title: Case C-288/03 P: Appeal brought on 3 July 2003 by B. Zaoui, L. Zaoui and D. Stain, née Zaoui, against the order made on 23 April 2003 by the Court of First Instance of the European Communities (First Chamber) in Case T-73/03 between B. Zaoui and Others and the Commission of the European Communities

text:
3.4.2004                EN                           Official Journal of the European Union                                          C 85/11
prescribed period, the reports in respect of the Bruxelles-                  The appellants claim that the Court should:
Capitale Region required under Council Directive 76/464/EEC
of 4 May 1976 on pollution caused by certain dangerous
                                                                             —     reverse the order of the Court of First Instance of the
substances discharged into the aquatic environment of the
                                                                                European Communities made on 23 April 2003;
Community (OJ 1976 L 129, p. 3), Council Directive 78/659/
EEC of 18 July 1978 on the quality of fresh waters needing
protection or improvement in order to support fish life (OJ                  —     declare the respondent liable for the harm suffered by the
1978 L 222, p. 1) and Council Directive 80/68/EEC of                               appellants as a result of the attack on 27 March 2002 at
17 December 1979 on the protection of groundwater against                          the Park Hotel, Netanya (Israel);
pollution caused by certain dangerous substances (OJ 1980
L 20, p. 43) as amended by Council Directive 91/692/EEC of
                                                                             —     order the respondent, in respect of the harm suffered by
23 December 1991 standardising and rationalising reports on
                                                                                the appellants to pay the following amounts:
the implementation of certain Directives relating to the
environment (OJ 1991 L 377, p. 48), the Kingdom of Belgium
has failed to fulfil its obligations under the said directives, the                —     to Lucien Zaoui, EUR 1 million in compensation for
Court (Third Chamber), composed of: C. Gulmann, acting for                               non-material damage;
the President of the Third Chamber, J. P. Puissochet (Rappor-
teur) and F. Macken, Judges; C. Stix-Hackl, Advocate General;
                                                                                —     to B. Zaoui, EUR 1.5 million, in compensation for
R. Grass, Registrar, has given a judgment on 12 February
                                                                                non-material damage;
2004, in which it:
                                                                                —     to D. Stain, née Zaoui:
1.    Declares that, by failing to communicate to the Commission,
      within the prescribed period, the report in respect of the
      Bruxelles-Capitale Region required under Article 2(1) of                           —    EUR 1 million in respect of physical injury;
      Council Directive 91/692/EEC of 23 December 1991 stan-
      dardising and rationalising reports on the implementation of                       —    EUR 2 million in respect of non-material
      certain Directives relating to the environment, the Kingdom of                          damage;
      Belgium has failed to fulfil its obligations under that directive;
                                                                                —    an amount to be settled in the course of
2.    Orders the Kingdom of Belgium to pay the costs.                                         proceedings for material damage
(1) OJ C 7 of 11.1.2003.                                                     —     order the respondent to pay all the costs.
                                                                             Pleas in law and main arguments
                                                                             The unlawful conduct of the Commission, namely the grant of
Appeal brought on 3 July 2003 by B. Zaoui, L. Zaoui and                      funds to the Palestinian Authority, in total contradiction with
D. Stain, née Zaoui, against the order made on 23 April                      the fundamental values of the Community, has directly
2003 by the Court of First Instance of the European                          contributed to the harm suffered by the appellants as a result
Communities (First Chamber) in Case T-73/03 between                          of the attack carried out by a Palestinian terrorist in Netanya
B. Zaoui and Others and the Commission of the European                       (Israel), for which they now seek compensation.
                            Communities
                         (Case C-288/03 P)                                   The application of Article 111 of the Rules of Procedure of the
                                                                             Court of First Instance was manifestly unlawful, since it was
                                                                             by error of law and by distorting the clear sense of the pleas
                           (2004/C 85/16)                                    put forward by the appellants that the Court of First Instance
                                                                             held that the existence of a causal link was not established in
                                                                             this case and that the application was manifestly lacking any
                                                                             foundation in law:
An appeal against the order made on 23 April 2003 by the
Court of First Instance of the European Communities (First                   —     the Court of First Instance dismissed the application
Chamber) in Case T-73/03 between B. Zaoui and Others and                           brought at first instance by the appellants as manifestly
the Commission of the European Communities was brought                             lacking any foundation in law, holding that one of the
before the Court of Justice of the European Communities on                         conditions necessary for the Commission to incur non-
3 July 2003 by B. Zaoui, L. Zaoui and D. Stain, née Zaoui,                         contractual liability, within the meaning of the second
represented by J. A. Buchinger, advocat.                                           paragraph of Article 288 EC, was not established in this
 ---pagebreak--- C 85/12               EN                        Official Journal of the European Union                                          3.4.2004
     case, namely the existence of a causal link between the            2.    Does Article 3(1) of the Successiewet constitute a pro-
     alleged conduct and the harm pleaded. As the Court of                    hibited means of arbitrary discrimination or a disguised
     First Instance observed, it is not disputed that there must              restriction on the free movement of capital within the
     be a direct link of cause and effect between the wrongful                meaning of Article 58(3) EC where applicable to a capital
     act of the institution concerned and the harm pleaded, a                 movement between a Member State and a non-member
     causal link in respect of which applicants bear the burden               country, having regard also to the Declaration on
     of proof. In addition, that causal link relates to the                   Article 73d of the Treaty establishing the European
     decisive cause of the harm. None the less, the Court of                  Community adopted on the occasion of the signature of
     First Instance confused decisive cause and exclusive cause.              the ‘Final Act and Declarations of the Intergovernmental
     It has never been claimed that the Commission’s conduct                  Conferences on the European Union’ of 7 February 1992.
     was the exclusive cause of the attack of 27 March 2002.
     On the other hand, it was amply demonstrated in the
     application that the Commission’s conduct was a decisive           (1) Law on Succession.
     cause. In attempting to show that the alleged conduct
     was not the exclusive cause of the harm pleaded the
     Court of First Instance committed a manifest error of law
     by which it deprived the appellants of a hearing which
     they could legitimately expect.
—    the Court of First Instance distorted the clear sense of the
     pleas put forward by the appellants in claiming, on the            Action brought on 19 December 2003 by the Commission
     one hand, that the appellants agreed that the attack had                   of the European Communities against Ireland
     not been financed by the funds in question and, on the
     other, that they had neither proved nor claimed that                                        (Case C-532/03)
     Palestinian education was exclusively dependent on the
     funds in question, merely stating that the European
     Community is the Palestinians’ largest provider of funds.                                    (2004/C 85/18)
                                                                        An action against Ireland was brought before the Court of
                                                                        Justice of the European Communities on 19 December 2003
                                                                        by the Commission of the European Communities, represented
                                                                        by K. Wiedner, acting as agent, assisted by J. E. Flynn QC, with
                                                                        an address for service in Luxembourg.
Reference for a preliminary ruling by the Gerechthof                    The Applicant claims that the Court should:
Herzogenbusch by order of that Court of 5 November
2003 in the case of M.E.A. van Hilten-van der Heijden                   1.    declare that, in permitting emergency ambulance services
against Inspecteur van de Belastingdienst/Particulieren/                      to be provided by Dublin City Council without the
           Ondernemingen Buitenland te Heerlen                                Eastern Regional Health Authority undertaking any prior
                                                                              advertising, Ireland has failed to comply with its obli-
                                                                              gations under the Treaty; and
                        (Case C-513/03)
                                                                        2.    order Ireland to pay the Commission’s costs.
                         (2004/C 85/17)
                                                                        Pleas in law and main arguments
Reference has been made to the Court of Justice of the                  The Commission takes the view that, in the circumstances of
European Communities by order of the Gerechthof Herzogen-               the case, the maintaining of the arrangement for provision of
busch of 5 November 2003, received at the Court Registry on             ambulance services between Dublin City Council and the
8 December 2003, for a preliminary ruling in the case of                Eastern Regional Health Authority without undertaking any
M.E.A. van Hilten-van der Heijden against Inspecteur van                prior advertising is a breach of the free movement rules of the
de Belastingdienst/Particulieren/Ondernemingen Buitneland te            Treaty (notably Articles 43 and 49) and thereby of the general
Heerlen on the following questions:                                     principles of Community law (notably those of transparency
                                                                        and equality or non-discrimination) which are to be respected
                                                                        in situations to which Community law applies.
1.   Does Article 3(1) of the Netherlands Successiewet (1)
     constitute a permitted restriction within the meaning of
     Article 57(1) EC?


