title: Reference for a preliminary ruling from the Tribunal du Travail de Bruxelles by judgment of that court of 5 September 1996 in the case of Salvatore Baldone v. Institut National d'Assurance Maladie-Invalidité (Case C-307/96)

text:
23 . 11 . 96              EN                   Official Journal of the European Communities                                     No C 354/ 15
Misapplication of Article 92 ( 1 ) of the EC Treaty: the                  2 . If so , are the provisions applicable in the same way:
Commission misapplied Article 92 ( 1 ) of the EC Treaty in
finding that the guarantee provided by Niedersachsen was                        ( a ) if the decision in question is the first calculation of
incompatible with the common market. The findings in the                              the insured person's rights under the regulations by
decision with regard to Article 92 ( 1 ) are unlawful in both                         that institution ?
form and substance . The substantive illegality is sufficiently
demonstrated by the application by the Commission of the
fisheries guidelines published in Official Journal of the                       ( b ) if a first decision made before 1 June 1996 did not
European Communities No C 152 of 17 June 1992 , in                                    correctly calculate the rights under the regulations
connection with the investigation of the facts under                                  and has to be cancelled and replaced after 1 June
                                                                                1992 by a rectification decision, the latter thus
Article 92 ( 1 ) of the Treaty, as well as by the absence of a
detailed examination of the individual circumstances when                             being the first to calculate the rights under the
                                                                                regulations correctly ?
determining whether the requirements of fact were met. In
particular, the Commission failed entirely to take into
account the provision of valuable securities when                               ( c ) if a first decision made before 1 June 1992 and
determining the aid element, and to consider alternative                              otherwise correct has to be annulled and replaced
financing, omissions which led to false assumptions . The                             after 1 June 1992 because another institution
argument concerning distortion of competition is not                                  concerned has made a rectification decision ?
supported by any factual finding whatsoever and is,
moreover, contradictory. The decision does not comply                     3 . If the first two questions are answered in the affirmative,
with Article 190 of the EC Treaty and is therefore unlawful                     may the recalculation of the benefit on 1 June 1992 have
as to form as well .
                                                                                the consequence of reducing the benefit due, compared
                                                                                with the amount due on 31 May 1992 on the basis of the
Misapplication of Article 92 ( 3 ) ( e ) of the EC Treaty: the                  provisions applicable until that date, given that
guarantee for Jadekost satisfies the conditions laid down in                    Regulation ( EEC ) No 1248/92 did not amend or
Article 92 ( 3 ) ( e ) in order for it to be regarded as compatible             supplement the provisions of Articles 118 to 119a of
with the common market . The Commission 's verification of                      Regulation ( EEC ) No 574/72 ( 4 ) to make them
the presence of the conditions for application of this                          applicable on 1 June 1992 ?
exception was defective in both form and substance .
                                                                          (') OJ, English Special Edition 1971 ( II ), p. 416 .
                                                                          ( 2 ) OJ No L 136 , 19 . 5 . 1992 , p . 7 .
                                                                          (-') OJ No L 230, 22 . 8 . 1983 , p . 6 .
                                                                          (4 ) OJ, English Special Edition 1972 ( I ), p. 159 .
Reference for a preliminary ruling from the Tribunal du
Travail de Bruxelles by judgment of that court of
5 September 1996 in the case of Salvatore Baldone v. Institut
           National d 'Assurance Maladie-Invalidite
                            Case C-307/96                                 Action brought on 24 September 1996 by the Commission
                                                                          of the European Communities against the Kingdom of the
                             ( 96/C 354/29 )                                                              Netherlands
                                                                                ( Case C-310/96 )
 Reference has been made to the Court of Justice of the                                                 ( 96/C 354/30 )
 European Communities by a judgment of the Tribunal du
 Travail de Bruxelles [Brussels Labour Court] of 5 September
 1996 , which was received at the Court Registry on                       An action against the Kingdom of the Netherlands was
 23 September 1996 , for a preliminary ruling in the case of               brought before the Court of Justice of the European
 Salvatore    Baldone        v.   Institut   National    d'Assurance       Communities on 24 September 1996 by the Commission of
 Maladie-Invalidite on the following questions:                           the European Communities, represented by B. J. Drijber, of
                                                                           the Legal Service , acting as Agent, with an address for
                                                                           service at the office of C. Gomez de la Cruz, of the Legal
 1 . Are paragraphs 1 to 3 of Article 95a of Regulation                    Service , Wagner Centre , Kirchberg.
     ( EEC ) No 1408/71 ( ! ), inserted by Regulation ( EEC)
     No 1248/72 ( 2 ), to be interpreted as meaning that if an
                                                                           The Commission claims that the Court should :
     institution of a Member State after 31 May 1992
     calculates the rights of an invalid under the regulations,
     it must apply, for the period ending on 3 1 May 1992 , the            — declare that the Kingdom of the Netherlands has failed
     provisions of Regulation ( EEC ) No 1408/71 ( in                            to fulfil its obligations under Article 2 of Council
     particular Article 46 ) in the codified version of                          Directive 77/388/EEC of 17 May 1977 by maintaining
     Regulation ( EEC ) No 2001 /83 ( 3 ), and, from 1 June                      after 1 January 1990 a special provision by virtue of
      1992 , the provisions of Regulation ( EEC ) No 1408/71                     which certain supplies of waste and recuperable material
     as amended by Regulation ( EEC ) No 1248/92 ?                               are not required to be subject to value added tax;


title: Judgment of the Court (Sixth Chamber) of 19 October 2000 in Joined Cases C-15/98 and C-105/99: Italian Republic and Sardegna Lines — Servizi Marittimi della Sardegna SpA v Commission of the European Communities (State aid — Aid from the Region of Sardinia to shipping companies in Sardinia — Adverse effect on competition and trade between Member States — Statement of reasons)

