title: Case C-533/03: Action brought on 19 December 2003 by the Commission of the European Communities against the Council of the European Union

text:
6.3.2004                EN                      Official Journal of the European Union                                            C 59/9
Furthermore, there are no legal measures in place in the                According to the second paragraph of Article 95 EC, the
federal Land of North Rhine-Westphalia for ensuring that an             derogation from Article 94 contained in Article 95, para-
environmental impact assessment will be carried out if, under           graph 1, shall not apply to fiscal provisions. In the view of
the law of that Land, it is to be anticipated that a road               the Commission, the expression ‘fiscal provisions’ is to be
construction project will have a significant impact on the              understood as including rules on taxable persons, taxable
environment.                                                            events, basis of taxation, rates and exemptions, along with the
                                                                        detailed rules on assessment and enforcement. Conversely, the
                                                                        Commission submits that that logic does not extend to mutual
(1) OJ 1985 L 175, p. 40.                                               assistance in tax matters. Measures of cooperation, verification
(2) OJ 1997 L 73, p. 5.                                                 and information whose purpose is to facilitate the elimination
                                                                        of frontiers without affecting the substance of Member States’
                                                                        own tax rules do not impinge on the tax jurisdiction of
                                                                        Member States.
                                                                        The Commission submits that the provisions of Regulation
Action brought on 19 December 2003 by the Commission                    1798/2003 cannot properly be regarded as effecting a harmon-
of the European Communities against the Council of the                  isation or approximation of national tax rules. Regulation
                         European Union                                 1798/2003 is concerned solely with the exchange of infor-
                                                                        mation in relation to transactions which take place across
                                                                        frontiers within the Community, in order to enable national
                         (Case C-533/03)                                tax authorities to cooperate with each other and with the
                                                                        Commission to ensure compliance with the law on VAT in the
                                                                        absence of frontier controls. It does not affect any rules which
                          (2004/C 59/15)                                are properly to be regarded as ‘fiscal provisions’ within the
                                                                        meaning of Article 95(2) EC or ‘legislation concerning turnover
                                                                        taxes’ within the meaning of Article 93 EC.
An action against the Counci of the European Union was
brought before the Court of Justice of the European Communi-
ties on 19 December 2003 by the Commission of the European              For its part, Directive 2003/93 amends Directive 77/799 solely
Communities, represented by R. Lyal, acting as agent, with an           by the deletion of value added tax and the insertion of taxes
address for service in Luxembourg.                                      on insurance premiums. It does not affect the nature of that
                                                                        directive, which concerns the exchange of information and
                                                                        thus does not constitute the harmonisation of ‘fiscal provisions’
The Applicant claims that the Court should:                             within the meaning of Article 95(2) EC.
1.    declare that Council Regulation (EC) No 1798/2003 of
      7 October 2003 on administrative cooperation in the
      field of value added tax and repealing Regulation (EEC)
      No 218/92 (1) and Council Directive 2003/93/EC of                 It must therefore be concluded that the object of the legislation
      7 October 2003 amending Council Directive 77/799/                 in question is the completion of the internal market. It does
      EEC concerning mutual assistance by the competent                 not constitute a set of measures harmonising tax provisions.
      authorities of the Member States in the field of direct and       The correct legal base is thus Article 95 EC.
      indirect taxation (2) are void;
2.    maintain the effects of these measures until the entry into
      force of legislation adopted on the correct legal basis;          The Commission accordingly submits that Council Regulaton
                                                                        (EC) No 1798/2003 and Council Directive 2003/93/EC were
3.    order the Council of the European Union to pay the costs.         adopted on an incorrect legal basis, in disregard of the
                                                                        prerogatives of the Parliament.
Pleas in law and main arguments
                                                                        (1) OJ L 264, 15.10.2003, p. 1.
                                                                        (2) OJ L 264, 15.10.2003, p. 23.
The issue in this case is whether Articles 93 and 94 on the one
hand or Article 95 EC on the other is the correct legal basis
for the adoption of a measure such as Regulation 1798/2003
and Directive 2003/93.


title: Case C-167/08: Judgment of the Court (First Chamber) of 23 April 2009 (reference for a preliminary ruling from the Hof van Cassatie van België (Belgium)) — Draka NK Cables Ltd, AB Sandvik International, VO Sembodja BV, Parc Healthcare International Ltd v Omnipol Ltd (Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Article 43(1) — Jurisdiction and enforcement of judgments — Notion of party ))

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/18

         Judgment of the Court (First Chamber) of 23 April 2009 (reference for a preliminary ruling from the Hof van Cassatie van België (Belgium)) — Draka NK Cables Ltd, AB Sandvik International, VO Sembodja BV, Parc Healthcare International Ltd v Omnipol Ltd
   (Case C-167/08) (1)

   (Judicial cooperation in civil matters - Regulation (EC) No 44/2001 - Article 43(1) - Jurisdiction and enforcement of judgments - Notion of ‘party’))
   2009/C 141/30
   Language of the case: Dutch

      Referring court

   Hof van Cassatie van België

      Parties to the main proceedings

      Applicants: Draka NK Cables Ltd, AB Sandvik International, VO Sembodja BV, Parc Healthcare International Ltd

      Defendant: Omnipol Ltd

      Re:

   Reference for a preliminary ruling — Hof van Cassatie van België — Interpretation of Article 43(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Brussels I’) (OJ 2001 L 12, p. 1) — Notion of ‘party’ — Action brought by a creditor in the name and for the account of his debtor — Decision relating to a request for a declaration of enforceability

      Operative part of the judgment

   Article 43(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a creditor of a debtor cannot lodge an appeal against a decision on a request for a declaration of enforceability if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration of enforceability.

      (1)  OJ C 183, 19.7.2008.


title: Case C-319/08: Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Lucia Anna Giorgia Iacono v Telecom Italia SpA

text:
               13.9.2008

               EN

               Official Journal of the European Union

               C 236/11

         Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Lucia Anna Giorgia Iacono v Telecom Italia SpA
   (Case C-319/08)
   (2008/C 236/17)
   Language of the case: Italian
   Referring court
   Giudice di Pace di Ischia
   Parties to the main proceedings

      Applicant: Lucia Anna Giorgia Iacono

      Defendant: Telecom Italia SpA
   Question referred
   Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

      (1)  OJ L 108, p. 51.

      (2)  OJ L 171, p. 12.

      (3)  Commission Recommendation.

      (4)  Commission Recommendation.


title: Case C-419/02: Reference for a preliminary ruling by the High Court of Justice (England and Wales) (Chancery Division) by order of that court dated 8 November 2002, in the case of 1) BUPA Hospitals Ltd and 2) Goldsborough Developments Ltd against the Commissioners of Customs and Excise

