title: Case T-559/15: Action brought on 25 September 2015 — Post Bank Iran v Council

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/59

         Action brought on 25 September 2015 — Post Bank Iran v Council
   (Case T-559/15)
   (2016/C 027/76)
   Language of the case: English

      Parties

      Applicant: Post Bank Iran (Tehran, Iran) (represented by: D. Luff, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               order the Council of the European Union to pay the applicant compensation of the material and moral damage incurred by the applicant due to the illegal imposition by the Council of the restrictive measures against the applicant pursuant to the following illegal Council acts: i) Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (1); ii) Council Regulation (EU) no 961/2010 of 25 October 2010 (2); iii) Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (3); iv) Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (4); v) Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (5);

               —

               award damages for a total amount of 203 695 040 Euros, covering both the moral damage and the material damage suffered by the applicant as a result of the Council’s illegal acts;

               —

               order that the Council pay the applicant’s costs of this application.

      Pleas in law and main arguments

   In support of the action, the applicant relies on the following arguments.

               1.

               The applicant contends that pursuant to Article 340 TFEU, a victim of a damage caused by an institution of the EU may claim compensation against that institution. Case law specified the conditions for such a claim, which the General Court Judgment of 25 November 2014 in Safa Nicu Sepahan v Council (T 384/11, ECR, EU:T:2014:986) summarizes: a) the institution’s conduct must be unlawful; b) actual damage must have been suffered; and c) there must be a causal link between the conduct complained of and the damage pleaded.

               2.

               The applicant states that the above-mentioned three conditions are met with respect to the applicant’s situation: the Council has committed a ‘serious breach of a rule of law intended to confer rights on individuals within the meaning of the case-law’, as ruled by the General Court in its judgment of 6 September 2013 in Post Bank Iran v Council (T-13/11, EU:T:2013:402); the applicant suffered substantial moral and material damage; and such damage is the direct consequence of the illegal sanctions.

               3.

               The applicant also indicates that as further specified in the developments contained in the application, the moral damage suffered by the applicant is quantified to the amount of 1 000 000 Euros; and the material damage, which is quantified by independent auditors, amounts to 202 695 040 Euros.

      (1)  OJ 2010 L 281, p. 81.

      (2)  Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007, OJ 2010 L 281, p. 1.

      (3)  OJ 2011 L 319, p. 71.

      (4)  OJ 2011 L 319, p. 11.

      (5)  OJ 2012 L 88, p. 1.


title: Judgment of the Court (Sixth Chamber) of 9 October 2001 in Case C-409/98 [reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Divisional Court)]: Commissioners of Customs & Excise v Mirror Group plc (Sixth VAT Directive — Exemption for the leasing or letting of immovable property — Meaning — Undertaking to become a tenant)

text:
24.11.2001              EN                      Official Journal of the European Communities                                           C 331/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       Registrar, has given a judgment on 9 October 2001, in which
                                                                             it:
                        of 9 October 2001
                                                                             1.    Dismisses the application;
in Case C-377/98: Kingdom of the Netherlands v European                      2.    Orders the Kingdom of the Netherlands to bear the costs;
     Parliament and Council of the European Union (1)
                                                                             3.    Orders the Italian Republic, the Kingdom of Norway and the
(Annulment — Directive 98/44/EC — Legal protection of                              Commission each to bear their own costs.
biotechnological inventions — Legal basis — Article 100a
of the EC Treaty (now, after amendment, Article 95 EC),                      (1) OJ C 378 of 5.12.1998.
Article 235 of the EC Treaty (now Article 308 EC) or
Articles 130 and 130f of the EC Treaty (now Articles 157
EC and 163 EC) — Subsidiarity — Legal certainty —
Obligations of Member States under international law —
Fundamental rights — Human dignity — Principle of
     collegiality for draft legislation of the Commission)                                    JUDGMENT OF THE COURT
                          (2001/C 331/01)                                                             (Sixth Chamber)
                    (Language of the case: Dutch)                                                   of 9 October 2001
                                                                             in Case C-409/98 [reference for a preliminary ruling from
(Provisional translation; the definitive translation will be published       the High Court of Justice of England and Wales, Queen’s
                   in the European Court Reports)                            Bench Division (Divisional Court)]: Commissioners of
                                                                                Customs & Excise v Mirror Group plc (1)
In Case C-377/98: Kingdom of the Netherlands (Agents:                        (Sixth VAT Directive — Exemption for the leasing or letting
M.A. Fierstra and I. van der Steen) supported by Italian                     of immovable property — Meaning — Undertaking to
Republic (Agent: U. Leanza, assisted by P.G. Ferri), and by                                           become a tenant)
Kingdom of Norway (Agent: H.W. Longva) v European
Parliament (Agents: J. Schoo and E. Vandenbosch) and Council                                          (2001/C 331/02)
of the European Union (Agents: R. Gosalbo Bono, G. Houttuin
and A. Lo Monaco) supported by Commission of the European                                       (Language of the case: English)
Communities (Agents: K. Banks and P. van Nuffel) — appli-
cation for annulment of Directive 98/44/EC of the European
Parliament and of the Council of 6 July 1998 on the legal                    In Case C-409/98: reference to the Court under Article 177 of
protection of biotechnological inventions (OJ 1998 L 213,                    the EC Treaty (now Article 234 EC) from the High Court of
p. 13) — the Court, composed of: G.C. Rodrı́guez Iglesias,                   Justice of England and Wales, Queen’s Bench Division (Div-
President, P. Jann, F. Macken, N. Colneric and S. von Bahr                   isional Court) (United Kingdom) for a preliminary ruling in the
(Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La                   proceedings pending before that court between Com-
Pergola, J.-P. Puissochet (Rapporteur), L. Sevón, M. Wathelet,              missioners of Customs & Excise and Mirror Group plc — on
V. Skouris and J.N. Cunha Rodrigues, Judges; F.G. Jacobs,                    the interpretation of Article 13B(b) of the Sixth Council
Advocate General; H.A. Rühl, Principal Administrator, for the                Directive of 17 May 1977 (77/388/EEC) on the harmonisation
 ---pagebreak--- C 331/2                 EN                      Official Journal of the European Communities                                         24.11.2001
of the laws of the Member States relating to turnover taxes —              the Verwaltungsgericht, Frankfurt am Main for a preliminary
Common system of value added tax: uniform basis of assess-                 ruling in the proceedings pending before that court between
ment (OJ 1977 L 145, p. 1) — the Court (Sixth Chamber),                    Ernst-Otto Flemmer (C-80/99), Renate Christoffel (C-81/99)
composed of: F. Macken, President of the Chamber, N. Colneric              and Council of the European Union and Commission of the
(Rapporteur), C. Gulmann, J.-P. Puissochet and R. Schintgen,               European Communities represented by: Bundesanstalt für
Judges; A. Tizzano, Advocate General; D. Louterman-Hubeau,                 Landwirtschaft und Ernährung, and between Marike Leit-
Head of Division, for the Registrar, has given a judgment on               ensdorfer (C-82/99) and Bundesanstalt für Landwirtschaft und
9 October 2001, in which it has ruled:                                     Ernährung — on the interpretation of the second paragraph
                                                                           of Article 215 and Article 178 of the EC Treaty (now the
1.    A person who does not initially have any interest in the             second paragraph of Article 288 EC and Article 235 EC) and
      immovable property and who enters into an agreement for lease        of Council Regulation (EEC) No 2187/93 of 22 July 1993
      of that immovable property with a landlord and/or accepts the        providing for an offer of compensation to certain producers
      grant of a lease of the property in return for a sum of money        of milk and milk products temporarily prevented from carrying
      paid by the landlord does not make a supply of services              on their trade (OJ 1993 L 196, p. 6) — the Court, composed
      falling within Article 13B(b) of the Sixth Council Directive         of: G.C. Rodrı́guez Iglesias, President, P. Jann, F. Macken,
      (77/388/EEC) of 17 May 1977 on the harmonisation of the              N. Colneric (Rapporteur) and S. von Bahr (Presidents of
      laws of the Member States relating to turnover taxes —               Chambers), A. La Pergola, J.-P. Puissochet, L. Sevón, M. Wathe-
      common system of value added tax: uniform basis of assessment.       let, V. Skouris and J.N. Cunha Rodrigues, Judges; A. Tizzano,
                                                                           Advocate General; R. Grass, Registrar, has given a judgment
2.    A person who does not initially have any interest in the             on 9 October 2001, in which it has ruled:
      immovable property and who enters into an option agreement
      such as the one before the national court in relation to leases of
      that immovable property in return for a sum of money paid by
      the landlord, on terms that the money will remain in a special
      account as security for its obligations under the option             1.    The provisions of the second paragraph of Article 215 and
      agreement, and who subsequently exercises the options under                Article 178 of the EC Treaty (now the second paragraph of
      the option agreement and accepts the grant of leases of the                Article 288 EC and Article 235 EC) read in conjunction must
      immovable property in return for the release of the money in its           be interpreted as meaning that the Court of Justice does not
      special account, at no time makes a supply of services falling             have jurisdiction to rule in disputes arising from a contract for
      within Article 13B(b) of the Sixth Directive 77/388/EEC.                   compensation concluded in the name and on behalf of the
                                                                                Council and the Commission by the competent national
(1) OJ C 20 of 23.1.1999.                                                        authority, in accordance with Council Regulation (EEC)
                                                                                No 2187/93 of 22 July 1993 providing for an offer of
                                                                                compensation to certain producers of milk and milk products
                                                                                temporarily prevented from carrying on their trade.
                 JUDGMENT OF THE COURT
                        of 9 October 2001
                                                                           2.    In the absence of any indication in Regulation No 2187/93,
in Joined Cases C-80/99 to C-82/99 (reference for a                              the contracts for compensation concluded pursuant to that
preliminary ruling from the Verwaltungsgericht, Frank-                           Regulation are governed by the rules of national law, provided
furt am Main): Ernst-Otto Flemmer (C-80/99), Renate                              that their application does not prejudice the scope and effective-
Christoffel (C-81/99) v Council of the European Union                            ness of Community law.
and Commission of the European Communities and
Marike Leitensdorfer (C-82/99) v Bundesanstalt für Land-
                  wirtschaft und Ernährung (1)
                                                                           3.    Community law does not preclude the application of the
(Non-contractual liability — Milk producers — Non-market-                        principle of legitimate expectations provided for by the national
ing undertaking — Exclusion from milk quota scheme —                             legal order of the Member State concerned for the purposes of
Compensation — Substitution — Flat-rate compensation by                          assessing the scope of contracts concluded by national authorities
contract — Regulation (EEC) No 2187/93 — Relevant                                in the name and on behalf of the Council and Commission,
                 jurisdiction — Applicable law)                                  provided that the Community interest is also taken into account.
                          (2001/C 331/03)
                   (Language of the case: German)
                                                                           (1) OJ C 121, 1.5.1999.
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
In Joined Cases C-80/99 to C-82/99: reference to the Court
under Article 177 of the EC Treaty (now Article 234 EC) from