text:
23.12.2000              EN                      Official Journal of the European Communities                                              C 372/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       Article 5(1) of Commission Regulation (EEC) No 3665/87 of
                                                                             27 November 1987 laying down common detailed rules for the
                                                                             application of the system of export refunds on agricultural products
                          (First Chamber)                                    is to be interpreted as meaning that payment of an export refund
                                                                             cannot be made conditional on production of additional evidence of
                       of 17 October 2000                                    such a kind as to show that a product which, in the non-member
                                                                             country of import, has undergone processing regarded as substantial
                                                                             in that it has been used in an irreversible manner in the manufacture
in Case C-114/99 (reference for a preliminary ruling from                    of another product, which is itself likely to be re-exported into the
the Cour Administrative d’Appel de Nancy): Roquette                          Community, has actually been placed on the market in that country
Frères SA v Office national interprofessionnel des céréales                  in the unaltered state.
                              (ONIC) (1)
                                                                             (1) OJ C 188 of 3.7.1999.
(Agriculture — Common organisation of the markets —
Export refunds — Cereals — Conditions for payment —
Processing as a product likely to be re-imported into the
                            Community)
                          (2000/C 372/01)                                                      JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                    (Language of the case: French)
                                                                                of 19 October 2000
(Provisional translation; the definitive translation will be published       in Joined Cases C-15/98 and C-105/99: Italian Republic
                   in the European Court Reports)                            and Sardegna Lines — Servizi Marittimi della Sardegna
                                                                                SpA v Commission of the European Communities (1)
In Case C-114/99: reference to the Court under Article 177 of                (State aid — Aid from the Region of Sardinia to shipping
the EC Treaty (now Article 234 EC) from the Cour Administra-                 companies in Sardinia — Adverse effect on competition and
tive d’Appel de Nancy (Administrative Court of Appeal,                           trade between Member States — Statement of reasons)
Nancy), France, for a preliminary ruling in the proceedings
pending before that court between Roquette Frères SA and
                                                                                (2000/C 372/02)
Office national interprofessionnel des céréales (ONIC) — on
the interpretation of Article 5(1) of Commission Regulation
(EEC) No 3665/87 of 27 November 1987 laying down                                                  (Language of the case: Italian)
common detailed rules for the application of the system of
export refunds on agricultural products (OJ 1987 L 351, p. 1)
— the Court (First Chamber), composed of: M. Wathelet,                       (Provisional translation; the definitive translation will be published
President of the Chamber, P. Jann and L. Sevón (Rapporteur),                                    in the European Court Reports)
Judges; S. Alber, Advocate General; L. Hewlett, Administrator,
for the Registrar, has given a judgment on 7 October 2000, in                In Joined Cases C-15/98 and C-105/99: Italian Republic
which it has ruled:                                                          (Agents: Professor U. Leanza, and P.G. Ferri) (C-15/98) and
 ---pagebreak--- C 372/2                 EN                     Official Journal of the European Communities                                        23.12.2000
Sardegna Lines — Servizi Marittimi della Sardegna SpA                                      JUDGMENT OF THE COURT
established in Cagliari, Italy, represented by F. Caruso, U. Iacca-
rino, B. Carnevale and C. Caruso, of the Naples Bar, with an
address for service in Brussels at the Chambers of F. Caruso,                                      (Sixth Chamber)
2A Rue Van Moer (C-105/99) v Commission of the European
Communities (Agents: D. Triantafyllou and S. Dragone) —
application for annulment, in Cases C-15/98 and C-105/99,                                        of 19 October 2000
of Commission Decision 98/95/EC of 21 October 1997
concerning aid granted by the Region of Sardinia (Italy) to
shipping companies in Sardinia (OJ 1998 L 20, p. 30) and, in
                                                                          in Case C-216/98: Commission of the European Communi-
Case C-15/98, of the letter of 14 November 1997 by which
                                                                                ties v Hellenic Republic (1)
the Commission notified the Italian Republic of its decision to
initiate the procedure provided for in Article 93(2) of the EC
Treaty (now Article 88(2) EC) regarding aid to the shipping
sector (loans/leases at concessionary conditions for the acqui-           (Failure of a State to fulfil obligations — Directive 95/59/EC
sition, conversion and repair of vessels): amendment of aid                 — Article 9 — Minimum price — Manufactured tobacco)
scheme under C 23/96 (ex NN 181/95) (OJ 1997 C 386, p. 6)
— the Court (Sixth Chamber), composed of: C. Gulmann,
President of the Chamber, J.-P. Puissochet (Rapporteur) and                                         (2000/C 372/03)
F. Macken, Judges; N. Fennelly, Advocate General; L. Hewlett,
Administrator, for the Registrar, has given a judgment on
19 October 2000, in which it:
                                                                                (Language of the case: Greek)
1.    Dismisses as inadmissible the Italian Republic’s application in
      respect of the letter of 14 November 1997 by which the              (Provisional translation; the definitive translation will be published
      Commission notified the Italian Republic of its decision to                            in the European Court Reports)
      initiate the procedure provided for in Article 93(2) of the EC
      Treaty (now Article 88(2) EC) regarding aid to the shipping
      sector (loans/leases at concessionary conditions for the acqui-     In Case C-216/98: Commission of the European Communities
      sition, conversion and repair of vessels): amendment of aid         (Agents: M. Condou-Durande and E. Traversa) v Hellenic
      scheme under C 23/96 (ex NN 181/95);                                Republic (Agents: P. Mylonopoulos, and N. Dafniou) —
                                                                          application for a declaration that, by adopting and maintaining
                                                                          in force legislative provisions which require minimum retail
                                                                          selling prices for manufactured tobacco to be determined by
2.    Annuls Commission Decision 98/95/EC of 21 October 1997              ministerial decree, the Hellenic Republic has failed to fulfil its
      concerning aid granted by the Region of Sardinia (Italy) to         obligations under Article 9 of Council Directive 95/59/EC of
      shipping companies in Sardinia;                                     27 November 1995 on taxes other than turnover taxes which
                                                                          affect the consumption of manufactured tobacco (OJ 1995
                                                                          L 291, p. 40) — the Court (Sixth Chamber), composed of:
                                                                          J.-P. Puissochet, acting as President of the Sixth Chamber,
3.    In Case C-15/98, orders the Italian Republic and the Com-           R. Schintgen and F. Macken (Rapporteur), Judges; F.G. Jacobs,
      mission of the European Communities to bear their own costs;        Advocate General; L. Hewlett, Administrator, for the Registrar,
                                                                          has given a judgment on 19 October 2000, in which it:
                                                                          1.    Declares that, by adopting and maintaining in force legislative
4.    In Case C-105/99, orders the Commission of the European                   provisions which require minimum retail selling prices for
      Communities to pay the costs.                                             manufactured tobacco to be determined by ministerial decree,
                                                                                the Hellenic Republic has failed to fulfil its obligations under
                                                                                Article 9 of Council Directive 95/59/EC of 27 November
                                                                                1995 on taxes other than turnover taxes which affect the
                                                                                consumption of manufactured tobacco;
(1) OJ C 94 of 28.3.1998.
                                                                          2.    Orders the Hellenic Republic to pay the costs.
                                                                          (1) OJ C 258 of 15.8.1998.


title: Case C-265/16: Request for a preliminary ruling from the Tribunale ordinario di Torino (Italy) lodged on 12 May 2016 — VCAST Limited v R.T.I. SpA

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/30

         Request for a preliminary ruling from the Tribunale ordinario di Torino (Italy) lodged on 12 May 2016 — VCAST Limited v R.T.I. SpA
   (Case C-265/16)
   (2016/C 270/34)
   Language of the case: Italian

      Referring court

   Tribunale ordinario di Torino

      Parties to the main proceedings

      Applicant: VCAST Limited

      Defendant: R.T.I. SpA

      Questions referred

               1.

               Are national rules prohibiting a commercial undertaking from providing private individuals with so-called cloud computing services for the remote video recording of private copies of works protected by copyright, by means of that commercial undertaking’s active involvement in the recording, without the rightholder’s consent, compatible with EU law, in particular with Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, (1) (as well as Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (2) and the founding Treaty)?

               2.

               Are national rules which allow a commercial undertaking to provide private individuals with so-called cloud computing services for the remote video recording of private copies of works protected by copyright, even where the active involvement of that commercial undertaking in the recording is entailed, and even without the rightholder’s consent, against a flat-rate compensation in favour of the rightholder, in essence subjecting the services to a compulsory licensing system, compatible with EU law, in particular with Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (as well as Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market and the founding Treaty)?

      (1)  OJ 2001 L 167, p. 10.

      (2)  ‘Directive on electronic commerce’, OJ 2000 L 178, p. 1.


title: Judgment of the Court of 16 May 2000 in Case C-78/98 (reference for a preliminary ruling by the House of Lords): Shirley Preston and Others v Wolverhampton Healthcare NHS Trust and Others and Dorothy Fletcher and Others v Midland Bank plc (Social policy — Men and women — Equal pay — Membership of an occupational pension scheme — Part-time workers — Exclusion — National procedural rules — Principle of effectiveness — Principle of equivalence)

text:
C 233/2                 EN                     Official Journal of the European Communities                                     12.8.2000
Administratif, Paris (France) for a preliminary ruling in the             hed in Chesterfield, United Kingdom, represented by K.P.E.
proceedings pending before that court between Gascogne                    Lasok QC, and P. Harris, Barrister, instructed by A. Mott,
Limousin Viandes SA and Office national interprofessionnel                Solicitor, with an address for service in Luxembourg at the
des viandes de l’élevage et de l’aviculture (Orival) on the               Chambers of Zeyen, Beghin, Feider, Loeff, Claeys and Verbeke,
validity, under Article 40(3) of the EC Treaty (now, following            56-58 Rue Charles Martel — application by the Commission
amendment, Article 34(2) EC), of Article 4i(2) of Regulation              of the European Communities under Article 42 of the ECSC
(EEC) No 805/68 of the Council on the common organization                 Treaty for the recovery of a sum of ECU 252 558, correspon-
of the market in beef and veal, as amended by Council                     ding to an interest rebate which it had granted to Coal Products
Regulation No 2222/96 of 18 November 1996 (OJ 1996                        Ltd under a contract to assist Coal Products Ltd in consuming
L 296, p. 50) and Article 50(1) of Commission Regulation                  coal produced in the Community, plus interest at the rate of
(EEC) No 3886/92 of 23 December 1992 laying down detailed                 8 % as from 1 November 1995, and counterclaim by the
rules for the application of the premium schemes provided for             defendant for the payment of a sum of ECU 46 010, plus
in Council Regulation (EEC) No 805/68 on the common                       interest as from 3 February 1995 — the Court (First Chamber),
organization of the market in beef and repealing Regulations              composed of: L. Sevón, President of the Chamber, D.A.O.
(EEC) No 1244/82 and (EEC) No 714/89 (OJ 1992 L 391,                      Edward (Rapporteur) and P. Jann, Judges; N. Fennelly, Advocate
p. 20), as amended by Commission Regulation (EC)                          General; L. Hewlett, Administrator, for the Registrar, has given
No 2311/96 of 2 December 1996 (OJ 1996 L 313, p. 9) —                     a judgment on 16 May 2000, in which it:
the Court (Sixth Chamber) composed of: J. C. Moitinho de
Almeida, President of the Chamber, R. Schintgen (Rapporteur),             1.   Dismisses the application by the Commission of the European
C. Gulmann, J.-P. Puissochet and Mrs F. Macken, Judges, Advo-                  Communities and the counterclaim by Coal Products Ltd;
cate General: G. Cosmas, Registrar: H. A. Rühl, Principal Admi-
nistrator for the Registrar, has given a judgment on 11 May
                                                                          2.   Orders the Commission of the European Communities and Coal
2000, in which it has ruled:
                                                                               Products Ltd to bear their own costs.
Examination of the question submitted has disclosed no factor likely
to affect the validity of Article 4i(2) of Regulation No 805/68 of        (1) OJ C 271 of 6.9.1997.
the Council on the common organization of the market in beef
and veal, as amended by Council Regulation No 2222/96 of
18 November 1996 and Article 50(1) of Commission Regulation
(EEC) No 3886/92 of 23 December 1992 laying down detailed
rules for the application of the premium schemes provided for in
Regulation No 805/68 and repealing Regulations (EEC)
No 1244/82 and (EEC) No 714/89, as amended by Commission
Regulation (EC) No 2311/96 of 2 December 1996.
                                                                                JUDGMENT OF THE COURT
(1) OJ C 100 of 10.4.1999.
                                                                                of 16 May 2000
                                                                          in Case C-78/98 (reference for a preliminary ruling by
                                                                          the House of Lords): Shirley Preston and Others v
                                                                          Wolverhampton Healthcare NHS Trust and Others and
                                                                              Dorothy Fletcher and Others v Midland Bank plc (1)
                  JUDGMENT OF THE COURT
                                                                          (Social policy — Men and women — Equal pay — Members-
                          (First Chamber)                                 hip of an occupational pension scheme — Part-time workers
                                                                          — Exclusion — National procedural rules — Principle of
                          of 16 May 2000                                             effectiveness — Principle of equivalence)
in Case C-274/97: Commission of the European Communi-                                             (2000/C 233/05)
                    ties v Coal Products Ltd (1)
             (Arbitration clause — Interest rebate)                                         (Language of the case: English)
                          (2000/C 233/04)
                                                                          In Case C-78/98 — reference by the House of Lords for a
                                                                          preliminary ruling under Article 177 of the EC Treaty (now
                                                                          Article 234 EC) in the case of Shirley Preston and Others v
                    (Language of the case: English)                       Wolverhampton Healthcare NHS Trust and Others and
                                                                          Dorothy Fletcher and Others v Midland Bank plc on the
In Case C-274/97: Commission of the European Communities                  interpretation of Article 119 of the EC Treaty (Articles 117 to
(Agents: P. Oliver and B. Doherty) v Coal Products Ltd, establis-         120 of the EC Treaty have been replaced by Articles 136 EC
 ---pagebreak--- 12.8.2000                EN                       Official Journal of the European Communities                                     C 233/3
to 143 EC), the Court, composed of: G.C. Rodriguez Iglesias,                                  JUDGMENT OF THE COURT
President, J.C. Moitinho de Almeida, D.A.O. Edward and
R. Schintgen (Presidents of Chambers), P.J.G. Kapteyn (Rappor-
teur), J.-P. Puissochet, G. Hirsch, P. Jann and H. Ragnemalm,
Judges, Advocate General: P. Léger, Registrar: L. Hewlett, Admi-                                     of 16 May 2000
nistrator, for the Registrar, gave a judgment on 16 May 2000,
the operative part of which is as follows:
                                                                             in Case C-83/98 P: French Republic v Ladbroke Racing
1.    Community law does not preclude a national procedural rule                Ltd and Commission of the European Communities (1)
      which requires that a claim for membership of an occupational
      pension scheme (from which the right to pension benefits flows)
      must, if it is not to be time-barred, be brought within six
      months of the end of the employment to which the claim relates,
      provided, however, that that limitation period is not less                          (Appeal — Competition — State aid)
      favourable for actions based on Community law than for those
      based on domestic law.
                                                                                (2000/C 233/06)
2.    Community law precludes a national procedural rule which
      provides that a claimant’s pensionable service is to be calculated
      only by reference to service after a date falling no earlier than
      two years prior to the date of claim.
                                                                                (Language of the case: English)
3.    An action alleging infringement of a statute such as the Equal
      Pay Act 1970 does not constitute a domestic action similar to
      an action alleging infringement of Article 119 of the EC Treaty
      (Articles 117 to 120 of the EC Treaty have been replaced by            In Case C-83/98 P: French Republic (Agents: K. Rispal-
      Articles 136 EC to 143 EC).                                            Bellanger, F. Million and J.-M. Belorgey) — Appeal against the
                                                                             judgment of the Court of First Instance of the European
                                                                             Communities (Second Chamber, Extended Composition) of
4.    In order to determine whether a right of action available under        27 January 1998 in Case T-67/94 Ladbroke Racing v Commis-
      domestic law is a domestic action similar to proceedings to give       sion [1998] ECR II-1, seeking to have that judgment set aside
      effect to rights conferred by Article 119 of the Treaty, the           in part, the other parties to the proceedings being: Ladbroke
      national court must consider whether the actions concerned are         Racing Ltd, established in London, represented by C. Vajda QC
      similar as regards their purpose, cause of action and essential        and S. Kon, Solicitor, with an address for service in Luxem-
      characteristics.                                                       bourg at the Chambers of Arendt and Medernach, 9-10 Rue
                                                                             Mathias Hardt, and Commission of the European Communities
                                                                             (Agents: G. Rozet and J. Flett) the Court, composed of:
5.    In order to decide whether procedural rules are equivalent, the        G.C. Rodrı́guez Iglesias, President, J.C. Moitinho de Almeida,
      national court must verify objectively, in the abstract, whether       D.A.O. Edward, L. Sevón and R. Schintgen (Presidents of
      the rules at issue are similar taking into account the role played     Chambers), P.J.G. Kapteyn (Rapporteur), J.-P. Puissochet,
      by those rules in the procedure as a whole, as well as the             G. Hirsch, P. Jann, H. Ragnemalm and V. Skouris, Judges;
      operation of that procedure and any special features of those          G. Cosmas, Advocate General; R. Grass, Registrar, has given a
      rules.                                                                 judgment on 16 May 2000, in which it:
6.    Community law precludes a procedural rule which has the effect         1.    Dismisses the appeal;
      of requiring a claim for membership of an occupational pension
      scheme (from which the right to pension benefits flows) to be
      brought within six months of the end of each contract of               2.    Orders the French Republic to pay the costs.
      employment to which the claim relates where there has been a
      stable employment relationship resulting from a succession of
      short-term contracts concluded at regular intervals in respect of
      the same employment to which the same pension scheme
      applies.                                                               (1) OJ C 209 of 4.7.1998.
(1) OJ C 184 of 13.6.1998.


title: Case C-138/09: Reference for a preliminary ruling from the Tribunale Ordinario di Palermo (Italy) lodged on 15 April 2009 — Todaro Nunziatina & C. snc v Assessorato del Lavoro e della Previdenza Sociale

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/23

         Reference for a preliminary ruling from the Tribunale Ordinario di Palermo (Italy) lodged on 15 April 2009 — Todaro Nunziatina & C. snc v Assessorato del Lavoro e della Previdenza Sociale
   (Case C-138/09)
   2009/C 153/43
   Language of the case: Italian

      Referring court

   Tribunale Ordinario di Palermo

      Parties to the main proceedings

      Applicant: Todaro Nunziatina & C. snc

      Defendant: Assessorato del Lavoro e della Previdenza Sociale

      Questions referred

               1.

               In the light of the fact that the aid scheme (Ref. NN 91/A/95) established by the Region of Sicily in Article 10 of Regional Law No 27 of 15 May 1991 laid down a mechanism of assistance for a minimum of two, and a maximum of five, years (two years for workers recruited on training and work experience contracts plus a maximum of three years in cases where those contracts are converted into open-ended contracts), was it the intention of the European Commission, in Decision No 95/C 343/11 of 14 November 1995 authorising the scheme’s implementation (‘the authorising decision’):

                           —

                           to permit such a cumulative increase to the duration and financial amount of the assistance (two years + three years) or, alternatively,

                           —

                           to authorise, on a mutually exclusive basis, either the grant of assistance for workers recruited on training and work experience contracts (for the two years’ duration of such contracts) or the grant of assistance for those workers recruited previously on training and work experience contracts which were subsequently converted into open-ended contracts (for the three years from that conversion)?

               2.

               Should the time-limit of the financial year 1997 for the implementation of State aid, laid down by the European Community in the authorising decision approving the scheme established by Regional Law No 27/91, be interpreted as referring to:

                           —

                           the initial provision for expenditure on aid scheduled in any event to be paid in subsequent years (according to the various interpretations of authorised aid possible, which have been referred to), or rather

                           —

                           the time-limit for the actual payment of assistance by the competent regional bodies?

               3.

               Thus, for workers recruited on training and work experience contracts, pursuant to Article 10 of Regional Law No 27/91, for instance on 1 January 1996, and therefore before the time-limit for the period for implementing the State aid set out in the authorising decision, was the Region of Sicily permitted — and indeed required — actually to implement the aid scheme in question for all of the years authorised (that is to say two + three), and even where, as in the example mentioned, the implementation of the authorised scheme entailed the actual payment of the assistance until 31 December 2001 (that is to say, 1996 + five years = 2001)?

               4.

               Was it the intention of the European Commission, by Article 1 of Decision No 2003/195/EC of 16 October 2002, which states: ‘The aid scheme which Italy plans to implement under Article 11(1) of the Sicilian Regional Law No 16 of 27 May 1997 is incompatible with the common market. The scheme may accordingly not be implemented’:

                           —

                           to refuse authorisation of the ‘new’ aid scheme established under Article 11 of Regional Law No 16/97, because the Commission regarded that scheme as an ‘autonomous’ system designed to extend the period for implementing the aid introduced by Article 10 of Regional Law No 27/91 beyond the time-limit of 31 December 1996 to include even the costs of recruiting workers and/or converting contracts carried out in the years 1997 and 1998, or

                           —

                           rather, by that decision, to prevent the Region from materially acquiring the financial resources, in order to prevent the actual payment of the State aid laid down in Article 10 of Regional Law No 27/91, even for workers recruited and/or contracts converted before 31 December 1996?

               5.

               If the Commission’s decision is to be interpreted along the lines of the first option in question 4, is such a decision compatible with the Commission’s interpretation of Article 87 of the Treaty in determining similar cases relating to the exemptions from the costs of social security contributions on training and work experience contracts in Decision 2000/128/EC of 11 May 1999 (concerning the laws of the Italian State and specifically referred to in the grounds of the decision of incompatibility of 2002) and Decision 2003/739/EC of 13 May 2003 (concerning the laws of the Region of Sicily)?

               6.

               If the Commission’s decision is to be interpreted along the lines of the second option in question 4, what interpretation is to be given to the previous decision authorising the aid measures, taking into account the dual meaning that may be ascribed to the adjective ‘further’, that is to say ‘further in relation to the budget as laid down in the Commission’s decision’ or ‘further in relation to the provision for finance made by the Region only until the financial year 1996’?

               7.

               Ultimately, which aid is to be regarded as lawful, and which as unlawful, according to the Commission?

               8.

               Which of the parties to the present proceedings (the company or the Regional Ministry), has the burden of proving that the budget laid down by the Commission itself has not been exceeded?

               9.

               Should the award of statutory interest to a company for late payment of assistance that is held to be lawful and admissible be taken into account in determining whether the budget originally approved by the authorising decision has been exceeded?

               10.

               If the award of such interest is relevant in determining whether that budget has been exceeded, what measure of interest is to be applied?


title: Case T-31/01: Action brought on 9 February 2001 by the Territorio Histórico de Gipuzkoa — Diputación Foral de Gipuzkoa against the Commission of the European Communities

text:
7.4.2001                EN                      Official Journal of the European Communities                                      C 108/27
The applicant bases its claim in essence on alleged infringement           The applicant claims that the Court should:
of the procedure laid down by law in Article 88 EC and in
Regulation No 659/1999 (1) as regards existing aid schemes,                —     annul the Commission’s decision of 28 November 2000
and consequently pleads violation of the principles of legal                     initiating the procedure provided for by Article 88(2) EC
certainty, the protection of legitimate expectations and the                     with regard to Article 14 of Norma Foral 11/1993;
right to a fair hearing.
It maintains in that regard that the Commission has since                  —     order the Commission to pay the costs.
1994 been aware of the existence of the Norma Foral in
question, the provisions of which as a whole, and not
merely Article 14, were the subject of a complaint seeking a
declaration that it was incompatible with the common market                Pleas in law and main arguments
under Article 87 of the EC Treaty.
                                                                           The measure to which the contested decision relates is laid
As a result of that complaint, the Commission proceeded to
                                                                           down by Article 14 of the Norma Foral No 11/1993 of the
carry out a preliminary State aid investigation and sent a copy
                                                                           Territorio Histórico de Gipuzkoa of 26 June 1993 concerning
of the complaint in question to the Kingdom of Spain.
                                                                           urgent fiscal measures in support of investment and the
According to the applicant, the Commission at no time
                                                                           promotion of economic activity, which provides for an
indicated that it was initiating, or had initiated, the formal
                                                                           exemption from corporation tax for certain newly formed
investigation procedure provided for in Article 88(2) EC.
                                                                           undertakings.
The fact that, in November 2000, the Commission proceeded
to initiate the inter partes procedure provided for in Article             The pleas in law and main arguments are similar to those
88(2) with regard to one of the articles of Norma Foral                    advanced in Case T-30/01.
No 18/1993 necessarily means, in the applicant’s view,
that the Commission has failed to comply with the legally
established procedure for investigating and assessing existing
aid schemes.
The applicant considers that, if the Commission has any
doubts either as to whether the tax exemption provided for
may constitute aid or as to its compatibility with the common
market, it cannot categorise that exemption as new aid but
must classify it as existing aid and should proceed, in
accordance with the principle of sound administration, to                  Action brought on 9 February 2001 by the Territorio
analyse and scrutinise the same in the context of the constant             Histórico de Bizkaia — Diputación Foral de Bizkaia
review of aid systems of that type provided for in Article 88(1)             against the Commission of the European Communities
EC.
                                                                                (Case T-32/01)
(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
    down detailed rules for the application of the EC Treaty (OJ L 83
    of 27.3.1999, p. 1).
                                                                                (2001/C 108/50)
                                                                                (Language of the case: Spanish)
Action brought on 9 February 2001 by the Territorio
Histórico de Gipuzkoa — Diputación Foral de Gipuzkoa                     An action against the Commission of the European Communi-
  against the Commission of the European Communities                       ties was brought before the Court of First Instance of the
                                                                           European Communities on 9 February 2001 by the Territorio
                          (Case T-31/01)                                   Histórico de Bizkaia — Diputación Foral de Bizkaia, established
                                                                           in Bizkaia (Spain), represented by Marta Morales Isasi and
                         (2001/C 108/49)                                   Ignacio Sáenz-Cortabarrı́a Fernández, lawyers.
                   (Language of the case: Spanish)                         The applicant claims that the Court should:
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                 —     annul the Commission’s decision of 28 November 2000
European Communities on 9 February 2001 by the Territorio                        initiating the procedure provided for by Article 88(2) EC
Histórico de Gipuzkoa — Diputación Foral de Gipuzkoa,                          with regard to Article 14 of Norma Foral 5/1993;
established in Gipuzkoa (Spain), represented by Marta Morales
Isasi and Ignacio Sáenz-Cortabarrı́a Fernández, lawyers.                 —     order the Commission to pay the costs.


title: Action brought on 10 February 1997 by the Commission of the European Communities against the French Republic (Case C-56/97)

text:
No C 108/ 12          EN                    Official Journal of the European Communities                                      5 . 4 . 97
Court of First Instance of the European Communities in                 The applicant claims that the Court should :
Case T-3 80/94 between Association Internationale des Uti
lisateurs de Fils de Filaments Artificiels et Synthetiques et
de Soie Naturelle (Aiuffass ) and Apparel, Knitting &                  1 . declare that, by failing to bring into force within the
Textiles Alliance (AKT), on the one hand, and                                 prescribed period the laws, regulations or
Commission of the European Communities, supported by                          administrative provisions comprising any penalties
the United Kingdom of Great Britain and Northern                              necessary to comply with Council Directive 93/119/
Ireland, on the other, was brought before the Court of                        EC (') of 22 December 1993 on the protection of
Justice of the European Communities on 10 February                            animals at the time of slaughter or killing, the French
1997 by Association Internationale des Utilisateurs de Fils                   Republic has failed to fulfil its obligations under
de Filaments Artificiels et Synthetiques et de Soie Naturelle                 Article 18 of Directive 93/119/EC and the EC Treaty;
( Aiuffass ) and Apparel, Knitting & Textiles Alliance
( AKT), represented by M. Waelbroeck, J. Stuyck and O.
                                                                       2 . order the French Republic to pay the costs .
Speltdoorn, of the Brussels Bar, with an address for service
in Luxembourg at the Chambers of E. Arendt, 8—10 Rue
Mathias Hardt .
                                                                       Pleas in law and main arguments adduced in support:
The appellant claims that:
                                                                       The mandatory nature of the provisions of the third
                                                                       paragraph of Article 189 and the first paragraph of
— the judgment of the Fifth Chamber, Extended                          Article 5 of the EC Treaty requires Member States to
      Composition, of the Court of First Instance of                   adopt the measures necessary to transpose directives
      12 December 1996 in Case T-3 80/94 should be set                 addressed to them into their domestic law before the
      aside,                                                           expiry of the period prescribed for doing so. That period
                                                                       expired on 1 January 1995 without the French Republic
— consequently, the Commission Decision of 31 May                      having brought into force the necessary provisions .
       1994, reproduced in Commission Notice 94/C 271/06,
      authorizing the Government of the United Kingdom                 (') OJ No L 340, 31 . 12 . 1993 , p . 21 .
      under Article 92 ( 3 ) ( a ) and (c ) of the EC Treaty to
      grant aid of £ 61 million in favour of Hualon
       Corporation for the setting up of a textile producing
       plant in Northern Ireland should be annulled,
 — the Commission should be ordered to pay the costs of
       the appeal proceedings and of the proceedings before            Action brought on 10 February 1997 by the Commission
       the Court of First Instance in Case T-380/94 .                   of the European Communities against the French Republic
                                                                                Case C-57/97)
 Pleas in law and main arguments adduced in support:                                               97/C 108/22 )
 The appellants maintain that the Commission failed to
  take account of the effects of the investment at issue in the         An action against the French Republic was brought before
  high-range product sector. They consider that, in assessing           the Court of Justice of the European Communities on
  that aspect of the application, the contested judgment                10 February 1997 by the Commission of the European
  misinterpreted the Commission Decision and failed to                  Communities, represented by A. X. Lewis, acting as
  respond sufficiently to their arguments .                             Agent, with an address for service in Luxembourg at the
                                                                        office of Carlos Gomez de la Cruz, Wagner Centre,
                                                                        Kirchberg.
                                                                        The applicant claims that the Court should:
  Action brought on 10 February 1997 by the Commission
   of the European Communities against the French Republic               ( a ) declare that, by failing to bring into force within the
                           Case C-56/97)                                       prescribed period the laws, regulations or
                                                                               administrative provisions necessary to comply with:
                           ( 97/C 108/21 )
                                                                               1 . Council Directive 93/53/EEC ( 1 ) of 24 June 1993
   An action against the French Republic was brought before                        introducing minimum Community measures for
   the Court of Justice of the European Communities on                             the control of certain fish diseases;
   10 February 1997 by the Commission of the European
   Communities, represented by A. X. Lewis, acting as                          2 . Council Directive 93/113/EC (2 ) of 14 December
   Agent, with an address for service in Luxembourg at the                          1993 concerning the use and marketing of
   office of Carlos Gomez de la Cruz, Wagner Centre,                                enzymes, micro-organisms and their preparations
   Kirchberg.                                                                       in animal nutrition;


               22.12.2016

               EN

               Official Journal of the European Union

               C 480/8

         Request for an Advisory Opinion from the EFTA Court by Hæstiréttur Íslands dated 10 December 2015 in the case of Sorpa bs. v The Competition Authority
   (Case E-29/15)
   (2016/C 480/10)
   A request has been made to the EFTA Court by a letter dated 10 December 2015 from Hæstiréttur Íslands (the Supreme Court of Iceland), which was received at the Court Registry on 10 December 2015, for an Advisory Opinion in the case of Sorpa bs. v The Competition Authority on the following questions:

               1.

               Is a municipality in a Contracting Party to the EEA Agreement which carries out, in its jurisdiction, the management of waste in conformity with the provisions of Directives 75/442/EEC, 1999/31/EC and 2000/76/EC, an undertaking in the sense of Article 54 of the Agreement? In this connection, the Court asks whether, when this question is answered, the following are of significance: a) That the treatment of waste is among the legally-prescribed functions of municipalities according to the laws of the relevant Contracting Party. b) That competition may exist over the treatment of waste between private entities and public entities under the laws of the Contracting Party. c) That it is prescribed, in the laws of the Contracting Party, that in this field, a municipality may not charge a higher fee than covers the cost of the treatment of waste and related activities.

               2.

               If the answer to the first question is in the negative, does the same apply to a cooperative undertaking which is operated by two or more municipalities and attends, on their behalf, to the management of waste in their operating areas?

               3.

               When assessing whether Article 54 EEA applies to an activity of a municipality or a cooperative undertaking, is it of significance that the laws of the Contracting Party in question contain provisions authorising or obliging public bodies to perform the activity? Is it compatible with the EEA Agreement that a Contracting Party exempts, through legislation, certain activities by public entities from the scope of competition law?

               4.

               Can municipalities which are the owners of a cooperative undertaking such as the one referred to in Question 2 be considered as its trading parties in the sense of Article 54(2)(c) EEA? And if so, does a discount granted to the owners which is not available to other parties constitute placing other parties at a disadvantage in the sense of the same provision?


title: Case T-258/07: Action brought on 17 July 2007 — Campo de Alcalá del Río v Council and Commission

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/51

         Action brought on 17 July 2007 — Campo de Alcalá del Río v Council and Commission
   (Case T-258/07)
   (2007/C 211/96)
   Language of the case: Spanish
   Parties

      Applicant: S. Coop. And. de Productores Campo de Alcalá del Río (Sevilla, Spain) (represented by: L. Ortiz Blanco, lawyer)

      Defendants: Council of the European Union and Commission of the European Communities
   Form of order sought

               —

               declare under Article 288 EC that the applicant is entitled to have damage totalling one million thirty five thousand four hundred and sixty six euros (EUR 1 035 466) made good by the Council and the Commission jointly and severally;

               —

               order the defendants to pay the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments are those relied on in Case T-217/07 Las Palmeras v Council and Commission.


title: Action brought on 26 November 1996 by Salini Costruttori SpA against the Commission of the European Communities (Case T-188/96)

text:
8 . 2 . 97            I tN |                 Official Journal of the European Communities                                 No C 40 / 23
Pleas in law and main arguments adduced in support:                          27 July 1995 seeking, first, the provision of a valid
                                                                             staff report for 1991 to 1993 and , second, payment of
The applicant, an Italian steel company in liquidation, has
                                                                             compensation for the non-material damage suffered as
brought an action directed principally against the same                      a result of non-compliance with the rules on the
decision which is the subject matter of Cases T-l 64/96
                                                                             drawing-up of staff reports and the belated inclusion
Moccia Irme SpA v. Commission and T-l 65/96 Prolafer v.
Commission, in so far as it concerns itself.
                                                                             of the report in his personal file,
The pleas and main arguments are analogous to those                     — annul , in so far as may be necessary, the Commission's
already relied on in the abovementioned cases.                               decision of 18 July 1996 expressly rejecting the
                                                                             applicant's complaint No R/l 47/96 ,
                                                                        — order the defendant to pay compensation for the non
                                                                             material damage suffered, in the sum of Bfrs 500 000
Action brought on 26 November 1996 by Salini                                 or such other sum as the Court may consider fair and
Costruttori SpA against the Commission of the European                       reasonable,
                            Communities
                         ( Case T-l 88/96 )                             — order the defendant to pay the costs.
                            ( 97/C 40/54 )                              Pleas in law and main arguments adduced in support:
                  (Language of the case: French)                        The applicant contests the fact that, on 20 January 1995 ,
An action against the Commission of the European                        the appointing authority officially recorded receipt of his
Communities was brought before the Court of First                       staff report for 1991 to 1993 and placed it on his personal
Instance of the European Communities on 26 November                     file, whereas that report was merely a reiteration of his
 1996 by Salini Costruttori SpA, whose registered office is             report for the period 1989 to 1991 .
in Rome, represented by Jean-Pierre Cuny, of the                        By note dated 25 July 1995 , the applicant submitted a
Versailles Bar ( France ).                                              request within the meaning of Article 90 ( 1 ) of the Staff
The applicant claims that the Court should declare                      Regulations, applying in particular for a report to be
unlawful the Commission's failure to fulfil its obligation              drawn up in the prescribed manner in respect of the
to address to the Italian Government a decision based on                period under consideration . The Commission expressly
Article 93 ( 2 ) and Article 101 of the Treaty.                         rejected the request. The complaint lodged against the
                                                                        rejection decision was partially refused, in that the
 Pleas in law and main arguments adduced in support:                    administration offered him, by way of reparation for the
 The pleas in law and main arguments are analogous to                   non-material damage suffered, compensation of
 those relied on in Case T-l 87/96 .                                    Bfrs 35 000 .
                                                                        The present action is directed against that latter decision .
                                                                         In support of his claims, the applicant maintains that there
                                                                         has been a breach of the duty to have regard for the
 Action brought on 26 November 1996 by Lars Bo                           welfare and interests of officials, a breach of the principle
 Rasmussen against the Commission of the European                        of equality of treatment and an infringement of Articles 26
                             Communities
                                                                         and 43 of the Staff Regulations .
                          ( Case T-193/96 )
                                                                         He observes in that regard that the reiterated staff report,
                              ( 97/C 40/55 )                             corresponding to the period from 1989 to 1991 , covered
                   (Language of the case: French)                        only four months spent in Directorate D of DG V. That
                                                                         report was drawn up by the Director-General of the
 An action against the Commission of the European                        Translation Service and, since the applicant was assigned
  Communities was brought before the Court of First                      on    1   March    1991    to  the   Directorate-General    for
 Instance of the European Communities on 26 November                     Employment, there has necessarily been a radical change
  1996 by Lars Bo Rasmussen, residing at Dalheim                          of duties, and also of reporting officer. In those
  ( Luxembourg), represented by Carlo Revoldini, of the                  circumstances, reiteration of the staff report should not
  Luxembourg Bar, with an address for service in                          and could not have been possible .
  Luxembourg at his Chambers, 180 Route de Longwy.
                                                                          In addition, the applicant considers that he is entitled, like
  The applicant claims that the Court should :                            any other official , to a valid staff report, so that the
  — annul the decision of the appointing authority                        competent authorities can decide on his eligibility for
        rejecting the applicant's request No D/661 /95 of                 promotion and career.


title: Case C-70/03: Action brought on 17 February 2003 by the Commission of the European Communities against the Kingdom of Spain

text:
C 124/2                  EN                           Official Journal of the European Union                                               24.5.2003
en Milieubeheer, on the interpretation of Council Directive 75/               Court of First Instance of the European Communities (Fourth
442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as                   Chamber) of 3 May 2001 in Case T-99/00 Samper v Parliament
amended by Council Directive 91/156/EEC of 18 March 1991                      [2001] ECR-SC I-A-111 and II-507, seeking to have that
(OJ 1991 L 78, p. 32) and Commission Decision 96/350/EC                       judgment set aside, the other party to the proceedings being:
of 24 May 1996 (OJ 1996 L 135, p. 32), the Court                              Ignacio Samper employee of the European Parliament, resident
(Fifth Chamber), composed of: M. Wathelet, President of the                   in Madrid (Spain), (represented by E. Boigelot), the Court
Chamber, C.W.A. Timmermans, A. La Pergola (Rapporteur),                       (Fifth Chamber), composed of: M. Wathelet, President of the
P. Jann and A. Rosas, Judges; F.G. Jacobs, Advocate General;                  Chamber, C.W.A. Timmermans, A. La Pergola, P. Jann and
M.-F. Contet, Principal Administrator, for the Registrar, has                 S. von Bahr (Rapporteur), Judges; L.A. Geelhoed, Advocate
given a judgment on 3 April 2003, in which it has ruled:                      General; R. Grass, Registrar, has given a judgment on 3 April
                                                                              2003, in which it has ruled:
1.    Where a waste treatment process comprises several distinct
      stages, it must be classified as a disposal operation or a recovery
      operation within the meaning of Council Directive 75/442/               1.    Annuls the judgment of the Court of First Instance of 3 May
      EEC of 15 July 1975 on waste, as amended by Council                           2001 in Case T-99/00 Samper v Parliament;
      Directive 91/156/EEC of 18 March 1991 and by Commission
      Decision 96/350/EC of 24 May 1996, for the purpose                      2.    Refers the case back to the Court of First Instance for it to give
      of implementing Council Regulation (EEC) No 259/93 of                         judgment on the claims by Mr Samper for annulment of
      1 February 1993 on the supervision and control of shipments                   the decision of the European Parliament of 9 June 1999
      of waste within, into and out of the European Community, as                   reconstructing his career, in so far as it sets at 1 January 1998
      amended by Council Regulation (EC) No 120/97 of 20 January                    the date for his promotion to Grade A 4 to take effect;
      1997, taking into account only the first operation that the
      waste is to undergo subsequent to shipment;
                                                                              3.    Reserves the costs.
2.    The calorific value of waste which is to be combusted is not a
      relevant criterion for the purpose of determining whether that
      operation constitutes a disposal operation as referred to in            (1 ) OJ C 245 of 1.9.2001.
      point D10 of Annex IIA to Directive 75/442, as amended by
      Directive 91/156 and by Decision 96/350, or a recovery
      operation as referred to in point R1 of Annex IIB thereof.
      Member States may establish distinguishing criteria for that
      purpose, provided that those criteria comply with those laid
      down in the Directive.
( 1) OJ C 161 of 2.6.2001.
                                                                              Action brought on 17 February 2003 by the Commission
                                                                              of the European Communities against the Kingdom of
                                                                                Spain
                  JUDGMENT OF THE COURT
                                                                                (Case C-70/03)
                           (Fifth Chamber)
                                                                                (2003/C 124/04)
                           of 3 April 2003
in Case C-277/01 P: European Parliament v Ignacio
                              Samper ( 1)
                                                                              An action against the Kingdom of Spain was brought before
(Appeals — Officials — Reconstruction of career — Con-                        the Court of Justice of the European Communities on 17 Febru-
                 sideration of comparative merits)                            ary 2003 by the Commission of the European Communities,
                                                                              represented by Isabel Martínez del Peral and Miguel França, of
                           (2003/C 124/03)                                    its Legal Service, with an address for service in Luxembourg.
                     (Language of the case: French)
                                                                              The applicant claims that the Court should:
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                            1.    Declare that, by failing to transpose fully into its national
                                                                                law Articles 5 and 6(2) of Directive 93/12/EEC ( 1) of
                                                                                5 April 1993 on unfair terms in consumer contracts, the
In Case C-277/01 P, European Parliament (Agents: H. von                             Kingdom of Spain has failed to fulfil its obligations under
Hertzen and D. Moore): Appeal against the judgment of the                           the Treaty and under that directive;
 ---pagebreak--- 24.5.2003               EN                         Official Journal of the European Union                                        C 124/3
2.     Order the Kingdom of Spain to pay the costs.                        2.    Does Directive 85/511/EEC (1), as amended by Directive
                                                                                90/423/EEC (2), afford the Member States scope to (order
                                                                                or) take supplementary national measures to control foot-
                                                                                and-mouth disease?
Pleas in law and main arguments
                                                                           3.    What limits does Community law place on a Member
—      Incorrect implementation of Article 5 of the Directive.                   State with regard to taking supplementary national
       The Law transposing Article 5 of Directive 93/13/EEC                      measures other than those provided for in Directive 85/
       into Spanish law fails to mention that the rule that the                  511/EEC, as amended by Directive 90/423/EEC?
       interpretation that is the most favourable to the consumer
       is to prevail is not to apply in the context of the
       procedures laid down in Article 7(2) of the Directive               (1 ) OJ L 315 [1985], p. 11.
       (prohibitory actions). Thus a situation is created in which         (2 ) OJ L 224 [1990], p. 13.
       consumers run the risk that the interpretation rule may
       go counter to their interests, inasmuch as it will be an
       obstacle to the removal from contracts with consumers,
       by means of a prohibitory action, unclear terms which,
       according to a ‘normal’ interpretation, are unfair;
—      incorrect implementation of Article 6(2) of the Directive:
       by referring to the provision ‘in Article 5 of the 1980
       Rome Convention on the Law applicable to Contractual                Reference for a preliminary ruling by the College van
       Obligations’, the Spanish Law limits the protection offered         Beroep voor het Bedrijfsleven by judgment of that Court
       by the Directive to consumers, by introducing a twofold             of 7 January 2003 in the proceedings between Mr and
       restriction. Thus, the Directive provides for the protection        Mrs T.H.J.M. van Schajk and Directeur van de Rijksdienst
       of all consumers in all contracts concluded with a seller                          voor de keuring van Vee en Vlees
       or supplier, whereas the Spanish Law provides such
       protection only for certain types of contract and only
                                                                                (Case C-97/03)
       where certain conditions are satisfied, a twofold restric-
       tion prohibited by the Directive.
                                                                                (2003/C 124/06)
( 1) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in
     consumer contracts (OJ L 95 of 21.4.1993, p. 29).
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by judgment of the College van Beroep
                                                                           voor het Bedrijfsleven (Administrative Court for Trade and
                                                                           Industry) of 7 January 2003, received at the Court Registry on
                                                                           4 March 2003, for a preliminary ruling in the proceedings
                                                                           between Mr and Mrs T.H.J.M. van Schajk and Directeur van de
Reference for a preliminary ruling by the College van                      Rijksdienst voor de keuring van Vee en Vlees on the following
Beroep voor het Bedrijfsleven by judgment of that Court                    questions:
of 7 January 2003 in the proceedings between A. Tempel-
man and Directeur van de Rijksdienst voor de keuring
                         van Vee en Vlees                                  1.    May a Member State derive from Community law the
                                                                                power to decide to kill animals which are suspected of
                                                                                being infected or contaminated with the foot-and-mouth
                           (Case C-96/03)                                        virus?
                          (2003/C 124/05)                                  2.    Does Directive 85/511/EEC (1), as amended by Directive
                                                                                90/423/EEC (2), afford the Member States scope to (order
                                                                                or) take supplementary national measures to control foot-
                                                                                and-mouth disease?
Reference has been made to the Court of Justice of the
European Communities by judgment of the College van Beroep
voor het Bedrijfsleven (Administrative Court for Trade and                 3.    What limits does Community law place on a Member
                                                                                State with regard to taking supplementary national
Industry) of 7 January 2003, received at the Court Registry on
                                                                                measures other than those provided for in Directive 85/
4 March 2003, for a preliminary ruling in the proceedings
between A. Tempelman and Directeur van de Rijksdienst voor                       511/EEC, as amended by Directive 90/423/EEC?
de keuring van Vee en Vlees on the following questions:
                                                                           (1 ) OJ L 315 [1985], p. 11.
1.     May a Member State derive from Community law the                    (2 ) OJ L 224 [1990], p. 13.
       power to decide to kill animals which are suspected of
       being infected or contaminated with the foot-and-mouth
       virus?


title: Case C-425/07 P: Appeal brought on 14 September 2007 by AEPI A.E. Elliniki Etairia pros Prostasian tis Pnevmatikis Idioktisias against the judgment delivered on 12 July 2007 in Case T-229/05 AEPI A.E. v Commission of the European Communities

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/36

         Appeal brought on 14 September 2007 by AEPI A.E. Elliniki Etairia pros Prostasian tis Pnevmatikis Idioktisias against the judgment delivered on 12 July 2007 in Case T-229/05 AEPI A.E. v Commission of the European Communities

   (Case C-425/07 P)
   (2007/C 269/61)
   Language of the case: Greek
   Parties

      Appellant: AEPI AE Elliniki Etairia pros Prostasian tis Pnevmatikis Idioktisias (represented by: T. Asproyerakas-Trivas, lawyer)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought
   The Court is asked to:

               —

               allow this appeal;

               —

               set aside the contested judgment of 12 July 2007 of the Court of First Instance of the European Communities (Fourth Chamber), under No 328208, in Case T-229/05 AEPI A.E. v Commission of the European Communities in its entirety;

               —

               hear and give judgment itself on our application of 14 June 2005 (under Article 230 EC), No 001/4372, 56(2001) A/3603/2, which was brought before the Court of First Instance of the European Communities against Commission Decision SG-Greffe (2005) D/201832 of 18 April 2005 rejecting our complaint of 22 March 2001 (2001/4372, 56) (2001 A/3603/2), or refer the case back to the Court which delivered the judgment under appeal so that the claims set out therein be allowed

               —

               order the respondent to pay our costs.

         Pleas in law and main arguments
   The judgment under appeal misinterpreted Articles 81 and 82 EC inasmuch as the Court did not examine whether the contested Commission decision exceeded the limits of its discretion, did not take account of the case-law of the Court of Justice on the matter and did not take into consideration the facts set out in the application which show potential prejudice to intra-Community trade. Lastly, in misinterpreting and misapplying Articles 81 and 82 EC, it was considered that the competition provisions of Community law necessarily require the existence of actual prejudice to intra-Community trade, whereas in fact, on a correct interpretation and application of the above provisions, potential prejudice suffices to found the infringement.


title: Case T-178/07: Action brought on 21 May 2007 — Euro-Information v OHIM

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/31

         Action brought on 21 May 2007 — Euro-Information v OHIM
   (Case T-178/07)
   (2007/C 170/61)
   Language of the case: French
   Parties

      Applicant: Société Européenne de traitement de l'Information SAS (Strasbourg, France) (represented by P. Greffe and J. Schouman, laywers)

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

               —

               annul the decision of the First Board of Appeal of OHIM of 15 March 2007, Case R 1249/2006-1, in so far as it refused to grant its Community trade mark application CYBERHOME No 4 114 666 for part of the goods and services applied for in Classes 9, 36 and 38;

               —

               the granting of its Community trade mark application CYBERHOME No 4 114 666 for all the goods and services applied for

         Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘CYBERHOME’ for goods and services in Classes 9, 36 and 38 (application No 4 114 666)

      Decision of the Examiner: Registration refused

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: The applicant submits that, contrary to the Board of Appeal of OHIM's finding in the contested decision, its mark is arbitrary and is sufficiently distinctive in relation to the goods and services applied for to meet the requirements of Council Regulation No 40/94 (1).

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case F-97/13: Judgment of the Civil Service Tribunal (Second Chamber) of 5 March 2015 — Gyarmathy v FRA (Civil service — Staff of the European Union Agency for Fundamental Rights — Members of the temporary staff — Recruitment — Notice of vacancy — Rejection of candidature)

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/43

         Judgment of the Civil Service Tribunal (Second Chamber) of 5 March 2015 — Gyarmathy v FRA
   (Case F-97/13) (1)

   ((Civil service - Staff of the European Union Agency for Fundamental Rights - Members of the temporary staff - Recruitment - Notice of vacancy - Rejection of candidature))
   (2015/C 146/58)
   Language of the case: English

      Parties

      Applicant: Valéria Anna Gyarmathy (Győr, Hungary) (represented by: L. Levi and M. Vandenbussche, lawyers)

      Defendant: European Union Agency for Fundamental Rights (represented by: M. Kjærum, acting as Agent, and by B. Wägenbaur, lawyer)

      Re:

   Action for annulment of the decision to appoint another candidate to the position of ‘Senior Programme Manager’ and not to appoint the applicant to the second position referred to in the vacancy notice.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Declares that Ms Gyarmathy is to bear her own costs and orders her to pay the costs incurred by the European Union Agency for Fundamental Rights.

      (1)  OJ C 85, 22.3.2014, p. 26.


title: Judgment of the Court (Sixth Chamber) of 19 May 1999 in Case C-6/97: Italian Republic v Commission of the European Communities (State aid - Definition - Tax credit - Recovery - Absolute impossibility)

text:
17.7.1999                EN                      Official Journal of the European Communities                                           C 204/15
L. Sevón (Rapporteur), Judges; P. Léger, Advocate General;                 A rule such as that in Article 3(1) of the Verordening Stoffen met
L. Hewlett, Administrator, for the Registrar, has given a                   sympathico mimetische werking (PVV) 1991, read in conjunction
judgment on 11 May 1999, in which it has ruled:                             with Article 2 of that Verordening, constitutes a technical regulation
                                                                            within the meaning of Council Directive 83/189/EEC of 28 March
On a correct interpretation of Articles 30, 34 and 36 of the EC             1983 laying down a procedure for the provision of information in
Treaty (now, after amendment, Articles 28, 29 and 30 EC), a                 the field of technical standards and regulations, as amended by
Member State is prevented from restricting the transport by road of         Council Directive 88/182/EEC of 22 March 1988, in respect of
animals for slaughter by requiring such transport to be carried out         which the Member State which adopted it is exempt, under Article
only as far as the nearest suitable abattoir within national territory      10 of that directive, from the obligation to notify the Commission
and under conditions such that, upon observance of the motor vehicle        laid down in Article 8 thereof.
and traffic regulations, a total journey time of six hours and a
distance of 130 kilometres are not exceeded, account being taken of         (1) OJ C 72 of 7.3.1998.
only half of the kilometres actually travelled on a motorway.
(1) OJ C 370 of 6.12.1997.
                                                                                JUDGMENT OF THE COURT
                  JUDGMENT OF THE COURT                                                              (Sixth Chamber)
                           (Fifth Chamber)                                                            of 19 May 1999
                           of 11 May 1999                                   in Case C-6/97: Italian Republic v Commission of the
                                                                                European Communities (1)
in Joined Cases C-425/97 to C 427/97 (references for a
preliminary ruling from the Gerechtshof te                                  (State aid — Definition — Tax credit — Recovery —
’s-Hertogenbosch): Criminal proceedings against Adrianus                                          Absolute impossibility)
Albers (C-425/97) Martinus Van den Berkmortel (C-
        426/97) and Leon Nuchelmans (C-427/97) (1)                                                    (1999/C 204/29)
(Directive 83/189/EEC — Technical regulations — Obli-
    gation to notify — Prohibition on growth promoters)                                         (Language of the case: Italian)
                           (1999/C 204/28)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                     (Language of the case: Dutch)
                                                                            In Case C-6/97: Italian Republic (Agent: Umberto Leanza,
                                                                            assisted by Oscar Fiumara) v Commission of the European
(Provisional translation; the definitive translation will be published      Communities (Agents: Laura Pignataro, Anders C. Jessen
                    in the European Court Reports)                          and Enrico Altieri) — application for the annulment of
                                                                            Commission Decision 97/270/EC of 22 October 1996 on a
In Joined Cases C-425/97 to C-427/97: references to the Court               tax credit scheme introduced by Italy for professional road
under Article 177 of the EC Treaty from the Gerechtshof                     hauliers (C 45/95 ex NN 48/95) (OJ 1997 L 106, p. 22) — the
(Regional Court of Appeal), ’s-Hertogenbosch (Netherlands),                 Court (Sixth Chamber), composed of: P.J.G. Kapteyn, President
for a preliminary ruling in the criminal proceedings pending                of the Chamber, G. Hirsch (Rapporteur), G.F. Mancini, H. Rag-
before that court against Adrianus Albers (C-425/97) Martinus               nemalm and R. Schintgen, Judges; Advocate General; D. Ruiz-
Van den Berkmortel (C-426/97) and Leon Nuchelmans (C-                       Jarabo Colomer; H.A. Rühl, Principal Administrator, for the
427/97) — on the interpretation of Council Directive                        Registrar, has given a judgment on 19 May 1999, in which it:
83/189/EEC of 28 March 1983 laying down a procedure for
the provision of information in the field of technical standards            1. Dismisses the application;
and regulations (OJ 1983 L 109, p. 8), as amended by Council
Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75)                 2. Orders the Italian Republic to pay the costs.
— the Court (Fifth Chamber), composed of: J.-P. Puissochet,
President of the Chamber, J.C. Moitinho de Almeida, C. Gul-
mann (Rapporteur), L. Sevón and M. Wathelet, Judges; P. Léger,             (1) OJ C 94 of 22.3.1997.
Advocate General; H. von Holstein, Deputy Registrar, for the
Registrar, has given a judgment on 11 May 1999, in which it
has ruled:


title: Case C-326/13 P: Appeal brought on 17 June 2013 by Peek & Cloppenburg KG against the judgment of the General Court (Fifth Chamber) delivered on 18 April 2013 in Case T-507/11 Peek & Cloppenburg v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               24.8.2013

               EN

               Official Journal of the European Union

               C 245/5

         Appeal brought on 17 June 2013 by Peek & Cloppenburg KG against the judgment of the General Court (Fifth Chamber) delivered on 18 April 2013 in Case T-507/11 Peek & Cloppenburg v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-326/13 P)
   2013/C 245/08
   Language of the case: German

      Parties

      Appellant: Peek & Cloppenburg KG (Düsseldorf, Germany) (represented by: P. Lange, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Peek & Cloppenburg KG (Hamburg, Germany)

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of the European Union of 18 April 2013 in Case T-507/11;

               —

               annul the decision of the First Board of Appeal of OHIM of 28 February 2011 in Case R 262/2005-1;

               —

               order OHIM and Peek & Cloppenburg KG (Hamburg) to pay the costs.

      Pleas in law and main arguments

   The appellant pleads an infringement of Article 8(4) of Regulation No 207/2009 (1) through misinterpretation of the criterion ‘confers … the right to prohibit the use of a subsequent trade mark’.
   Contrary to what the General Court held, it is not possible to proceed on the basis that the provision requires solely that the right asserted be of more than local significance. The criterion at issue is to be interpreted as limiting further the category of signs of more than local significance that can be relied upon in opposition. This interpretation is that the national right at issue must confer upon its proprietor the right to prohibit the use of a subsequent trade mark in the entire territory of the Member State in which the right originates.
   This view is supported by the significance of the opposition procedure in respect of a Community trade mark application, by the provisions of Articles 110 and 111 of Regulation No 207/2009 and by the way in which the criterion in Article 4(4)(b) of Directive 2008/95/EC, (2) which is identical to that in Article 8(4) of Regulation No 207/2009, is understood.
   The German legislature, interpreting Article 4(4)(b) of Directive 2008/95/EC correctly, transposed that provision into national law so as to mean that the right at issue must confer upon its proprietor the power to prohibit the use of a subsequent trade mark in the entire territory of the Federal Republic of Germany. The interpretation of the criterion ‘confers … the right to prohibit the use of a subsequent trade mark’ is relevant to the dispute.
   In the alternative, the appellant pleads an infringement of Article 8(4) of Regulation No 207/2009 through misinterpretation of the concept ‘of more than mere local significance’ by the General Court. It relies in this regard on the significance of the opposition procedure, on the purpose of limiting the category of national signs that can be relied upon in opposition, on the connection with the provisions of Articles 110 and 111 of Regulation No 207/2009, and on Article 4(4)(b) of Directive 2008/95/EC.

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

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


title: Case T-232/16 P: Appeal brought on 12 May 2016 by the European Commission against the judgment of the Civil Service Tribunal of 2 March 2016 in Case F-3/15, Frieberger and Vallin v Commission

text:
               4.7.2016

               EN

               Official Journal of the European Union

               C 243/44

         Appeal brought on 12 May 2016 by the European Commission against the judgment of the Civil Service Tribunal of 2 March 2016 in Case F-3/15, Frieberger and Vallin v Commission
   (Case T-232/16 P)
   (2016/C 243/49)
   Language of the case: French

      Parties

      Appellant: European Commission (represented by: G. Berscheid and G. Gattinara, acting as Agents)

      Other parties to the proceedings: Jürgen Frieberger (Woluwe-Saint-Lambert, Belgium) and Benjamin Vallin (Saint-Gilles, Belgium)

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               set aside the judgment of the Civil Service Tribunal of 2 March 2016 in Case F-3/15, Frieberger and Vallin v Commission, in so far as the Civil Service Tribunal held the fourth plea in law to be well founded;

               —

               as regards the proceedings at first instance, in so far as the Civil Service Tribunal took the view that the state of proceedings permitted it to give final judgment, dismiss the action as unfounded and order the appellants to pay the costs;

               —

               as regards the appeal proceedings, order the parties to bear their own costs relating to those proceedings.

      Grounds of appeal and main arguments

   In support of the appeal, the appellant relies on five grounds of appeal.

               1.

               First ground of appeal, alleging a distortion of the arguments raised at first instance and an infringement of the prohibition on ruling ultra petita.

               2.

               Second ground of appeal, alleging an error of law in the interpretation of Article 26(5) of Annex XIII to the Staff Regulations.

               3.

               Third ground of appeal, alleging an error of law in the interpretation of the notion of transfer of pension rights under Article 11(2) of Annex VIII to the Staff Regulations.

               4.

               Fourth ground of appeal, alleging an infringement of the obligation to state reasons.

               5.

               Fifth ground of appeal, alleging an infringement of the principle of equal treatment.