text:
C 31/6                   EN                          Official Journal of the European Union                                         8.2.2003
       75/442/EEC. Furthermore, those authorities have never                 Reference for a preliminary ruling by the High Court of
       denied that strong odours emanating from that farm                    Justice (England and Wales) (Chancery Division) by order
       reach nearby housing. Also, the incorrect arrangements                of that court dated 8 November 2002, in the case of
       for handling the slurry, which is emptied into a pit which            1) BUPA Hospitals Ltd and 2) Goldsborough Develop-
       is too small for the size of the exploitation, and for                ments Ltd against the Commissioners of Customs and
       disposing of carcasses results in the improper dumping                                              Excise
       of slurry and remains of animals in the surrounding area.
       Finally, the Spanish authorities have not submitted any
       description of the inspections carried out to check                                           (Case C-419/02)
       whether Directive 75/442/EEC is being complied with.
       Although the pig farm in question is substantial, counting                                     (2003/C 31/10)
       with 2 779 pigs and more than 600 suckling pigs, and is
       located 600 metres from the river Antas, which the
       Spanish authorities have declared an area of Community
       interest, it has not been the subject of an impact
       assessment as required by Directive 85/337/EEC.                       Reference has been made to the Court of Justice of the
                                                                             European Communities by an order of the High Court
                                                                             of Justice (England and Wales) (Chancery Division) dated
—      The waste-water of the agglomeration of Vera, with a                  8 November 2002, which was received at the Court Registry
       population of more than 10 000, which is deposited in                 on 20 November 2002, for a preliminary ruling in the case of
       an area which ought to have been designated as sensitive,             1) BUPA Hospitals Ltd and 2) Goldsborough Developments
       should be treated more stringently than merely by means               Ltd and the Commissioners of Customs and Excise, on the
       of secondary treatment. Clear evidence of the insufficient            following questions:
       tratement of Vera’s waste-water is the fact that the
       quantity of the chemical oxygen demand (COD) in the
       sample analysed at the request of the Commission is of
       353 mgO 2/l, which is three times greater than the
       maximum authorised for effluent from a waste treatment                Qu est ion 1
       station.
                                                                             Having regard to the relevant circumstances, the relevant
—      By decree of 2 March 1999, the Spanish authorities                    transactions and the position of the vendor companies how is
       declared the sensitive areas of the Autonomous Com-                   the expression ‘economic activity’ within the meaning of
       munity of Andalucia, including, in respect of Almeria, the            Article 4(1) and (2) of Directive 77/388/EEC on VAT ( 1) (the
       coastal lagoons of the Aguas and Antas rivers, whose                  Directive) to be interpreted?
       waters are eutrophic, with a high concentration of
       nitrates. Consequently, pursuant to Article 3(2) of Direc-
       tive 91/676/EEC, the Spanish authorities should have
       designated the area which drains into those waters as a
       vulnerable area.                                                      Qu est ion 2
( 1) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975          Having regard to the relevant circumstances, relevant trans-
     L 194, p. 39).                                                          actions, and the position of the vendor companies how is the
( 2) Council Directive 91/156/EEC of 18 March 1991 amending                  expression ‘supply of goods’ in Article 5(1) of the Directive to
     Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).                    be interpreted?
( 3) Council Directive 85/337/EEC of 27 June 1985 on the assessment
     of the effects of certain public and private projects on the
     environment (OJ 1985 L 175, p. 40).
( 4) Council Directive 97/11/EC of 3 March 1997 amending Directive
     85/337/EEC on the assessment of the effects of certain public and
     private projects on the environment (OJ 1997 L 73, p. 5).               Qu est ion 3
( 5) Council Directive 80/68/EEC of 17 December 1979 on the
     protection of groundwater against pollution caused by certain
                                                                             a)   Is there a principle of abuse of rights and/or abuse of the
     dangerous substances (OJ 1980 L 20, p. 43).
( 6) Council Directive 91/271/EEC of 21 May 1991 concerning urban                 law which (independently of the interpretation given to
     waste-water treatment (OJ 1991 L 135, p. 40).                                the Directive) is capable of precluding the right to deduct
( 7) Council Directive 91/676/EEC of 12 December 1991 concerning                  input tax?
     the protection of waters against pollution caused by nitrates from
     agricultural sources (OJ 1991 L 375, p. 1).
                                                                             b)   If so, in what circumstances would it apply?
                                                                             c)   Would it apply in circumstances such as those found by
                                                                                the Tribunal?
 ---pagebreak--- 8.2.2003              EN                        Official Journal of the European Union                                            C 31/7
Q ues ti o n 4                                                          how are Article 17 of the Directive and the rules on deduction
                                                                        to be interpreted? (With reference to paragraph e), if the law
                                                                        does not change in the way described the purchasing compani-
                                                                        es are entitled to terminate their contracts with the vendor
Does it make any difference to the answers to questions 1 to 3          companies and claim refunds of the prices paid. In the relevant
above if payment is made in respect of the relevant transactions        transactions the contracts between the purchasing companies
at a time when any onward supply of the goods would have                and the vendor companies contain provisions permitting such
been an exempt supply with refund of VAT at the preceding               terminations.)
stage as permitted by Article 28(2)(a) of the Directive?
                                                                        Qu est ion 7
Q ues ti o n 5
                                                                        The Tribunal found (at paragraph 89 of the Decision) that
                                                                        ‘none of the individuals in a position to take decisions for
How is the Directive to be interpreted with particular reference        [BMSL and Gatwick Park]... had any motive or purpose of
to the following questions? In circumstances such as the                substance other than to carry through the VAT avoidance
relevant circumstances and with reference to transactions such          scheme.’ The Appellants have, in their Notice of Appeal to the
as the relevant transactions:                                           High Court, challenged that finding of fact. If that finding of
                                                                        fact were to be set aside on appeal would it make any, and if
a)    should supplies be treated as having been made by the             so, what difference to the answers to questions 1 to 6 above
      outside suppliers to the purchasing companies with no             inclusive?
      supplies being made to or by the vendor companies? or
                                                                        (1 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
b)    should supplies be treated as having been made by the                  harmonization of the laws of the Member States relating to
      outside suppliers to the vendor companies with no                      turnover taxes — Common system of value added tax: uniform
      supplies being made by the vendor companies to the                     basis of assessment (OJ L 145, 13.06.77, p. 1).
      purchasing companies?
Q ues ti o n 6
                                                                        Action brought on 21 November 2002 by the
                                                                        Commission of the European Communities against the
In circumstances where each vendor company, in the course                                         Hellenic Republic
of an economic activity, makes supplies to a purchasing
company and:                                                                                (Case C-420/02)
a)    the purchasing companies have entered into agreements                                         (2003/C 31/11)
      with the vendor companies to be supplied with goods;
b)    the goods are invoiced and paid for in advance of delivery;
                                                                        An action against the Hellenic Republic was brought before
                                                                        the Court of Justice of the European Communities on 21 No-
c)    VAT is charged on the advance payment in accordance               vember 2002 by the Commission of the European Communi-
      with the second sub-paragraph of Article 10(2) of the             ties, represented by Minas Konstantinidis, of its Legal Service.
      Directive;
                                                                        The Commission claims that the Court should:
d)    the goods are to be used by the purchasing companies in
      making supplies which, if made at the time of the
      payment, would have been exempt supplies with a right             —      declare that, by failing to adopt the necessary measures
      to refund at the preceding stage, but                                    to ensure that the disposal or recovery of waste will be
                                                                               carried out without endangering human health, without
                                                                               risk to water, air, soil, plants and animals and without
e)    each purchasing company intends to take delivery of the                  causing a nuisance through noise or odours, and by
      goods under the agreements only if the law changes in                    granting a permit which does not contain the necessary
      such a way that the purchasing company’s use of the                      information, the Hellenic Republic has failed to fulfil its
      goods will be a use in making exempt supplies without a                  obligations under Articles 4 and 9 of Directive 75/442/
      right of refund                                                          EEC (1) on waste as amended by Directive 91/156/EEC (2);


title: Case T-315/11: Action brought on 17 June 2011 — Fortress Participations v OHIM — Fortress Investment Group and Fortress Investment Group (UK) (FORTRESS)

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/33

         Action brought on 17 June 2011 — Fortress Participations v OHIM — Fortress Investment Group and Fortress Investment Group (UK) (FORTRESS)
   (Case T-315/11)
   2011/C 238/56
   Language in which the application was lodged: English

      Parties

      Applicant: Fortress Participations BV (Rotterdam, Netherlands) (represented by: M.L.J. van de Braak, lawyer, B. Ladas, Solicitor, and S. Malynicz, Barrister)

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

      Other parties to the proceedings before the Board of Appeal: Fortress Investment Group LLC (New York, USA) and Fortress Investment Group (UK) Ltd (London, United Kingdom)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 March 2011 in case R 355/2009-2; and

               —

               Order the defendant and the other parties to the proceedings to pay their own costs of the proceedings before the Office and the General Court and pay those of the applicant.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘FORTRESS’, for services in classes 35, 36 and 42 — Community trade mark registration No 2095784

      Proprietor of the Community trade mark: The applicant

      Applicant for the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

      Grounds for the application for a declaration of invalidity: The parties requesting the declaration of invalidity grounded their request on relative grounds for invalidity pursuant to Articles 53(1)(c) in conjunction with Article 8(4) of Council Regulation (EC) No 207/2009. It was also based on United Kingdom non registered trade marks ‘FORTRESS’, ‘FORTRESS INVESTMENTS’, and ‘FORTRESS INVESTMENT GROUP’, used in the course of trade.

      Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

      Decision of the Board of Appeal: Annulled the contested decision

      Pleas in law: Infringement of Article 8(4) of Council Regulation (EC) No 207/2009, as the Board of Appeal failed properly to analyse the question of goodwill under the UK law of passing off and failed properly to assess the risk of misrepresentation and consequent damage.


title: Case T-309/16: Action brought on 19 June 2016 — Cafés Pont v EUIPO — Giordano Vini (Art’s Café)

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/27

         Action brought on 19 June 2016 — Cafés Pont v EUIPO — Giordano Vini (Art’s Café)
   (Case T-309/16)
   (2016/C 296/36)
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Cafés Pont, SL (Sabadell, Spain) (represented by: E. Manresa Medina and J. M. Manresa Medina, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Giordano Vini SpA (Diano d’Alba, Italy)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: European Union figurative mark containing the word elements ‘Art’s Café’ — European Union trade mark No 5 622 345

      Procedure before EUIPO: Revocation proceedings

      Contested decision: Decision of the Second Board of Appeal of EUIPO of 01/04/2016 in Case R 1110/2015-2

      Form of order sought

   The applicant claims that the Court should:

               —

               deliver a judgment granting the application, revoking the cancellation on the grounds of non-use of European Union trade mark No 5 622 345 and confirming the use of that trade mark; and

               —

               order the defendant and any interveners to pay the costs.

