 by way of damages, without prejudice to its increase or reduction in the course of proceedings;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of his application the applicant relies on a plea of failure to state reasons for the contested decision in breach of Article 25 of the Staff Regulations. He also raises pleas of breach of the notice of vacancy, of Article 29(1) and Article 45 of the Staff Regulations, of the principles of equal treatment and of the right to career advancement and a manifest error of assessment, on the ground that his professional experience, his responsibilities and his management and negotiating skills were superior to those of the candidate selected. Finally the applicant alleges misuse of powers.


title: Case T-12/10 P: Order of the General Court of 21 June 2011 — Marcuccio v Commission (Appeal — Civil service — Officials — Reimbursement of expenses — Note of the Commission informing the applicant of its intention to make a deduction from his invalidity allowance — Lack of any measure adversely affecting the appellant — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/17

         Order of the General Court of 21 June 2011 — Marcuccio v Commission
   (Case T-12/10 P) (1)

   (Appeal - Civil service - Officials - Reimbursement of expenses - Note of the Commission informing the applicant of its intention to make a deduction from his invalidity allowance - Lack of any measure adversely affecting the appellant - Appeal in part manifestly inadmissible and in part manifestly unfounded)
   2011/C 238/28
   Language of the case: Italian

      Parties

      Appellant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Other party to the proceedings: European Commission (represented by: J. Currall and C. Berardis-Kayser, acting as Agents, and A. Dal Ferro, lawyer)

      Re:

   Appeal brought against the order of the European Union Civil Service Tribunal (First Chamber) of 29 October 2009 in Case F-94/08 Marcuccio v Commission, not yet published in the ECR, seeking the annulment of that order.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Luigi Marcuccio shall bear his own costs and pay those incurred by the European Commission at the present instance.

      (1)  OJ C 63, 13.3.2010.


title: Case T-41/09: Action brought on 27 January 2009 — Hipp & Co v OHIM — Nestlé (Bebio)

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/32

         Action brought on 27 January 2009 — Hipp & Co v OHIM — Nestlé (Bebio)
   (Case T-41/09)
   (2009/C 82/56)
   Language in which the application was lodged: English
   Parties

      Applicant: Hipp & Co (Sachseln, Switzerland) (represented by: A. Bognár and M. Kinkeldey, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Sociéte des Produits Nestlé, S.A. (Vevey, Switzerland)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 November 2008 in case R 1790/2007-2; and

               —

               Order OHIM to pay the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘Bebio’, for goods in classes 5, 29, 30 and 32

      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: International trade mark registration No 187 436 of the word mark ‘BEBA’ for goods in classes 5, 29 and 30; Community trade mark registration No 3 043 387 of the word mark ‘BEBA’ for goods in classes 5, 29 and 30

      Decision of the Opposition Division: Partially upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was a likelihood of confusion between the trade marks concerned


title: Case C-596/14: Judgment of the Court (Tenth Chamber) of 14 September 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de Madrid — Spain) — Ana de Diego Porras v Ministerio de Defensa (Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Principle of non-discrimination — Concept of ‘employment conditions’ — Compensation for termination of a contract of employment — Compensation not provided for by the national legislation for temporary employment contracts — Difference of treatment as compared with permanent workers)

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/9

         Judgment of the Court (Tenth Chamber) of 14 September 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de Madrid — Spain) — Ana de Diego Porras v Ministerio de Defensa
   (Case C-596/14) (1)

   ((Reference for a preliminary ruling - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 4 - Principle of non-discrimination - Concept of ‘employment conditions’ - Compensation for termination of a contract of employment - Compensation not provided for by the national legislation for temporary employment contracts - Difference of treatment as compared with permanent workers))
   (2016/C 419/11)
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de Madrid

      Parties to the main proceedings

      Applicant: Ana de Diego Porras

      Defendant: Ministerio de Defensa

      Operative part of the judgment

               1.

               Clause 4(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that the concept of ‘employment conditions’ covers the compensation that the employer must pay to an employee on account of the termination of his fixed-term employment contract.

               2.

