title: Case T-130/16: Judgment of the General Court of 31 January 2017 — Coesia v EUIPO (Representation of two red oblique curves) (EU trade mark — Application for registration of an EU figurative mark representing two red oblique curves — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Obligation to assess the distinctiveness of a mark by reference to the perception which the relevant public has of it)

text:
               13.3.2017

               EN

               Official Journal of the European Union

               C 78/30

         Judgment of the General Court of 31 January 2017 — Coesia v EUIPO (Representation of two red oblique curves)
   (Case T-130/16) (1)

   ((EU trade mark - Application for registration of an EU figurative mark representing two red oblique curves - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 - Obligation to assess the distinctiveness of a mark by reference to the perception which the relevant public has of it))
   (2017/C 078/41)
   Language of the case: Italian

      Parties

      Applicant: Coesia SpA (Bologna, Italy) (represented by: S. Rizzo, Agent)

      Defendant: European Union Intellectual Property Office (represented by: L. Rampini, Agent)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 26 January 2016 (Case R 1933/2015-2) concerning an application for registration of a figurative sign representing two red oblique curves.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 January 2016 (Case R 1933/2015-2);

               2.

               Orders EUIPO to pay the costs.

      (1)  OJ C 165, 10.5.2016.


14 . 9 . 96             EN                 Official Journal of the European Communities                                No C 269/21
     with Community law, even though neither company A,               measures necessary to transpose directives addressed to
     company B or company C is itself seeking to exercise any         them into their domestic law before the expiry of the period
     rights under Community law, and even if an                       prescribed for doing so . That period expired on 30 June
     interpretation of national legislation which would               1994 without the Kingdom of Belgium having brought into
     comply with Community law would have the effect of               force the necessary measures .
     giving relief where the business of company C consisted
     mainly in the holding of shares in subsidiaries                  (') OJ No L 250 , 7. 10 . 1993 , p . 33 .
     established outside the EC/EEA ? Or does Article 5 have
                                                                      ( 2 ) OJ No L 157, 10 . 6 . 1992 , p . 10 .
     the consequence only that the national legislation,              (>) OJ No L 256 , 14 . 10 . 1993 , p . 25
     despite its interpretation, takes effect subject to the
     requirements of Community law in a case where these
     requirements are in point ?
                                                                      Action brought on 5 August 1996 by the French Republic
                                                                                against the European Parliament
Action brought on 31 July 1996 by the Commission of the                                        ( Case C-267/96 )
 European Communities against the Kingdom of Belgium
                                                                                ( 96/C 269/44 )
                          Case C-265 /96 )
                           ( 96/C 269/43 )
                                                                      An action against the European Parliament was brought
                                                                       before the Court of Justice of the European Communities on
An action against the Kingdom of Belgium was brought                   5 August 1 996 by the French Republic, represented by Marc
before the Court of Justice of the European Communities on            Perrin de Brichambaut, Director of Legal Affairs at the
31 July 1996 by the Commission of the European                         Ministry of Foreign Affairs , and Denys Wibaux, Secretary
Communities, represented by A. X. Lewis, acting as Agent,              for Foreign Affairs at the same ministry, acting as Agents,
with an address for service in Luxembourg at the office of C.          with an address for service in Luxembourg at the French
Gomez de la Cruz, of its Legal Service, Wagner Centre,                 Embassy, 9 boulevard du Prince Henri .
Kirchberg.
The applicant claims that the Court should :                           The applicant claims that the Court should :
1 . declare that, by failing to bring into force the laws,             — declare null and void the decision of the European
      regulations or administrative provisions necessary to                 Parliament of 17 July 1 996 ,
      comply with :
                                                                       — order the defendant to pay the costs .
      ( a ) Commission Directive 93/64/EEC ( 1 ) of 5 July 1 993
            setting out the implementing measures concerning
            the supervision and monitoring of suppliers and            Pleas in law and main arguments adduced in support:
            establishments pursuant to Council Directive
            92/34/EEC ( 2 ) on the marketing of fruit plant            The pleas in law and main arguments are similar to those in
            propagating material and fruit plants intended for          Case C-345/95 of 6 November 1995 ( M.
            fruit production and/or by not notifying the
            Commission thereof;                                         (') OJ No C 351 , 30 . 12 . 1995 , p . 7 .
      ( b ) Commission         Directive    93/79/EEC ( 3 )      of
            21 September 1993 setting out additional
            implementing provisions for lists of varieties of fruit
            plant propagating material and fruit plants, as kept
            by suppliers under Council Directive 92/34/EEC,
                                                                              Removal from the register of Case C-327/95 (')
      the Kingdom of Belgium has failed to fulfil its
      obligations under Article 6 of Directive 93/64/EEC and                                       ( 96/C 269/45 )
      Article 3 of Directive 93/79/EEC and under the EC
      Treaty;                                                           By order of 3 May 1996 , the President of the Court of Justice
                                                                        of the European Communities ordered the removal from the
 2 . order the Kingdom of Belgium to pay the costs .                    register of Case C-327/95 : Commission of the European
                                                                        Communities v. Italian Republic .
 Pleas in law and main arguments adduced in support:
                                                                        (') OJ No C 333 , 9 . 12 . 1995 .
 The mandatory nature of the provisions of the third
 paragraph of Article 189 and the first paragraph of Article 5
 of the EC Treaty requires Member States to adopt the


title: Case C-397/06: Action brought on 22 September 2006 — Commission of the European Communities v Republic of Estonia

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/26

         Action brought on 22 September 2006 — Commission of the European Communities v Republic of Estonia
   (Case C-397/06)
   (2006/C 281/42)
   Language of the case: Estonian
   Parties

      Applicant: Commission of the European Communities (represented by: J. Enegren and H. Kundla, acting as Agents)

      Defendant: Republic of Estonia
   Form of order sought

               —

               declare that, by failing to fulfil the obligation under Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (1) to notify all the laws, regulations and administrative provisions necessary for transposition of the directive, the Republic of Estonia has failed to fulfil its obligations under that directive;

               —

               order the Republic of Estonia to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposition of the directive expired on 23 March 2005.

      (1)  OJ 2002 L 80, p. 29.


Important legal notice

|

E1999P0001

Request for an advisory opinion from the EFTA Court by Norges Høyesterett (Supreme Court of Norway) by decision of that court of 23 June 1999 in the case of Storebrand Skadeforsikring AS v. Veronika Finanger (Case E-1/1999)

Official Journal C 223 , 05/08/1999 P. 0007

Request for an advisory opinion from the EFTA Court by Norges Høyesterett (Supreme Court of Norway) by decision of that court of 23 June 1999 in the case of Storebrand Skadeforsikring AS v. Veronika Finanger(Case E-1/1999)(1999/C 223/08)A request has been made to the EFTA Court by decision of 23 June 1999 of Norges Høyesterett (Supreme Court of Norway), which was received at the Court Registry on 28 June 1999, for an advisory opinion in the case of Storebrand Skadeforsikring AS v. Veronika Finanger, on the following question:Is it incompatible with EEA law for a passenger who sustains injury by voluntarily driving in a motor vehicle not to be entitled to compensation unless there are special grounds for being so, if the passenger knew or must have known that the driver of the motor vehicle was under the influence of alcohol at the time of the accident and there was a causal link between the influence of alcohol and the injury?


title: Case T-566/10: Judgment of the General Court of 12 September 2012 — Ertmer v OHIM (Community trade mark — Invalidity proceedings — Community word mark erkat — Earlier Community and national word and figurative marks CAT — Relative grounds for refusal — Likelihood of confusion — Damage to reputation — Article 8(1)(b) and (5) of Regulation (E) No 207/2009 — Obligation to state reasons)

text:
               20.10.2012

               EN

               Official Journal of the European Union

               C 319/8

         Judgment of the General Court of 12 September 2012 — Ertmer v OHIM
   (Case T-566/10) (1)

   (Community trade mark - Invalidity proceedings - Community word mark erkat - Earlier Community and national word and figurative marks CAT - Relative grounds for refusal - Likelihood of confusion - Damage to reputation - Article 8(1)(b) and (5) of Regulation (E) No 207/2009 - Obligation to state reasons)
   2012/C 319/12
   Language of the case: German

      Parties

      Applicant: Jutta Ertmer (Tastungen, Germany) (represented by: A. von Mühlendahl and C. Eckhartt, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court: Caterpillar, Inc. (Peoria, Illinois, United States) (represented by: A. Renck, V. von Bomhard and E. Nicolás Gómez, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 7 September 2010 (Case R 270/2010-1) relating to invalidity proceedings between Caterpillar, Inc. and Jutta Ertmer.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 7 September 2010 (Case R 270/2010-1);

               2.