title: Action brought on 8 March 1996 by Bernd Schoch against the European Parliament (Case T-29/96)

text:
No C 133/30          EN                  Official Journal of the European Communities                                       4 . 5 . 96
In support of her application, the applicant relies on the plea     — order the European Parliament to pay the costs of the
that the election procedure was irregular in so far as the               proceedings pursuant to Article 87 et seq . of the Rules of
Electoral Committee counted the votes cast by the members                Procedure , and in particular the expenses relating to the
of local staff in the Delegation to the Solomon Islands                  address for service, travel and subsistence expenses and
whereas , contrary to the instructions of 19 October 1994                lawyer's fees .
sent by the Electoral Committee to all heads of delegations,
the number of votes cast did not match the number of voters .
The Head of the Delegation indeed affirmed that the six
members of local staff had cast their votes in the proper           Pleas in law and main arguments
manner, but that statement cannot be verified . The Electoral
Committee was therefore wrong to declare the regional               The applicant, a former temporary member of staff with the
elections held in the Solomon Islands to be valid and to
count the votes cast in those elections .
                                                                    ELDR Group in the European Parliament, was affected by
                                                                    total incapacity for work as the result of an illness during the
                                                                    final period of his contract. He contests the refusal by the
The applicant also points out that, under Article 9 ( 2 ) of the    defendant institution to remunerate him for the leave which
Staff Regulations, the Commission has the right, and is             he did not take in 1994 .
under a duty, to ensure that elections to the Staff Committee
are properly conducted and to intervene if the electoral rules
are not complied with . In the present case, there was a            The applicant takes particular exception to the Parliament's
manifest irregularity in the electoral procedure; the               assertion that he unjustifiably absented himself during the
Commission should therefore have intervened in order to             month of 2 September 1994 and that this absence ought
mitigate the consequences of that irregularity, but failed to       accordingly to be deducted from his leave pursuant to
do so .                                                             Article 60 of the Staff Regulations .
                                                                    The applicant stresses in this regard that medical certificates
                                                                    covering the period in question were properly submitted to
                                                                    the secretariat of the Parliament's Medical Service . He also
                                                                    points out that his legal counsel expressly referred to
                                                                    incapacity by reason of illness in September 1994 and that
                                                                    he was at no time told that payment would not be made to
                                                                    him in respect of all or some of those unused leave days on
Action brought on 8 March 1996 by Bernd Schoch against
                                                                    the ground that the Parliament had not received any medical
                  the European Parliament                           certificate for September 1994 . In fact, it was not until
                       ( Case T-29/96 )                             12 May 1995 that the allegedly unauthorized nature of his
                         ( 96/C 133/63 )                            absence was raised . The applicant wishes to point out in this
                                                                    regard that, following denials that the medical certificates
                                                                    had been submitted for the periods after 15 July 1994,
               (Language of the case: French)                       certificates were none the less rediscovered for the period
                                                                    from 16 July 1994 to 1 September 1994 .
An action against the European Parliament was brought
before the Court of First Instance of the European                  In a strictly legal context, the applicant submits that
Communities on 8 March 1 996 by Bernd Schoch, residing in           Article 60 of the Staff Regulations provides that an allegedly
Gottmadingen ( Federal Republic of Germany ), represented           unauthorized absence must be established and that, in so far
                                                                    as it was not until seven months after the material time that
by Lucas Vogel , of the Brussels Bar, with an address for
service in Luxembourg at the Chambers of Christian                  it was claimed that the applicant had failed to submit a
Kremer, 8— 10 Rue Mathias Hardt.                                    medical certificate for September 1994 — even though the
                                                                    applicant's counsel had in that same month expressly
                                                                    referred to his client's incapacity by reason of illness during
The applicant claims that the Court should :                        that month — that finding would appear to be too late to
                                                                    justify application of the abovementioned Article 60 .
— annul the implied decision of rejection and the express
    decision of partial rejection taken by the European             Finally, even if the Court were to take the view that the
    Parliament on 26 February 1996 in respect of the                applicant's incapacity cannot be accepted as justification for
    complaint lodged by the applicant on 9 August 1 995 ,           his absence in September 1994, that absence ought in any
                                                                    event to be regarded as justified by the decision of the ELDR
                                                                    Group to give him no further work and to release him from
— order the European Parliament to pay to the applicant             provision of notice .
    the gross sum of Bfr 124 120 in respect of the 1 9,5 leave
    days which he did not take in 1994 , increased by default
    interest at an annual rate of 8 % , with effect from
    31 December 1994 , the date on which that sum ought to
    have been paid to him,


title: Case T-493/17: Action brought on 3 August 2017 — Stancu v ERCEA

text:
               25.9.2017

               EN

               Official Journal of the European Union

               C 318/21

         Action brought on 3 August 2017 — Stancu v ERCEA
   (Case T-493/17)
   (2017/C 318/28)
   Language of the case: Italian

      Parties

      Applicant: Magdalena Catalina Stancu (Bucarest, Romania) (represented by: F. Elia, lawyer)

      Defendant: European Research Council Executive Agency (ERCEA) (Brussels, Belgium)

      Form of order sought

   The applicant claims that the Court should:

               —

               (A) On the merits: declare void/unlawful the act adversely affecting the applicant, consisting of the dismissal communicated orally to the employee on 10 January 2017, with immediate restoration of the employment relationship, and order the defendant to pay all remuneration that has accrued in the interim;

               —

               (B) On the merits: annul the act adversely affecting the applicant, consisting of the decision, dated 28 October 2016, to extend the probationary period, and rule that there was no agreement on a probationary period as from 1 November 2016;

               —

               (C) On the merits: declare void/unlawful the measures comprising the final administrative inquiry report CMS 16/035 dated 7 November 2016 and notified on 16 November 2016, on all of the grounds set out, and order the administrative inquiry report to be deleted from the Sysper system and from any other databases in the EU institutions;

               —

               (D) On the merits: declare void/unlawful the act adversely affecting the applicant consisting of the dismissal dated 22 December 2016 headed ‘note to the attention of Ms catalina stancu’ which reached the applicant on 24 January 2017, on all of the grounds set out, with immediate restoration of the employment relationship and an order requiring the defendant to pay compensation consisting of remuneration that has accrued between the date of dismissal and the date of delivery of the judgment. In the alternative, in the event that the applicant cannot be reintegrated into her work post, order ERCEA to pay compensation for lost earnings up to the expiry of the contract (January 2018) in the amount of EUR 39 000;

               —

               (E) On the merits: in any event, order ERCEA to pay to the employee the sum of EUR 300 000, or any different amount, higher or lower, as the Court may deem appropriate, as compensation for the serious damage to the applicant’s image and to her personal and professional reputation.

      Pleas in law and main arguments

   In support of her action, the applicant relies on four pleas in law.

               1.

               The dismissal, delivered orally and without reasons being given, infringes Article 25 of the Staff Regulations, which provides that ‘any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which is based …’; written notification to the employee ensures that the latter is made aware of decisions relating to her employment relationship.

               2.

               The extension of the probationary period infringes Article 84 of the Conditions of Employment of other Servants (CEOS), paragraph 3 of which provides that the probationary period may be extended in exceptional circumstances ‘… referred to in the first paragraph …’, this being a specific reference that does not justify an extension of indeterminate and uncertain duration. Furthermore, that extension infringes Article 84(2) of those Conditions, which provides that the probationary period may be terminated at any time before its normal end, allowing eight days for submissions on the proposal of dismissal and — in any event — ‘… giving … one month’s notice …’;

               3.

               The administrative inquiry report is unlawful, given that it is based on an email sent by the employee, the contents of which — as the other party acknowledges — were altered, and because it expresses merely subjective doubts as to the authenticity of documents submitted by the employee, without ordering any technical checks to be conducted;

               4.