               Clause 4 of the framework agreement on fixed-term work annexed to Directive 1999/70 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which fails to provide any compensation for termination of a contract of employment to a worker employed under a temporary replacement contract while allowing such compensation to be granted, inter alia, to comparable workers employed under a contract of indefinite duration. The mere fact that the worker has carried out his work on the basis of a temporary replacement contract cannot constitute an objective ground justifying the failure to grant such compensation to that worker.

      (1)  OJ C 96, 23.3.2015.


title: Case T-189/16: Judgment of the General Court of 13 July 2017 — Migros-Genossenschafts-Bund v EUIPO — Luigi Lavazza (CReMESPRESSO) (EU trade mark — Invalidity proceedings — EU figurative mark CReMESPRESSO — Earlier international word mark CREMESSO — Allusive element — Interdependence of criteria — Likelihood of confusion — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009)

text:
               28.8.2017

               EN

               Official Journal of the European Union

               C 283/40

         Judgment of the General Court of 13 July 2017 — Migros-Genossenschafts-Bund v EUIPO — Luigi Lavazza (CReMESPRESSO)
   (Case T-189/16) (1)

   ((EU trade mark - Invalidity proceedings - EU figurative mark CReMESPRESSO - Earlier international word mark CREMESSO - Allusive element - Interdependence of criteria - Likelihood of confusion - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009))
   (2017/C 283/60)
   Language of the case: English

      Parties

      Applicant: Migros-Genossenschafts-Bund (Zürich, Switzerland) (represented by: M. Treis, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: H. O’Neill and I. Moisescu, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Luigi Lavazza SpA (Turin, Italy) (represented by: M. Ricolfi and F. Tarocco, lawyers)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 23 February 2016 (Case R 2823/2014-4) relating to invalidity proceedings between Migros-Genossenschafts-Bund and Luigi Lavazza.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 February 2016 (Case R 2823/2014-4), in so far as the Board of Appeal upheld the action brought by Luigi Lavazza SpA and partially annulled the decision of the Cancellation Division with respect to the following goods: ‘Electric ice crushers’ and ‘Ice cream makers, ice cream machines, but also coffee machines’ in Classes 7 and 11, covered by the mark at issue;

               2.

               Orders EUIPO and Luigi Lavazza to bear, in addition to their own costs, those incurred by Migros-Genossenschafts-Bund.

      (1)  OJ C 232, 27.6.2016.


title: Case T-180/11: Action brought on 23 March 2011 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVAS LIVE WITH CHIVALRY)

text:
               21.5.2011

               EN

               Official Journal of the European Union

               C 152/27

         Action brought on 23 March 2011 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVAS LIVE WITH CHIVALRY)
   (Case T-180/11)
   2011/C 152/49
   Language in which the application was lodged: English

      Parties

      Applicant: Chivas Holdings (IP) Ltd (Renfrewshire, United Kingdom) (represented by: A. Carboni, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Glencairn Scotch Whisky Co. Ltd (Glasgow, United Kingdom)

      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 12 January 2011 in case R 1262/2010-1, and remit the application to OHIM to allow it to proceed; and

               —

               Order the defendant and any intervening parties in this appeal to bear their own costs and those of the applicant, incurred for these proceedings and those of the appeal procedure before the Board of Appeal.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘CHIVAS LIVE WITH CHIVALRY’, for goods and services in classes 33, 35 and 41 — Community trade mark application No 7299605

      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: United Kingdom trade mark registration No 1293610 of the figurative mark ‘CHIVALRY’, for goods in class 33; United Kingdom trade mark registration No 2468527 of the figurative mark ‘CHIVALRY SPECIAL RESERVE SCOTCH WHISKY’, for goods in class 33; Non-registered United Kingdom trade mark of the word ‘CHIVALRY’ in respect of ‘Scotch whisky’