      Pleas in law

               —

               Infringement of Article 51(1)(a) and (b) and Article 15(1)(a) of Regulation No 207/2009.


title: Case T-296/06: Judgment of the Court of First Instance of 23 September 2009 — Dongguan Nanzha Leco Stationery v Council of the European Union (Dumping — Imports of lever arch mechanisms originating in China — Determination of the dumping margin — Market economy treatment — Comparison between the normal value and the export price — Application of a different method to that used during the initial investigation — Article 2(7)(a) and (10) of Regulation (EC) No 384/96)

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/55

         Judgment of the Court of First Instance of 23 September 2009 — Dongguan Nanzha Leco Stationery v Council of the European Union
   (Case T-296/06) (1)

   (Dumping - Imports of lever arch mechanisms originating in China - Determination of the dumping margin - Market economy treatment - Comparison between the normal value and the export price - Application of a different method to that used during the initial investigation - Article 2(7)(a) and (10) of Regulation (EC) No 384/96)
   2009/C 267/93
   Language of the case: English

      Parties

      Applicant: Dongguan Nanzha Leco Stationery Mfg. Co., Ltd (Dongguan, China) (represented by: A. Bentley, QC)

      Defendant: Council of the European Union (represented by: J.-P. Hix, Agent, assisted by G. Berrisch, Lawyer)

      Interveners in support of the defendants: Commission of the European Communities (represented by H. van Vliet and T. Scharf, Agents); IML Industria Meccanica Lombarda Srl (Offanengo, Italy); Interkov spol. s.r.o. (Bráník, Czech Republic); MI.ME.CA. Srl (Ricengo, Italy); and NIKO — kovinarsko podjetje, d.d. Železniki (Železniki, Slovenia) (represented by R. Bierwagen, Lawyer)

      Re:

   Application for partial annulment of Council Regulation (EC) No 1136/2006 of 24 July 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of lever arch mechanisms originating in the People’s Republic of China (OJ 2006 L 205, p. 1), in so far as it applies to the applicant.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Dongguan Nanzha Leco Stationery Mfg. Co., Ltd, to bear its own costs and to pay those incurred by the Council of the European Union, IML Industria Meccanica Lombarda Srl, Interkov spol. s r.o., MI.ME.CA. Srl and NIKO — kovinarsko podjetje, d.d. Železniki;

               3.

               Orders the Commission of the European Communities to bear its own costs.

      (1)  OJ C 310, 16.12.2006.


title: Case C-253/03: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 1 April 2003 in the proceedings between CLT-UFA S.A. and Finanzamt Köln-West

text:
C 200/12              EN                         Official Journal of the European Union                                         23.8.2003
Reference for a preliminary ruling by the Tribunale Ammi-                Council Regulation (EEC) No 1768/92 of 18 June 1992
nistrativo Regionale per la Lombardia by order of that                   concerning the creation of a supplementary protection certifi-
Court of 13 November 2002 in the action brought by                       cate for medicinal products (1)?
Doctor Giorgio Emanuele Mauri against Ministry of Justice
                                                                         (1) OJ L 182 of 2.7.1992, p. 1.
                         (Case C-250/03)
                         (2003/C 200/18)
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Amministra-
tivo Regionale per la Lombardia (Regional Administrative                 Reference for a preliminary ruling by the Bundesfinanzhof
Court for Lombardy) of 13 November 2002, received at the                 by order of that Court of 1 April 2003 in the proceedings
Court Registry on 11 June 2003, for a preliminary ruling in                    between CLT-UFA S.A. and Finanzamt Köln-West
the action brought by Doctor Giorgio Emanuele Mauri against
Ministry of Justice on the following question:
                                                                                (Case C-253/03)
Must the provisions of the Treaty enshrining, as interpreted by
the Court of Justice, the Community principles concerning
competition and non-discrimination, be interpreted as                                             (2003/C 200/20)
precluding on the ground of illegality national legislation, in
particular Article 22 of legislative decree no 1578 of
27 November 1933, which makes access to legal practice
before the courts subject to success in a prior State examina-           Reference has been made to the Court of Justice of the
tion inasmuch as, for the purposes of assessment of aptitude             European Communities by order of the Bundesfinanzhof
and professional ability, it confers far-reaching powers on the          (Federal Finance Court) of 1 April 2003, received at the Court
local management entities of the professional body to which              Registry on 13 June 2003, for a preliminary ruling in the
the practitioners already operating in the specific geographical         proceedings between CLT-UFA S.A. and Finanzamt (District Tax
territory belong.                                                        Office) Köln-West on the following questions:
                                                                         1.    Is Article 52 in conjunction with Article 58 of the EC
                                                                               Treaty to be interpreted as meaning that charging the
                                                                               profits made in 1994 by a capital company from another
                                                                               Member State through a branch in Germany to German
                                                                               corporation tax at the rate of 42 % (the ‘place of business
                                                                               tax rate’) constitutes an infringement of the right to
                                                                               freedom of establishment, given that
Reference for a preliminary ruling by the Cour Adminis-
trative by order of that Court of 3 June 2003 in the
appeal brought by the Minister for the Economy against                         —    the profits would have been charged to German
Millennium Pharmaceuticals Inc., formerly Cor Therapeu-                             corporation tax at the rate of only 33,5 % if they
                             tics Inc.                                              had been made by a company subject to unlimited
                                                                                corporation tax in Germany which was a subsidiary
                                                                                of a capital company from another Member State
                         (Case C-252/03)                                            and had distributed all the profits to its parent by
                                                                                the end of 30 June 1996,
                         (2003/C 200/19)
                                                                               —    the profits would initially have been charged to
                                                                                German corporation tax at the rate of 45 % if the
                                                                                subsidiary had retained them until the end of
Reference has been made to the Court of Justice of the                              30 June 1996, but the liability to corporation tax
European Communities by order of the Cour Administrative                            would have been reduced retrospectively to 30 % if
(Administrative Court) of 3 June 2003, received at the Court                        the profits had been distributed in full after 30 June
Registry on 13 June 2003, for a preliminary ruling in the                           1996?
appeal brought by the Minister for the Economy against
Millennium Pharmaceuticals Inc., formerly Cor Therapeutics
Inc. on the following question:                                          2.    If the place of business tax rate infringes Article 52 in
                                                                               conjunction with Article 58 of the EC Treaty, is it
                                                                               necessary to reduce it to 30 % for the year in dispute in
Does a marketing authorisation issued by the Swiss authorities                 order to cure the infringement?
constitute the first authorisation to place a product on the
market in the Community within the meaning of Article 13 of


title: Case T-209/09: Action brought on 27 May 2009 — Alder Capital v OHIM — Halder Holdings (ALDER CAPITAL)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/56

         Action brought on 27 May 2009 — Alder Capital v OHIM — Halder Holdings (ALDER CAPITAL)
   (Case T-209/09)
   2009/C 180/104
   Language in which the application was lodged: English

      Parties

      Applicant: Alder Capital Ltd (Dublin, Ireland) (represented by: H. Hartwig and A. von Mühlendahl, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Halder Holdings BV (The Hague, The Netherlands)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 February 2009 in case R 486/2008-2;

               —

               Order the defendant to pay the costs, including those incurred by the applicant before the Board of Appeal; and

               —

               Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should Halder Holdings become an intervening party in this case.

      Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The word mark “ALDER CAPITAL” for services in class 36

      Proprietor of the Community trade mark: The applicant

      Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Trade mark right of the party requesting the declaration of invalidity: Benelux trade mark registrations of the word mark “Halder” and “Halder Investments” for services in classes 35 and 36; International registration of the word mark “Halder” for services in classes 35 and 36; Unregistered trade and company names “Halder”, “Halder Holdings”, “Halder Investments” and “Halder Interest” used in the course of trade

      Decision of the Cancellation Division: Declared the Community trade mark concerned invalid

      Decision of the Board of Appeal: Dismissed the appeal
   Pleas in law:

               (1)

               Infringement of Articles 57 and 58 of Council Regulation 40/94 (which became Articles 58 and 59, respectively, of Council Regulation 207/2009), as well as Article 8(3) of Commission Regulation 216/96 (1) as the Board of Appeal wrongly accepted the request by the other party to the proceedings before it to re-examine the genuine use issue;

               (2)

               Infringement of Article 52(1)(a) of Council Regulation 40/94 (which became Article 53(1)(a) of Council Regulation 207/2009) and of Article 55(1)(b) of Council Regulation 40/94 (which became Article 56(1)(b) of Council Regulation 207/2009) in conjunction with Articles 42(1) of Council Regulation 40/94 (which became Article 41(1) of Council Regulation 207/2009) and 8(2) of Council Regulation 40/94 (which became Article 8(2) of Council Regulation 207/2009), as the Board of Appeal failed to dismiss outright the application for a declaration of invalidity lodged by the other party to the proceedings before it, as far as it was based on earlier rights which have been transferred to a third party;

               (3)

               Infringement of Articles 56(2) and (3) of Council Regulation 40/94 (which became Articles 57(2) and (3) of Council Regulation 207/2009) in conjunction with Article 15 of Council Regulation 40/94 (which became Article 15 of Council Regulation 207/2009) and of Article 10 of Council Directive 89/104/EEC (2) and Rule 40(6) in conjunction with Rule 22(3) and (4) of Commission Regulation No 2868/95 (3) as the Board of Appeal wrongly considered that the other party to the proceedings before it has proved genuine use of any of its earlier trade marks anywhere;

               (4)

               Alternatively, infringement of Article 8(1)(b) of Council Regulation 40/94 (which became Article 8(1)(b) of Council Regulation 207/2009) as the Board of Appeal wrongly found that there was a likelihood of confusion between the trade marks concerned.

      (1)  Commission Regulation (EC) No 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of the Office for Harmonization in the Internal Market (Trade marks and Designs) (OJ 1996 L 28, p. 11)

      (2)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1)

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


title: Case C-407/05: Reference for a preliminary ruling from the Hof van Cassatie van België by judgment of that court of  8 November 2005  in Reyniers & Sogama bvba v (1) Belgisch Interventie- en Restitutiebureau (2) Belgian State

text:
               28.1.2006

               EN

               Official Journal of the European Union

               C 22/8

         Reference for a preliminary ruling from the Hof van Cassatie van België by judgment of that court of 8 November 2005 in Reyniers & Sogama bvba v (1) Belgisch Interventie- en Restitutiebureau (2) Belgian State
   (Case C-407/05)
   (2006/C 22/15)
   Language of the case: Dutch
   Reference has been made to the Court of Justice of the European Communities by judgment of the Hof van Cassatie van België (Belgian Court of Cassation) of 8 November 2005, received at the Court Registry on 21 November 2005, for a preliminary ruling in the proceedings between Reyniers & Sogama bvba and 1. Belgisch Interventie- en Restitutiebureau 2. Belgian State on the following questions:
   ‘Are Article 11a of Commission Regulation (EEC) No 1062/87 (1) of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, inserted by Article 1 of Commission Regulation (EEC) No 1429/90 (2) of 29 May 1990 amending that regulation, Article 34 of Council Regulation (EEC) No 2726/90 (3) of 17 September 1990 on Community transit, and Article 49 of Commission Regulation (EEC) No 1214/92 (4) of 21 April 1992 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, to be interpreted as meaning:

               —

               that, despite the fact that the notification to the declarant made no mention of the three-month period within which proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed can be furnished to the office of departure to the satisfaction of the competent authorities, a court is able to rule, in accordance with facts which are able to support its decision, that notification without mention of the three-month period nevertheless meets the objective sought by the legal rule; or

               —

               that the notification to the declarant must compulsorily mention the three-month period within which proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed can be furnished to the office of departure to the satisfaction of the competent authorities, with the result that the competent authority can commence recovery only after it has explicitly informed the declarant that it has three months within which to furnish the proof requested and in the case where that proof has not been furnished within that period?’

      (1)  OJ 1987 L 107, p. 1.

      (2)  OJ 1990 L 137, p. 21.

      (3)  OJ 1990 L 262, p. 1.

      (4)  OJ 1992 L 132, p. 1.


title: Case C-247/10 P: Appeal brought on 18 May 2010 by Zhejiang Aokang Shoes Co., Ltd against the judgment of the General Court (Eighth Chamber) delivered on 4 March 2010 in Case T-407/06: Zhejiang Aokang Shoes Co., Ltd v Council of the European Union

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/25

         Appeal brought on 18 May 2010 by Zhejiang Aokang Shoes Co., Ltd against the judgment of the General Court (Eighth Chamber) delivered on 4 March 2010 in Case T-407/06: Zhejiang Aokang Shoes Co., Ltd v Council of the European Union
   (Case C-247/10 P)
   ()
   2010/C 209/35
   Language of the case: English

      Parties

      Appellant: Zhejiang Aokang Shoes Co., Ltd (represented by: M. Sánchez Rydelski, Rechtsanwalt)

      Other parties to the proceedings: Wenzhou Taima Shoes Co., Ltd, Council of the European Union, European Commission, Confédération européenne de l'industrie de la chaussure (CEC), BA.LA. di Lanciotti Vittorio & C. Sas, Calzaturificio Elisabet Srl, Calzaturificio Iacovelli di Iacovelli Giuseppe & C. Snc, Calzaturificio Leopamy Srl, Calzaturificio Lunella Srl, Calzaturificio Mia Shoe Snc di Gattafoni Carlo & C., Calzaturificio Primitempi di Monaldi Geri, Calzaturificio R. G. di Rossi & Galiè Srl, Calz. S. G. di Seghetta Giampiero e Sergio Snc, Carim Srl, Florens Shoes SpA, Gattafoni Shoe Snc di Gattafoni Giampaolo & C., Grif Srl, Missouri Srl, New Swing Srl, Podosan Medical Shoes di Cirilli Michela, Viviane Sas

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside the Judgment of the General Court of 4 March 2010 in Case T-407/06

               —

               Annul Council Regulation (EC) No 1472/2006 (1) imposing a definitive anti-dumping duty on imports of certain leather footwear from China and Vietnam in so far as it concerns the Appellant; and

               —

               Order the Council of the European Union to pay the Applicant's costs in this appeal and with regard to the procedure in Case T-407/06 in the General Court.

      Pleas in law and main arguments

   The appellant submits:

               That the General Court erred in law, when it decided that the Commission could lawfully decide pursuant to Article 17(3) of Council Regulation (EC) No 384/96 (2) on protection against dumped imports from countries not members of the European Community (‘Basic Regulation’), not to examine and make a determination on the Appellant's claims for market economy treatment (‘MET’) and individual treatment (‘IT’).

               That the General Court erred in law concerning whether the Appellant's rights of defence were breached in connection with the established infringement of Article 20(5) of the Basic Regulation.

      (1)  Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and Vietnam
   OJ L 275, p. 1

      (2)  OJ L 56, p. 1


title: Judgment of the Court of First Instance of 28 September 1999 in Case T-612/97: Cordis Obst und Gemüse Großhandel GmbH v Commission of the European Communities (Bananas - Imports from ACP States and third countries - Request for import licences - Case of hardship - Transitional measures - Regulation (EEC) No 404/93)