               Dismisses the action as to the remainder;

               3.

               Orders OHIM and Caterpillar, Inc. to pay the costs

      (1)  OJ C 55, 19.2.2011.


title: Case T-437/14: Judgment of the General Court of 28 September 2016 — United Kingdom v Commission (EAGGF, Guarantee Section — EAGF and EAFRD — Expenditure excluded from financing — Integrated administration and control system — Reductions and exclusions where the rules on cross-compliance are not observed — Flat-rate financial correction imposed by the Commission in accordance with internal guidelines — Burden of proof — Interpretation of Annexe II to Regulation (EC) No 73/2009)

text:
               7.11.2016

               EN

               Official Journal of the European Union

               C 410/12

         Judgment of the General Court of 28 September 2016 — United Kingdom v Commission
   (Case T-437/14) (1)

   ((EAGGF, Guarantee Section - EAGF and EAFRD - Expenditure excluded from financing - Integrated administration and control system - Reductions and exclusions where the rules on cross-compliance are not observed - Flat-rate financial correction imposed by the Commission in accordance with internal guidelines - Burden of proof - Interpretation of Annexe II to Regulation (EC) No 73/2009))
   (2016/C 410/14)
   Language of the case: English

      Parties

      Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: M. Holt and J. Kraehling, acting as Agents, and V. Wakefield, Barrister)

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

      Intervener in support of the applicant: Kingdom of the Netherlands (represented by: M. Bulterman and B. Koopman, acting as Agents)

      Re:

   Application based on Article 263 TFEU for the annulment of nine entries from the Annex to Commission Implementing Decision 2014/191/EU of 4 April 2014 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2014 L 104, p. 43), insofar as concerns the item, in the Annex to the decision, relating to the financial corrections applied to expenditure incurred by the United Kingdom of Great Britain and Northern Ireland in Scotland during the financial years 2008, 2009 and 2010 totalling EUR 5 606 459,48 because that expenditure did not comply with EU rules.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs and to pay the costs incurred by the European Commission;

               3.

               Orders the Kingdom of the Netherlands to bear its own costs.

      (1)  OJ C 282, 25.8.2014.


title: Case C-337/14: Request for a preliminary ruling from the Amtsgericht Rüsselsheim (Germany) lodged on 14 July 2014  — Elvira Mandl, Helmut Mandl v Condor Flugdienst GmbH

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/42

         Request for a preliminary ruling from the Amtsgericht Rüsselsheim (Germany) lodged on 14 July 2014 — Elvira Mandl, Helmut Mandl v Condor Flugdienst GmbH
   (Case C-337/14)
   2014/C 315/68
   Language of the case: German

      Referring court

   Amtsgericht Rüsselsheim

      Parties to the main proceedings

      Applicants: Elvira Mandl, Helmut Mandl

      Defendant: Condor Flugdienst GmbH

      Question referred

   Is there an obligation on an airline company which wishes to rely on the possibility of exemption in Article 5(3) of Regulation No 261/2004 (1) to set out and prove that it took all reasonable measures to avoid the foreseeable consequences of an extraordinary circumstance in the form of cancellation or considerable delay or that no such reasonable measures were available to it?

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


title: Case T-154/05: Judgment of the Court of First Instance of 25 October 2007 — Lo Giudice v Commission (Staff case — Officials — Mental harassment — Actions for annulment — Duty to provide assistance — Duty to state reasons — Legitimate expectations — Article 24 of the Staff Regulations — Duty to have regard for the welfare of officials — Admissibility — Application for damages)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/40

         Judgment of the Court of First Instance of 25 October 2007 — Lo Giudice v Commission
   (Case T-154/05) (1)

   (Staff case - Officials - Mental harassment - Actions for annulment - Duty to provide assistance - Duty to state reasons - Legitimate expectations - Article 24 of the Staff Regulations - Duty to have regard for the welfare of officials - Admissibility - Application for damages)
   (2007/C 297/82)
   Language of the case: French
   Parties

      Applicant: Carmela Lo Giudice (Grimbergen, Belgium) (represented by: F. Frabetti and G. Bouneou initially, then by F. Frabetti, lawyers)

      Defendant: Commission of the European Communities (represented by: J. Currall and H. Kraemer)
   Re:
   In substance, first, an application for annulment of the Commission's decision concluding there was no mental harassment and, secondly, an application for damages seeking compensation for the non-material harm allegedly suffered.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 155, 25.6.2005.


title: Case C-199/11: Reference for a preliminary ruling from the Rechtbank van koophandel Brussel (Belgium), lodged on 28 April 2011 — European Union, represented by the European Commission v Otis NV and Others

text:
               23.7.2011

               EN

               Official Journal of the European Union

               C 219/2

         Reference for a preliminary ruling from the Rechtbank van koophandel Brussel (Belgium), lodged on 28 April 2011 — European Union, represented by the European Commission v Otis NV and Others
   (Case C-199/11)
   2011/C 219/03
   Language of the case: Dutch

      Referring court

   Rechtbank van koophandel Brussel

      Parties to the main proceedings

   Applicant: European Union, represented by the European Commission
   Defendants:

               Otis NV

               Kone Belgium NV

               Schindler NV

               ThyssenKrupp Liften Ascenseurs NV

               General Technic-Otis Sàrl

               Kone Luxembourg Sàrl

               Schindler Sàrl

               ThyssenKrupp Ascenseurs Luxembourg Sàrl

      Questions referred

               1.

                           (a)

                           The Treaty states in Article 282, now Article [335], that the European Union is to be represented by the Commission; — Article 335 of the Treaty on the Functioning of the European Union, on the one hand, and Articles 103 and 104 of the Financial Regulation, on the other, state that, in administrative matters relating to their operation, the institutions concerned are to represent the European Union, with the possible result that [it] is the institutions, whether or not exclusively, … which may be parties to legal proceedings; — there is no doubt that receipt by contractors, etc., of payment … of inflated prices as a result of collusive practices comes within the concept of fraud; — in Belgian national law there is the principle of ‘Lex specialis generalibus derogat’; — to the extent [to which] that principle of law also finds acceptance in European law, is it then not the case that the initiative for bringing the claims (except where the Commission itself was the contracting authority) was vested in the institutions concerned?

                           (b)

                           (Subsidiary question) Ought the Commission not at least to have been conferred with authorisation by the institutions to represent them for the purpose of safeguarding their legal rights?

               2.

                           (a)

                           Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human [Rights] guarantee every person’s right to a fair trial as well as the related principle that no one can be the judge in his or her own case; — is it reconcilable with that principle if the Commission, in an initial phase, acts as the competition authority and penalises the conduct complained of — namely, the formation of a cartel — as a breach of Article 81, now Article 101, of the Treaty after it has itself conducted the investigation in that regard, and subsequently, in a second phase, prepares the proceedings for seeking compensation before the national court and takes the decision to bring those proceedings, while the same Member of the Commission is responsible for both matters, which are connected, a fortiori as the national court seised of the matter cannot depart from the decision imposing penalties?

                           (b)

                           (Subsidiary question) If the answer to Question 2(a) is in the [negative], (there is irreconcilability), how then must the victim (the Commission and/or the institutions and/or the European Union) of an unlawful act (the formation of the cartel) assert its entitlement to compensation under European law, which is likewise a fundamental right …?


title: Case T-702/15: Action brought on 3 December 2015 — BikeWorld v Commission

text:
               22.2.2016

               EN

               Official Journal of the European Union

               C 68/30

         Action brought on 3 December 2015 — BikeWorld v Commission
   (Case T-702/15)
   (2016/C 068/39)
   Language of the case: German

      Parties

      Applicant: BikeWorld GmbH (St. Ingbert, Germany) (represented by: J. Jovy, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission’s decision of 1 October 2014 in so far as it concerns the applicant;

               —

               suspend the enforcement of the decision vis-à-vis the applicant until the present action has been decided on (Article 278 TFEU).

      Pleas in law and main arguments

   By the present action, the applicant seeks the annulment in part of Commission Decision C(2014) 3634 final of 1 October 2014 on German State aid granted to the Nürburgring (SA.31550 (2012/C) (ex 2012/NN)).
   In support of the action, the applicant relies, in essence, on the following:

               1.

               The applicant is no longer identical to the party to the proceedings in which the decision was adopted. No proceedings could therefore be brought against it.

               2.

               The applicant was not a party to the proceedings that led to the adoption of the contested decision. Its right to a fair hearing was therefore not respected.

               3.

               The applicant’s current shareholders are not remotely connected to the original shareholders/owners at the time that the loans were granted.

               4.