      Decision of the Opposition Division: Partly upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Articles 76(1) and 75 of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly made a finding of fact as to the characteristics of the relevant public and failed to state the reasons for making the said finding; (ii) in the alternative to ground (i), having found that the relevant consumer is ‘particularly brand-conscious and brand-loyal’, incorrectly failed to appreciate that such characteristics would increase the attentiveness of the relevant consumer and accordingly reduce the likelihood of confusion occurring; (iii) failed to take into account, or took insufficient account of, the different nature and purposes of the marks under consideration; (iv) failed to take into account of important guidance laid down by the Court of Justice and took the wrong approach when comparing the marks; (v) focused undue attention on the presence of the word ‘CHIVALRY’ in the applicant’s mark and ignored the visual differences between the marks; (vi) wrongly assumed that the aural comparison of the marks could be approached in the same way as the visual comparison; (vii) was wrong to limit, or focus, its analysis of the conceptual similarity between the marks to the single word ‘CHIVALRY’ that appeared in each mark; and (viii) incorrectly assessed likelihood of confusion.


title: Case T-308/16: Judgment of the General Court of 9 March 2017 — Marsh v EUIPO (ClaimsExcellence) (EU trade mark — Application for the EU word mark ClaimsExcellence — Absolute ground for refusal — Descriptiveness — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               24.4.2017

               EN

               Official Journal of the European Union

               C 129/20

         Judgment of the General Court of 9 March 2017 — Marsh v EUIPO (ClaimsExcellence)
   (Case T-308/16) (1)

   ((EU trade mark - Application for the EU word mark ClaimsExcellence - Absolute ground for refusal - Descriptiveness - Article 7(1)(c) of Regulation (EC) No 207/2009))
   (2017/C 129/32)
   Language of the case: German

      Parties

      Applicant: Marsh GmbH (Frankfurt am Main, Germany) (represented by: W. Riegger, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: R. Manea and D. Hanf, acting as Agents)

      Objet

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 8 April 2016 (Case R 2358/2015-4), concerning an application for registration of the word sign ClaimsExcellence as an EU trade mark.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action;

               2)

               Orders Marsh GmbH to pay the costs.

      (1)  OJ C 287, 8.8.2016.


title: Case T-427/04: Action brought on 13 October 2004 by French Republic against Commission of the European Communities

text:
               22.1.2005

               EN

               Official Journal of the European Union

               C 19/31

         Action brought on 13 October 2004 by French Republic against Commission of the European Communities
   (Case T-427/04)
   (2005/C 19/65)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 October 2004 by the French Republic, represented by its Agents Ronny Abraham, Géraud de Bergues and Stéphanie Ramet, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul in its entirety Commission Decision No C(2004)361 of 2 August 2004 concerning State aid paid by France to France Télécom;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   The contested decision in this case held that the business tax regime applying to France Télécom (FT) between January 1994 and December 2002 constituted State aid which was incompatible with the common market.
   In support of its claims, the applicant argues, first, that the Commission committed a manifest error of assessment and an error of law. In that regard, it challenges the Commission's analysis of the tax regime applying to FT under Law No 90-568 of 2 July 1990 on the organisation of the French Postal Service and France Télécom. This had led the Commission to treat the levy paid by FT between 1991 and 1993 as being of a mixed character, whereas it was purely fiscal in nature and to take the view that FT had been subject to two separate tax regimes between 1991 and 2002, whereas there had been a single regime, divided into two periods. The defendant should accordingly have applied an offset in respect of the 1991-2002 period.
   The applicant also claims infringement of Article 15 of Regulation No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty, inasmuch as the Commission should have held that there had been a period of ten years between the day when the alleged aid had been granted, 2 July 1990, being the date on which Law No 90-568 completely and definitively established the tax regime in question, and the first request for information from the defendant on 28 June 2001.
   The applicant also relies on the principle of legitimate expectations, in that the contested decision requires the recovery of aid from FT, and of its own rights of defence, in that the Commission made a finding as to the existence of aid without having given the French authorities the opportunity of commenting on an essential element of its arguments, namely the mixed character of the levy paid by FT between 1991 and 1993.