               The employer’s decision of 22 December 2016 is manifestly void since it seeks to terminate an employment relationship that no longer existed, that relationship having come to an end following the oral dismissal. Furthermore: (A) the dismissal of the employee for failing successfully to complete the probationary period is unlawful given that, as of 1 November 2016, there was no longer any probationary period; and (B) the unlawful nature of the assertions in the administrative inquiry report made on the basis of the assessment of the failure successfully to complete the probationary period renders the act of dismissal at issue totally and absolutely arbitrary and unlawful.


title: Reference for a preliminary ruling by the Employment Appeal Tribunal, by order of that court of 20 November 1996, in the case of Mrs B. J. Coote against Granada Hospitality Ltd (Case C-185/97)

text:
No C 212/ 16             EN                   Official Journal of the European Communities                                         12 . 7. 97
       objectives designed to reduce pollution by the                         (i)      the complainant          was     employed   by     the
       substances in List II of the Annex to the Directive, the                        Respondent;
       Federal Republic of Germany has failed to fulfil its
       obligations under the EC Treaty;                                       ( ii ) during her employment, the complainant brought
                                                                                a claim of sex discrimination against the
                                                                                Respondent which was compromised;
2 . order the Federal Republic of Germany to pay the
       costs of the proceedings.                                              ( iii ) following the end of her employment, the
                                                                                complainant has made efforts to find full-time
                                                                                work, but has been unsuccessful ;
Pleas in law and main arguments adduced in support:
                                                                              ( iv ) the Respondent has caused or contributed to the
It is evident from the wording of Article 7 ( 1 ) of the                               complainant's difficulties in finding work by
Directive, in conjunction with Article 1 thereof, that                                 refusing to provide references to potential
Member States were required to establish programmes                                    employers when requested to do so;
with quality objectives designed to reduce water pollution
within a specified period. The German Federal                                 ( v ) the employer's decision to refuse to provide
                                                                                references   was    taken    after the  end   of    the
Government, on the other hand, wrongly argues that most
of the substances in question were covered by overall                                  complainant's employment;
parameters, and attempts to demonstrate the equivalence
and/or advantages of these national rules vis-a-vis the                        (vi ) the reason, or a principle reason, for the
emission norms for individual substances. Likewise, the                                employer's decision to refuse to provide a
                                                                                reference to the complainant was that she had
existence of general programmes for water purification, as
                                                                                previously brought a claim of sex discrimination
cited by the German Federal Government (2 ), cannot be
                                                                                against the Respondent.
regarded as constituting an adequate implementation of
Article 7 .
                                                                         2.    Does         Council    Directive     76/207/EEC     on     the
                                                                               implementation of the principle of equal treatment for
O OJ No L 129 , 18 . 5 . 1976 , p . 23 .
( 2 ) Inter alia, the Elbe Action Programme of the 'International
                                                                               men and women as regards access to employment,
      Commission for the Protection of the Elbe ' ( IKSE ) and the             vocational training and promotion, and working
      IKSE's operational plan to the year 2000, the Rhine Action               conditions, require Member States to introduce into
      Programme of the ' International Commission for the                      their national legal systems such measures as are
      Protection of the Rhine ' ( ISKR), and the action programme              necessary to enable persons to pursue a claim by
      anticipating the Danube Convention .                                     judicial process where the circumstances set out under
                                                                               point 1 apply, save that:
                                                                               (i)      the Respondent's decision to refuse to provide a
                                                                                reference was taken before the termination of the
                                                                                complainant's employment; but
Reference for a preliminary ruling by the Employment                            ( ii ) the actual refusal or refusals to provide a
 Appeal Tribunal, by order of that court of 20 November                                 reference took place after the termination of the
 1996, in the case of Mrs B. J. Coote against Granada                                   complainant's employment.
                             Hospitality Ltd
                           ( Case C-185 /97 )                             (') OJ No L 39 , 14 . 2 . 1976 , p . 40 .
                              97/C 212/28 )
 Reference has been made to the Court of Justice of the
 European Communities by an order of the Employment                       Action brought on 15 May 1997 by the Commission of
 Appeal Tribunal of 20 November 1996, which was                           the European Communities against the Federal Republic
 received at the Court Registry on 12 May 1997, for a                                                    of Germany
 preliminary ruling in the case of Mrs B. J. Coote against
 Granada Hospitality Ltd, on the following questions:                                                ( Case C-l 86/97)
                                                                                ( 97/C 212/29 )
  1 . Does Council Directive 76/207/EEC of 9 February
        1976 on the implementation of the principle of equal              An action against the Federal Republic of Germany was
        treatment for men and women as regards access to                  brought before the Court of Justice of the European
        employment, vocational training and promotion, and                Communities on 15 May 1997 by the Commission of the
        working conditions (^, require Member States to                   European Communities, represented by Klaus-Dieter
        introduce into their national legal systems such                  Borchardt, of its Legal Service, acting as Agent, with an
        measures as are necessary to enable a complainant to               address for service in Luxembourg at the office of Carlos
        pursue a claim by judicial process where the following             Gomez de la Cruz, of its Legal Service, Wagner Centre
        circumstances apply:                                               C 254, Kirchberg.


title: Case T-112/02: Action brought on 12 April 2002 by Gustaaf Van Dyck against the Commission of the European Communities

text:
C 131/26               EN                     Official Journal of the European Communities                                        1.6.2002
Action brought on 12 April 2002 by Gustaaf Van Dyck                      Action brought on 11 April 2002 by Gustaaf Van Dyck
  against the Commission of the European Communities                       against the Commission of the European Communities
                          (Case T-112/02)
                                                                                (Case T-113/02)
                         (2002/C 131/48)
                                                                                (2002/C 131/49)
                    (Language of the case: Dutch)
                                                                                (Language of the case: Dutch)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 12 April 2002 by Gustaaf Van
Dyck, residing at Wuustwezel (Belgium), represented by Mat-              An action against the Commission of the European Communi-
thias E. Storme and Ann Gobien, lawyers.                                 ties was brought before the Court of First Instance of the
                                                                         European Communities on 11 April 2002 by Gustaaf Van
The applicant claims that the Court should:                              Dyck, residing at Wuustwezel (Belgium), represented by Stefan
                                                                         Corbanie and André Bywater, lawyers.
(1) annul the tacit decision by which the appointing authority
      refused the request submitted to it by the applicant on
      12 February 2001 seeking the adoption by it of a decision          The applicant claims that the Court should:
      concerning the possible application to him of Article
      31(2) of the Staff Regulations, having regard to the               (1) annul the decision adopted by the Commission on
      applicant’s professional experience and training, and, in                 10 January 2002 and notified on 15 January 2002,
      so far as may be necessary, annul the decision of                         rejecting the applicant’s complaint of 14 August 2001;
      15 January 2002, drawn up in French, rejecting the
      applicant’s complaint of 10 September 2001, and, lastly,
                                                                         (2) annul the Commission’s decision of 5 July 2001 whereby
      annul the translation of that decision into Dutch, prepared
                                                                                it decided to take no action in respect of the request
      on 18 February 2002;
                                                                                submitted by the applicant on 1 July 2001 concerning
(2) order the Commission to adopt all measures necessary to                     promotion to grade B 2;
      implement the judgment to be delivered in the present
      case;                                                              (3) annul the Commission’s decision whereby it decided to
                                                                                review the applicant’s staff report;
(3) order the Commission to pay all the costs.
                                                                         (4) order the Commission to pay all the costs.
Pleas in law and main arguments
In support of his claim, the applicant pleads infringement of
                                                                         Pleas in law and main arguments
Article 31(2) of the Staff Regulations. According to the
applicant, no decision has to date been adopted in respect of
his request that Article 31(2) of the Staff Regulations be
                                                                         The applicant pleads infringement of Article 45(1) and of the
applied in his case. The applicant further pleads infringement
                                                                         first paragraph of Article 25 of the Staff Regulations. According
of the duty to have regard for the welfare and interests of              to the applicant, the decision of the Promotion Committee did
officials, of the obligation to provide an adequate statement of
                                                                         not contain an adequate statement of reasons. Moreover, the
reasons and of the principle of proper administration.
                                                                         reasons given in the Commission’s response to the applicant’s
                                                                         complaint are unfounded.


title: Case T-314/10: Order of the General Court of 28 June 2012 — Constellation Brands v OHIM (COOK’S) (Community trade mark — Word mark COOK’S — Failure to apply for renewal of the mark — Cancellation of the mark upon expiry of the registration — Application for restitutio in integrum — Article 81 of Regulation (EC) No 207/2009)

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/17

         Order of the General Court of 28 June 2012 — Constellation Brands v OHIM (COOK’S)
   (Case T-314/10) (1)

   (Community trade mark - Word mark COOK’S - Failure to apply for renewal of the mark - Cancellation of the mark upon expiry of the registration - Application for restitutio in integrum - Article 81 of Regulation (EC) No 207/2009)
   2012/C 243/32
   Language of the case: English

      Parties

      Applicant: Constellation Brands, Inc. (Fairport, United States of America) (represented by: B. Brandreth, Barrister)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis and V. Melgar, acting as Agents)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 29 April 2010 (Case R 1048/2009-1) in so far as it dismissed the application for restitutio in integrum

      Operative part of the order

               1.