title: Case C-546/10 P: Appeal brought on 23 November 2010 by Hans-Peter Wilfer against the judgment of the General Court (Fourth Chamber) delivered on 8 September 2010 in Case T-458/08 Wilfer v Office for Harmonization in the Internal Market (Trade marks and Designs)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/25

         Appeal brought on 23 November 2010 by Hans-Peter Wilfer against the judgment of the General Court (Fourth Chamber) delivered on 8 September 2010 in Case T-458/08 Wilfer v Office for Harmonization in the Internal Market (Trade marks and Designs)
   (Case C-546/10 P)
   ()
   2011/C 30/42
   Language of the case: German

      Parties

      Appellant: Hans-Peter Wilfer (represented by: W. Prinz, Rechtsanwalt)

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

      Forms of order sought

   The appellant claims that the Court should:

               —

               set aside in full the judgment of the General Court of 8 September 2010 in Case T-458/08;

               —

               order OHIM to pay the costs.

      Pleas in law and main arguments

   The present appeal is brought against the judgment of the General Court, by which that court dismissed the appellant’s action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 25 July 2008 rejecting its application for registration of the figurative mark representing the head of a guitar using the colours silver, grey and brown.
   The appellant raises four pleas in support of the appeal.
   The Court did not take documents into consideration, which had first been submitted with the application. The appellant considers that they should have been taken into consideration as they were merely additional to the existing application.
   The appellant alleges that the Court breached Article 7(1)(b) of Regulation (EC) No 40/94 in failing to take account of the fact that, in the case of three-dimensional product form marks, a distinction must be made between, on the one hand, mass products and, on the other hand, special products. Special products are characterised by the fact that the relevant public generally considers that they contain parts which serve the purpose of indicating origin. Accordingly, the demonstration of distinctiveness is not subject to special requirements. In this context, with regard to such product parts, a minimum degree of distinctive character is sufficient. Furthermore, the issue of distinctiveness was not addressed taking account of the knowledge of the relevant public (professional or hobby musicians), who are aware of that it is common practice that string musical instruments, including violins, such as a Stradivari, are labelled by a particular form of headstock. The Court also did not take account of the fact that a minimum degree of distinctive character is sufficient in the case of a figurative mark, which only reproduces a part of the goods, which is commonly used to label the goods, such as the headstock of a guitar.
   The Court breached the principle of examination of the facts by OHIM of its own motion under Article 74(1) of Regulation No 40/94, in misinterpreting the general rule/exception relationship, in relation to the question as to the extent to which the headstock can indicate the origin of a guitar.
   Finally, the Court also breached the principle of equal treatment by not taking account of the fact that other Community and national trade marks also exist, which likewise reproduce only the headstock of a guitar.


title: Judgment of the Court (Second Chamber) of 14 April 2005 in Case C-441/03: Commission of the European Communities v Kingdom of the Netherlands (Failure by a Member State to fulfil its obligations — Directives 79/409/EEC and 92/43/EEC — Conservation of wild birds — Conservation of natural habitats — Failure to transpose within the prescribed periods)

text:
               11.6.2005

               EN

               Official Journal of the European Union

               C 143/11

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 14 April 2005
   in Case C-441/03: Commission of the European Communities v Kingdom of the Netherlands (1)

   (Failure by a Member State to fulfil its obligations - Directives 79/409/EEC and 92/43/EEC - Conservation of wild birds - Conservation of natural habitats - Failure to transpose within the prescribed periods)
   (2005/C 143/12)
   Language of the case: Dutch
   In Case C-441/03: Action under Article 226 EC for failure to fulfil obligations, brought on 16 October 2003, Commission of the European Communities (Agent: M. van Beek) v Kingdom of the Netherlands (Agents: H.G. Sevenster and N.A.J. Bel) — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), R. Schintgen, P. Kūris and G. Arestis, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 14 April 2005, in which it:

               1.

               Declares that, by failing to bring into force within the prescribed periods all the laws, regulations and administrative provisions necessary to comply with the requirements of Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and of Article 6(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, in conjunction with Articles 2(2), 1(a), (e) and (i), 6(2) to (4), 7, 11 and 15 thereof and by maintaining in force Article 13(4) of the Nature Conservancy Law (Natuurbeschermingswet), which is incompatible with Article 6(4) of Directive 92/43, the Kingdom of the Netherlands has failed to fulfil its obligations under those directives;

               2.

               Dismisses the remainder of the application;

               3.

               Orders the Kingdom of the Netherlands to pay the costs.