title: Removal from the register of Case T-12/95

text:
22 . 7 . 95                 EN                  Official Journal of the European Communities                            No C 189/19
           ( i ) infringed Articles 2 ( 9 ) and 2 ( 10 ) of Regulation     ordered the removal from the register of Case T-246/94:
                 ( EEC ) No 2423/88 ;                                      Yves Tychon v. European Parliament.
         ( ii ) infringed an essential procedural requirement in           (!) OJ No C 233 , 20 . 8 . 1994 .
                 that it failed to comply with Article 190 of the
                 Treaty or; at least,
       ( iii ) committed a manifest error of appraisal .
                                                                                Removal from the register of Case T-3 79/94 H
(c ) With regard to the determination of injury: in making                                           ( 95/C 189/40 )
       adjustments to the cif price of Russian-produced
       urea to compensate alleged quality differences, the                              (Language of the case: German)
       defendant :
                                                                           By order of 17 May 1995 the President of the Third
         (i)     committed a manifest error of appraisal; and              Chamber of the Court of First Instance of the European
                                                                           Communities ordered the removal from the register of Case
       ( ii )    infringed an essential procedural requirement.            T-379/94 : Frank Kessler v. Commission of the European
                                                                           Communities .
       Furthermore , in its determination of the profit margin
       necessary for Community producers, the defendant                    (!) OJ No C 386 , 31 . 1 . 1994 .
       infringed an essential procedural requirement.
f 1 ) OJ No L 49 , 4 . 3 . 1995 , p . 1 .
                                                                                Removal from the register of Case T- 1 2/95 ( J )
                                                                                ( 95/C 189/41 )
                                                                                (Language of the case: French)
        Removal from the register of Case T-246/94 H
                               ( 95/C 189/39 )
                                                                           By order of 30 May 1995 the President of the Third
                                                                           Chamber of the Court of First Instance of the European
                                                                           Communities ordered the removal from the register of Case
                      (Language of the case: French)                       T-12/95 : José Hodar v. Commission of the European
                                                                           Communities .
By order of 12 June 1995 the President of the First Chamber
of the Court of First Instance of the European Communities                 (!) OJ No C 74, 25 . 3 . 1995 .


title: Case T-472/15 P: Appeal brought on 13 August 2015 by European External Action Service (EEAS) against the judgment of the Civil Service Tribunal of 3 June 2015 in Case F-78/14, Gross v EEAS

text:
               19.10.2015

               EN

               Official Journal of the European Union

               C 346/32

         Appeal brought on 13 August 2015 by European External Action Service (EEAS) against the judgment of the Civil Service Tribunal of 3 June 2015 in Case F-78/14, Gross v EEAS
   (Case T-472/15 P)
   (2015/C 346/38)
   Language of the case: French

      Parties

      Appellant: European External Action Service (EEAS) (represented by S. Marquardt and M. Silva, acting as Agents)

      Other party to the proceedings: Philipp Oliver Gross (Brussels, Belgium)

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               set aside the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 3 June 2015 in Case F-78/14 (Gross v EEAS);

               —

               uphold the claims submitted by the appellant at first instance;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on seven pleas in law, some of which concern the staff appraisal system and others of which concern the promotion system.

               —

               The appraisal system

                           1.

                           First plea in law, alleging an infringement of Article 43 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), breach of the rules on the allocation of the burden of proof, breach of the rule against ruling ultra petita and breach of the appellant’s rights of the defence.

                           2.

                           Second plea in law, alleging infringement of the limits of judicial review. The appellant submits that, in the judgment under appeal, the Civil Service Tribunal (‘the CST’) has exceeded the limits of its power of judicial review several times, and appears to be seeking to oblige it to adopt a particular system of staff appraisal.

                           3.

                           Third plea in law, alleging that the Tribunal erred in law in finding that an appraisal system not based on marks lacks objectivity, and that it infringed Article 43 of the Staff Regulations.

                           4.

                           Fourth plea in law alleging an infringement of Article 266 TFEU, in that, by partially annulling the decision at issue, the CST made it impossible to implement the judgment under appeal without giving rise to other instances of unlawfulness. The appellant submits that, if Article 4 of the decision at issue is unlawful, a new comparative analysis of the defendant’s merits with those of the other officials eligible for promotion in his grade must be made, pursuant to the judgment under appeal, on the basis of the staff appraisal reports which, in accordance with the CST’s ruling, do not make it possible for that analysis to be made on an objective and comparable basis.

               —

               The promotion system

                           5.

                           Fifth plea in law alleging infringement of the rule against ruling ultra petita and of the appellant’s rights of the defence.

                           6.

                           Sixth plea in law alleging infringement of the rules on the allocation of the burden of proof.