               Dismisses the action.

               2.

               Orders Constellation Brands, Inc., to pay the costs.

      (1)  OJ C 260, 25.9.2010.


title: Case C-661/13: Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 13 December 2013  — Astellas Pharma Inc. v Polpharma SA Pharmaceutical Works

text:
               28.4.2014

               EN

               Official Journal of the European Union

               C 129/7

         Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 13 December 2013 — Astellas Pharma Inc. v Polpharma SA Pharmaceutical Works
   (Case C-661/13)
   2014/C 129/09
   Language of the case: German

      Referring court

   Oberlandesgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Astellas Pharma Inc.

      Defendant: Polpharma SA Pharmaceutical Works

      Questions referred

               1.

               Is Article 10(6) of Directive 2001/83/EC (1) to be interpreted as meaning that the exclusion from patent protection also applies to acts of provision by which a third party for purely commercial reasons offers or supplies to a manufacturer of generic medicinal products a patent-protected active substance which that generic pharmaceutical undertaking has planned to use for conducting studies or trials for a marketing authorisation under medicinal product law as provided for in Article 10(6)?

               2.

               If the first question is to be answered in the affirmative:

                           (a)

                           Does the third party’s enjoyment of the exemption depend on the manufacturer of generic medicinal products who is supplied by him actually using the provided active substance for exempted studies or trials under Article 10(6) of Directive 2001/83/EC? Does the exclusion from patent protection apply in such a case even where the third party has no knowledge of the intentions of his customer to use the active substance for purposes covered by the exemption and has also not satisfied himself in this regard?
                           Or, in order for the third party to enjoy the exemption, does it matter only that at the time of his act of provision he can legitimately assume on the basis of all the circumstances (for example, the focus of the undertaking supplied, the small quantity of the active substance provided, the imminent expiry of the patent protection for the active substance in question, experiences as to the customer’s reliability) that the generic pharmaceutical undertaking supplied will use the active substance provided exclusively for exempted trials or studies in the context of a marketing authorisation?

                           (b)

                           Must the third party, in connection with performance of his act of provision, take measures of his own to ensure that the active substance is actually used by his customer only for exempted trials or studies and do the measures to be taken by him differ according to whether the patent-protected active substance is only offered or also supplied?

      (1)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2011 L 311, p. 67), as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use (OJ 2004 L 136, p. 34).


title: Judgment of the Court of 4 July 2000 in Case C-84/98: Commission of the European Communities v Portuguese Republic (Failure by a Member State to fulfil its obligations — Regulation (EEC) No 4055/86 — Freedom to provide services — Maritime transport — Article 234 of the EC Treaty (now, after amendment, Article 307 EC))

text:
21.10.2000                EN                    Official Journal of the European Communities                                              C 302/7
      none of the qualifications mentioned in Article 3 of Council         regulation — the Court composed of: G.C. Rodrı́guez Iglesias,
      Directive 78/686/EEC of 25 July 1978 concerning the mutual           President, J.C. Moitinho de Almeida, D.A.O. Edward (Rappor-
      recognition of diplomas, certificates and other evidence of the      teur), L. Sevón and R. Schintgen (Presidents of Chambers),
      formal qualifications of practitioners of dentistry, including       C. Gulmann, J.-P. Puissochet, G. Hirsch, P. Jann, H. Ragne-
      measures to facilitate the effective exercise of the right of        malm and M. Wathelet, Judges; M. J. Mischo, Advocate
      establishment and freedom to provide services, conditional upon      General; H. von Holstein, Deputy Registrar, has given a
      his having the linguistic knowledge necessary for the exercise of    judgment on 4 July 2000, in which it:
      his profession in the Member State of establishment.
                                                                           1.    Declares that, by failing to denounce or adjust the agreement
                                                                                on merchant shipping with the Republic of Angola so as to
(1) OJ C 41 of 7.2.1998.                                                         provide for fair, free and non-discriminatory access by all
                                                                                Community nationals to the cargo shares due to the Portuguese
                                                                                Republic, as provided for in Council Regulation (EEC)
                                                                                No 4055/86 of 22 December 1986 applying the principle of
                                                                                freedom to provide services to maritime transport between
                                                                                Member States and between Member States and third countries,
                                                                                the Portuguese Republic has failed to fulfil its obligations under
                                                                                Articles 3 and 4(1) of that regulation;
                                                                           2.    Orders the Portuguese Republic to pay the costs.
                  JUDGMENT OF THE COURT
                             of 4 July 2000                                (1) OJ C 151 of 16.5.1998.
in Case C-62/98: Commission of the European Communi-
                   ties v Portuguese Republic (1)
(Failure by a Member State to fulfil its obligations —
Regulation (EEC) No 4055/86 — Freedom to provide services
— Maritime transport — Article 234 of the EC Treaty (now,
                after amendment, Article 307 EC)                                            JUDGMENT OF THE COURT
                            (2000/C 302/12)                                                            of 4 July 2000
                                                                           in Case C-84/98: Commission of the European Communi-
                   (Language of the case: Portuguese)                                        ties v Portuguese Republic (1)
                                                                           (Failure by a Member State to fulfil its obligations —
(Provisional translation; the definitive translation will be published
                                                                           Regulation (EEC) No 4055/86 — Freedom to provide services
                     in the European Court Reports)                        — Maritime transport — Article 234 of the EC Treaty (now,
                                                                                after amendment, Article 307 EC))
In Case C-62/98: Commission of the European Communities
(Agents: A. Caeiro, B. Mongin and M. Afonso) v Portuguese                                             (2000/C 302/13)
Republic (Agents: M.L. Fernandes and M.L. Duarte) — appli-
cation for a declaration that, by failing to denounce or adjust
the agreements concerning merchant shipping concluded with
the Republic of Senegal, approved by Decree No 99/79 of                                      (Language of the case: Portuguese)
14 September 1979, with the Republic of Cape Verde,
approved by Decree No 119/79 of 7 November 1979, with
the Republic of Angola, approved by Decree No 71/79 of                     (Provisional translation; the definitive translation will be published
18 July 1979, and with the Democratic Republic of São Tomé                                    in the European Court Reports)
and Prı́ncipe, approved by Decree No 123/79 of 13 November
1979, so as to provide for fair, free and non-discriminatory
access by all Community nationals to the cargo shares due to               In Case C-84/98: Commission of the European Communities
the Portuguese Republic, as provided for in Council Regulation             (Agents: A. Caeiro, B. Mongin and M. Afonso) v Portuguese
(EEC) No 4055/86 of 22 December 1986 applying the prin-                    Republic (Agents: M.L. Fernandes and M.L. Duarte) — appli-
ciple of freedom to provide services to maritime transport                 cation for a declaration that, by failing to denounce or adjust
between Member States and between Member States and third                  the agreement concerning merchant shipping concluded with
countries (OJ 1986 L 378 p. 1), the Portuguese Republic has                the Federal Republic of Yugoslavia, approved by Decree
failed to fulfil its obligations under Articles 3 and 4(1) of that         No 74/81 of 28 June 1979, which entered into force on
 ---pagebreak--- C 302/8                 EN                        Official Journal of the European Communities                                          21.10.2000
19 May 1981, so as to provide for fair, free and non-                        (United Kingdom) for a preliminary ruling in the proceedings
discriminatory access by all Community nationals to the cargo-               pending before that court between Regina and Minister for
shares due to the Portuguese Republic, as provided for in                    Agriculture, Fisheries and Food, ex parte S.P. Anastasiou
Council Regulation (EEC) No 4055/86 of 22 December 1986                      (Pissouri) Ltd and Others, interveners: Cypfruvex (UK) Ltd and
applying the principle of freedom to provide services to                     Cypfruvex Fruit and Vegetable (Cypfruvex) Enterprises Ltd —
maritime transport between Member States and between                         on the interpretation of Council Directive 77/93/EEC of
Member States and third countries (OJ 1986 L 378, p. 1), the                 21 December 1976 on protective measures against the intro-
Portuguese Republic has failed to fulfil its obligations under               duction into the Community of organisms harmful to plants
Articles 3 and 4(1) thereof — the Court composed of: G.C. Ro-                or plant products and against their spread within the Com-
drı́guez Iglesias, President, J.C. Moitinho de Almeida,                      munity (OJ 1977 L 26, p. 20), as amended, inter alia,by Council
D.A.O. Edward (Rapporteur), L. Sevón and R. Schintgen (Presi-               Directive 91/683/EEC of 19 December 1991 (OJ 1991 L 376,
dents of Chambers), C. Gulmann, J.-P. Puissochet, G. Hirsch,                 p. 29) and Commission Directive 92/103/EEC of 1 December
P. Jann, H. Ragnemalm and M. Wathelet, Judges; M.J. Mischo,                  1992 (OJ 1992 L 363, p. 1) — the Court, composed of:
Advocate General; H. von Holstein, Deputy Registrar, has given               G.C. Rodrı́guez Iglesias, President, D.A.O. Edward, L. Sevón
a judgment on 4 July 2000, in which it:                                      and R. Schintgen, Presidents of Chambers, P.J.G. Kapteyn,
                                                                             C. Gulmann, J.-P. Puissochet, Rapporteur, G. Hirsch, P. Jann,
1.    Declares that, by failing either to denounce or to adjust the          M. Wathelet and V. Skouris, Judges; Advocate General: N. Fen-
      agreement on merchant shipping with the Federal Republic of            nelly; Registrar: L. Hewlett, Administrator, has given a judg-
      Yugoslavia so as to provide for fair, free and non-discriminatory      ment on 4 July 2000, in which it has ruled:
      access by all Community nationals to the cargo-shares due to
      the Portuguese Republic, as provided for in Council Regulation
      (EEC) No 4055/86 of 22 December 1986 applying the                      1.    Council Directive 77/93/EEC of 21 December 1976 on
      principle of freedom to provide services to maritime transport               protective measures against the introduction into the Com-
      between Member States and between Member States and third                    munity of organisms harmful to plants or plant products and
      countries, the Portuguese Republic failed to fulfil its obligations          against their spread within the Community, as amended,
      under Articles 3 and 4(1) of that regulation;                                permits Member States to admit into their territory plants
                                                                                originating in a non-member country, which are subject to the
                                                                                issue of a phytosanitary certificate dealing, inter alia,with
2.    Orders the Portuguese Republic to pay the costs.                             compliance with special requirements, where, in the absence of
                                                                                a certificate issued by the authorities empowered to issue
                                                                                certificates in the plants’ country of origin, the plants are
(1) OJ C 184 of 13.6.1998.                                                         accompanied by a certificate issued in a non-member country
                                                                                from which they do not originate, provided that:
                                                                                —      the plants have been imported into the territory of the
                                                                                country where checks have taken place before being
                                                                                exported from there to the Community;
                                                                                —      the plants have remained in that country for such time
                  JUDGMENT OF THE COURT                                                   and under such conditions as to enable the proper checks
                                                                                to be completed, and
                           of 4 July 2000
                                                                                —      the plants are not subject to special requirements that can
in Case C-219/98 (reference for a preliminary ruling from                                 only be satisfied in their place of origin.
the House of Lords): Regina v Minister for Agriculture,
                       Fisheries and Food (1)
                                                                             2.    It is not for the Member State concerned to take account of the
                                                                                reasons for which a phytosanitary certificate has not been issued
(Directive 77/93/EEC — Issue of phytosanitary certificates
                                                                                in the country of origin of the plants in determining whether
by a non-member country other than the country of origin of
                                                                                the certificate complies with the requirements of Directive
the plants — Produce originating in the part of Cyprus to
                                                                                77/93, as amended.
         the north of the United Nations Buffer Zone)
                          (2000/C 302/14)
                                                                             (1) OJ C 258 of 15.8.1998.
                    (Language of the case: English)
In Case C-219/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the House of Lords