      (1)  OJ C 304 of 13.12.2003.


title: Case C-277/00: Action brought on 11 July 2000 by the Federal Republic of Germany against the Commission of the European Communities

text:
23.9.2000              EN                   Official Journal of the European Communities                                       C 273/7
2.    Does the term ‘solely’, used in Note 1(b) to CN Chapter               ‘recipients’. They could not therefore be aware, on the
      90 and in Note 2(b) to CN Chapters 61 and 62 allow the                basis of the decision of 5 August 1997 opening the
      elasticity of the material to be regarded as the sole                 inquiry procedure, that they would one day be regarded
      relevant criterion even if the supportive function is                 in a Commission decision as ‘recipients’ of aid which
      strengthened by other factors (in this case the insert)?              certainly never flowed to them directly.
3.    If Question 2 is answered in the affirmative:
      Is General Rule A.3(b) in the General rules for the
      interpretation of the combined nomenclature suitable for
      determining the question when the supportive function            Compatibility with the common market of
      of the other factors, not made of elastic material, is           the aid granted to System Microelectronic
      predominant, or what other criteria should be used to            Innovation GmbH i.GV (SMI) and Silicium
      determine the question?                                          Microelectronic Integration GmbH (SiMI)
                                                                       —    Breach of essential procedural requirements (errors in
                                                                            ascertaining the facts, defective statement of reasons):
                                                                            findings that Synergy Semiconductor Corporation (Syn-
                                                                            ergy) was to take over, and did take over, management
Action brought on 11 July 2000 by the Federal Republic                      and control of Halbleiterelektronik Frankfurt/Oder GmbH
of Germany against the Commission of the European                           (HEG), later renamed SMI, cannot be found at all in the
                          Communities                                       contested decision, since the Commission incorrectly
                                                                            assumed that the acquisition of 49 % of the shares
                        (Case C-277/00)                                     excluded acquisition of control.
                        (2000/C 273/11)
                                                                            The Commission failed to find that the loan by the Land
An action against the Commission of the European Communi-                   of Brandenburg to SMI is based on the privatisation
ties was brought before the Court of Justice of the European                agreement and is to be regarded as part of the consider-
Communities on 11 July 2000 by the Federal Republic of                      ation from the public authorities on the occasion of
Germany, represented by Wolf-Dieter Plessing, Ministerialrat in             privatisation.
the Federal Ministry of Financial Affairs, 108 Graurheindorfer
Straße, D-53117 Bonn, and Dr Michael Schütte, Rechtsanwalt,
of Bruckhaus Westrick Heller Löber, 99-101 Rue de la Loi,
B-1040 Brussels.                                                            The decision is also vitiated by considerable defects in the
                                                                            reasoning. In particular there are no reasons at all for the
The applicant claims that the Court should:                                 Commission’s failure to take account of the statutory
                                                                            exception in Article 87(2)(c) EC. There are no findings
1.    Annul Commission Decision C(2000) 1063 fin. of                        whatever as regards the effects of possible aid on the
      11 April 2000 on aid to System Microelectronic Inno-                  relevant market. The Commission incorrectly assumes
      vation GmbH of Frankfurt an der Oder;                                 only that there is a ‘semiconductor market’. However,
                                                                            SMI operated only in a very restricted market for
2.    Order the Commission to pay the costs.                                customer-specific and application-specific circuits.
Pleas in law and main arguments
                                                                       —    Breach of Article 87(1) EC: the decision infringes substan-
                                                                            tive law, in so far as it declares the financial measures
Procedural errors                                                           of the Treuhandanstalt and its successor BvS to be
                                                                            incompatible with the common market. The Commission
—     Breach of the principle of the right to a hearing and of              incorrectly considered that the Treuhand scheme, that is,
      the procedural rule in Article 88(2) EC in so far as the              an existing aid scheme, did not apply to the payments by
      Federal Republic of Germany is required to recover aid of             the Treuhandanstalt of DEM 64,8 million, because it
      DEM 140.1 million also from Silicium Microelectronic                  obviously made a wrong assessment of the privatisation.
      Integration GmbH (SiMI), Microelectronic Design and                   In fact Synergy, by acquiring its holding in SMI, took over
      Development GmbH (MD&D) and other unnamed under-                      management of the undertaking and comprehensive
      takings: at no time was an inquiry procedure carried out              rights of control over the company. In addition, the
      against aid in favour of those undertakings. The inquiry              agreements also include all the other elements of a typical
      procedure which led up to the contested decision was at               privatisation agreement, such as a jobs guarantee, know-
      no time extended by the Commission to the other                       how transfer, surplus earnings transfer, excess profit
      undertakings described in the contested decision as                   transfer and an environmental contamination clause.
 ---pagebreak--- C 273/8              EN                    Official Journal of the European Communities                                       23.9.2000
    The loan by the Land of Brandenburg of DEM 70,3                   —    Breach of the principle of legal certainty: the decision is
    million cannot be treated differently from corresponding               not definite enough, in that it claims aid back from every
    payments by the Treuhandanstalt. Provision of DEM 35                   undertaking ‘to which the assets of ... (SMI), ... (SiMI) or ...
    million finance by the Land of Brandenburg was promised                (MD&D) have been or will be transferred in a form
    as part of the privatisation agreement. That measure in                intended to evade the consequences of the decision’.
    the framework of privatisation is justified under the
    Treuhand scheme because the promise was a component
    and a condition of the privatisation agreement and it
    cannot matter which State source payments which were              Breach of the principle of proportionality.
    permitted under the Treuhand scheme were actually
    made from. After taking over the shares from the
    Treuhandanstalt, the Land of Brandenburg gave a further
    DEM 35,3 million as a loan. That constituted a contract
    management measure on the part of the Land of Branden-
    burg, which was permitted in accordance with the
    Treuhand scheme, and in any event capable of being
    approved. The Commission did not, however, examine
    the compatibility of the loan against that background.
Recovery of the aid                                                   Reference for a preliminary ruling from the Bundesver-
                                                                      waltungsgericht by order of that court of 6 April 2000 in
                                                                      the case of Altmark Trans GmbH and Regierungspräsidi-
—   Lack of competence of the Commission and exceeding its            um Magdeburg v Nahverkehrsgesellschaft Altmark
    powers: the order to recover the aid from third parties           GmbH, interested party: Oberbundesanwalt beim Bun-
    who did not receive the aid and had no opportunity to                                  desverwaltungsgericht
    take part in the procedure constitutes exceeding of its
    powers by the Commission. The Commission has no
    jurisdiction to issue such an order (lack of competence of                                  (Case C-280/00)
    the Commission, second paragraph of Article 230 EC).
    Under Article 88 EC the Member State has exclusive
    competence to recover aid, and the Commission does not                                      (2000/C 273/12)
    have jurisdiction under Article 5(2) EC.
                                                                      Reference has been made to the Court of Justice of the
    The Commission furthermore by the contested decision              European Communities by an order of the Bundesverwaltungs-
    intervenes impermissibly in the legal order of the Member         gericht (Federal Administrative Court) of 6 April 2000, which
    State, since the instruction to make recovery from                was received at the Court Registry on 14 July 2000, for a
    third parties disapplies the provisions of the judicially         preliminary ruling in the case of Altmark Trans GmbH and
    supervised insolvency procedure.                                  Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft
                                                                      Altmark GmbH, interested party: Oberbundesanwalt beim
                                                                      Bundesverwaltungsgericht, on the following question:
    The decision is also unlawful because the Commission
    does not state what specific conduct or what specific
    measures could constitute circumvention of the claim
    for recovery and restricts itself instead to groundless           Do Articles 73 EC and 87 EC, read in conjunction with
    suppositions, allegations and fears. The Commission also          Regulation (EEC) No 1191/69, (1) as amended by Regulation
    misunderstands the nature of the German insolvency                (EEC) No 1893/91, (2) preclude the application of a national
    procedure, which on the basis of judicial control does not        provision which permits licences to operate regular local
    allow unlawful actions to take place without sanctions in         public transport services to be awarded in respect of services
    national law. In the present case the assumption that the         completely dependent on public grants without regard being
    insolvency administrator carried out the movements of             had to Sections II, III and IV of the abovementioned regulation?
    assets alleged by the Commission (and thereby not only
    incurred personal liability but possibly even committed a
    criminal offence) is not tenable.
                                                                      (1) OJ, English Special Edition 1969 (I), p. 276.
                                                                      (2) OJ No L 169 of 29.6.1991, p. 1.
—   Unlawful extension of the character of recipient on the
    ground of alleged evasion of the recovery of the aid: the
    contested decision also infringes Article 87(1) EC, since
    there was no benefit to the undertakings not involved in
    the procedure, not even indirectly by means of any
    misapplication of aid.


title: Case T-191/08: Action brought on 22 May 2008 — JOOP! v OHIM

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/27

         Action brought on 22 May 2008 — JOOP! v OHIM
   (Case T-191/08)
   (2008/C 183/51)
   Language in which the application was lodged: German
   Parties

      Applicants: JOOP! GmbH (Hamburg, Germany) (represented by: H. Schmidt-Hollburg, W. Möllering, A. Löhde, H. Leo, A. Witte, T. Frank, A. Theil, H.-P. Rühland, B. Willers and T. Rein)

      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 of 6 March 2008 in Case R 1822/2007-1;

               —

               Order the Office for Harmonisation in the Internal Market to pay the costs including those incurred during the appeal proceedings.