                           7.

                           Seventh plea in law alleging that the CST erred in law in finding that the appellant had infringed Article 45 of the Staff Regulations.


title: Case T-636/14: Action brought on 27 August 2014  — Italy v Commission

text:
               3.11.2014

               EN

               Official Journal of the European Union

               C 388/20

         Action brought on 27 August 2014 — Italy v Commission
   (Case T-636/14)
   2014/C 388/24
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato, G. Palmieri, acting as Agent)

      Defendant: European Commission

      Form of order

   The applicant claims that the Court should:

               —

               annul the vacancy notice for the post of Director of the Translation Centre for the Bodies of the European Union (Luxembourg), function group AD, grade 14, (COM/2014/10356), published in the Official Journal of the European Union
                  C 185 A of 17 June 2014;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The present action is brought against the abovementioned vacancy notice, in so far as applicants are required to apply in English, French or German.
   In support of its action, the applicant puts forward two pleas in law.

               1.

               First plea in law, alleging infringement of Article 18 TFEU and the fourth paragraph of Article 24 TFEU; of Article 22 of the Charter of Fundamental Rights of the European Union; of Articles 1 and 2 of Regulation 1/58; and of Article 1d(1) and (6) of the Staff Regulations (applicable by analogy to temporary staff and referred to in the contested notice).

                           —

                           The applicant claims in this regard that, through the reference to the Commission’s website which set out that binding provision, the notice required applicants compulsorily to submit their CV and motivation letter in English, French or German, rather than in any one of the languages of the European Union.

               2.

               Second plea in law, alleging infringement of the principles of legitimate expectations and of sincere cooperation (Article 4(3) TEU).

                           —

                           The applicant claims in this regard that, during the process for the adoption of the notice in question, even though the Commission had formally assured the Italian Government that that language discrimination would be removed, it instead acted in the opposite manner when drafting the notice and preparing the rules for the functioning of the website to which the notice refers for the submission of applications.


title: Case C-316/13: Request for a preliminary ruling from the Cour de cassation (France) lodged on 10 June 2013 — Gérard Fenoll v Centre d’aide par le travail La Jouvene, Association de parents et d’amis de personnes handicapées mentales (APEI) d’Avignon

text:
               27.7.2013

               EN

               Official Journal of the European Union

               C 215/13

         Request for a preliminary ruling from the Cour de cassation (France) lodged on 10 June 2013 — Gérard Fenoll v Centre d’aide par le travail La Jouvene, Association de parents et d’amis de personnes handicapées mentales (APEI) d’Avignon
   (Case C-316/13)
   2013/C 215/17
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Appellant in cassation: Gérard Fenoll

      Respondents in cassation: Centre d’aide par le travail La Jouvene, Association de parents et d’amis de personnes handicapées mentales (APEI) d’Avignon

      Questions referred

               1.

               Must Article 3 of Directive 89/391/EEC, (1) to which Article 1 of Directive 2003/88/EC of 4 November 2003, (2) determining the scope thereof, refers, be interpreted as meaning that a person placed in a work rehabilitation centre can be classified as a ‘worker’ within the meaning of that Article 3?

               2.

               Must Article 31 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that a person, such as described in the previous question, can be classified as a ‘worker’ within the meaning of that Article 31?

               3.

               Can a person, such as described in the first question, rely directly on the rights conferred on her or him by the Charter in order to obtain an entitlement to paid leave if national legislation does not provide for any such entitlement, and must the national courts, in order to ensure that those rights are fully effective, set aside any contrary provision of national law?

      (1)  Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1).

      (2)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).


title: Case C-291/13: Judgment of the Court (Seventh Chamber) of 11 September 2014 (request for a preliminary ruling from the Eparkhiako Dikastirio Lefkosias — Cyprus) — Sotiris Papasavvas v O Fileleftheros Dimosia Etairia Ltd and Others (Reference for a preliminary ruling — Directive 2000/31/EC — Scope — Defamation proceedings)

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/14

         Judgment of the Court (Seventh Chamber) of 11 September 2014 (request for a preliminary ruling from the Eparkhiako Dikastirio Lefkosias — Cyprus) — Sotiris Papasavvas v O Fileleftheros Dimosia Etairia Ltd and Others
   (Case C-291/13) (1)