title: ORDER OF THE COURT OF FIRST INSTANCE of 21 March 1996 in Case T-161/95: Lino Liao v. Council of the European Union (Officials - Action for annulment of a staff report - Act adversely affecting an official - Preparatory act - Action for damages - Inadmissible)

text:
 No C 158 / 14        EN                 Official Journal of the European Communities                                      1 . 6 . 96
 Brussels, represented by Eric Boigelot, of the Brussels Bar,           ORDER OF THE COURT OF FIRST INSTANCE
 with an address for service in Luxembourg at the Chambers                                of 21 March 1996
 of Louis Schiltz, 2 Rue du Fort Rheinsheim, v. Commission
 of the European Communities ( Agents : Ana Maria Alves             in Case T-161/95 : Lino Liao v. Council of the European
 Vieira and Alberto Dal Ferro ) — application for annulment,                                      Union (')
 first, of the decision adopted by the defendant on                  (Officials — Action for annulment of a staff report — Act
 24 November 1993 ( i ) withdrawing the household                   adversely affecting an official — Preparatory act — Action
 allowance and the allowance for a person treated as a                              for damages — Inadmissible)
 dependent child and ( ii ) providing for the recovery of the                                  ( 96/C 158/36 )
 allegedly undue payments made in respect of those
 allowances and , second, of the decision adopted by the
 defendant on 26 January 1994 laying down detailed                                 (Language of the case: French)
 measures for the repayment of the sums to be recovered
 pursuant to the aforesaid decision of 24 November 1993 —           In Case T-161 /95 : Lino Liao, an official of the Council of the
 the Court of First Instance ( Fifth Chamber ), composed of:        European Union, residing in Brussels, represented by
 R. Schintgen , President, and R. García-Valdecasas and             Pierre-Paul van Gehuchten and Constantin Nickis, of the
J. Azizi, Judges ; J. Palacio Gonzalez, Administrator, for          Brussels Bar, with an address for service in Luxembourg at
 the Registrar, has given a judgment on 25 April 1996 , in          the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim, v.
which it :                                                          Council of the European Union (Agents: Diego Canga Fano
                                                                    and Marie-Jeanne Vernier ) — application for annulment of
 1 , dismises the action;                                           the Decision of the Council of 19 May 1 995 , which was
                                                                    adopted for the purposes of drawing up the applicant's staff
                                                                    report for the period from 1 July 1991 to 30 June 1993 , and
2 , orders the parties to bear their own costs.                     for compensation for the material and non-material loss
                                                                    allegedly suffered by him — the Court of First Instance
 (M OJ No C 304 , 29 . 10 . 1994 .                                  ( Second Chamber ), composed of H. Kirschner, President,
                                                                    and C. W. Bellamy and A. Kalogeropoulos, Judges; H. Jung,
                                                                    Registrar, made an order on 21 March 1996, the operative
                                                                    part of which is as follows :
                                                                    1.   The action is dismissed as inadmissible.
     ORDER OF THE COURT OF FIRST INSTANCE
                       of 4 March 1996                              2 . The patties are ordered to bear their own costs.
in Case T-3 92/94 : Diarmuid Rossa Phelan v. Council of the
                      European Union (')                            (') OJ No C 299 , 11 . 11 . 1995 .
                 (No need to give a decision)
                         ( 96/C 158/35 )
               (Language of the case: English)
                                                                   Action brought on 22 February 1996 by J. Langdon Limited
In Case T-392/94 : Diarmuid Rossa Phelan, residing in Bella           against the Commission of the European Communities
Vista ( Ireland ), represented by Desmond O'Neill,
Barrister-at-Law, of the Bar of Ireland, v. Council of the                                  ( Case T-22/96 )
European Union ( Agents : Michael Bishop and Diego Canga                                      ( 96/C 158/37 )
Fano ) — application for the annulment of the Council
Decision of 1 6 September 1 994 not to admit the applicant to                     (Language of the case: English)
Open Competition Council/A/338 on the ground that the
application form was submitted out of time and for an order
that the Council pay him damages — the Court ( Fourth              An action against the Commission of the European
Chamber ), composed of K. Lenaerts, President, P. Lindh            Communities was brought before the Court of First
and J. D. Cooke, Judges; Registrar, H. Jung, made an order         Instance of the European Communities on 22 February
on 4 March 1996 , the operative part of which is as                 1996 by J. Langdon Limited, represented by Patrick
follows :                                                          O'Brien, Solicitor, and Patrick McCann, Barrister, with an
                                                                   address for service in Luxembourg at Faltz & Associés , 6 rue
                                                                   Heine .
1 . There is no need to give a decision.
                                                                   The applicant claims that the Court should :
2 . Each party shall bear its own costs.
                                                                   — annul the Commission's Decision C ( 95 ) 2726 final of
(M OJ No C 400 , 31 . 12 . 1994 .                                       3 November 1995 adressed to Ireland;
                                                                   — order the Commission to pay the costs .