text:
20.11.1999            EN                      Official Journal of the European Communities                                       C 333/25
    JUDGMENT OF THE COURT OF FIRST INSTANCE                              Georges Vandersanden and Laure Levi, of the Brussels Bar,
                                                                         with an address for service in Luxembourg at the offices of
                     of 28 September 1999                                Fiduciaire Myson SARL, 30 Rue de Cessange, v Commission
                                                                         of the European Communities (Agents: Julian Currall and
in Case T-612/97: Cordis Obst und Gemüse Großhandel                      Denis Waelbroeck) — application for annulment of the
  GmbH v Commission of the European Communities (1)                      Commission’s decision of 6 January 1997 fixing Brussels as
                                                                         the applicant’s place of recruitment — the Court of First
(Bananas — Imports from ACP States and third countries                   Instance (Third Chamber), composed of: M. Jaeger, President,
— Request for import licences — Case of hardship —                       and K. Lenaerts and J. Azizi, Judges; Y. Mottard, Legal Secretary,
   Transitional measures — Regulation (EEC) No 404/93)                   for the Registrar, has given a judgment on 28 September 1999,
                                                                         in which it:
                        (1999/C 333/60)
                                                                         1. Dismisses the action;
                  (Language of the case: German)                         2. Orders the parties to bear their own costs.
In Case T-612/97: Cordis Obst und Gemüse Großhandel
                                                                         (1) OJ C 94 of 28.3.1998.
GmbH, established in Ortrau (Germany), represented by Gert
Meier, Rechtsanwalt, Cologne, with an address for service
in Luxembourg at the Chambers of Marc Baden, 24 Rue
Marie-Adelaïde v Commission of the European Communities
(Agents: Klaus-Dieter Borchardt and Hubert van Vliet), support-
ed by French Republic (Agents: Kareen Rispal-Bellanger and
Christina Vasak) - application for the annulment of Com-
mission Decision K(97) 3274 final of 24 October 1997
rejecting the applicant’s request for the special grant of import            JUDGMENT OF THE COURT OF FIRST INSTANCE
licences under the transitional measures provided for in
Article 30 of Council Regulation (EEC) No 404/93 of 13                                         of 28 September 1999
February 1993 on the common organisation of the market in
bananas (OJ 1993 L 47, p. 1) — the Court of First Instance
(Fifth Chamber), composed of J.D. Cooke, President, and                  in Case T-91/98: Jürgen Wettig v Commission of the
R. Garcı́a-Valdecasas and P. Lindh, Judges, J. Palacio González,                           European Communities (1)
Administrator, for the Registrar, has given a judgment on
28 September 1999 in which it:                                           (Officials — Temporary staff — Classification — Article 32
                                                                                of the Staff Regulations)
1. Dismisses the application;
2. Orders the applicant to bear its own costs as well as the costs of                             (1999/C 333/62)
     the Commission;
3. Orders the French Republic to bear its own costs.                                        (Language of the case: German)
(1) OJ C 94 of 28.3.1998.                                                In Case T-91/98: Jürgen Wettig, a member of the temporary
                                                                         staff of the Commission of the European Communities,
                                                                         residing in Brussels, represented for the purposes of the written
                                                                         procedure by Peter Wiesner, Rechtsanwalt, Cologne, and for
                                                                         the purposes of the oral procedure by Charles Turk, of the
                                                                         Luxembourg Bar, with an address for service in Luxembourg
                                                                         at the latter’s Chambers, 13a Avenue Guillaume, v Commission
    JUDGMENT OF THE COURT OF FIRST INSTANCE                              of the European Communities (Agents: Julian Currall, Christine
                                                                         Berardis-Kayser and Bertrand Wägenbaur) — application for
                     of 28 September 1999                                annulment of the Commission’s decision of 5 November 1997
                                                                         definitively classifying the applicant in grade A 5, step 1 — the
in Case T-28/98: J v Commission of the European Com-                     Court of First Instance (Fifth Chamber), composed of: J.D.
                           munities (1)                                  Cooke, President, and R. Garcı́a-Valdecasas and P. Lindh,
                                                                         Judges; A. Mair, Administrator, for the Registrar, has given a
(Officials — Article 7(3) of Annex VII to the Staff Regu-                judgment on 28 September 1999, in which it:
lations — Place of origin — Place of recruitment — Centre
                           of interests)                                 1. Dismisses the application;
                        (1999/C 333/61)                                  2. Orders the parties to bear their own costs.
                   (Language of the case: French)                        (1) OJ C 327 of 24.10.1998.
In Case T-28/98: J, an official of the Commission of the
European Communities, residing in Brussels, represented by


title: Case C-227/12: Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 14 May 2012 — Koninklijke Luchtvaart Maatschappij NV, TUI Airlines Nederland BV, handelend onder de naam ArkeFly v Staatssecretaris van Infrastructuur en Milieu

text:
               18.8.2012

               EN

               Official Journal of the European Union

               C 250/8

         Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 14 May 2012 — Koninklijke Luchtvaart Maatschappij NV, TUI Airlines Nederland BV, handelend onder de naam ArkeFly v Staatssecretaris van Infrastructuur en Milieu
   (Case C-227/12)
   2012/C 250/14
   Language of the case: Dutch

      Referring court

   Rechtbank Amsterdam

      Parties to the main proceedings

      Applicants: Koninklijke Luchtvaart Maatschappij N.V., TUI Airlines Nederland B.V., handelend onder de naam ArkeFly

      Defendants: Staatssecretaris van Infrastructuur en Milieu

      Questions referred

               1.

               Should Articles 7 and 16 of the Regulation, (1) together with the principle of Union loyalty, be interpreted in such a way that those Articles (in conjunction with national law) create for an administrative authority like the defendant the competence or the obligation to take enforcement action in respect of air carriers where they have failed to pay passengers compensation for delays, even where those passengers themselves have recourse to the courts in that regard, as laid down in Article 33 of the Montreal Convention? (2)

               2.

               If the previous question is answered in the affirmative, does the imposition of administrative orders for periodic penalty payments such as those at issue here also form part of the possibility of enforcement?

               3.

               Does it make any difference in that regard whether:

                           (a)

                           the air carriers have drawn passengers’ attention to those rights?

                           (b)

                           in the case of an alleged lack of compliance with Article 14 of the Regulation, an order for periodic penalty payments imposed on the air carriers was preceded by the imposition of a sanction due to non compliance with that Article?

                           (c)

                           the passengers concerned have made known to the air carriers whether or not they wish to receive that compensation?

                           (d)

                           the defendant has not chosen the instrument of an order for coercive administrative action (where, in the case of the air carriers’ non compliance with the order, the defendant himself pays the passengers out at the air carriers’ expense), but rather, the instrument of an order for periodic penalty payments (where, in the case of non compliance with the order, the air carriers are liable to the defendant for an amount equal to the total compensation payable, which amount accrues to public funds)?

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

      (2)  The Convention concluded on 28 May 1999 in Montreal for the unification of certain rules for international carriage by air, signed by the European Community on 9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38).


title: Case F-21/05: Order of the Civil Service Tribunal of 18 June 2009 — De Geest v Council

text:
               15.8.2009

               EN

               Official Journal of the European Union

               C 193/37

         Order of the Civil Service Tribunal of 18 June 2009 — De Geest v Council
   (Case F-21/05) (1)

   2009/C 193/63

      Language of the case: French

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

      (1)  OJ C 171, 9.7.2005, p. 28.


title: Cases T-285/99 to T-289/99: Actions brought on 27 October 1999 by M.G.W. Ruypers, trading as Garage M.J.G. Ruypers, and Others against the Commission of the European Communities

text:
C 63/22                EN                    Official Journal of the European Communities                                      4.3.2000
                                                       COURT OF FIRST INSTANCE
Action brought on 3 November 1999 by Polyxeni Tessa                     Actions brought on 27 October 1999 by M.G.W. Ruypers,
and Andreas Kh. Tessas against the Council of the                       trading as Garage M.J.G. Ruypers, and Others against the
                        European Union                                           Commission of the European Communities
                        (Case T-270/99)                                                  (Cases T-285/99 to T-289/99)
                         (2000/C 63/42)                                                         (2000/C 63/43)
                   (Language of the case: Greek)
                                                                                (Language of the case: Dutch)
An action against the Council of the European Union was
brought before the Court of First Instance on 3 November                Actions against the Commission of the European Communities
1999 by Polyxeni Tessa and Andreas Kh. Tessas, residing                 were brought before the Court of First Instance of the European
in Larisa, Odos Tagmatarkhou Velissariou 21-23 (Greece),                Communities on 27 October 1999 by M.G.W. Ruypers,
represented by Andreas Kh. Tessas, Lawyer, with an address              trading as Garage M.J.G. Ruypers, of Valkenburg (Netherlands),
for service in Luxembourg at the Chambers of Aikaterini                 and others, represented by M.J.C. Deriks, of the Rotterdam Bar.
Thill-Kamitaki, 4 Rue de l’Avenir.
                                                                        The applicants claim that the Court should:
The applicants claim that the Court of First Instance should:
                                                                        (a) annul the Commission’s decision [C(1999) 2539 final] (1)
— uphold this action for annulment with a view to declaring                 of 20 July 1999 concerning State aid granted by the
    void, for the reasons referred to in the claims for relief in           Netherlands to 633 service stations in the region bordering
    the application, the decision of 15 December 1998                       Germany;
    (No 14015/98) of the Council of the European Union
    relating to the taking over by the Greek State of the debts         (b) order the Commission to pay the costs.
    of certain bodies of the agricultural economy owed to the
    Agricultural Bank of Greece;
                                                                        Pleas in law and main arguments
— order the Council of the European Union to pay our costs.
                                                                        The pleas in law and main arguments are the same as in Cases
Pleas in law and main arguments                                         T-273/99 to T-278/99.
First plea                                                              (1) OJ L 280 of 30.10.1999, p. 87.
Misapplication, by the Council’s Decision of 15 December
1998 (No 14015/98), relating to the taking over by the Greek
State of the debts of certain bodies of the agricultural economy
owed to the Agricultural Bank of Greece, of the third
subparagraph of Article 88(2) EC.
                                                                        Actions brought on 27 October 1999 by Autobedrijf
Second plea                                                             Ueffing C.V. and Others against the Commission of the
                                                                                European Communities
Manifest error on the part of the Council in adopting the above
contested decision inasmuch as it considered that there were
                                                                                (Cases T-290/99 to T-316/99)
exceptional circumstances within the meaning of the third
paragraph of Article 88(2) EC. Wrongful exercise on the part
of the Council of the discretion conferred on it under the third                                (2000/C 63/44)
paragraph of Article 88(2) EC.
                                                                                (Language of the case: Dutch)
Third plea
The adoption of the above contested decision was a misuse of            Actions against the Commission of the European Communities
powers.                                                                 were brought before the Court of First Instance of the European
                                                                        Communities on 27 October 1999 by Autobedrijf Ueffing
                                                                        C.V., of Groenlo (Netherlands), and others, represented by
                                                                        M.J.C. Deriks, of the Rotterdam Bar.