   ((Reference for a preliminary ruling - Directive 2000/31/EC - Scope - Defamation proceedings))
   2014/C 409/20
   Language of the case: Greek

      Referring court

   Eparkhiako Dikastirio Lefkosias

      Parties to the main proceedings

      Applicant: Sotiris Papasavvas

      Defendants: O Fileleftheros Dimosia Etairia Ltd, Takis Kounnafi, Giorgos Sertis

      Operative part of the judgment

               1)

               Article 2(a) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the concept of ‘information society services’, within the meaning of that provision, covers the provision of online information services for which the service provider is remunerated, not by the recipient, but by income generated by advertisements posted on a website.

               2)

               In a case such as that at issue in the main proceedings, Directive 2000/31 does not preclude the application of rules of civil liability for defamation.

               3)

               The limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31 do not apply to the case of a newspaper publishing company which operates a website on which the online version of a newspaper is posted, that company being, moreover, remunerated by income generated by commercial advertisements posted on that website, since it has knowledge of the information posted and exercises control over that information, whether or not access to that website is free of charge.

               4)

               The limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31 are capable of applying in the context of proceedings between individuals relating to civil liability for defamation, where the conditions referred to in those articles are satisfied.

               5)

               Articles 12 to 14 of Directive 2000/31 do not allow information society service providers to oppose the bringing of legal proceedings for civil liability against them and, consequently, the adoption of a prohibitory injunction by a national court. The limitations of liability provided for in those articles may be invoked by the provider in accordance with the provisions of national law transposing them or, failing that, for the purpose of an interpretation of that law in conformity with the directive. By contrast, in a case such as that in the main proceedings, Directive 2000/31 cannot, in itself, create obligations on the part of individuals and therefore cannot be relied on against those individuals.

      (1)  OJ C 207, 20.7.2013.


title: Case C-243/11: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 20 May 2011 — RVS Levensverzekeringen N.V. v Belgische Staat

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/13

         Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 20 May 2011 — RVS Levensverzekeringen N.V. v Belgische Staat
   (Case C-243/11)
   2011/C 252/25
   Language of the case: Dutch

      Referring court

   Rechtbank van eerste aanleg te Brussel

      Parties to the main proceedings

      Applicant: RVS Levensverzekeringen N.V.

      Defendant: Belgische Staat

      Questions referred

               1.

               Does Article 50 of Directive 2002/83/EC (1) of the European Parliament and of the Council of 5 November 2002 concerning life assurance, which in paragraph 1 provides that, without prejudice to any subsequent harmonisation, every assurance contract shall be subject exclusively to the indirect taxes and parafiscal charges on assurance premiums in the Member State of the commitment, and which in paragraph 3 provides that, pending future harmonisation, each Member State shall apply to those assurance undertakings which cover commitments situated within its territory its own national provisions for measures to ensure the collection of indirect taxes and parafiscal charges due under paragraph 1, preclude a national rule as laid down in Article 173 and Article 175(3) of the Wetboek van diverse rechten en taksen, which provides that insurance transactions (including life assurance policies) are subject to an annual tax, when the risk is situated in Belgium, in particular if the policy-holder has his/her habitual residence in Belgium, or, if the policy-holder is a legal person, if the establishment of that legal person, to which the contract relates, is situated in Belgium, without any account being taken of the place of residence of the policy holder at the time that the contract was concluded?

               2.

               Do the Community principles concerning the elimination, between the Member States of the Community, of obstacles to the freedom of movement of persons and the freedom to provide services arising out of Articles 49 and 56 of the Treaty on the Functioning of the European Union, preclude a national rule as laid down in Article 173 and Article 175(3) of the Wetboek van diverse rechten en taksen, which provides that insurance transactions (including life assurance policies) are subject to an annual tax, when the risk is situated in Belgium, in particular if the policy-holder has his/her habitual residence in Belgium, or, if the policy-holder is a legal person, if the establishment of that legal person, to which the contract relates, is situated in Belgium, without any account being taken of the place of residence of the policy-holder at the time that the contract was concluded?

      (1)  OJ 2002 L 345, p. 1