               The objective ‘to prevent particular competitive advantages’ sought by the recovery cannot be attained by the decision, for the applicant has not been in competition with anyone and that has been the case since the last loan was granted.

               5.

               The applicant has already agreed to its liquidation and winding-up, should that prove necessary, in order to avoid imminent insolvency, which would not be avoidable, if it had to make any payment on the basis of the recovery of State aid.


title: Case T-206/12: Action brought on 16 May 2012 — GRE v OHIM — Villiger Söhne (LIBERTE american blend)

text:
               14.7.2012

               EN

               Official Journal of the European Union

               C 209/11

         Action brought on 16 May 2012 — GRE v OHIM — Villiger Söhne (LIBERTE american blend)
   (Case T-206/12)
   2012/C 209/18
   Language in which the application was lodged: German

      Parties

      Applicant: GRE Grand River Enterprises Deutschland GmbH (Kloster Lehnin, Germany) (represented by: I. Memmler and S. Schulz, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Villiger Söhne GmbH (Waldshut-Tiengen, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2012 in Case R 411/2011-1;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the figurative mark ‘LIBERTE american blend’ for goods in Class 34 — application No 7 481 328

      Proprietor of the mark or sign cited in the opposition proceedings: Villiger Söhne GmbH

      Mark or sign cited in opposition: the word mark ‘LA LIBERTAD’ and the figurative mark ‘La LIBERTAD’ for goods in Classes 14 and 34

      Decision of the Opposition Division: the opposition was upheld

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009


title: Judgment of the Court (Third Chamber) of 1 July 2004 in Joined Cases C-361/02 and C-362/02 (references for a preliminary ruling from the the Diikitiko Efetio Piraeus): Elliniko Dimosio v Nikolaos Tsapalos and Konstantinos Diamantakis (Directive 76/308/EEC — Mutual assistance for the recovery of customs duties — Application to claims which arose prior to the entry into force of the Directive)

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/4

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 1 July 2004
   in Joined Cases C-361/02 and C-362/02 (references for a preliminary ruling from the the Diikitiko Efetio Piraeus): Elliniko Dimosio v Nikolaos Tsapalos and Konstantinos Diamantakis (1)

   (Directive 76/308/EEC - Mutual assistance for the recovery of customs duties - Application to claims which arose prior to the entry into force of the Directive)
   (2004/C 217/06)
   Language of the case: Greek
   In Joined Cases C-361/02 and C-362/02: references to the Court under Article 234 EC from the Diikitiko Efetio Piraeus (Greece) for a preliminary ruling in the proceedings pending before that court between Elliniko Dimosio and Nikolaos Tsapalos (C-361/02), Konstantinos Diamantakis (C-362/02) — on the interpretation of Article 1 of Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of the agricultural levies and customs duties, and in respect of value added tax and certain excise duties (OJ 1976 L 73, p. 18), as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustment to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21) — the Court (Third Chamber), composed of: A. Rosas, President of the Chamber, R. Schintgen (Rapporteur) and N. Colneric, Judges; J. Kokott, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 1 July 2004, in which it has ruled:
   Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of the agricultural levies and customs duties, and in respect of value added tax and certain excise duties as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, is to be interpreted as applying to customs claims which arose in one Member State under an instrument issued by that State before that directive entered into force in the other Member State, where the requested authority is situated.

      (1)  OJ C 305 of 7.12.2002.


title: Case T-441/04: Action brought on 2 November 2004 by Jean-Claude Heyraud against the Commission of the European Communities

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/45

         Action brought on 2 November 2004 by Jean-Claude Heyraud against the Commission of the European Communities
   (Case T-441/04)
   (2005/C 6/88)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 2 November 2004, by Jean-Claude Heyraud, residing in Brussels, represented by S. Orlandi, A. Cooolen, J.-N. Louis and E. Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               Annul the Commission's decision establishing the list of officials promoted to Grade A3 in the second round of the 2003 promotion procedure, and rejecting the applicant's candidature;

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant in this case, an official in Grade A4, objects to the Appointing Authority's refusal to promote him to the higher grade in the second round of the 2003 promotion procedure.
   In support of his claims, he pleads infringement of Article 45 of the Staff Regulations and breach of the principle of non-discrimination.
   He states, in that regard, that the Commission ‘standardised’ the merit points awarded by the Directorates-General and Services to officials in middle management in Grade A4 eligible for promotion, for the purposes of considering their comparative merits as prescribed by the Staff Regulations. The standardised mark is fixed in relation to the average merit points awarded to the officials in Grade A4 eligible for promotion to Grade A3 in the second round.
   The method used by the Commission is relevant only provided that the average is calculated on the basis of a sufficient number of eligible officials. Since he was the only official in Grade A4 in his Service eligible for promotion in the second round of the 2003 procedure, the applicant was awarded a standardised mark of 100 regardless of his merits and the specific criteria used by his Service to fix merit points.


title: Case C-409/01: Reference for a preliminary ruling by the Tribunale Civile e Penale di L'Aquila by order of 5 October 2001 in the case of Rolando Salusest v Giovanni Petrucci

text:
8.12.2001             EN                    Official Journal of the European Communities                                       C 348/19
     of health of Community citizens, since according to               Reference for a preliminary ruling by the Tribunale Civile
     recital 11 of the Directive the prohibition is to ensure          e Penale di L’Aquila by order of 5 October 2001 in the
     that ‘the internal market provisions are not undermined’                 case of Rolando Salusest v Giovanni Petrucci
     (by illegal reimports). The prohibition of manufacture
     thus appears, according to its true nature, as a pure
     prohibition of export. However, in the opinion of the
     German Government, such a measure cannot be based                                          (Case C-409/01)
     on Article 95 EC either, since protection against illegal
     imports (whether the causes are of a State or private
     character) does not fall within the scope of Article 95 EC.
     Nor, finally, can Article 95 be an appropriate ground of
     competence for a general prohibition of manufacture and                                    (2001/C 348/34)
     export in view of the aim of preventing ‘evasion’ of the
     rules of the internal market, since so comprehensive a
     prohibition would be manifestly disproportionate to
     achieving the aim pursued. That is because it is almost
     exclusively cigarettes manufactured in non-member
     countries, not in the Community, which are the object of
     illegal imports.
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of 5 October 2001 by the
—    Article 133 EC is not a proper legal basis for the contested      Tribunale Civile e Penale di l’Aquila (Civil and Criminal District
     prohibition of export. The aim of the contested measure           Court, L’Aquila), which was received at the Court Registry on
     is not in fact the regulation of trade with non-member            16 October 2001, for a preliminary ruling in the case
     countries or the influencing of commerce or trade flows,          of Rolando Salusest v Giovanni Petrucci on the following
     but the prevention of illegal reimports. The measure does         questions:
     not therefore meet the requirements for competence
     defined by the Court of Justice in opinions 1/94 and
     2/92.
                                                                       (a)  Is the provision of binding minimum tariffs contrary to
                                                                            free competition on the ground that it prevents the free
     In the alternative: even if the scope of Article 133 EC                fixing of fees for a lawyer’s services, as provided for under
     were available, the prohibition of export cannot, in                   Article 81(1)(a) EC, and does it also have the effect
     the opinion of the German Government, be based on                      of reinforcing the compartmentalisation of markets at
     Article 133, because it restricts disproportionately the               national level, thereby hindering the economic integration
     principle of freedom of export to be taken into account                intended by the Treaty?
     by the Community legislature, and hence infringes the
     third paragraph of Article 5 EC. In view of the trivial
     extent of reimports of cigarettes manufactured in the                  Lawyers who are nationals of other EC Member States
     Community, the contested provision is not appropriate                  and who work in Italy are also required under Article 13
     at all for protecting Community citizens effectively                   of the Law of 9 February 1982 to comply with the tariff
     against health risks caused by illegal imports into the                for legal fees and thus also with the rule prohibiting
     Community; that aim can only be effectively attained by                differentiation of amounts below a specified minimum
     a reinforcement of import controls, which are necessary                level.
     anyway for combating the evasion of customs duty, are
     much more effective, and involve much lesser competitive
     disadvantages for Community industry. Since the contest-
     ed provision does not constitute an ‘overt’ and ‘specific’        (b) Are Articles 633(1)(2) and 636(1) of the Italian Code of
     measure of external trade policy, but is intended to ensure            Civil Procedure, under which a lawyer is authorised to
     higher health standards in the Community, the reference                have his fees determined by the Council of the order to
     to Article 133 EC amounts to an evasion of                             which he belongs through the adoption of an opinion
     Article 152(4)(c) EC.                                                  binding on his client and on the court (in enforcement
                                                                            proceedings), allowing him to obtain entitlement based
                                                                            on that unilateral determination of the professional
—    The combination of the above legal bases, each of which                fee pursuant to the abovementioned minimum tariffs,
     is insufficient on its own, does not confer on them a                  contrary to free competition on the ground that they
     more extensive scope.                                                  prevent the free fixing of fees for a lawyer’s services, as
                                                                            provided for under Article 81(1)(a) EC, by reserving such
                                                                            determination to a body consisting exclusively of lawyers?
(1) OJ L 194 of 18.7.2001, p. 26.


title: Case C-261/04: Reference for a preliminary ruling by the Arbeitsgericht Regensburg (Germany) by order of that court of 16 June 2004 in the case of Gerhard Schmidt against Sennebogen Maschinenfabrik GmbH

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/21

         Reference for a preliminary ruling by the Arbeitsgericht Regensburg (Germany) by order of that court of 16 June 2004 in the case of Gerhard Schmidt against Sennebogen Maschinenfabrik GmbH
   (Case C-261/04)
   (2004/C 228/41)
   Reference has been made to the Court of Justice of the European Communities by order of the Arbeitsgericht Regensburg (Germany) of 16 June 2004, which was received at the Court Registry on 21 June 2004, for a preliminary ruling in the case of Gerhard Schmidt against Sennebogen Maschinenfabrik GmbH.
   The Arbeitsgericht Regensburg asks the Court of Justice to give a preliminary ruling on the following questions:

               (a)

               Is Clause 8(3) of the Framework Agreement (Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP) (1) to be interpreted as prohibiting, in the course of the implementation of that agreement in national law, any reduced protection as a result of a reduction in the age limit from 60 to 58?

               (b)

               Is Clause 5(1) of the Framework Agreement (Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP) to be interpreted as precluding a provision of national law which — like the provision at issue in this case — does not contain any of the three restrictions set out in paragraph 1 of that clause?

               (c)

               Is Article 6 of Council Directive 2000/78/EC of 27 November 2000 (2) establishing a general framework for equal treatment in employment and occupation to be interpreted as precluding a provision of national law under which — as under the provision at issue in this case — fixed-term employment contracts may be concluded, without any objective reason, with workers aged 52 and over and which thus runs counter to the principle of justification on objective grounds?

               (d)

               If one of those three questions is answered in the affirmative:
               Must the national court refuse to apply the provision of national law which conflicts with Community law and, in that case, does the general principle laid down in national law apply, under which fixed terms of employment are permissible only if they are justified on an objective ground?

      (1)  OJ 1999 L 175, p. 43.

      (2)  OJ 2000 L 303, p. 16.


title: Judgment of the Court of First Instance of 1 February 2001 in Case T-1/99: T. Port GmbH & Co. KG v Commission of the European Communities (Bananas — Common organisation of the markets — Regulation (EC) No 478/95 — Export licence scheme — Action for damages — Proof of damage and causal link)

text:
19.5.2001               EN                      Official Journal of the European Communities                                         C 150/21
2.    Orders the Commission to bear its own costs together with                JUDGMENT OF THE COURT OF FIRST INSTANCE
      those of the applicant in the main proceedings and in the
      application for interim relief;                                                              of 8 February 2001
3.    Orders the Federal Republic of Germany to bear its own costs.
                                                                           in Case T-183/98: Jean-François Ferrandi v Commission
                                                                                of the European Communities (1)
(1) OJ C 312 of 10.10.98.
                                                                           (Officials — Transfer of pension rights — Weighting for
                                                                           old-age pension — Protection against the risk of sickness —
                                                                                Invalidity pension — Force of res judicata)
                                                                                (2001/C 150/39)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: French)
                       of 20 February 2001
                                                                           In Case T-183/98: Jean-François Ferrandi, former official at the
                                                                           Commission of the European Communities, residing in Ajaccio
in Case T-112/98: Mannesmannröhren-Werke AG v Com-                         (France), represented by J.-B. Giuseppi, avocat, with an address
           mission of the European Communities (1)                         for service in Luxembourg, against Commission of the Euro-
                                                                           pean Communities (Agents: G. Valsesia and F. Clotuche-
(Action for annulment — Competition — Decision to request                  Duvieusart) — application for, first, annulment of the decision
information — Periodic penalty payments — Right to refuse                  of the Commission to reject the applicant’s requests for his
to provide answers that imply admission of an infringement                 pension rights acquired prior to entering the service of
— Convention for the Protection of Human Rights and                        the European Communities to be transferred, the weighting
                      Fundamental Freedoms)                                applicable to his old-age pension to be recalculated, for
                                                                           protection against the risk of sickness and for an invalidity
                                                                           pension and, secondly, for compensation for harm caused as a
                          (2001/C 150/38)
                                                                           result of those requests having been refused — the Court of
                                                                           First Instance (Single Judge: P. Mengozzi); H. Jung, Registrar,
                                                                           gave a judgment on 8 February 2001, in which it:
                   (Language of the case: German)
                                                                           1.    dismisses the application;
In Case T-112/98: Mannesmannröhren-Werke AG, established
at Mülheim an der Ruhr (Germany), represented by M. Klus-                  2.    orders each of the parties to bear their own costs.
mann and K. Moosecker, Rechtsanwälte, with an address for
service in Luxembourg, against Commission of the European
Communities (Agents: K. Wiedner and M. Hilf) — application                 (1) OJ C 1 of 4.1.99.
for annulment of Commission Decision C(98) 1204 of 15 May
1998 relating to a procedure under Article 11(5) of Council
Regulation No 17 — the Court of First Instance (First Chamber,
Extended Composition), composed of B. Vesterdorf, President,
and A. Potocki, A.W.H. Meij, M. Vilaras and N.J. Forwood,
Judges; H. Jung, Registrar, has given a judgment on 20 February
2001, in which it:                                                             JUDGMENT OF THE COURT OF FIRST INSTANCE
1.    Annuls Commission Decision C(98) 1204 of 15 May 1998                                         of 1 February 2001
      relating to a procedure under Article 11(5) of Council
      Regulation No 17, in so far as it relates to the last indent of
      each of questions 1.6, 1.7 and 2.3 and to question 1.8 of the        in Case T-1/99: T. Port GmbH & Co. KG v Commission of
      request for information sent to the applicant on 13 August                            the European Communities (1)
      1997;
                                                                           (Bananas — Common organisation of the markets —
2.    Dismisses the remainder of the application;                          Regulation (EC) No 478/95 — Export licence scheme —
                                                                              Action for damages — Proof of damage and causal link)
3.    Orders the defendant to bear its own costs and to pay two thirds
      of the costs of the applicant, which shall bear the remaining                                  (2001/C 150/40)
      third.
                                                                                (Language of the case: German)
(1) OJ C 312 of 10.10.98.
                                                                           In Case T-1/99: T. Port GmbH & Co. KG, established in
                                                                           Hamburg (Germany), represented by G. Meier, Rechtsanwalt,
 ---pagebreak--- C 150/22               EN                    Official Journal of the European Communities                                     19.5.2001
against Commission of the European Communities (Agents:                 and certain general principles of Community law — the Court
K.-D. Borchardt and H. van Vliet) — application for compen-             of First Instance (Fifth Chamber), composed of P. Lindh,
sation for the loss allegedly suffered by the applicant as a            President, R. Garcı́a-Valdecasas and J.D. Cooke, Judges; J. Pala-
result of the introduction of the export licence system by              cio González, Administrator, for the Registrar, has given a
Commission Regulation (EC) No 478/95 of 1 March 1995 on                 judgment on 20 March 2001, in which it:
additional rules for the application of Council Regulation (EEC)
No 404/93 as regards the tariff quota arrangements for                  1.    Dismisses the action;
imports of bananas into the Community and amending
Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13) — the
Court of First Instance (Fifth Chamber), composed of: R. Garcı́a-       2.    Orders the applicant to pay its own costs and those of the
Valdecasas, President, P. Lindh and J.D. Cooke, Judges; B. Pas-               Commission.
tor, Principal Administrator, for the Registrar, has given a
judgment on 1 February 2001, in which it:
                                                                        (1) OJ C 86 of 27.3.99.
1.    Dismisses the application;
2.    Orders the applicant to pay the costs.
(1) OJ C 71 of 13.3.99.
                                                                            JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 14 February 2001
                                                                        in Case T-26/99: Trabisco SA v Commission of the
                                                                                European Communities (1)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                        (Competition — Distribution of motor vehicles — Rejection
                                                                                of a complaint — Action for annulment)
                        of 20 March 2001
                                                                                (2001/C 150/42)
in Case T-18/99 Cordis Obst und Gemüse Großhandel
  GmbH v Commission of the European Communities (1)
                                                                                (Language of the case: French)
(Bananas — Imports from ACP States and third countries
— Calculation of annual quantity allocated — Action for                 In Case T-26/99, Trabisco SA, established in Cognac (France),
damages — Admissibility — Possibility of relying on                     represented by J.-C. Fourgoux, avocat, with an address for
WTO rules — Misuse of powers — General principles of                    service in Luxembourg, against Commission of the European
                         Community law)                                 Communities (Agents: initially G. Marenco and L. Guérin
                                                                        and, subsequently, Mr Marenco and F. Siredey-Garnier) —
                                                                        application for annulment of the Commission decision of
                         (2001/C 150/41)                                17 November 1998 rejecting a complaint by the applicant
                                                                        based on Article 85 of the EC Treaty (now Article 81 EC) —
                                                                        the Court of First Instance (Second Chamber), composed of
                                                                        J. Pirrung, President, and A. Potocki and A.W.H. Meij, Judges;
                  (Language of the case: German)                        J. Palacio González, Administrator, for the Registrar, has given
                                                                        a judgment on 14 February 2001, in which it:
In Case T-18/99 Cordis Obst und Gemüse Großhandel GmbH,
established in Ostrau (Germany), represented by G. Meier,               1.    Dismisses the application.
avocat, against Commission of the European Communities
(Agents: K.-D. Borchardt and H. van Vliet) — application for            2.    Orders the applicant to pay the costs.
compensation for the loss which the applicant has allegedly
suffered as a result of the Commission introducing, under
Regulation (EC) No 2362/98 of 28 October 1998 laying down               (1) OJ C 100 of 10.4.1999.
detailed rules for the implementation of Council Regulation
(EEC) No 404/93 regarding imports of bananas into the
Community (OJ 1998 L 293, p. 32), provisions which are
alleged to conflict with World Trade Organisation (WTO) rules


title: Case T-298/11: Order of the General Court of 18 January 2012 — Ghost Brand v OHIM — Procter & Gamble International Operations (GHOST)

text:
               17.3.2012

               EN

               Official Journal of the European Union

               C 80/26

         Order of the General Court of 18 January 2012 — Ghost Brand v OHIM — Procter & Gamble International Operations (GHOST)
   (Case T-298/11) (1)

   2012/C 80/45
   Language of the case: English
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 238, 13.8.2011.


title: Case C-302/09: Judgment of the Court (Fifth Chamber) of 6 October 2011 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — State Aid — Aid to firms in Venice and Chioggia — Reductions in social security contributions — Withdrawal)

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/3

         Judgment of the Court (Fifth Chamber) of 6 October 2011 — European Commission v Italian Republic
   (Case C-302/09) (1)

   (Failure of a Member State to fulfil obligations - State Aid - Aid to firms in Venice and Chioggia - Reductions in social security contributions - Withdrawal)
   2011/C 347/03
   Language of the case: Italian

      Parties

      Applicant: European Commission (represented by: V. Di Bucci and E. Righini, Agents)

      Defendant: Italian Republic (represented by: G. Palmieri, Agent and G. Aiello, lawyer)

      Re:

   Failure of a Member State to fulfil obligations — Failure to take, within the period prescribed, the measures necessary to comply with Articles 2, 5 and 6 of Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (notified under document number C(1999) 4268) (OJ 2000 L 150, p. 50)

      Operative part of the judgment

   The Court:

               1.

               Orders that by failing to take, within the prescribed time-limits, all the measures necessary to recover from the beneficiaries the aid granted under the aid scheme considered unlawful and incompatible with the common market by Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 and, the Italian Republic has failed to fulfil its obligations under Articles 2, 5 and 6 of that decision and under the EC Treaty the Italian Republic failed to fulfil its obligations under Article 5 of the decision;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 256, 24.10.2009.


title: Case C-103/10: Action brought on 24 February 2010 — European Commission v Portuguese Republic

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/31

         Action brought on 24 February 2010 — European Commission v Portuguese Republic
   (Case C-103/10)
   2010/C 113/48
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: P. Oliver and P. Andrade, Agents)

      Defendant: Portuguese Republic

      Form of order sought

               —

               Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/121/EC (1) of the European Parliament and of the Council of 18 December 2006 amending Council Directive 67/548/EEC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances in order to adapt it to Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and establishing a European Chemicals Agency or, in any event, by failing to communicate those measures to the Commission, the Portuguese Republic has failed to fulfil its obligations under Article 2 of Directive 2006/121/EC.

               —

               Order the Portuguese Republic to pay the costs.

      Pleas in law and main arguments

   The period prescribed for transposing the directive expired on 1 June 2008.

      (1)  OJ 2006 L 396, p. 850.


title: Case C-261/14: Request for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 30 May 2014  — Județul Bacău v Ministerul Dezvoltării Regionale și Administrației Publice

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/16

         Request for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 30 May 2014 — Județul Bacău v Ministerul Dezvoltării Regionale și Administrației Publice
   (Case C-261/14)
   2014/C 292/20
   Language of the case: Romanian

      Referring court

   Curtea de Apel Bacău

      Parties to the main proceedings

      Applicant: Județul Bacău

      Defendant: Ministerul Dezvoltării Regionale și Administrației Publice

      Questions referred

               1)

               Must the second sentence of Article 98(2) of Regulation (EC) No 1083/2006 (1) interpreted as meaning that financial corrections by Member States, if applied to co-financed expenditure under Structural Funds for failure to comply with rules concerning public contracts, are administrative measures within the meaning of Article 4 of Regulation (EC) No 2988/1995 (2) or are they administrative penalties within the meaning of Article 5(c) of that regulation?

               2)

               If the answer to the first question is to the effect that financial corrections are administrative penalties, it must be established whether the principle of retroactive application of the less severe penalty referred to in the second sentence of Article 2(2) of Regulation (EC) No 2988/1995 applies.

               3)

               If the answer to the first question is to the effect that financial corrections are administrative penalties, then in circumstances in which financial corrections have been applied to co-financed expenditure under Structural Funds for failure to comply with rules on public contracts, does Article 2(2) of Regulation (EC) No 2988/1995 in conjunction with the second sentence of Article 98(2) of Regulation (EC) No 1083/2006, prevent a Member State from applying financial corrections governed by an internal legislative measure which entered into force at a time after that at which it is maintained that the alleged infringement of the rules on public contracts took place?

      (1)  Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25).

      (2)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).


title: Case C-152/11: Judgment of the Court (Second Chamber) of 6 December 2012 (reference for a preliminary ruling from the Arbeitsgericht München — Germany) — Johann Odar v Baxter Deutschland GmbH (Equal treatment in employment and occupation — Directive 2000/78/EC — Prohibition against any discrimination on grounds of age or disability — Compensation on termination of employment — Social plan providing for a reduction in the amount of redundancy compensation paid to disabled workers)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/6

         Judgment of the Court (Second Chamber) of 6 December 2012 (reference for a preliminary ruling from the Arbeitsgericht München — Germany) — Johann Odar v Baxter Deutschland GmbH
   (Case C-152/11) (1)

   (Equal treatment in employment and occupation - Directive 2000/78/EC - Prohibition against any discrimination on grounds of age or disability - Compensation on termination of employment - Social plan providing for a reduction in the amount of redundancy compensation paid to disabled workers)
   2013/C 26/11
   Language of the case: German

      Referring court

   Arbeitsgericht München

      Parties to the main proceedings

      Applicant: Johann Odar

      Defendant: Baxter Deutschland GmbH

      Re:

   Reference for a preliminary ruling — Arbeitsgericht München — Interpretation of Articles 1, 6(1), second subparagraph, point (a), and 16 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — National legislation making it possible to exclude from receipt of the benefits provided for under an occupational pension scheme workers in age brackets close to the age at which a right to a retirement pension arises — Prohibition on all discrimination based on age and disability

      Operative part of the judgment

               1.

               Articles 2(2) and 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding rules of an occupational social security scheme under which, in the case of workers older than 54 years of age who are made redundant on operational grounds, a calculation is to be made of the compensation on the basis of the earliest possible date on which their pension will begin — unlike the standard method of calculation, which takes account in particular of the length of service — with the result that the compensation paid to those workers is lower than the compensation resulting from the application of that standard method, though still at least one half of the standard amount.

               2.

               Article 2(2) of Directive 2000/78 must be interpreted as precluding rules of an occupational social security scheme under which, in the case of workers older than 54 years of age who are made redundant on operational grounds, the compensation to which they are entitled is calculated on the basis of the earliest possible date on which their pension will begin — unlike the standard formula, under which account is taken inter alia of the length of service — with the result that the compensation paid is lower than the standard formula compensation, although still at least one half thereof, and that alternative calculation method takes account of the possibility of receiving an early retirement pension on the ground of disability.

      (1)  OJ C 204, 9.7.2011.


title: Case T-485/09: Action brought on 3 December 2009 — France v Commission

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/41

         Action brought on 3 December 2009 — France v Commission
   (Case T-485/09)
   2010/C 37/57
   Language of the case: French

      Parties

      Applicant: The French Republic (represented by: E. Belliard, G. de Bergues, B. Cabouat, and R. Loosli-Surrans, Agents)

      Defendant: European Commission

      Form of order sought

               —

               Annul Commission Decision 2009/726/EC of 24 September 2009 concerning interim protection measures taken by France as regards the introduction onto its territory of milk and milk products coming from a holding where a classical scrapie case is confirmed;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   By its application, the French government requests the Court, under Article 263 of the TFEU, to annul Commission Decision 2009/726/EC of 24 September 2009 concerning interim protection measures taken by France as regards the introduction onto its territory of milk and milk products coming from a holding where a classical scrapie case is confirmed. (1)

   The decision being challenged orders France to suspend the application of interim protection measures which it adopted following the publication of new scientific opinions about a risk of human exposure to classical scrapie due to the consumption of milk and milk products originating from infected herds of ovine and caprine animals in order to prohibit the introduction onto its territory, for the purposes of human consumption, of milk and milk products coming from a holding where a classical scrapie case is confirmed.
   In support of its action, the applicant submits that the decision being challenged must be annulled on the grounds that it infringes the precautionary principle, as regards both risk assessment and risk management.
   The applicant claims that the Commission infringed the precautionary principle at the risk assessment stage by ignoring the remaining scientific uncertainties over the risk of the transmission to humans of TSE other than BSE.
   In the applicant’s opinion, the Commission also infringed the precautionary principle at the risk management stage by failing to adopt any measure in order to restrict the risk of human exposure to classical scrapie.

      (1)  OJ 2009 L 258, p. 27


title: Judgment of the Court of 12 September 2000 in Case C-408/97: Commission of the European Communities v Kingdom of the Netherlands (Failure to fulfil obligations — Article 4(5) of the Sixth VAT Directive — Access to roads on payment of a toll — Failure to levy VAT)

text:
C 316/10                  EN                        Official Journal of the European Communities                                          4.11.2000
Great Britain and Northern Ireland (Agents: J.E. Collins, assisted                              JUDGMENT OF THE COURT
by G. Barling QC and D. Anderson) — application for a
declaration that by not subjecting tolls for the use of toll roads
and toll bridges in the United Kingdom to value added tax,                                           of 12 September 2000
contrary to Articles 2 and 4(1), (2) and (5) of the Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation
of the laws of the Member States relating to turnover taxes —                  in Case C-408/97: Commission of the European Communi-
Common system of value added tax: uniform basis of assess-                                  ties v Kingdom of the Netherlands (1)
ment (OJ 1977 L 145, p. 1), and by failing to make available
to the Commission the relevant amounts of own resources
with interest for late payment as a consequence of that
                                                                               (Failure to fulfil obligations — Article 4(5) of the Sixth VAT
infringement, the United Kingdom has failed to fulfil its
obligations under the EC Treaty — the Court, composed of:                      Directive — Access to roads on payment of a toll — Failure
G.C. Rodrı́guez Iglesias, President, J.C. Moitinho de Almeida                                              to levy VAT)
(Rapporteur), L. Sevón, R. Schintgen (Presidents of Chambers),
P.J.G. Kapteyn, C. Gulmann, J.-P. Puissochet, P. Jann, H. Ragne-
malm, V. Skouris and F. Macken, Judges; S. Alber, Advocate                                               (2000/C 316/18)
General; D. Louterman-Hubeau and H.A. Rühl, Principal
Administrators, for the Registrar, has given a judgment on
12 September 2000, in which it:
                                                                                (Language of the case: Dutch)
1.    Declares that by failing to subject to value added tax tolls
      collected for the use of toll roads and toll bridges as consideration    (Provisional translation; the definitive translation will be published
      for the service supplied to users, where that service is not                                in the European Court Reports)
      provided by a body governed by public law within the meaning
      of Article 4(5) of the Sixth Council Directive 77/388/EEC of
      17 May 1977 on the harmonisation of the laws of the Member               In Case C-408/97: Commission of the European Communities
      States relating to turnover taxes — Common system of value               (Agents: initially, H. Michard and B.J. Drijber, and sub-
      added tax: uniform basis of assessment, and by failing to make           sequently, H. Michard and H. van Vliet) v Kingdom of the
      available to the Commission of the European Communities as               Netherlands (Agents: C. Wissels and M.A. Fierstra) — appli-
      own resources accruing from value added tax the amounts                  cation for a declaration that, by failing to subject to value
      corresponding to the tax which should have been levied on those          added tax tolls collected for the use of roads as consideration
      tolls together with interest for late payment, the United                for the service supplied to users, contrary to Articles 2 and 4
      Kingdom of Great Britain and Northern Ireland has failed to              of the Sixth Council Directive 77/388/EEC of 17 May 1977
      fulfil its obligations under Articles 2 and 4 of that directive and      on the harmonisation of the laws of the Member States relating
      under Council Regulation (EEC, Euratom) No 1553/89 of                    to turnover taxes — Common system of value added tax:
      29 May 1989 on the definitive uniform arrangements for the               uniform basis of assessment (OJ 1977 L 145, p. 1), the
      collection of own resources accruing from value added tax and            Kingdom of the Netherlands has failed to fulfil its obligations
      Council Regulation (EEC, Euratom) No 1552/89 of 29 May                   under the EC Treaty — the Court, composed of: G.C. Rodrı́guez
      1989 implementing Decision 88/376/EEC, Euratom on the                    Iglesias, President, J.C. Moitinho de Almeida (Rapporteur),
      system of the Communities’ own resources;                                L. Sevón and R. Schintgen (Presidents of Chambers), P.J.G. Kap-
                                                                               teyn, C. Gulmann, J.-P. Puissochet, P. Jann, H. Ragnemalm,
                                                                               V. Skouris and F. Macken, Judges; S. Alber, Advocate General;
                                                                               D. Louterman-Hubeau and H.A. Rühl, Principal Adminis-
                                                                               trators, for the Registrar, has given a judgment on 12 Septemb-
2.    Orders the United Kingdom of Great Britain and Northern
                                                                               er 2000, in which it:
      Ireland to bear the costs.
                                                                               1.    Dismisses the application;
                                                                               2.    Orders the Commission of the European Communities to bear
(1) OJ C 387 of 20.12.1997.                                                          the costs.
                                                                               (1) OJ C 55 of 20.2.1998.


title: Case C-220/15: Judgment of the Court (Third Chamber) of 27 October 2016 — European Commission v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Free movement of goods — Directive 2007/23/EC — Placing on the market of pyrotechnic articles — Article 6 — Free movement of pyrotechnical articles compliant with the requirements of Directive 2007/23/EC — National rules making the placing on the market of pyrotechnic articles subject to additional requirements — Obligation to make a prior notification before a national body entitled to review and modify instructions for use of pyrotechnic articles)

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/16

         Judgment of the Court (Third Chamber) of 27 October 2016 — European Commission v Federal Republic of Germany
   (Case C-220/15) (1)

   ((Failure of a Member State to fulfil obligations - Free movement of goods - Directive 2007/23/EC - Placing on the market of pyrotechnic articles - Article 6 - Free movement of pyrotechnical articles compliant with the requirements of Directive 2007/23/EC - National rules making the placing on the market of pyrotechnic articles subject to additional requirements - Obligation to make a prior notification before a national body entitled to review and modify instructions for use of pyrotechnic articles))
   (2017/C 006/19)
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: D. Kukovec and A. C. Becker, acting as Agents, assisted by B. Wägenbaur, Rechtsanwalt)

      Defendant: Federal Republic of Germany (represented by: T. Henze, J. Möller and K. Petersen, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by providing, over and above the requirements of Directive 2007/23/EC of the European Parliament and of the Council of 23 May 2007 on the placing on the market of pyrotechnic articles, and notwithstanding a previous conformity assessment of pyrotechnic articles, that (i) those articles are to be subject to the procedure laid down in Paragraph 6(4) of the Erste Verordnung zum Sprengstoffgesetz (First Regulation relating to the Law on Explosives), as amended by the Law of 25 July 2013, before being placed on the market; and that (ii) pursuant to that paragraph, the Bundesanstalt für Materialforschung und-prüfung (Federal Institute for Materials Research and Testing, Germany) is to have the power to review and, where required, to modify their instructions for use, the Federal Republic of Germany has failed to fulfil its obligations under Article 6(1) of Directive 2007/23/EC;

               2.

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 228, 13.7.2015.


title: Case T-392/06: Action brought on 20 December 2006 — Union Investment Privatfonds v OHIM — Unicre-Cartão International De Crédito (unibanco)

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/31

         Action brought on 20 December 2006 — Union Investment Privatfonds v OHIM — Unicre-Cartão International De Crédito (unibanco)
   (Case T-392/06)
   (2007/C 42/54)
   Language in which the application was lodged: German
   Parties

      Applicant: Union Investment Privatfonds GmbH (Frankfurt am Main, Germany) (represented by: H. Keller, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Unicre-Cartão International De Crédito, S.A.
   Form of order sought
   The Court is asked to:

               —

               annul the decision of the Board of Appeal of the Office for Harmonisation in the Internal Market;

               —

               allow the oppositions against registration of the word/figurative mark ‘Unibanco’ on the basis of the UniFLEXIO, UniZERO and UniVARIO marks;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments

      Applicant for a Community trade mark: Unicre-Cartão International De Crédito, S.A.

      Community trade mark concerned: The figurative mark ‘unibanco’ for services in Classes 36 and 38 (application for registration No 1 871 896).

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant.

      Mark or sign cited in opposition: German figurative marks ‘UniFLEXIO’ and ‘UniVARIO’ for services in Classes 35 and 36, German figurative mark ‘UniZERO’ for services in Class 36.

      Decision of the Opposition Division: Rejection of the opposition.

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

      Pleas in law: Infringement of the applicant's procedural rights, since no regard was had to the evidence put forward by the applicant of the use of the marks with the ‘Uni’ element.


title: Reference for a preliminary ruling from the Oberlandesgericht Köln, by order of that court of 4 August 1998 in proceedings concerning an administrative fine imposed on Arnold Claasen (Case C-313/98)

text:
C 327/8                EN                    Official Journal of the European Communities                                        24.10.98
    According to the Commission, that comparison does                   preliminary ruling in the case of Schutzverband gegen
    not explain the replanting of 2 446 hectares of vines.              Unwesen in der Wirtschaft e.V. v Warsteiner Brauerei
                                                                        Haus Cramer GmbH & Co. KG on the following
                                                                        question:
    The Italian authorities' failure to shed any light on
    that point led the Commission to conclude that the                  Does Council Regulation (EEC) No 2081/92 of 14 July
    area must be considered to have been unlawfully                    1992 on the protection of geographical indications and
    planted, giving rise without any financial aim to                   designations of origin for agricultural products and
    expenditure for the grubbing-up of that same surface                foodstuffs (1) preclude application of a national provision
    area' and it set the adjustment at LIT 31 861 816 140,              which prohibits the misleading use of a simple
    multiplying the number of hectares considered to be                 geographical designation of origin, that is, an indication in
    illegally planted by the value of the average cessation             the case of which there is no link between the
    premium paid for Apulia between 1989 and 1992                       characteristics of the product and its geographical origin?
    pursuant to Council Regulation (EEC) No 1442/88 (7).
                                                                        (1) OJ L 208, 24.7.1992, p. 1.
    The Italian Government maintains that the adjustment
    is unlawful because Council Regulation (EEC) No 822/
    87 (8) on the common organisation of the market in
    wine is silent on the question of financial penalties
                                                                        Reference for a preliminary ruling from the Oberlandes-
    applicable to individual cases and merely provides, in
                                                                        gericht Köln, by order of that court of 4 August 1998 in
    respect of vines planted or re-planted without
                                                                        proceedings concerning an administrative fine imposed on
    authorisation, for compulsory distillation of the yield
                                                                                Arnold Claasen
    to be used in the preparation of alcohol with an actual
    alcoholic strength by volume of at least 80 %                                                (Case C-313/98)
    (Articles 6(3) and 7(4)).                                                                     (98/C 327/11)
                                                                        Reference has been made to the Court of Justice of the
    In any case, the subtraction of the adjustment amount               European Communities by order of the Oberlandesgericht
    from the sum paid for grubbing-up with a premium                    Köln (Higher Regional Court, Cologne) of 4 August 1998,
    pursuant to Regulation (EEC) No 1442/88 seems                       received at the Court Registry on 13 August 1998, for a
    unwarranted, since those amounts were paid for the                  preliminary ruling in the proceedings concerning an
    grubbing-up of existing vines.                                      administrative fine imposed on Arnold Claasen, on the
                                                                        following question (1):
(1) OJ L 163, 6.6.1998, p. 28.
(2) OJ L 388, 30.12.1989, p. 18.                                        Does the amount of the charge payable under Article 8(1)
(3) OJ, English Special Edition 1970(I), p. 218.                        of the Agreement depend solely on the number of
(4) OJ L 337, 4.12.1990, p. 3.                                          axles fitted to the motor vehicle or articulated vehicle
(5) OJ L 350, 14.12.1990, p. 43.                                        combination in question, regardless of whether an axle is
(6) OJ L 67, 15.3.1990, p. 21.
                                                                        used or raised during the journey, or are tandem axles/
(7) OJ L 132, 28.5.1988, p. 3.
(8) OJ L 84, 27.3.1987, p. 1.                                           raisable axles to be left out of account in calculating the
                                                                        charge?
                                                                        (1) Concerning the interpretation of Article 8(1) of the Agreement
                                                                            of 9 February 1994 on the levying of charges for the use of
                                                                            certain roads by heavy commercial vehicles (Bundesgesetzblatt
                                                                            [Federal Gazette], Part II, p. 1768).
Reference for a preliminary ruling from the Bundes-
gerichtshof by order of that court of 2 July 1998 in the
case of Schutzverband gegen Unwesen in der Wirtschaft
e.V. v Warsteiner Brauerei Haus Cramer GmbH & Co.
                                KG                                      Reference for a preliminary ruling from the Nederlandse
                                                                        Raad van State by judgment of that court of 10 August
                        (Case C-312/98)                                 1998 in the case of Snellers Auto's B.V. against Algemeen
                                                                                Directeur van de Dienst Wegverkeer
                          (98/C 327/10)
                                                                                (Case C-314/98)
                                                                                (98/C 327/12)
Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesgerichts-                 Reference has been made to the Court of Justice of the
hof (Federal Court of Justice) of 2 July 1998, which was                European Communities by judgment of the Netherlandse
received at the Court Registry on 12 August 1998, for a                 Raad van State (Netherlands Council of State) of


title: Case C-205/09: Reference for a preliminary ruling from the Szombathelyi Városi Bíróság (Republic of Hungary) lodged on 8 June 2009 — Criminal proceedings against Emil Eredics and Another

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/20

         Reference for a preliminary ruling from the Szombathelyi Városi Bíróság (Republic of Hungary) lodged on 8 June 2009 — Criminal proceedings against Emil Eredics and Another
   (Case C-205/09)
   2009/C 205/34
   Language of the case: Hungarian

      Referring court

   Szombathelyi Városi Bíróság

      Parties to the main proceedings

   Emil Eredics and Another

      Questions referred

               1.

               The Szombathelyi Városi Bíróság wishes to know, in connection with the criminal proceedings pending before it, whether ‘a person other than a natural person’ falls within the definition of ‘victim’ in Article 1(a) of Council Framework Decision 2001/220/JHA, in light of the obligation to promote mediation between the victim and the offender in criminal cases, laid down in Article 10 of the Framework Decision, and asks the Court of Justice to explain and supplement its judgment in Case C-467/05 Dell’Orto [2007] ECR I-5557.

               2.

               The referring court wishes to know, regarding Article 10(1) of Council Framework Decision 2001/220/JHA, which provides that ‘[e]ach Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure’, whether the meaning of the term ‘offences’ may be interpreted to refer to all offences the legal classification of which is substantively the same.

               3.

               Is it possible to interpret the words ‘[e]ach Member State shall seek to promote mediation in criminal cases.]’ in Article 10(1) of Framework Decision 2001/220/JHA in such a way that the conditions upon which offender and victim can have access to mediation can be satisfied at least until the point when a decision is made at the first stage of proceedings; or [in such a way] that a condition that the offender have admitted the facts during the legal proceedings, after the investigation has been completed — when all other conditions are satisfied — is a condition which is compatible with the obligation to promote mediation?

               4.

               With regard to Article 10(1) of Framework Decision 2001/220/JHA, do the words ‘[e]ach Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure’ mean that the option of mediation in criminal proceedings must be generally available, provided that all the prerequisite legal conditions are satisfied, and that there is no room for discretion?. That is to say, if the reply to the question is in the affirmative, is the existence of a condition worded as follows: ‘[where] having regard to the nature of the offence, the form of responsibility and the person of the suspect, the legal proceedings may be omitted or there are grounds for believing that the court will take into account active repentance at the time of sentencing’ compatible with the provisions (requirements) of Article 10?


title: Case T-64/13: Action brought on 4 February 2013 — ANKO v Commission

text:
               23.3.2013

               EN

               Official Journal of the European Union

               C 86/27

         Action brought on 4 February 2013 — ANKO v Commission
   (Case T-64/13)
   2013/C 86/46
   Language of the case: Greek

      Parties

      Applicant: ANKO AE Antiprosopion, Emporiou kai Viomikhanias (Athens, Greece) (represented by: V. Khristianos, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare that the applicant does not have to refund as wrongly paid the sum which the Commission paid to it for the DOC@HAND project;

               —

               declare that the applicant does not have to pay the Commission liquidated damages for the DOC@HAND project;

               —

               order the Commission to pay the applicant’s costs.

      Pleas in law and main arguments

   The present action concerns liability of the Commission under contract No 508015 relating to the carrying out of the project ‘Knowledge Sharing and Decision Support for Healthcare Professionals’ (DOC@HAND), pursuant to Article 272 TFEU. Specifically, the applicant submits that, although it performed its contractual obligations, the Commission, in breach of the aforementioned contract, of the principle of good faith, of the prohibition of the abuse of rights, and of proportionality, sought reimbursement of the sums paid to it.
   For that reason, the applicant submits, first, that it does not have to refund as wrongly paid the whole of the sum which the Commission paid to it for the DOC@HAND project and, second, that it does not have to pay the Commission liquidated damages for the DOC@HAND project.


title: Case C-574/11: Reference for a preliminary ruling from the Landgericht Düsseldorf (Germany), lodged on 16 November 2011 — Novartis AG v Actavis Deutschland GmbH & Co KG, Actavis Ltd.

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/13

         Reference for a preliminary ruling from the Landgericht Düsseldorf (Germany), lodged on 16 November 2011 — Novartis AG v Actavis Deutschland GmbH & Co KG, Actavis Ltd.
   (Case C-574/11)
   2012/C 32/24
   Language of the case: German

      Referring court

   Landgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Novartis AG

      Defendants: Actavis Deutschland GmbH & Co KG, Actavis Ltd.

      Question referred

   Are Articles 4 and 5 of Regulation (EC) No 469/2009 (1) to be interpreted as meaning that the protection conferred by a supplementary protection certificate, which has been granted for a single active ingredient (in this case, Valsartan), extends to a form which contains a combination of active ingredients featuring that single active ingredient (in this case, Valsartan + Hydrochlorothiazide)?

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


title: Case T-260/17: Order of the General Court of 7 July 2017 — Bank of New York Mellon v EUIPO — Nixen Partners (NEXEN PULSE)

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/41

         Order of the General Court of 7 July 2017 — Bank of New York Mellon v EUIPO — Nixen Partners (NEXEN PULSE)
   (Case T-260/17) (1)

   (2017/C 309/56)
   Language of the case: English
   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 221, 10.7.2017.


title: Case T-161/06: Judgment of the General Court of 25 October 2012 — Arbos v Commission (Action for damages — ‘Culture 2000’ programme — Grants made for projects — Claims for payment of various sums — Article 44(1)(c) of the Rules of Procedure — Inadmissible)

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/21

         Judgment of the General Court of 25 October 2012 — Arbos v Commission
   (Case T-161/06) (1)

   (Action for damages - ‘Culture 2000’ programme - Grants made for projects - Claims for payment of various sums - Article 44(1)(c) of the Rules of Procedure - Inadmissible)
   2012/C 379/35
   Language of the case: German

      Parties

      Applicant: Arbos Gesellschaft für Musik und Theater (Klagenfurt, Austria) (represented by: H. Karl, lawyer)

      Defendant: European Commission (represented by: L. Pignataro-Nolin and I. Kaufmann-Buhler, then L. Pignataro-Nolin and W. Molls, and finally W. Molls and D. Roussanov, Agents)

      Re:

   Action for compensation from the Commission, first, for payment of EUR 38 585,42 plus interest at 12 % from 1 January 2001 and EUR 27 618,91 plus interest at 12 % from 1 March 2003 and, second, the payment of EUR 26 459,38 excluding VAT for fees for lawyers instructed during the pre-litigation phase.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Arbos Gesellschaft für Musik und Theater to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 212, 2.9.2006.


title: Case T-512/09: Action brought on 21 December 2009 — Rusal Armenal v Council

text:
               27.3.2010

               EN

               Official Journal of the European Union

               C 80/28

         Action brought on 21 December 2009 — Rusal Armenal v Council
   (Case T-512/09)
   2010/C 80/49
   Language of the case: English

      Parties

      Applicant: Rusal Armenal ZAO (represented by: B. Evtimov, lawyer)

      Defendant: Council of the European Union

      Form of order sought

               —

               annul Council Regulation (EC) No 925/2009 of 24 September 2009 imposing an definitive anti–dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People’s Republic of China, insofar as it affects the applicant;

               —

               order the Council to pay the costs of and occasioned by these proceedings.

      Pleas in law and main arguments

   By means of its application, the applicant seeks the annulment of Council Regulation (EC) No 925/2009 of 24 September 2009 imposing an definitive anti–dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People’s Republic of China (‘the contested regulation’), insofar as it affects the applicant (OJ 2009 L 262, p. 1).
   In support of its application, the applicant puts forward the following five legal grounds for annulment, one of which is based on an incidental plea of illegality.
   On the basis of its first ground for annulment, the applicant claims that the Commission and the Council breached Article 2, paragraphs 1 to 6, of the Basic Regulation (1) and Article 2.1 and 2.2 of the Agreement on Implementation of Article VI GATT 1994 (hereinafter ‘Anti-dumping agreement’ or ‘ADA’), by establishing normal value for the applicant, based on data from a third analogue country, thereby reaching fundamentally flawed findings of dumping and of cumulation, injury and causality regarding imports from Armenia. According to the applicant, the Council and the Commission should have established normal value for the applicant based on its own Armenian data, and not pursuant to Article 2(7)(a) of the Basic Regulation.
   Further, the applicant claims that, for the purpose of reviewing the merits of the first ground for annulment, the Court should declare, in an incidental manner pursuant to Article 277 TFEU (ex Article 241 EC), the inapplicability of Article 2(7) of the Basic Regulation towards the applicant, to the extent that it served as a legal basis for the analogue country methodology, used to establish the applicant’s normal value in the contested regulation. The applicant invokes this incidental plea of illegality, since it claims to be entitled to benefit from a judicial review of the application of Article 2(7) to itself and since it claims to have been affected by findings on normal value in the contested regulation which are legally based on Article 2(7) of the Basic Regulation. The latter should be declared inapplicable, according to the applicant, on the ground that its application with respect to the applicant infringes provisions 2.1 and 2.2 of the Anti-dumping agreement, which the EU intended to implement as multilateral obligations into EU law and which are part of the Treaties on which the EU is based and are binding on the Council and the Commission pursuant to well-settled case law of the Court of Justice.
   On the basis of its second ground for annulment, the applicant submits that, even if it is assumed that the institutions did not act in breach of Article 2, paragraphs 1 to 6 of the Basic Regulation and the Anti-dumping agreement, they committed a breach of Article 2(7)(c) of the Basic Regulation and wrongly denied market economy treatment (‘MET’) to the applicant and made a series of manifest errors of assessments of the facts in the context of application of Article 2(7)(c).
   On the basis of its third ground for annulment, the applicant contends that the institutions breached Article 3(4) of the Basic Regulation and made a manifest error of assessment, by failing to decumulate Armenia from allegedly dumped imports and, in that context, failing to consider the fundamental overhaul of Armenia’s production activity during the period 2004-2006 and quality problems of Armenian product concerned during the re-launch and readjustement of manufacturing operations in 2007 during the investigation period.
   On the basis of its fourth ground for annulment, the applicant claims that the Commission, by its process of consideration and its statement of reasons for rejecting the price undertaking offer from the applicant and at the same time accepting an undertaking offer from a Brazilian exporting producer in similar circumstances, has committed a breach of the fundamental legal principle of equal treatment/non-discrimination and made manifest errors of assessment.
   On the basis of its fifth ground for annulment, it is submitted that the Commission has breached the fundamental principle of EU law of good governance, thereby breaching an essential procedural requirement, by making a public and direct reference to the applicant, to the on-going anti-dumping investigation at issue and allegedly creating a bias with the institutions responsible for the anti-dumping investigation, in the direction of imposing anti-dumping duties on exports of the applicant.

      (1)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1)