title: Case C-439/99: Action brought on 17 November 1999 by the Commission of the European Communities against the Italian Republic

text:
C 47/14                EN                    Official Journal of the European Communities                                      19.2.2000
The Commission of the European Communities claims that                  The applicant claims that the Court should:
the Court should:
                                                                        1. Declare that the Italian Republic has failed to fulfil its
— declare that by authorising, under certain conditions, the               obligations under Article 49 et seq. EC by maintaining in
     exclusion from the taxable amount for VAT purposes of                 force the following provisions:
     the ‘service charges’ claimed by certain taxable persons,
     the French Republic has failed to fulfil its obligations              — Article 2, first paragraph, and Article 7 of Decree Law
     under Article 2(1) and 11A(1)(a) of Council Directive                     No 454 of 29 January 1934;
     77/388/EEC of 17 May 1977 (Sixth VAT Directive) (1);
— Order the French Republic to pay the costs.                              — Article 2, first paragraph, of Presidential Decree No 7
                                                                               of 15 January 1972;
Pleas in law and main arguments                                            — Article 2(4), (6) and (7) of Presidential Decree No 390
                                                                               of 18 April 1994;
Whilst Articles 266(1)(a) and 267-I of the French General Tax
Code (Code Général des Impôts) correctly transpose the                     — Article 4 of Regional Law of Liguria No 40 of 14 July
provisions of the Sixth VAT Directive, the same is not true                    1978;
of an administrative practice which was confirmed by an
instruction issued on 31 December 1976. A tip in the form of               — Article 6(1)(e), (f), (g) and (h), Article 6(4) and Article 7
a ‘service charge’ centralised by the employer forms an integral               of Regional Law of the Veneto No 35 of 2 August
part of the total price paid by the customer by way of                         1988;
consideration for the service provided by the service provider
and it is therefore the total price, including the service charge,         — Article 2, sixth paragraph, Article 4, first indent,
which constitutes the consideration actually received. That                    Article 6, third and fourth paragraphs and Article 10(a)
charge is different from an extra tip freely and spontaneously                 of Regional Law of the Marches No 16 of 12 March
left by the customer for a particular member of staff.                         1979;
In addition, the Commission points out that to allow that                  — Article 4, Article 5, sixth paragraph, subparagraphs (a)
practice amounts to a distortion of competition between those                  and (c), Article 6, first paragraph, Article 8, first and
establishments which operate the ‘service charge’, a distortion                second paragraphs, and Article 16 of Regional Law
resulting from the arbitrary nature of the purely formal                       No 43 of Emilia-Romagna of 26 May 1980;
conditions imposed by the French Government in order to
qualify for the derogation. Those conditions are wholly alien              — Article 4(1)(c), Article 4(2) and Article 15, third para-
to the fundamental criterion for determining the taxable basis                 graph, of Regional Law of Lombardy No 45 of 29 April
for VAT purposes, namely the consideration actually received                   1980;
by the service provider.
                                                                           — Article 3, Article 4 and Article 8, last paragraph, of
( 1) OJ L 145 of 13.06.1977, p. 1.                                             Regional Law No 10 of Friuli Venezia Giulia of 23 Feb-
                                                                               ruary 1981;
                                                                           — Article, 2, last paragraph, and Article 6 of Regional
                                                                               Law No 75 of Abruzzo of 13 November 1980;
                                                                           — Article 3, Article 5, Article 6, third and fourth para-
                                                                               graphs, Article 12 and Article 19, first paragraph, of
Action brought on 17 November 1999 by the Com-                                 Provincial Law No 35 of the Autonomous Province of
mission of the European Communities against the Italian                        Trento of 2 September 1978;
                             Republic
                                                                        2. Declare that the Italian Republic has failed to fulfil its
                         (Case C-439/99)                                   obligations under Article 49 et seq. and Article 43 et seq.
                                                                           EC by maintaining in force the following provisions:
                          (2000/C 47/22)
                                                                           — Article 3 of Presidential Decree No 7 of 15 January
An action against the Italian Republic was brought before the                  1972;
Court of Justice of the European Communities on 17 Novemb-
er 1999 by the Commission of the European Communities,                     — Article 2(c) and (d), Article 3(b) and (c), and Article 5(a)
represented by Enrico Traversa, Legal Adviser, and Maria                       of Regional Law No 12 of Liguria of 3 November
Patakia, of its Legal Service, acting as Agents, assisted by                   1972;
Andrea Cevese, of the Vicenza Bar, with an address for service
in Luxembourg at the office of Carlos Gómez de la Cruz,                   — Article 8(1) of Regional Law No 35 of the Veneto of
Wagner Centre, Kirchberg.                                                      2 August 1988;
 ---pagebreak--- 19.2.2000              EN                    Official Journal of the European Communities                                        C 47/15
    — Article 6, third paragraph, subparagraphs 3 and 4,                    — it must be non profit-making;
         Article 8, second paragraph, and Article 11(a), (b), (c)
         and (d) of Regional Law No 43 of Emilia-Romagna of                 — it must comply with particularly stringent deadlines as
         26 May 1980;                                                           part of the compulsory administrative procedure for
                                                                                authorisation;
    — Article 5(2) and (5), Article 10(4), Article 11(2) and (3)
         and Article 15(1) of Regional Law of Lombardy No 45                — it must be listed in the official calendar;
         of 29 April 1980;
                                                                            — exhibitors must be producers, which impliedly
    — Article 5, Article 13, Article 14 and Article 15(a) of                    excludes suppliers of services as opposed to goods.
         Regional Law No 10 of Friuli Venezia Giulia No 10 of
         23 February 1981;                                              (C) The Commission maintains that the provisions laying
                                                                            down the following requirements are contrary to Com-
                                                                            munity law:
    — Article 7 of Regional Law No 75 of Abruzzo of
         13 November 1980;
                                                                            — the appointment, in whole or in part, of trade fair
                                                                                bodies — such as the governing council, the manage-
    — Article 6, Article 7 and Article 23 of Provincial Law                     ment board, the auditors, the Chairman, the Secretary
         No 35 of the Autonomous Province of Trento of                          General, etc — requires the participation of the public
         2 September 1978;                                                      authorities or various local bodies;
3. Order the Italian Republic to pay the costs of the proceed-              — the organisation of trade fairs requires the partici-
    ings.                                                                       pation, even in a purely consultative capacity, of bodies
                                                                                comprising businessmen already operating in the area
                                                                                concerned for the purposes of recognition and author-
                                                                                isation of the organiser, and the grant of public funds
Pleas in law and main arguments                                                 to the organiser;
(A) The Commission maintains that the following provisions                  — the organisation of trade fairs, markets and exhibitions
    of Italian law create a serious obstacle to the organisation                requires that at least one local body be represented in
    of trade fairs especially for those undertakings — mostly                   the body of founders or members.
    non-Italian — which have no stable infrastructure in Italy
    and therefore intend to conduct business in Italy on a
    purely temporary and occasional basis:
    — those requiring the organiser of a trade fair to obtain
         official recognition from the Italian regional or local
         authorities;
                                                                        Appeal brought on 22 November 1999 by Cordis Obst
    — those requiring the organiser of a trade fair to take a           und Gemüse Großhandel GmbH against the judgment
         particular legal form, thereby excluding other categori-       delivered on 28 September 1999 by the Fifth Chamber of
         es of trader;                                                  the Court of First Instance of the European Communities
                                                                        in Case T-612/97 between Cordis Obst und Gemüse
                                                                        Großhandel GmbH and the Commission of the European
    — those requiring the organiser of a trade fair to have                    Communities, supported by French Republic
         headquarters, an office or some source of ongoing
         structural support at national or local level;
                                                                                (Case C-442/99 P)
    — those requiring trade fairs to be periodic;
                                                                                (2000/C 47/23)
    — those requiring trade fairs to conform with the agenda
         set by a region in the context of regional projects.           An appeal against the judgment delivered on 28 September
                                                                        1999 by the Fifth Chamber of the Court of First Instance of
(B) The Commission maintains that it is manifestly inconsist-           the European Communities in Case T-612/97, between Cordis
    ent with the principle of the freedom to provide services to        Obst und Gemüse Großhandel GmbH and the Commission of
    require that the organisation of trade fairs and exhibitions        the European Communities, supported by French Republic,
    satisfy the following conditions:                                   was brought before the Court of Justice of the European
                                                                        Communities on 22 November 1999 by Cordis Obst und
                                                                        Gemüse Großhandel GmbH, represented by Dr Gert Meier,
    — it must represent the sole business pursuit;                      Rechtsanwalt, of 313 Berrenrather Straße, D-50937 Cologne.