         Pleas in law and main arguments

      Community trade mark concerned: figurative mark representing an exclamation mark, for goods in Classes 14, 18 and 25 (Application No 5 332 176).

      Decision of the Examiner: Rejection of the registration.

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

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the mark applied for has distinctive character and its availability does not have to be preserved.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, 14.1.1994, p. 1).


title: Order of the President of the Court of First Instance of 26 February 1999 in Case T-203/98 R: Yannis Tzikis v Commission of the European Communities (Interlocutory proceedings - Suspension of operation of a measure - Disciplinary proceedings - Removal from post)

text:
28.8.1999             EN                       Official Journal of the European Communities                                           C 246/31
      ORDER OF THE COURT OF FIRST INSTANCE                                Commission of the European Communities (Agent: Marie
                                                                          Wolfcarius) — applications for annulment of the decision of
                        of 16 April 1999                                  the Commission to take no action on the complaints lodged
                                                                          by the applicant on 4 and 5 December 1996 respectively,
                                                                          criticising the unfair competition to which it was allegedly
in Case T-142/98: Image Création SA v Commission of                       being subjected — the Court of First Instance (First Chamber),
                the European Communities (1)                              composed of: B. Vesterdorf, President, and J. Pirrung and M.
                                                                          Vilaras, Judges; H. Jung, Registrar, made an order on 21 May
(Action for annulment — Withdrawal of the contested                       1999, the operative part of which is as follows:
        measure — Case not proceeding to judgment)
                                                                          1. Cases T-169/98 and T-170/98 are joined for the purposes of
                        (1999/C 246/62)                                        the order;
                                                                          2. The actions are dismissed as inadmissible;
                   (Language of the case: French)
                                                                          3. There is no need to rule on the application of the Council for
In Case T-142/98: Image Création SA, established in Brussels,                  leave to intervene;
represented by Georges Vandersanden, Eric Gillet and Laure
Levi, of the Brussels Bar, with an address for service in                 4. The applicant is to bear its own costs and to pay the costs
Luxembourg at the offices of Fiduciaire Myson SARL, 30 Rue                     incurred by the Commission;
de Cessange, v Commission of the European Communities
(Agents: Christina Tufvesson and Bernard Mongin) — appli-                 5. The Council, as applicant for leave to intervene, is to bear its own
cation for annulment of the decision of the Commission of 10                   costs.
June 1998 fixing in the sum of ECU 135 548 the amount
owed by the applicant in respect of the project ‘Troisième
contrat Europuzzle, broadcasting in 4 Eastern European                    (1) OJ C 378 of 5.12.1998.
countries, 52 clips’ and, in so far as may be necessary, for
annulment of the measures implementing that decision — the
Court of First Instance (Second Chamber), composed of A.
Potocki, President, and C.W. Bellamy and A.W.H. Meij, Judges;
H. Jung, Registrar, made an order on 16 April 1999, the
operative part of which is as follows:
1. There is no longer any need to give a decision on the application;     ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                                                                                INSTANCE
2. The defendant is ordered to pay the costs.
                                                                                of 26 February 1999
(1) OJ C 340 of 7.11.1998.
                                                                          in Case T-203/98 R: Yannis Tzikis v Commission of the
                                                                                European Communities
                                                                          (Interlocutory proceedings — Suspension of operation of a
                                                                          measure — Disciplinary proceedings — Removal from post)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                                (1999/C 246/64)
                        of 21 May 1999
                                                                                (Language of the case: French)
in Joined Cases T-169/98 and T-170/98: Schiocchet v
       Commission of the European Communities (1)
                                                                          In Case T-203/98 R: Yannis Tzikis, an official of the Com-
(Action for annulment — Plea of illegality — Regulation                   mission of the European Communities, residing at Boortmeer-
(EEC) No 684/92 — International carriage of passengers by                 beek (Belgium), represented by Georges Vandersanden and
              coach and bus — Inadmissibility)                            Laure Levi, of the Brussels Bar, with an address for service in
                                                                          Luxembourg at the offices of Fiduciaire Myson SARL 30 Rue
                                                                          de Cessange, v Commission of the European Communities
                        (1999/C 246/63)                                   (Agents: Gianluigi Valsesia and Julian Currall) — application
                                                                          for suspension of operation of the decision of 27 October
                                                                          1998 by which the appointing authority imposed on the
                   (Language of the case: French)                         applicant the disciplinary measure of removal from post
                                                                          without reduction or withdrawal of entitlement to a retirement
In Joined Cases T-169/98 and T-170/98: Schiocchet, estab-                 pension as provided for in Article 86(2)(f) of the Staff
lished at Beuvillers (France), represented by Pascal Barbier, of          Regulations of officials of the European Communities — the
the Thionville Bar, with an address for service in Luxembourg             President of the Court of First Instance made an order on 26
at the office of Viva Vacances, 33 Rue de Strasbourg, v                   February 1999, the operative part of which is as follows:
 ---pagebreak--- C 246/32                EN                     Official Journal of the European Communities                                     28.8.1999
1. Operation of the decision of 27 October 1998, imposing on the          ORDER OF THE PRESIDENT OF THE COURT OF FIRST
    applicant the disciplinary measure of removal from post without                                  INSTANCE
    reduction or withdrawal of entitlement to a retirement pension,
    is suspended pending delivery of final judgment in the case by the                            of 21 June 1999
    Court of First Instance;
                                                                          in Case T-56/99 R: Marlines SA v Commission of the
2. The costs are reserved.                                                                     European Communities
                                                                          (Competition — Payment of the fine — Bank guarantee —
                                                                          Procedure for interim measures — Suspension of enforce-
                                                                                ment)
                                                                                (1999/C 246/66)
                                                                                (Language of the case: Greek)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                          In Case T-56/99 R: Marlines SA, established in Monrovia,
                                                                          represented by Dimitrios Papatheofanous, lawyer with right of
                         of 9 March 1999                                  audience before the Arios Pagos, Athens, with an address for
                                                                          service in Luxembourg at the office of Paul Attallas, Route de
                                                                          Trèves, Findel, v Commission of the European Communities
in Case T-205/98: Clauni S.A. and Others v Commission                     (Agents: Dimitris Triantafyllou and Richard Lyal) — application
               of the European Communities (1)                            for suspension of enforcement of Commission Decision
                                                                          1999/271/EC of 9 December 1998 relating to a proceeding
                                                                          pursuant to Article 85 of the EC Treaty (IV/34.466 — Greek
                    (Manifest inadmissibility)                            Ferries) (OJ 1999 L 109, p. 24), Article 2 of which fined the
                                                                          applicant ECU 0.26 million for breach of Article 81 EC
                                                                          (formerly Article 85 of the EC Treaty) — the President of the
                          (1999/C 246/65)                                 Court of First Instance made an order on 21 June 1999, the
                                                                          operative part of which is as follows:
                                                                          1. The application for interim measures is dismissed.
                    (Language of the case: French)
                                                                          2. Costs are reserved.
In Case T-205/98: Clauni S.A., established at Agen (France),
Jean-Marie Bissieres, residing at La Croix Blanche (France), SA
Lomagenais, now known as SA Loma, established at Penne
D’Agenais (France), and André Lompech, residing at Canet
(France), represented by Daniel Veyssiere, of the Agen Bar,
with an address for service in Luxembourg at the Chambers of
Aloïse May, 31 Grand-Rue, v Commission of the European                    ORDER OF THE PRESIDENT OF THE COURT OF FIRST
Communities — application for an order of the Court allowing                                         INSTANCE
a rebate application lodged by the first applicant with the
French customs authorities on 20 December 1998 in relation                                         of 1 June 1999
to certain imports of mushrooms originating in Poland — the
Court (Fourth Chamber), composed of: R.M. Moura Ramos,
President, and V. Tiili and P. Mengozzi, Judges; H. Jung,                 in Case T-93/99 R: Beatrice Bonaiti Brighina v Com-
Registrar, made an order on 9 March 1999, the operative part                         mission of the European Communities
of which is as follows:
                                                                             (Proceedings for interim measures — Urgency — None)
1. The application is dismissed as manifestly inadmissible;
                                                                                (1999/C 246/67)
2. The applicants are to bear their own costs.
                                                                                (Language of the case: Italian)
(1) OJ C 71 of 13.3.1999.                                                 In Case T-93/99 R: Beatrice Bonaiti Brighina, an official at the
                                                                          Joint Research Centre, Ispra, represented by Mirco Rizzoglio,
                                                                          of the Milan Bar, and Franco Colussi, of the Luxembourg Bar,
                                                                          with an address for service in Luxembourg at Mr Colussi’s
                                                                          chambers, 36 Rue de Wiltz, v Commission of the European
                                                                          Communities (Agent: Gianluigi Valsesia) — application for,


title: JUDGMENT OF THE COURT of 12 May 1998 in Case C-367/96 (reference for a preliminary ruling from the Efeteio - Athinon): Alexandros Kefalas and Others v Elliniko Dimosio (Greek State), Organismos Ikonomikis Anasinkrotisis Epikhiriseon AE (OAE), intervener Athinaiki Khartopiia AE and Others (Company law - Public limited liability company in financial difficulties - Increase in the capital of the company by administrative decision - Abusive exercise of a right arising from a provision of Community law)

text:
25.7.98               EN                  Official Journal of the European Communities                                      C 234/5
seeking to overcome social exclusion Ð the Court,                    Bellanger, Head of Subdirectorate in the same Directorate,
composed of: G. C. Rodríguez Iglesias, President, C.                 and Claude Chavance, Secretary for Foreign Affairs in the
Gulmann, H. Ragnemalm, M. Wathelet, R. Schintgen                     same Directorate, the United Kingdom of Great Britain
(Presidents of Chambers), G. F. Mancini, J. C. Moitinho              and Northern Ireland, represented by John E. Collins Ð
de Almeida (Rapporteur), J. L. Murray, D. A. O. Edward,              application for annulment of the Joint Action of 4 March
J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón, Judges;           1996 adopted by the Council on the basis of Article K.3
G. Tesauro, Advocate General; L. Hewlett, Administrator,             of the Treaty on European Union on airport transit
for the Registrar, has given a judgment on 12 May 1998,              arrangements (96/197/JAI) (OJ 1996 L 63 of 19.3.1996,
in which it:                                                         p. 8) Ð the Court (Chamber), composed of: G. C.
                                                                     Rodríguez Iglesias, President, C. Gulmann, H.
                                                                     Ragnemalm, M. Wathelet and R. Schintgen, Presidents of
1. Annuls the decision referred to in the Commission's
                                                                     Chamber, G. F. Mancini, J. C. Moitinho de Almeida,
     press release of 23 January 1996 (IP/96/67)
                                                                     P. J. G. Kapteyn, (Rapporteur), J. L. Murray, D. A. O.
     announcing certain grants for European projects
                                                                     Edward, J.-P. Puissochet, G. Hirsch, P. Jann, L. Sevón and
     seeking to overcome social exclusion;
                                                                     K. M. Ioannou, Judges; N. Fennelly, Advocate General; D.
                                                                     Louterman-Hubeau, Principal Administrator, for the
2. Declares that the annulment of the abovementioned                 Registrar Ð has given a judgment on 12 May 1998, in
     decision shall not affect the validity of payments made         which it:
     or undertakings given under the contracts in issue;
                                                                     1. Dismisses the application;
3. Orders the Commission of the European Communities
     to pay the costs;                                               2. Orders the Commission of the European Communities
                                                                          to pay the costs;
4. Orders the Federal Republic of Germany, the                       3. Orders the Kingdom of Denmark, the French
     Kingdom of Denmark, the Council of the European                      Republic, the United Kingdom of Great Britain and
     Union and the European Parliament to bear their own                  Northern Ireland and the Parliament to bear their
     costs.                                                               own costs.
(1) OJ C 145 of 18.5.1996.                                           (1) OJ C 210 of 20.7.1996.
               JUDGMENT OF THE COURT                                                JUDGMENT OF THE COURT
                        of 12 May 1998                                                      of 12 May 1998
                                                                     in Case C-367/96 (reference for a preliminary ruling from
in Case C-170/96: Commission of the European
                                                                     the Efeteio Ð Athinon): Alexandros Kefalas and Others v
Communities, supported by the European Parliament v
                                                                     Elliniko Dimosio (Greek State), Organismos Ikonomikis
Council of the European Union, supported by the
                                                                     Anasinkrotisis Epikhiriseon AE (OAE), intervener
Kingdom of Denmark, French Republic and the United
                                                                                Athinaiki Khartopiia AE and Others (1)
     Kingdom of Great Britain and Northern Ireland (1)
                                                                     (Company law Ð Public limited liability company in
(Act of the Council Ð Joint action regarding airport
                                                                     financial difficulties Ð Increase in the capital of the
                  transit visas Ð Legal basis)
                                                                     company by administrative decision Ð Abusive exercise of
                         (98/C 234/08)                                   a right arising from a provision of Community law)
                                                                                (98/C 234/09)
                (Language of the case: French)
                                                                                (Language of the case: Greek)
  (Provisional translation; the definitive translation will be         (Provisional translation; the definitive translation will be
          published in the European Court Reports)                            published in the European Court Reports)
In Case C-170/96: Commission of the European                         In Case C-367/96: reference to the Court under Article 177
Communities, represented by Pieter van Nuffel, supported             of the EC Treaty from the Efeteio Ð Athinon for a
by the European Parliament, represented by Johann                    preliminary ruling in the proceedings pending before that
Schoo, Head of Division in the Legal Service, and JoseÂ-             court between Alexandros Kefalas and Others and
Luis Rufas Quintana, v Council of the European Union,                Elliniko Dimosio (Greek State), Organismos Ikonomikis
represented by Julian Schutte, Director of the Legal                 Anasinkrotisis Epikhiriseon AE (OAE), intervener
Service, and Michael Bishop, supported by the Kingdom                Athinaiki Khartopiia AE and Others, on the interpretation
of Denmark, represented by Peter Biering, the French                 of Article 25 of the Second Council Directive 77/91/EEC
Republic, represented initially by Catherine de Salins,              of 13 December 1976 on coordination of safeguards
Head of Subdirectorate in the Legal Affairs Directorate of           which, for the protection of the interests of members and
the Ministry of Foreign Affairs, then by Kareen Rispal-              others, are required by Member States of companies
 ---pagebreak--- C 234/6               EN                  Official Journal of the European Communities                                      25.7.98
within the meaning of the second paragraph of Article 58             proceedings pending before that court between Mr and
of the Treaty, in respect of the formation of public limited         Mrs Robert Gilly and Directeur des Services Fiscaux du
liability companies and the maintenance and alteration of            Bas-Rhin Ð on the interpretation of Articles 6, 48 and
their capital, with a view to making such safeguards                 220 of the EC Treaty Ð the Court, composed of: G. C.
equivalent (OJ L 26 of 30.1.1977, p. 1), and on the                  Rodríguez Iglesias, President, M. Wathelet, (Rapporteur)
abusive exercise of a right arising from a provision of              and R. Schintgen, (Presidents of Chambers), G. F.
Community law, the Court, composed of: G. C. Rodríguez               Mancini, J. C. Moitinho de Almeida, P. J. G. Kapteyn, J. L.
Iglesias, President, C. Gulmann, H. Ragnemalm and M.                 Murray, J.-P. Puissochet, G. Hirsch, L. Sevón and K. M.
Wathelet (Presidents of Chambers), G. F. Mancini, J. C.              Ioannou, Judges; D. Ruiz-Jarabo Colomer, Advocate
Moitinho de Almeida, P. J. G. Kapteyn, (Rapporteur), J. L.           General; H. A. Rühl, Principal Administrator, for the
Murray, D. A. O. Edward, J.-P. Puissochet, G. Hirsch, P.             Registrar, has given a judgment on 12 May 1998, in
Jann and L. Sevón, Judges; G. Tesauro, Advocate General;             which it has ruled:
H. A. Rühl, Principal Administrator, for the Registrar, has
given a judgment on 12 May 1998, in which it has ruled:              1. The second indent of Article 220 of the EC Treaty
                                                                          does not have direct effect.
Community law does not preclude national courts from
applying a provision of national law in order to assess              2. On a proper construction, Article 48 of the EC Treaty
whether a right arising from a provision of Community                     does not preclude the application of provisions such as
law is being exercised abusively. However, where such an                  those in Articles 13(5)(a), 14(1) and 16 of the
assessment is made, a shareholder relying on Article 25(1)                Convention signed in Paris on 21 July 1959 between
of the Second Council Directive 77/91/EEC of                              the French Republic and the Federal Republic of
13 December 1976 on coordination of safeguards which,                     Germany for the avoidance of double taxation, as
for the protection of the interests of members and others,                amended by the protocols signed in Bonn on 9 June
are required by Member States of companies within the                     1969 and 28 September 1989, under which the tax
meaning of the second paragraph of Article 58 of the                      regime applicable to frontier workers differs depending
Treaty, in respect of the formation of public limited                     on whether they work in the private sector or the
liability companies and the maintenance and alteration of                 public sector and, where they work in the public
their capital, with a view to making such safeguards                      sector, on whether or not they have only the
equivalent, cannot be deemed to be abusing the right                      nationality of the State of the authority employing
arising from that provision merely because the increase in                them, and the regime applicable to teachers differs
capital contested by him has resolved the financial                       depending on whether their residence in the State in
difficulties threatening the existence of the company                     which they are teaching is for a short period or not.
concerned and has clearly ensured to his economic benefit,
or because he has not exercised his preferential right under         3. On a proper construction, Article 48 of the Treaty
Article 29(1) of that directive to acquire new shares issued              does not preclude the application of a tax credit
on the increase in capital at issue.                                      mechanism such as that provided for in
                                                                          Article 20(2)(a)(cc) of the said convention.
(1) OJ C 40 of 8.2.1997.
                                                                     (1) OJ C 370 of 7.12.1996.
               JUDGMENT OF THE COURT
                       of 12 May 1998                                               JUDGMENT OF THE COURT
                                                                                (Third Chamber)
in Case C-336/96 (reference for a preliminary ruling from
the Tribunal Administratif, Strasbourg): Mr and Mrs                                         of 14 May 1998
Robert Gilly v Directeur des Services Fiscaux du Bas-
                                                                     in Case C-48/96 P: Windpark Groothusen GmbH & Co.
                            Rhin (1)
                                                                              Betriebs KG v Commission of the European
(Articles 6, 48 and 220 of the EC Treaty Ð Equal                                             Communities (1)
treatment Ð Bilateral convention for the avoidance of
                                                                     (Appeal Ð Financial support in the energy sector Ð
            double taxation Ð Frontier workers)
                                                                     Thermie programme Ð Right to full legal protection Ð
                         (98/C 234/10)                                Duty to state reasons Ð Right to a hearing Ð Discretion)
                                                                                (98/C 234/11)
                (Language of the case: French)
                                                                                (Language of the case: German)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                     (Provisional translation; the definitive translation will be
                                                                               published in the European Court Reports)
In Case C-336/96: reference to the Court under Article 177
of the EC Treaty from the Tribunal Administratif,                    In Case C-48/96 P: Windpark Groothusen GmbH & Co.
Strasbourg, France, for a preliminary ruling in the                  Betriebs KG, a company governed by German law,