title: Action brought on 17 March 1997 by M. V. Diederen against the Council of the European Union and the Commission of the European Communities (Case T-69/97)

text:
No C 142/30              EN                   Official Journal of the European Communities                                    10 . 5 . 97
Action brought on 13 March 1997 by J. P. M. Wolfs                        Action brought on 17 March 1997 by M. V. Diederen
against the Council of the European Union and the                        against the Council of the European Union and the
            Commission of the European Communities                                   Commission of the European Communities
                            ( Case T-67/97)                                                          ( Case T-69/97)
                              ( 97/C 142/64 )                                                         ( 97/C 142/65 )
                   (Language of the case: Dutch)                                            (Language of the case: Dutch)
An action against the Council of the European Union and
the Commission of the European Communities was                           An action against the Council of the European Union and
brought before the Court of First Instance of the European               the Commission of the European Communities was
Communities on 13 March 1997 by J. P. M. Wolfs, of                       brought before the Court of First Instance of the European
Gronsveld ( Netherlands ), represented by E. H. Pijnacker                Communities on 17 March 1997 by M. V. Diederen, of
Hordijk, of the Amsterdam Bar, and M. T. P. J. van Oers,                 Doenrade (Netherlands ), represented by E. H. Pijnacker
of The Hague Bar, with an address for service in                         Hordijk, of the Amsterdam Bar, and M. T. P. J. van Oers,
Luxembourg at the Chambers of L. Frieden, 62 Avenue                      of The Hague Bar, with an address for service in
Guillaume .                                                              Luxembourg at the Chambers of L. Frieden, 62 Avenue
                                                                         Guillaume .
The applicant claims that the Court should:
                                                                         The applicant claims that the Court should:
( a ) primarily: order the Community to pay to the
       applicant the sum of Fl 132 162, together with interest           ( a ) primarily: order the Community to pay to the
       thereon at the rate of 8 % per annum from 19 May                          applicant the sum of Fl 137 580, together with interest
        1992 until the date of payment in full;                                 thereon at the rate of 8% per annum from 19 May
                                                                                1992 until the date of payment in full;
        in the alternative: order the Community to pay the
        applicant such sum as the Court in its wisdom shall                      in the alternative: order the Community to pay the
        think fit, amounting to not less than Fl 55 016                          applicant such sum as the Court in its wisdom shall
        ( namely, the amount resulting from the application of                   think fit, amounting to not less than Fl 56 237
        Regulation ( EEC ) No 2187/93 ), together with interest                  ( namely, the amount resulting from the application of
        thereon at the rate of 8 % per annum from 1 9 May                        Regulation ( EEC ) No 2187/93 ), together with interest
        1 992 until the date of the payment in full;                             thereon at the rate of 8% per annum from 19 May
                                                                                1992 until the date of the payment in full;
 ( b ) order the Community to pay the costs.
                                                                          ( b ) order the Community to pay the costs.
 Pleas in law and main arguments adduced in support:
                                                                          Pleas in law and main arguments adduced in support:
 The pleas in law and main arguments are the same as in
 Case T-50/97 (»).
                                                                          The pleas in law and main arguments are the same as in
 f 1 ) Page 24 of this Official Journal .                                 Case T-50/97 ( ! ).
                                                                          ( ] ) Page 24 of this Official Journal .


title: Case T-30/03: Action brought on 30 January 2003 by The General Workers Union in Denmark (Specialarbejderforbundet i Danmark "SID") against the Commission of the European Communities

text:
C 70/32                EN                          Official Journal of the European Union                                        22.3.2003
In support of its application, the applicant contests the                  The applicant claims that the Court should:
economic approach adopted in relation to the facts by the
Commission which, on the one hand, defined as the relevant                 —     annul the decision of 11 November 2002 of the Director
market the Italian geographic market but which, on the other                     General of the European Anti-Fraud Office (OLAF) which,
hand, completely overlooked the fact that the average price of                   as an internal service of the Commission of the European
reinforced concrete in Italy has always been, on average, less                   Communities, declares inadmissible the complaint lodged
than that in the other States.                                                   by the Junta de Andalucía.
Furthermore, S.P. contests the use of documents by the
Commission to substantiate its charges, in particular the                  Pleas in law and main arguments
memorandum of a partner undertaking which, in the Com-
mission’s view, provided useful information to understand the
way in which the accused undertaking operated, without such                The applicant in the present proceedings contests the rejection
documents having been notified to the applicant during the                 of the complaint submitted by Counsellor for Agriculture and
proceeding. Moreover, although the Commission was in                       Fisheries to the Director General of the Anti-Fraud Office
possession of them, it failed to mention that it had made use              (OLAF) after becoming aware of the existence of Report IO/
of such cooperation, preventing the applicant from adopting a              2000/7057 concerning the investigations carried out by OLAF
position in good time in relation to the charges made against              into possible irregularities in the olive oil sector in Spain,
it. In that respect also, the applicant seeks the annulment of             concentrating in particular on the territory of the Comunidad
the decision on the ground of a serious breach of the rights of            Autónoma de Andalucía.
defence.
                                                                           In support of its arguments, the applicant alleges:
S.P. further alleges error of law, in particular the misapplication
of Article 65 ECSC, claiming that the contested objections do              —     infringement of the principles of legality, in that OLAF’s
not contain sufficient evidence to support the existence of an                   activities covered areas over which there is no judicial
agreement or concerted practices.                                                oversight, and of equality, inasmuch as such conduct
                                                                                discriminated against any legal or natural person who is
                                                                                not an official, agent or staff of the Community insti-
Finally, S.P. further contests the methods adopted by the                        tutions, who alone may lodge administrative complaints
Commission when determining the fines to be imposed, in                          against OLAF’s conduct.
particular the multiplier and the increment linked to the
allegedly uninterrupted duration of the alleged infringements              —     infringement of the fundamental right of defence.
and to the alleged extreme seriousness, which has not been
proven, of the infringements.
                                                                           —     that OLAF must accept the complaint in issue by analogy
                                                                                with the provisions of Article 14 of Regulation No 1073/
                                                                                1994, and reply to the substantive questions raised in the
                                                                                aforementioned complaint.
Action brought on 27 January 2003 by Comunidad
Autónoma de Andalucía against Commission of the Euro-
                        pean Communities
                                                                           Action brought on 30 January 2003 by The General
                                                                           Workers Union in Denmark (Specialarbejderforbundet i
                          (Case T-29/03)                                   Danmark ‘SID’) against the Commission of the European
                                                                                Communities
                          (2003/C 70/51)
                                                                                (Case T-30/03)
                   (Language of the case: Spanish)
                                                                                (2003/C 70/52)
                                                                                (Language of the case: English)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 January 2003 by Comunidad
Autónoma de Andalucía, Seville (Spain), represented by Car-                An action against the Commission of the European Communi-
men Carretero Espinosa de los Monteros, lawyers.                           ties was brought before the Court of First Instance of the
 ---pagebreak--- 22.3.2003              EN                       Official Journal of the European Union                                         C 70/33
European Communities on 30 January 2003 by The General                  The applicant finally invokes a manifest error of assessment.
Workers Union in Denmark (Specialarbejderforbundet i Dan-               The applicant alleges that the Commission should have made
mark ‘SID’), Copenhagen, Denmark, represented by Philip                 an assessment of the effect of the tax exemptions have on the
Bentley QC, Mr Anders Worsøe and Mr Filip Ragolle, Lawyers.             employment of seafarers residing in a Member State and
                                                                        employed on terms and conditions which meet the high
                                                                        standards prevailing in the Community.
The applicant claims that the Court should:
                                                                        (1 ) Community guidelines on State aid to maritime transport (OJ
                                                                             C 205 of 1997, p. 5.
—     annul Commission decision C(2002)4370fin of 13 Nov-
      ember 2002 in so far as it is decided not to raise any
      objections to fiscal measures that have been applied since
      1 January 1989 to seafarers on board vessels registered
      in Denmark, either in the DAS or in the DIS registers;
—     order that the costs of the proceedings be borne by the
      Commission.
                                                                        Action brought on 31 January 2003 by GRUPO SADA,
                                                                        P.A., S.A. against Office for Harmonisation in the Internal
                                                                                Market (trade marks and designs) (OHIM)
Pleas in law and main arguments
                                                                                (Case T-31/03)
The applicant, the General Workers Union in Denmark, lodged                                       (2003/C 70/53)
a complaint with the Commission regarding the tax regime
applied to seafarers employed on board ships registered in the
Danish International Shipping register (DIS). In the contested                            (Language of the case: Spanish)
decision, the Commission decided not to raise objections to
the fiscal measures and considered that they constituted state
aid, but that they were and still are compatible with the
common market on the basis of Article 87 (3)(c) EC Treaty.
                                                                        An action against Office for Harmonisation in the Internal
                                                                        Market (trade marks and designs) (OHIM) was brought before
                                                                        the Court of First Instance of the European Communities on
                                                                        31 January 2003 by GRUPO SADA, P.A., S.A., whose regis-
The fiscal measures in question grant tax exemptions to all             tered office is in Madrid, represented by Álvaro Aguilar De
seafarers employed on board ships registered in the DIS
                                                                        Armas and José María Marrero Ortega.
register. The Commission considered that this was in conform-
ity with the Community guidelines on state aid to maritime
transport (1) according to which reduced rates of income tax
for EC seafarers on board ships registered in a Member State            The applicant claims that the Court should:
are compatible with the common market.
                                                                        —      annul the decision of the OHIM of 20 November 2002
                                                                               in so far as it refuses to register ‘GRUPO SADA’ as a
                                                                               Community trade mark; and
In support of its application, the applicant invokes an infringe-
ment of essential procedural requirements and the principle of
good administration. The applicant alleges that the case                —      order OHIM to pay the costs.
involved serious difficulties and that the Commission therefore
should have opened an investigation pursuant to Article 88(2)
EC Treaty.
                                                                        Pleas in law and main arguments
The applicant furthermore submits a violation of
Article 87(3)(c) EC Treaty in conjunction with the Community            Applicant for the Com-        The applicant
guidelines on state aid to maritime shipping and the principle          munity trade mark:
of legitimate expectations. According to the applicant, the
Commission erred by interpreting the notion of ‘EC seafarers’           The Community trade           GRUPO SADA — Application
as meaning any seafarer employed on board a vessel registered           mark concerned:               No 157545 for goods in Class-
in a Member State.                                                                                es 29, 31 and 35