C 289/20              EN                 Official Journal of the European Communities                                 13.10.2001
       Removal from the register of Case C-132/00 (1)               ruling from the Oberster Gerichtshof (Austria)): Kraft Jacobs
                                                                    Suchard Österreich GmbH v Eduard Mitsche and Others.
                       (2001/C 289/44)
                                                                    (1) OJ C 302 of 21.10.2000.
By order of 10 July 2001 the President of the Court of Justice
of the European Communities has ordered the removal from
the register of Case C-132/00: Commission of the European
Communities v Hellenic Republic.
(1) OJ C 176 of 24.6.2000.
                                                                           Removal from the register of Case C-382/00 (1)
                                                                                (2001/C 289/48)
                                                                    By order of 27 July 2001 the President of the Court of Justice
                                                                    of the European Communities has ordered the removal from
       Removal from the register of Case C-191/00 (1)               the register of Case C-382/00: (reference for a preliminary
                                                                    ruling from the Juzgado de lo Social No 1 de Pontevedra):
                                                                    Gardenia Abal Pombo v Instituto Nacional de la Seguridad
                       (2001/C 289/45)                              Social and Tesoreria General de la Seguridad Social.
By order of 8 June 2001 the President of the Court of Justice       (1) OJ C 355 of 9.12.2000.
of the European Communities has ordered the removal from
the register of Case C-191/00: Commission of the European
Communities v Italian Republic.
(1) OJ C 211 of 22.7.2000.
                                                                           Removal from the register of Case C-397/00 (1)
                                                                                (2001/C 289/49)
                                                                    By order of 11 July 2001 the President of the Court of Justice
       Removal from the register of Case C-306/00 (1)               of the European Communities has ordered the removal from
                                                                    the register of Case C-397/00: Commission of the European
                       (2001/C 289/46)                              Communities v Hellenic Republic.
By order of 30 May 2001 the President of the Court of Justice       (1) OJ C 355 of 9.12.2000.
of the European Communities has ordered the removal from
the register of Case C-306/00: Commission of the European
Communities v Kingdom of the Netherlands.
(1) OJ C 285 of 7.10.2000.
                                                                           Removal from the register of Case C-401/00 (1)
                                                                                (2001/C 289/50)
                                                                    By order of 13 June 2001 the President of the Court of Justice
       Removal from the register of Case C-314/00 (1)               of the European Communities has ordered the removal from
                                                                    the register of Case C-401/00: Commission of the European
                                                                    Communities v Grand Duchy of Luxembourg.
                       (2001/C 289/47)
By order of 12 June 2001 the President of the Court of Justice      (1) OJ C 355 of 9.12.2000.
of the European Communities has ordered the removal from
the register of Case C-314/00: (reference for a preliminary


title: Case C-445/11 P: Judgment of the Court (Seventh Chamber) of 19 December 2012 — Bavaria NV v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Dutch beer market — Commission decision finding an infringement of Article 81 EC — Fines — Duration of the administrative procedure — Level of the fine)

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/9

         Judgment of the Court (Seventh Chamber) of 19 December 2012 — Bavaria NV v European Commission
   (Case C-445/11 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - Dutch beer market - Commission decision finding an infringement of Article 81 EC - Fines - Duration of the administrative procedure - Level of the fine)
   2013/C 46/16
   Language of the case: Dutch

      Parties

      Appellant: Bavaria NV (represented by: O. Brouwer, P.W. Schepens and N. Al-Ani, advocaten)

      Other party to the proceedings: European Commission (represented by: P. Van Nuffel and F. Ronkes Agerbeek, acting as Agents, assisted by M. Slotboom, advocat)

      Re:

   Appeal brought against the judgment delivered by the General Court (Sixth Chamber, Extended Composition) on 16 June 2011 in Case T-235/07 Bavaria v Commission by which the General Court annulled Article 1 of Commission Decision C(2007) 1697 of 18 April 2007 relating to a proceeding under Article 81 [EC] (Case COMP/B/37.766 — Dutch beer market) in so far as the European Commission found that Bavaria NV had participated in an infringement consisting in the occasional coordination of commercial conditions, other than prices, offered to individual consumers in the on-trade segment in the Netherlands

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Bavaria NV to pay the costs.

      (1)  OJ C 340, 19.11.2011.


title: Case T-717/15: Action brought on 4 December 2015 — Drugsrus v EMA

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/74

         Action brought on 4 December 2015 — Drugsrus v EMA
   (Case T-717/15)
   (2016/C 038/100)
   Language of the case: English

      Parties

      Applicant: Drugsrus Ltd (London, United Kingdom) (represented by: M. Howe and S. Ford, Barristers, and R. Sanghvi, Solicitor)

      Defendant: European Medicines Agency

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision contained in the EMA’s email dated 8 October 2015, that Drugsrus is not permitted to rebrand as Eklira Genuair, a product imported as Bretaris Genuair; and

               —

               order EMA to pay the applicant’s costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on a single plea in law.
   The applicant contends that the EMA has erred in law in concluding that it is impermissible to rebrand centrally authorised medicinal products. It submits that under the rules of the TFUE on the free movement of goods, a parallel importer is permitted to repackage and/or rebrand a product for parallel distribution provided that such repackaging or rebranding is objectively necessary in order that the imported product can gain effective access to the market of the importing Member State.


title: Case T-315/01: Judgment of the Court of First Instance of 21 September 2005 — Kadi v Council and Commission (Common foreign and security policy — Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Competence of the Community — Freezing of funds — Fundamental rights — Jus cogens — Review by the Court — Action for annulment)

text:
               12.11.2005

               EN

               Official Journal of the European Union

               C 281/17

         Judgment of the Court of First Instance of 21 September 2005 — Kadi v Council and Commission
   (Case T-315/01) (1)

   (Common foreign and security policy - Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban - Competence of the Community - Freezing of funds - Fundamental rights - Jus cogens - Review by the Court - Action for annulment)
   (2005/C 281/32)
   Language of the case: English
   Parties

      Applicant(s): Yassin Abdullah Kadi (Jeddah, Saudi Arabia) (represented by: D. Pannick QC, P. Saini, Barrister, G. Martin and A. Tudor, Solicitors)

      Defendant(s): Council of the European Union (represented by: M. Vitsentzatos and M. Bishop, Agents) and Commission of the European Communities (represented by: A. Van Solinge and C. Brown, Agents)

      Intervener(s) in support of the defendant(s): United Kingdom of Great Britain and Northern Ireland (originally represented by J.E. Collins, and subsequently by R. Caudwell, Agents, and S. Moore, Barrister)
   Application
   originally, for annulment of, first, Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 (OJ 2001 L 67, p. 1) and, second, Commission Regulation (EC) No 2062/2001 of 19 October 2001 amending, for the third time, Regulation No 467/2001 (OJ 2001 L 277, p. 25) and, subsequently, for annulment of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Regulation No 467/2001 (OJ 2002 L 139, p. 9), in so far as those acts concern the applicant,
   Operative part of the judgment
   The Court:

               1)

               Declares that there is no need to adjudicate on the application for annulment in part of Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 and for annulment of Commission Regulation (EC) No 2062/2001 of 19 October 2001 amending, for the third time, Regulation No 467/2001;

               2)

               Dismisses the action in so far as it is brought against Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Regulation No 467/2001;

               3)

               Orders the applicant to bear, in addition to his own costs, those of the Council and those incurred by the Commission until 1 July 2002;

               4)

               Orders the United Kingdom of Great Britain and Northern Ireland, and the Commission for the period after 1 July 2002, to bear their own costs.