30.10.1999            EN                      Official Journal of the European Communities                                   C 314/15
       Removal from the register of Case T-19/98 (1)                            Removal from the register of Case T-125/99 (1)
                         (1999/C 314/31)
                                                                                (1999/C 314/32)
                   (Language of the case: French)
                                                                                (Language of the case: Spanish)
By order of 8 September 1999 the President of the Fourth
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the register of                 By order of 23 July 1999 the President of the Fourth Chamber
Case T-19/98, Impregilo S.p.A. and Others v Commission of                of the Court of First Instance of the European Communities
the European Communities.                                                has ordered the removal from the register of Case T-125/99,
                                                                         D. Enrique Gutiérrez de Quijano y Llorens v European Parlia-
                                                                         ment.
(1) OJ C 72 of 7.3.1998.
                                                                         (1) OJ C 246 of 28.8.1999.


title: Case T-133/07: Judgment of the General Court of 12 July 2011 — Mitsubishi Electric v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Rights of the defence — Proof of the infringement — Duration of the infringement — Fines — Starting amount — Reference year — Equal treatment)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/31

         Judgment of the General Court of 12 July 2011 — Mitsubishi Electric v Commission
   (Case T-133/07) (1)

   (Competition - Agreements, decisions and concerted practices - Market in gas insulated switchgear projects - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Market-sharing - Rights of the defence - Proof of the infringement - Duration of the infringement - Fines - Starting amount - Reference year - Equal treatment)
   2011/C 252/73
   Language of the case: English

      Parties

      Applicant: Mitsubishi Electric Corp. (Tokyo, Japan) (represented by: R. Denton, Solicitor, and K. Haegeman, lawyer)

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

      Re:

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

      Operative part of the judgment

   The Court:

               1.

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

               2.

               Dismisses the action as to the remainder;

               3.

               Orders Mitsubishi Electric to bear three quarters of the costs incurred by the parties before the Court;

               4.

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

      (1)  OJ C 140, 23.6.2007.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 12 June 1997 in Case C-138/96: Commission of the European Communities v. Federal Republic of Germany (Failure to fulfil obligations - Directive 92/116/EEC - Failure to transpose within the prescribed period)

text:
16 . 8 . 97          I EN                  Official Journal of the European Communities                                  No C 252/5
                JUDGMENT OF THE COURT                                                JUDGMENT OF THE COURT
                         ( Sixth Chamber)                                                     of 17 June 1997
                                                                      in Case C-70/95 ( reference for a preliminary ruling from
                         of 12 June 1997                              the Tribunale Amministrativo Regionale per la
                                                                      Lombardia): Sodemare SA, Anni Azzurri Holding SpA,
in    Case C-138/96: Commission of the European
                                                                      Anni Azzurri Rezzato Srl, supported by Fédération des
       Communities v. Federal Republic of Germany (')
                                                                      Maisons de Repos Privées de Belgique (Femarbel) ASBL v.
(Failure to fulfil obligations — Directive 92/116/EEC —                                    Regione Lombardia (')
       Failure to transpose within the prescribed period)             (Freedom of establishment — Freedom to provide services
                                                                              — Old people 's homes — Non-profit-making)
                           ( 97/C 252/08 )
                                                                                ( 97/C 252/09 )
                                                                                (Language of the case: Italian)
                 (Language of the case: German)
                                                                        (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
   (Provisional translation; the definitive translation will be
           published in the European Court Reports)                   In Case C-70/95 : reference to the Court under Article 177
                                                                      of the EC Treaty from the Tribunale Amministrativo
                                                                      Regionale per la Lombardia (Administrative Court for the
                                                                      Lombardy Region ) ( Italy ) for a preliminary ruling in the
In Case C-138/96 : Commission of the European                         proceedings pending before that court between Sodemare
Communities ( Agent: Klaus-Dieter Borchardt) v. Federal               SA, Anni Azzurri Holding SpA, Anni Azzurri Rezzato Sri,
Republic of Germany ( Agents: Ernst Röder and Bernd                   supported by Federation des Maisons de Repos Privées de
Kloke ) — application for a declaration that, by failing to           Belgique (Femarbel ) ASBL and Regione Lombardia — on
adopt within the prescribed period the laws, regulations              the interpretation of Articles 3 (g), 5 , 52, 58 , 59, 85 , 86 ,
and administrative provisions necessary to comply with                90 and 190 of the EC Treaty — the Court, composed
Council Directive 92/116/EEC of 17 December 1992                      of: G. C. Rodriguez Iglesias, President, G. F. Mancini,
amending and updating Directive 71/118/EEC on health                  J. C. Moitinho de Almeida and L. Sevón (Presidents
problems affecting trade in fresh poultrymeat ( OJ No L 62,           of Chambers ), C. N. Kakouris, P. J. G. Kapteyn
15 . 3 . 1993 , p. 1 ), the Federal Republic of Germany has           ( Rapporteur), C. Gulmann, P. Jann, H. Ragnemalm, M.
failed to fulfil its obligations under that Directive and the         Wathelet and R. Schintgen, Judges : N. Fennelly, Advocate
EC Treaty — the Court ( Sixth Chamber ), composed of:                 General; L. Hewlett, Administrator, for the Registrar, has
G. F. Mancini, President of the Chamber, J. L. Murray,                given a judgment on 17 June 1997, in which it has ruled :
C. N. Kakouris ( Rapporteur ), P. J. G. Kapteyn and H.
Ragnemalm, Judges; D. Ruiz-Jarabo Colomer, Advocate                   1 . Community law, and Article 190 of the EC Treaty in
General; R. Grass, Registrar, has given a judgment on                      particular, does not lay down conditions concerning
12 June 1997, in which it:                                                 the statement of reasons for national rules of general
                                                                           scope which fall within the sphere of Community law.
1 . declares that, by failing to adopt within the prescribed          2 . Articles 52 and 58 of the EC Treaty do not preclude a
      period the laws, regulations and administrative                      Member State from allowing only non-profit-making
      provisions necessary to comply with Council Directive                private operators to participate in the running of its
      92/116/EEC of 17 December 1992 amending and                          social welfare system by concluding contracts which
      updating Directive 71 /118/EEC on health problems                    entitle them to be reimbursed by the public authorities
      affecting trade in fresh poultrymeat, the Federal                    for the costs of providing social welfare services of a
      Republic of Germany has failed to fulfil its obligations             health-care nature.
      under that Directive;
                                                                       3 . Article 59 of the EC Treaty does not cover the
                                                                           situation of a company which, having established itself
                                                                           in a Member State in order to run old people 's homes
2 . orders the Federal Republic of Germany to pay the                      there, provides services to residents who, for that
      costs.
                                                                           purpose, reside in those homes permanently or for an
                                                                           indefinite period.
 (') OJ No C 180, 22 . 6 . 1996 .
                                                                       4 . Articles 85 and 86, read in conjunction with
                                                                           Articles 3 (g), 5 and 90 of the EC Treaty, do not apply
                                                                           to national rules which allow only non-profit-making
                                                                           private operators to participate in the running of a


title: Case C-49/09: Judgment of the Court (Third Chamber) of 28 October 2010 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Value added tax — Directive 2006/112/EC — Later accession of Member States — Transitional provisions — Temporal application — Application of a reduced rate — Clothing and clothing accessories for babies and children’s footwear)

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/9

         Judgment of the Court (Third Chamber) of 28 October 2010 — European Commission v Republic of Poland
   (Case C-49/09) (1)

   (Failure of a Member State to fulfil obligations - Value added tax - Directive 2006/112/EC - Later accession of Member States - Transitional provisions - Temporal application - Application of a reduced rate - Clothing and clothing accessories for babies and children’s footwear)
   2010/C 346/15
   Language of the case: Polish

      Parties

      Applicant: European Commission (represented by: D. Triantafyllou and K. Herrmann, acting as Agents)

      Defendant: Republic of Poland (represented by: M. Szpunar, M. Dowgielewicz, M. Jarosz and A. Rutkowska, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Article 98 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), in conjunction with Annex III thereto — Application of a reduced rate of VAT to clothing and clothing accessories for babies and children’s footwear

      Operative part of the judgment

   The Court:

               1.

               Declares that, by applying a reduced value added tax rate of 7 % to supplies, import and intra-Community acquisition of clothing and clothing accessories for babies and of children’s footwear, the Republic of Poland has failed to fulfil its obligations under Article 98 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in conjunction with Annex III thereto;

               2.

               Orders the Republic of Poland to pay the costs.

      (1)  OJ C 102, 1.5.2009.


title: Action brought on 3 April 1998 by VTech Electronics (UK) plc against the Commission of the European Communities (Case T-56/98)

text:
30.5.98              EN                 Official Journal of the European Communities                                     C 166/19
infringement of Article 133(1) of the Treaty, infringement         essential procedural requirements and infringement of the
of Article 132(1) of the Treaty in conjunction with                Treaty or of rules for the implementation thereof and/or
Article 102 of the OCT decision, infringement of                   breach of general principles of Community law, in
Article XIII of GATT 1994 and of the WTO Agreement                 particular: illegality of Article 101(1) of the OCT decision,
on import licensing procedures, infringement of                    illegality of the origin rules contained in Title I of Annex II
Article 228(7) of the Treaty and breach of the principle of        to the OCT decision, illegality of the amending decision
proportionality.                                                   on which the sugar implementation regulation is based,
                                                                   the fact that the sugar implementation regulation is ultra
                                                                   vires, infringement of Article 234 of the OCT decision,
                                                                   infringement of Article 133(1) of the Treaty, infringement
                                                                   of Article 132(1) of the Treaty in conjunction with
                                                                   Article 102 of the OCT decision, infringement of
                                                                   Article XIII of GATT 1994 and of the WTO Agreement
Action brought on 1 April 1998 by Aruba against the                on import licensing procedures, infringement of
         Commission of the European Communities                    Article 228(7) of the Treaty and breach of the principle of
                       (Case T-54/98)                              proportionality.
                        (98/C 166/46)
                (Language of the case: Dutch)
An action against the Commission of the European                   Action brought on 3 April 1998 by VTech Electronics
Communities was brought before the Court of First                        (UK) plc against the Commission of the European
Instance of the European Communities on 1 April 1998                                         Communities
by Aruba, represented by P. Bos and M. Slotboom, of the
                                                                                (Case T-56/98)
Rotterdam Bar, with an address for service in Luxembourg
at the Chambers of M. Loesch, 11 Rue Goethe.                                                (98/C 166/47)
The applicant claims that the Court should:                                        (Language of the case: English)
Ð annul Commission Regulation (EC) No 2553/97 of                   An action against the Commission of the European
     17 December 1997 on rules for issuing import licences         Communities was brought before the Court of First
     for certain products covered by CN codes 1701, 1702,          Instance of the European Communities on 3 April 1998
     1703 and 1704 and qualifying as ACP/OCT                       by VTech Electronics (UK) plc, represented by David
     originating products (OJ L 349 of 19.12.1997, p. 26);         Milne and Rupert Baldry, with an address for service in
                                                                   Luxembourg at the offices of Wilson Associates, 9, Avenue
                                                                   Guillaume.
Ð order the Commission to pay the costs.
                                                                   The applicant claims that the Court should:
Pleas in law and main arguments:
The applicant seeks annulment of the sugar                         Ð declare void the Commission decision of 26Ð27
implementation regulation, which lays down the detailed                 January 1998 to issue a regulation which purports to
implementing rules for imports of sugar qualifying under                reclassify for customs duty purposes a product
the rules relating to ACP/OCT cumulation of origin in                   imported by VTech from China known as the Smart
accordance with Article 108b of the OCT decision.                       Start Premier' and/or to declare void the ensuing
                                                                        regulation;
The sugar implementation regulation is intended to secure
the limitation by the Community of imports of sugar                Ð take such further action as the Court may deem
originating, in particular, in Aruba. The Commission has                appropriate; and
restricted trade between Aruba and the Community,
contrary to Community law. Those restrictions must be              Ð order the Commission to pay the costs.
lifted for the remaining duration of the OCT decision. The
application also includes a claim that the legal
infringements complained of should not be repeated in the          Pleas in law and main arguments:
future. Lastly, the contested regulation imposes serious
restrictions on, and thus severely affects, an important
infant industry' in Aruba, namely the sugar refining              The applicant is a company incorporated in the United
sector.                                                            Kingdom and belongs to the worldwide VTech Group of
                                                                   Companies. VTech's principal activity is the sale of
                                                                   electronic products, in particular learning pads, electronic
The pleas in law advanced in opposition to the contested           keyboard units programmed with a number of activities
regulation allege lack of competence, infringement of              for children. The object of its application is a Commission
 ---pagebreak--- C 166/20             EN                  Official Journal of the European Communities                                   30.5.98
decision of 26Ð27 January 1998 (the Decision') to issue            Ð it was given no opportunity to make representations
a regulation (the Regulation) which purports to reclassify              concerning the Regulation before the Nomenclature
for customs duty purposes a product imported by VTech                   Committee; and
from China known as the Smart Start Premier'. The
purported effect of the Regulation is to classify the Smart
                                                                    Ð the Decision effectively overturns the decisions of the
Start Premier for customs duty purposes as a toy' as
                                                                        Tribunal which is the duly constituted court
opposed to a game'.
                                                                        established by the United Kingdom. In so doing, it
The applicant submits in this regard that prior to the                  infringes the principles of legitimate expectations and
Commission's decision in this case it had twice                         legal certainty.
successfully appealed to the Value Added Tax and Duties
Tribunal in the United Kingdom against decisions of HM
Customs and Excise that products sold by the company
should be classified as toys'. Following the outcome of
those proceedings, the Tariff and Statistical Nomenclature
Section (T&SNS) of the Customs Code Committee of the                        Removal from the register of Case T-7/97 (1)
Commission considered the Smart Start Premier, a similar
product marketed by VTech, and announced its intention                                       (98/C 166/48)
to issue the Regulation.
The applicant submits that, in adopting the Decision, the           By order of 25 March 1998 the President of the First
Commission acted in breach of the EC Treaty, in                     Chamber of the Court of First Instance of the European
particular Articles 28 and 29, and of the Community                 Communities has ordered the removal from the register of
Customs Code, and also in breach of Community law, as               Case T-7/97: Miguel Vicente-NunÄez v Commission of the
regards both substance and procedure.                               European Communities.
It understands that the Commission has referred to the              (1) OJ C 108 of 5.4.1997.
Harmonised System Explanatory Notes (HSEN) as a
justification for the Regulation's classifyng the product as
an educational toy'. It submits that the HSEN do not
have binding force and that they cannot override the
provisions of the Common Customs Tariff (CCT) and its
General Interpretative Rules. Accordingly, inasmuch as the
Commission is purporting to classify a product in breach                  Removal from the register of Case T-170/97 (1)
of the Community Customs Code it is thereby also                                             (98/C 166/49)
purporting to alter autonomously the duties in the CCT
and acting in breach of Article 28 of the EC Treaty which
expressly provides that any such alteration of duties can           By order of 30 March 1998 the President of the Fourth
only be decided by the Council.                                     Chamber of the Court of First Instance of the European
                                                                    Communities has ordered the removal from the register of
From a procedural point of view, the applicant submits
                                                                    Case T-170/97: MichaeÈl Tavernier v European Court of
that:
                                                                    Auditors.
Ð the reasons for the issue of the Regulation have not
    been adequately explained;                                      (1) OJ C 7 of 10.1.1998.


title: Case C-69/00: Action brought on 29 February 2000 by the Commission of the European Communities against Ireland

text:
C 149/20                EN                    Official Journal of the European Communities                                   27.5.2000
— order Ireland to pay the costs.                                        1998 without Ireland having enacted the provisions necessary
                                                                         to comply with the directive referred to in the conclusions of
                                                                         the Commission.
Pleas in law and main arguments
                                                                         (1) OJ L 333, 04.12.1997, p. 1.
Article 249 EC (ex Article 189 of the EC Treaty) under which             (2) Council Directive 76/769/EEC of 27 July 1976 (OJ L 262,
a directive shall be binding as to the result to be achieved,                27.09.76, p. 201).
upon each Member State, carries by implication an obligation
on the Member States to observe the period for compliance
laid down in the directive. That period expired on 1 August
1998 without Ireland having enacted the provisions necessary
to comply with the directive referred to in the conclusions of
the Commission.
                                                                         Reference for a preliminary ruling by the Verwaltungsge-
( 1) OJ L 140, 12.05.1998, p. 10.                                        richtshof by order of that court of 17 February 2000 in
(2) Council Directive 93/43/EEC of 14 June 1993 on the hygiene of        the case of DEVELOP Baudurchführungs- und Stadt-
     foodstuffs (OJ L 175, 19.07.1993, p. 1.                             entwicklungs GmbH against Finanzlandesdirektion für
                                                                                Wien, Niederösterreich und Burgenland
                                                                                (Case C-71/00)
                                                                                (2000/C 149/34)
Action brought on 29 February 2000 by the Commission                     Reference has been made to the Court of Justice of the
         of the European Communities against Ireland                     European Communities by order of the Verwaltungsgerichts-
                                                                         hof (Higher Administrative Court) of 17 February 2000,
                            (Case C-69/00)                               received at the Court Registry on 2 March 2000, for a
                                                                         preliminary ruling in the case of DEVELOP Baudurchführungs-
                                                                         und Stadtentwicklungs GmbH v Finanzlandesdirektion für
                           (2000/C 149/33)                               Wien, Niederösterreich und Burgenland on the following
                                                                         question:
An action against Ireland was brought before the Court of
Justice of the European Communities on 29 February 2000 by               Do payments which an acquirer of dividend rights in a capital
the Commission of the European Communities, represented                  company makes not on its own behalf but on behalf of its
by Mr Michael Shotter, a member of its Legal Service, acting as          parent company constitute a ‘contribution of assets of any
agent, with an address for service at the office of Mr Carlos            kind’ within the meaning of Article 4(1)(d) of Council Directive
Gómez de la Cruz, a member of its Legal Service, at the                 69/335/EEC (1) of 17 July 1969 concerning indirect taxes on
Wagner Centre, Kirchberg, Luxembourg.                                    the raising of capital?
The Applicant claims that the Court should:                              (1) OJ 1969 L 249, p. 25.
— declare that by failing to adopt the laws, regulations
      or administrative provisions necessary to comply with
      Directive 97/56/EC (1) of the European Parliament and of
      the Council of 20 October 1997 amending for the 16th
      time Directive 76/769/EEC on the approximation of the
      laws, regulations and administrative provisions of the
      Member States relating to restrictions on the marketing and        Appeal brought on 2 March 2000 by Acciaierie di Bolzano
      use of certain dangerous substances and preparations (2) or,       SpA against the judgment delivered on 16 December
      in any event, by failing to inform the Commission of those         1999 by the Fifth Chamber, Extended Composition, of
      measures, Ireland has failed to fulfil its obligations under       the Court of First Instance of the European Communities
      that Directive; and                                                in Case T-158/96 between Acciaierie di Bolzano SpA and
                                                                                Commission of the European Communities
— order Ireland to pay the costs.
                                                                                (Case C-75/00 P)
Pleas in law and main arguments                                                                  (2000/C 149/35)
Article 249 EC (ex Article 189 of the EC Treaty) under which             An appeal against the judgment delivered on 16 December
a directive shall be binding as to the result to be achieved,            1999 by the Fifth Chamber, Extended Composition, of the
upon each Member State, carries by implication an obligation             Court of First Instance of the European Communities in Case
on the Member States to observe the period for compliance                T-158/96 between Acciaierie di Bolzano SpA and Commission
laid down in the directive. That period expired on 4 December            of the European Communities (Italian Republic and Falck SpA,