title: Case C-435/13 P: Order of the Court (Second Chamber) of 17 July 2014  — Erich Kastenholz v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Qwatchme A/S (Appeal — Regulation (EC) No 6/2002 — Community designs — Articles 4 to 6, 25(1)(b) and (f), and 52 — Registered Community design representing watch dials — Earlier Community design — Invalidity proceedings)

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/23

         Order of the Court (Second Chamber) of 17 July 2014 — Erich Kastenholz v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Qwatchme A/S
   (Case C-435/13 P) (1)

   ((Appeal - Regulation (EC) No 6/2002 - Community designs - Articles 4 to 6, 25(1)(b) and (f), and 52 - Registered Community design representing watch dials - Earlier Community design - Invalidity proceedings))
   2014/C 409/33
   Language of the case: German

      Parties

      Appellant: Erich Kastenholz (represented by: L. Acker, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka, acting as Agent), Qwatchme A/S (represented by: M. Zöbisch, Rechtsanwalt)

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Kastenholz shall bear the costs.

      (1)  OJ C 304, 19.10.2013.


title: Case C-61/03: Action brought on 14 February 2003 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

text:
26.4.2003              EN                        Official Journal of the European Union                                           C 101/19
      2.2. Is an approach entailing the balancing of interests           Action brought on 14 February 2003 by the Commission
            appropriate, and, if so, what are the interests to be        of the European Communities against the United
            compared? In particular:                                            Kingdom of Great Britain and Northern Ireland
            (a)  is the answer affected by the fact that the
                 ultimate consumer/patient derives limited                                          (Case C-62/03)
                 financial advantage from the parallel trade and
                                                                                (2003/C 101/32)
            (b)  is account to be taken, and to what extent, of
                 the interests of social insurance bodies in
                 cheaper medicinal products?
      2.3. What other criteria and approaches are considered             An action against the United Kingdom of Great Britain and
            appropriate in the present case?                             Northern Ireland was brought before the Court of Justice of
                                                                         the European Communities on 14 February 2003 by the
                                                                         Commission of the European Communities, represented by
                                                                         X. Lewis and M. Konstantinidis, acting as agents, with an
                                                                         address for service in Luxembourg.
Action brought on 14 February 2003 by the Commission
                                                                         The Applicant claims that the Court should:
of the European Communities against the United
      Kingdom of Great Britain and Northern Ireland
                                                                         1)    declare that, by failing to adopt all the measures necessary
                                                                               to comply with its obligations under Articles 1(a), 1(e),
                          (Case C-61/03)
                                                                               1(f), 2(1)(b), 3, 4, 5, 7, 8, 12, 13 and 14 of Council
                                                                               Directive 75/442/EEC of 15 July 1975 on waste ( 1), as
                         (2003/C 101/31)                                       amended by Council Directive 91/156/EEC of 18 March
                                                                               1991 ( 2), the United Kingdom of Great Britain and
                                                                               Northern Ireland has failed to fulfil its obligations under
An action against the United Kingdom of Great Britain and                      the Directive and under the Treaty establishing the
Northern Ireland was brought before the Court of Justice of                    European Community;
the European Communities on 14 February 2003 by the
Commission of the European Communities, represented by                   2)    order the United Kingdom of Great Britain and Northern
L. Ström and X. Lewis, acting as agents, with an address for                   Ireland to pay the costs.
service in Luxembourg.
The Applicant claims that the Court should:
                                                                         Pleas in law and main arguments
—     declare that the United Kingdom of Great Britain and
      Northern Ireland has failed to fulfil its obligations under
      Article 37 of the Euratom Treaty by failing to provide the         Directive 91/156/EEC required Member States to bring into
      Commission with general data relating to any plan for              force such laws, regulations and administrative provisions as
      the disposal of radioactive waste in whatever form                 are necessary to comply with that directive no later than
      resulting from the decommissioning operations of the               1 April 1993, and to inform the Commission forthwith.
      JASON reactor; and                                                 Article 2(2) thereof provides that Member States shall commu-
                                                                         nicate to the Commission the texts of the main provisions of
—     order the United Kingdom of Great Britain and Northern             national law that they adopt in the field governed by the
      Ireland to pay the costs.                                          directive.
Pleas in law and main arguments                                          As a result of an assessment of the national legislation
                                                                         communicated as transposing the directive the Commission
                                                                         found a number of inconsistencies and gaps in the United
The Commission is of the opinion that the United Kingdom                 Kingdom’s transposition and concludes that Articles 1(a), 1(e),
has failed to fulfil its obligations under Article 37 of the             1(f), 2(1)(b), 3, 4, 5, 7, 8, 12, 13 and 14 of the directive have
Euratom Treaty to provide the Commission with general data               not been correctly transposed into the United Kingdom
relating to any plan for the disposal of radioactive waste in            legislation.
whatever form resulting from the decommissioning operations
of the JASON reactor, thus making it impossible for the
Commission to determine whether the implementation of                    (1 ) OJ L 194, 25.7.1975, p. 39.
such a plan is liable to result in the radioactive contamination         (2 ) OJ L 78, 26.3.1991, p. 32.
of the water, soil or airspace of another Member State.


title: Case T-99/99: Action brought on 22 April 1999 by Eoghan O'Hannrachain against the European Parliament

text:
18.9.1999              EN                     Official Journal of the European Communities                                      C 265/15
Judges; H. Jung, Registrar, made an order on 29 April 1999,              Action brought on 22 April 1999 by Eoghan O’Hannra-
the operative part of which is as follows:                                           chain against the European Parliament
1. The application is dismissed as inadmissible.
2. The applicant shall bear its own costs and those of the                                        (Case T-99/99)
    Commission.
(1) OJ C 327 of 24.10.1998.
                                                                                (1999/C 265/31)
                                                                                (Language of the case: French)
ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER                              An action against the European Parliament was brought before
           OF THE COURT OF FIRST INSTANCE                                the Court of First Instance of the European Communities
                                                                         on 22 April 1999 by Eoghan O’Hannrachain residing in
                                                                         Luxembourg, represented by Georges Vandersanden and Laure
                        of 28 April 1999                                 Levi, of the Brussels Bar, with an address for service in
                                                                         Luxembourg at the offices of Fiduciaire Myson SARL, 30 Rue
in Case T-11/99 R: NV Firma Léon Van Parys and Others                    de Cessange.
       v Commission of the European Communities
(Agriculture — Common organisation of the markets —                      The applicant claims that the Court should:
Bananas — Application for additional import licences —
   Procedure for interim relief — Manifestly inadmissible)
                                                                         — annul the decision taken by the appointing authority
                                                                             on 16 July 1998 appointing Mr L.V. to the post of
                        (1999/C 265/30)                                      Director-General of the Directorate-General for Finance
                                                                             and Financial Control, the decision of the same date
                                                                             rejecting the application for that post submitted by the
                   (Language of the case: Dutch)                             applicant and, in so far as may be necessary, the decision
                                                                             dated 21 January 1999 rejecting the applicant’s complaint;
In Case T-11/99 R: NV Firma Léon Van Parys and NV Pacific
Fruit Company, both established in Antwerp (Belgium), Pacific            — request the defendant to produce the notes sent by the
Fruchtimport GmbH, established in Hamburg (Germany), and                     Secretary-General to the Bureau on 22 December 1997
Pacific Fruit Company Italy SpA, established in Rome (Italy),                and 13 and 16 July 1998 (documents PE 265.377/BUR,
all represented by P. Vlaemminck, L. Van Den Hende and                       PE 271.309/BUR and PE 271.309/BUR/ADD), together
J. Holmens, of the Ghent Bar, with an address for service in                 with the file relating to Mr L.V.’s application for the post
Luxembourg at the Chambers of Loesch & Wolter, 11 Rue                        of Director-General of the Directorate-General for Finance
Goethe, against the Commission of the European Communities                   and Financial Control;
(Agent: Hubert van Vliet), supported by the Kingdom of Spain
(Agent: Rosario Silva de Lapuerta) and the French Republic               — order the defendant to pay damages provisionally quanti-
(Agent: Kareen Rispal-Bellanger) — application under                         fied, on an equitable basis, in the sum of 100 000 euros;
Articles 185 and 186 of the EC Treaty requesting the Court of
First Instance to allow the applicants — or order the Com-               — order the defendant to pay the costs.
mission to take the necessary measures to allow them — to
import in 1999 a quantity of bananes equal to the average of
the quantifies imported by them into the European Community
during 1994 to 1996 and cleared through customs on the
strength of an import licence either by the applicants them-
selves or by another licensee or to make any other appropriate           Pleas in law and main arguments
interim order — the President of the Fifth Chamber of the
Court of First Instance made an order on 28 April 1999, the
operative part of which is as follows:
                                                                         The pleas in law and main arguments are the same as those
                                                                         advanced in Case T 97/99 (Chamier v Parliament).
1. The application for interim measures is dismissed.
2. Costs are reserved.


title: Case C-303/12: Judgment of the Court (Fifth Chamber) of 12 December 2013 (request for a preliminary ruling from the Tribunal de première instance de Liège (Belgium)) — Guido Imfeld, Nathalie Garcet v État belge (Freedom of establishment — Equal treatment — Income tax — Legislation for the avoidance of double taxation — Income earned in a State other than the State of residence — Method of exemption subject to progressivity in the State of residence — Account taken, in part, of personal and family circumstances — Loss of certain tax advantages linked to the personal and family circumstances of the worker)

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/15

         Judgment of the Court (Fifth Chamber) of 12 December 2013 (request for a preliminary ruling from the Tribunal de première instance de Liège (Belgium)) — Guido Imfeld, Nathalie Garcet v État belge
   (Case C-303/12) (1)

   (Freedom of establishment - Equal treatment - Income tax - Legislation for the avoidance of double taxation - Income earned in a State other than the State of residence - Method of exemption subject to progressivity in the State of residence - Account taken, in part, of personal and family circumstances - Loss of certain tax advantages linked to the personal and family circumstances of the worker)
   2014/C 52/23
   Language of the case: French

      Referring court

   Tribunal de première instance de Liège

      Parties to the main proceedings

      Applicants: Guido Imfeld, Nathalie Garcet

      Defendant: État belge

      Re:

   Request for a preliminary ruling — Tribunal de première instance de Liège — Interpretation of Article 39 EC — Provisions of agreements, and national legislation, relating to double taxation — Occupational income wholly earned and taxed in a Member State other than the Member State of residence — Account taken in part, by the Member State in which the income is earned, of personal and family circumstances — The income tax payable in the Member State of residence calculated in accordance with the method of exemption subject to progressivity — Loss of tax advantages linked to personal and family circumstances.

      Operative part of the judgment

   Article 49 TFEU is to be interpreted as precluding the application of the tax legislation of a Member State, such as that at issue in the main proceedings, which has the effect that a couple residing in that Member State and earning income both in that Member State and in another Member State does not in fact receive a specific tax advantage, owing to the rules for offsetting it, whereas that couple would receive that tax advantage if the member of the couple earning the higher income did not earn his entire income in another Member State.

      (1)  OJ C 287, 22.9.2012


title: Judgment of the Court of 11 September 2003 in Case C-445/00: Republic of Austria v Council of the European Union (System of ecopoints for heavy goods vehicles transiting through Austria — Amendment by Regulation (EC) No 2012/2000 — Illegality)

text:
1.11.2003               EN                           Official Journal of the European Union                                                 C 264/5
      If the national court, in examining these measures, finds that         1.   Annuls Article 2(1) of Council Regulation (EC) No 2012/
      that requirement results in an obstacle to imports, then it                 2000 of 21 September 2000 amending Annex 4 to Protocol
      cannot be justified by reasons relating to the protection of the            No 9 to the 1994 Act of Accession and Regulation (EC)
      health and life of humans within the meaning of Article 36 of               No 3298/94 with regard to the system of ecopoints for heavy
      the EC Treaty (now, after amendment, Article 30 EC).                        goods vehicles transiting through Austria;
2.    National courts have an obligation to ensure the full effect of        2.   Annuls Article 1 and Article 2(4) of that regulation but
      Article 30 of the Treaty by disapplying on their own initiative             declares that their effects are to be regarded as definitive;
      domestic provisions which do not comply with that article.
                                                                             3.   Dismisses the remainder of the action;
(1) OJ C 28 of 27.1.2001.
                                                                             4.   Orders each party to bear its own costs, including those of the
                                                                                interlocutory proceedings and of the procedure relating to the
                                                                                withdrawal of a document from the case-file;
                                                                             5.   Orders the Federal Republic of Germany, the Italian Republic
                                                                                and the Commission of the European Communities to bear
                                                                                their own costs.
                 JUDGMENT OF THE COURT
                                                                             (1) OJ C 45 of 10.2.2001.
                      of 11 September 2003
in Case C-445/00: Republic of Austria v Council of the
                        European Union (1)
(System of ecopoints for heavy goods vehicles transiting
through Austria — Amendment by Regulation (EC)                                                JUDGMENT OF THE COURT
                   No 2012/2000 — Illegality)
                                                                                (Third Chamber)
                          (2003/C 264/07)
                   (Language of the case: German)                                                   of 11 September 2003
(Provisional translation; the definitive translation will be published       in Case C-6/01 (Reference for a preliminary ruling from
                   in the European Court Reports)                            the Tribunal Cível da Comarca de Lisboa): Associação
                                                                             Nacional de Operadores de Máquinas Recreativas (Ano-
                                                                                mar) and Others v Estado português (1)
In Case C-445/00, Republic of Austria (Agent: H. Dossi) v                    (Freedom to provide services — Operation of games of
Council of the European Union (Agents: A. Lopes Sabino and                             chance or gambling — Gaming machines)
G. Houttuin) supported by Federal Republic of Germany
(Agents: W.-D. Plessing, assisted by J. Sedemund), by Italian
Republic (Agent: U. Leanza, assisted by M. Fiorilli) and by                                             (2003/C 264/08)
Commission of the European Communities (Agents: initially
by C. Schmidt and M. Wolfcarius, and, subsequently,
C. Schmidt and W. Wils): Application for annulment of                                          (Language of the case: Portuguese)
Council Regulation (EC) No 2012/2000 of 21 September
2000 amending Annex 4 to Protocol No 9 to the 1994 Act of
                                                                             (Provisional translation; the definitive translation will be published
Accession and Regulation (EC) No 3298/94 with regard to the                                      in the European Court Reports)
system of ecopoints for heavy goods vehicles transiting
through Austria (OJ 2000 L 241, p. 18), the Court, composed
of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet,
M. Wathelet and R. Schintgen (Presidents of Chambers),
C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris,               In Case C-6/01: Reference to the Court under Article 234 EC
F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues                 by the Tribunal Cível da Comarca de Lisboa (Portugal) for a
(Rapporteur), Judges; J. Mischo, Advocate General; M.-F. Con-                preliminary ruling in the proceedings pending before that court
tet, Administrator, for the Registrar, has given a judgment on               between Associação Nacional de Operadores de Máquinas
11 September 2003, in which it:                                              Recreativas (Anomar) and Others and Estado português, on