      (1)  OJ C 56, 2.3.2002.


title: Case C-312/05 P: Appeal brought on 8 August 2005 by TeleTech Holdings, Inc. against the judgment delivered on 25 May 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-288/03 between TeleTech Holdings, Inc. and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (intervener: TeleTech International, S.A.)

text:
               1.10.2005

               EN

               Official Journal of the European Union

               C 243/12

         Appeal brought on 8 August 2005 by TeleTech Holdings, Inc. against the judgment delivered on 25 May 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-288/03 between TeleTech Holdings, Inc. and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (intervener: TeleTech International, S.A.)
   (Case C-312/05 P)
   (2005/C 243/20)
   Language of the case: Spanish
   An appeal against the judgment delivered on 25 May 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-288/03 between TeleTech Holdings, Inc. and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (intervener: TeleTech International, S.A.), was brought before the Court of Justice of the European Communities on 8 August 2005 by TeleTech Holdings, Inc, represented by E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers.
   The appellant claims that the Court should set aside the judgment under appeal and uphold its claims.
   Grounds of appeal and main arguments
   This appeal is founded on two grounds of appeal:
   The first ground of appeal is based on the premiss that the Court of First Instance infringed Article 52 of Regulation No 40/94 (1) (in conjunction with Article 8(1)(b) of that regulation) by having misinterpreted that provision in breach of the principle of coexistence and equivalence between Community marks and national marks. This ground of appeal further complains of an infringement, also on account of incorrect interpretation, of Article 74 of Regulation No 40/94 and of the appellant's rights of defence.
   The second ground of appeal alleges that the Court of First Instance's interpretation of Article 8(1)(b) Regulation No 40/94 is vitiated by an error of law resulting from the Court's incorrect application of the test relating to the perception of the relevant public when assessing the likelihood of confusion between the conflicting marks.

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


title: Case T-325/03: Action brought on 23 September 2003 by E-Sim Limited against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 289/28              EN                          Official Journal of the European Union                                       29.11.2003
The applicant claims that the Court should:                               The applicant claims that the Court should:
—     annul the Decision of the defendant’s Second Board of               —     annul the Decision of the Fourth Board of Appeal of
      Appeal of 11 July 2003 in Case R 266/2002-1 in its                        26 June 2003 in Case R 337/2002-4 relating to Com-
      entirety;                                                                 munity trade mark application 1 708 973 ‘MunichFinan-
                                                                                cialServices’ (word mark);
—     order the defendant to pay the costs.
                                                                          —     order the defendant to pay the costs.
Pleas in law and main arguments
Community trade mark          Word mark ‘Rockbass’ — Appli-
                                                                          Pleas in law and main arguments
applied for:                  cation No 2401123
Goods or services:            Goods in Classes 9, 15 and 18               Community trade mark          Word mark ‘MunichFinancial-
                              (inter alia, technical sound equip-         sought:                       Services’     —        Application
                              ment, musical instruments and                                             No 1 708 973
                              containers)
Decision appealed to the      Examiner’s refusal to register              Goods or services:            Services in Classes 36 (financial
Board of Appeal:                                                                                services)
Decision of the Board of      Dismissal of the appeal                     Decision appealed to the      Examiner’s refusal to register
Appeal:                                                                   Board of Appeal:
Pleas in law:                 —     infringement                 of       Decision of the Board of      Dismissal of appeal
                                    Article 7(1)(b) and (c) of
                                                                          Appeal:
                                    Regulation (EC) No 40/94;
                              —     infringement of the principle         Pleas in law:                 Infringement of Article 7(1)(c) of
                                    of examination of the facts                                         Regulation (EC) No 40/94
                                    by the Office of its own
                                    motion        pursuant       to
                                    Article 74(1)(1) of Regu-
                                    lation (EC) No 40/94;
                              —     infringement of essential
                                    procedural requirements.
                                                                          Action brought on 23 September 2003 by E-Sim Limited
                                                                          against the Office for Harmonisation in the Internal
                                                                                Market (Trade Marks and Designs)
Action brought on 12 September 2003 by Münchener                                                   (Case T-325/03)
Rückversicherungs-Gesellschaft                 Aktiengesellschaft
against the Office for Harmonisation in the Internal
         Market (Trade marks and Designs) (OHIM)                                                   (2003/C 289/60)
                        (Case T-316/03)
                                                                          (Language of the case to be determined pursuant to Article 131(2)
                                                                          of the Rules of Procedure — Language in which the application was
                        (2003/C 289/59)                                                           submitted: German)
                  (Language of the case: German)
                                                                          An action against the Office for Harmonisation in the Internal
An action against the Office for Harmonisation in the Internal            Market (Trade Marks and Designs) was brought before the
Market (Trade Marks and Designs) (OHIM) was brought before                Court of First Instance of the European Communities on
the Court of First Instance of the European Communities                   23 September 2003 by E-Sim Limited, represented by Dr
on 12 September 2003 by Münchener Rückversicherungs-                      Andreas Ebert-Weidenfeller. Druckhaus Remstal-Bote GmbH,
Gesellschaft Aktiengesellschaft, represented by G. Würtenber-             Waiblingen (Germany) was also a party to the proceedings
ger and R. Kunze, lawyers.                                                before the Board of Appeal.
 ---pagebreak--- 29.11.2003            EN                         Official Journal of the European Union                                         C 289/29
The applicant claims that the Court should:                              Pleas in law:                —     there is no likelihood of con-
                                                                                fusion between the marks
                                                                                within the meaning of
—     annul the decision of the Fourth Board of Appeal of the                                               Article 8(1)(b) of Regulation
      Office for Harmonisation in the Internal Market (Trade                                                No 40/94;
      Marks and Designs) of 18 June 2003 in Case R 281/
      2002-4;                                                                                —     the marks are not similar.
—     in the alternative, in the event that the other party to
      the proceedings withdraws the opposition during the
      proceedings, declare the opposition procedure to be at an
      end;
—     further in the alternative, refer the case back to the
      defendant with the proviso that the opposition procedure
      be declared at an end in the light of the withdrawal of the        Action brought on 22 September 2003 by Hippocrate
      opposition;                                                        Vounakis against the Commission of the European Com-
                                                                                munities
—     order the defendant to pay the costs.
                                                                                (Case T-326/03)
                                                                                (2003/C 289/61)
Pleas in law and main arguments
                                                                                (Language of the case: French)
Applicant for Com-            the applicant
munity trade mark:
                                                                         An action against the Commission of the European Communi-
Community trade mark          Word mark ‘E-SIM’ for goods and            ties was brought before the Court of First Instance of the
sought:                       services in Classes 9 and 42               European Communities on 22 September 2003 by Hippocrate
                              (including computer software for           Vounakis, residing in Wezembeek-Oppem (Belgium), rep-
                              use in the design, development,            resented by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal,
                              prototyping, promotion and sup-            avocats, with an address for service in Luxembourg.
                              port of a wide variety of products,
                              systems, and devices and services
                              relating to the provision of web-
                                                                         The applicant claims that the Court should:
                              based electronic commerce) —
                              application no 1 387 661
                                                                         —     annul the Commission’s decision not to include his
                                                                               name on the list of promoted officials published in
Proprietor of mark or         Druckhaus Remstal-Bote GmbH                      Administrative Notices (AN) No 2002-69 of 14 August
sign cited in the oppo-                                                        2002;
sition proceedings:
                                                                         —     order the Commission to pay the costs.
Mark or sign cited in         German word mark ‘ASIM’ for
opposition:                   goods and services in Classes 9,
                              35, 41 and 42 (including data
                              processing programmes and
                              economic and technical advice
                                                                         Pleas in law and main arguments
                              and training)
Decision of the Oppo-         Refusal of the application                 The applicant alleges infringement of Article 45 of the Staff
sition division:                                                         Regulations, and manifest error of assessment.
Decision of the Board of      Dismissal of the applicant’s appeal
Appeal: