title: Case C-421/15 P: Appeal brought on 29 July 2015 by Yoshida Metal Industry Co. Ltd against the judgment of the General Court (Seventh Chamber) delivered on 21 May 2015 in Joined Cases T-331/10 RENV and T-416/10 RENV: Yoshida Metal Industry Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               23.11.2015

               EN

               Official Journal of the European Union

               C 389/13

         Appeal brought on 29 July 2015 by Yoshida Metal Industry Co. Ltd against the judgment of the General Court (Seventh Chamber) delivered on 21 May 2015 in Joined Cases T-331/10 RENV and T-416/10 RENV: Yoshida Metal Industry Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-421/15 P)
   (2015/C 389/15)
   Language of the case: English

      Parties

      Appellant: Yoshida Metal Industry Co. Ltd (represented by: J. Cohen, Solicitor, G. Hobbs QC, T. St Quintin, Barrister)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Pi-Design AG, Bodum France, Bodum Logistics A/S

      Form of order sought

   The appellant respectively requests that the Court of Justice should make orders to the following effect on the principal claim:

               a)

               The decision of the Seventh Chamber of the General Court of the Court of Justice of the European Union of 21 May 2015 in Joined Cases T-331/10 RENV and T-416/10 RENV is quashed;

               b)

               The Appellant’s Application to the General Court for annulment of the decision of OHIM’s First Board of Appeal of 20 May 2010 in Case R1235/2008 is allowed and the decision is annulled;

               c)

               The Appellant’s Application to the General Court for annulment of the decision of OHIM’s First Board of Appeal of 20 May 2010 in Case R1237/2008-1 is allowed and the decision is annulled;

               d)

               OHIM and the Interveners shall bear their own costs and pay the Appellant’s costs of the proceedings, such costs to include those reserved by the Judgment of the Court of Justice delivered in Joined Cases C-337/12 P and C-340/12 P EU:C:2014:129 on 6 March 2014.

         If the Court of Justice does not accept the principal claim, it is respectfully requested to make orders to the following effect on the secondary claim:

               a)

               The decision of the Seventh Chamber of the General Court of the Court of Justice of the European Union of 21 May 2015 in Joined Cases T-331/10 RENV and T-416/10 RENV is quashed in relation to the following goods for which Community trade mark nos. 1371244 and 1372580 are registered: in Class 8, whetstones and whetstone holders; in Class 21, household or kitchen containers (not of precious metal or coated therewith), and knife blocks for holding knives.

               b)

               The Appellant’s Application to the General Court for annulment of the decision of OHIM’s First Board of Appeal of 20 May 2010 in Case R1235/2008-1 is allowed and the decision is annulled in relation to the following goods for which Community trade mark no. 1371244 is registered: Class 8, whetstones and whetstone holders; Class 21, household or kitchen containers (not of precious metal or coated therewith), and knife blocks for holding knives.

               c)

               The Appellant’s Application to the General Court for annulment of the decision of OHIM’s First Board of Appeal of 20 May 2010 in Case R1237/2008-1 is allowed and the decision is annulled in relation to the following goods for which Community trade mark no. 1372580 is registered: Class 8, whetstones and whetstone holders; Class 21, household or kitchen containers (not of precious metal or coated therewith), and knife blocks for holding knives.

               d)

               OHIM and the Interveners shall bear their own costs and pay the Appellant’s costs of the proceedings, such costs to include those reserved by the Judgment of the Court of Justice delivered in Joined Cases C-337/12 P and C-340/12 P EU:C:2014:129 on 6 March 2014.

      Pleas in law and main arguments

   The Appellant supports its appeal with two pleas in law.

               a)

               First, that the General Court (‘GC’) contravened Article 7(1)(e)(ii) of the Regulation (1) by misinterpreting and consequently misapplying it in relation to the signs graphically represented in the CTMs in issue.

               b)

               Secondly, that the GC additionally or alternatively contravened Article 52(3) of the Regulation by failing to examine the application of Article 7(1)(e)(ii) in relation to each of the different categories of goods for which the signs graphically represented in the CTMs were registered.

      In support of the first plea, in summary:
   The GC concluded in paragraph [39] of the Judgment under appeal that Article 7(1)(e)(ii) applies to any sign, whether two- or three-dimensional, where all the essential characteristics of the sign perform a technical function. However, in adopting and applying that conclusion to the CTMs in issue, the GC wrongly departed from (and consequently failed to give effect to) the determination in paragraph [48] of the Court of Justice in Case C-48/09 P Lego Juris v OHIM EU:C:2010:516 that: Article 7(1)(e)(ii) does not prevent registration of a sign as a trade mark ‘solely on the ground that it has functional characteristics’; the words ‘exclusively’ and ‘necessary’ serve to restrict the scope of application of Article 7(1)(e)(ii) more narrowly to signs which are ‘solely shapes of goods which only incorporate a technical solution’.
   The GC should have concluded, following the Lego case, that Article 7(1)(e)(ii) does not establish any legal requirement for two- or three-dimensional signs to be unpossessed of functionality and does not prevent the registration of ‘hybrid signs’ comprising visually significant decorative design elements which do not ‘only incorporate a technical solution’, but which also perform a distinguishing function of the kind that trade marks are expected to perform. However, the GC wrongly departed from (and consequently failed to give effect to) the relevant legal criteria for the application of Article 7(1)(e)(ii) by not proceeding upon the basis that the signs graphically represented in the CTMs were ‘hybrid signs’ comprising decorative design elements (visually significant patterns presented to the eye of the observer in the form of black dots created by indentation and colouring of the indentations) which, as confirmed by the decision of 31 October 2001 of the Second Board of Appeal of OHIM referred to in paragraph [5] of the Judgment under appeal, possessed a distinctive character.
   If the GC had not misinterpreted and consequently misapplied Article 7(1)(e)(ii) by adopting and applying a flawed approach to the capacity of indentations to simultaneously be both functional and distinctive in relation to the signs graphically represented in the CTMs in issue, it should and would have determined that the signs in issue were not excluded from registration by the provisions of that Article and that the decisions of the First Board of Appeal of OHIM to the contrary effect were wrong and should be annulled.

      In support of the second plea, in summary:
   The GC was required by Article 52(3) of the Regulation to consider whether Article 7(1)(e)(ii) rendered the signs graphically represented in the CTMs invalid for being ‘solely shapes of goods which only incorporate a technical solution’ (per paragraph [48] of the Judgment of the Court of Justice in Lego) in relation to all or only some and, if so, which of the different categories of goods for which the signs were registered. The GC did not engage with or fulfil that essential requirement and thereby failed to make findings upon which the legality of its determination under Article 7(1)(e)(ii) necessarily depended.
   Further and in any event the GC could not have complied with the essential requirement of Article 52(3) by applying the reasoning of its determination under Article 7(1)(e)(ii) to any goods without handles for which the signs graphically represented in the CTMs were registered. The sings were, in particular, registered for the following categories of goods without handles to which the determination of the GC under Article 7(1)(e)(ii) could not legally be applied in accordance with the requirements of Article 52(3): in Class 8, whetstones, and whetstone holders; in Class 21, household or kitchen containers (not of precious metal or coated therewith), and knife blocks for holding knives.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

      OJ L 78, p. 1


title: Case T-221/15: Action brought on 5 May 2015 — Arbuzov v Council

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/36

         Action brought on 5 May 2015 — Arbuzov v Council
   (Case T-221/15)
   (2015/C 279/44)
   Language of the case: Czech

      Parties

      Applicant: Sergej Arbuzov (Kyiv, Ukraine) (represented by: M. Machytková, lawyer)

      Defendant: Council of the European Union

      Form of order sought

               —

               annul Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as those instruments concern the applicant;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging breach of the right to good administration

                           —

                           The applicant submits in this connection that there was a breach of the right to good administration guaranteed by Article 41(1) and (2)(a) and (c) of the Charter of Fundamental Rights of the European Union (‘the Charter’), since the defendant did not proceed, in his view, with the proper care requiring it rigorously and impartially to examine all the relevant facts of the applicant’s case.

               2.

               Second plea in law, alleging breach of the right to property

                           —

                           The applicant submits on this point that there was a breach of the right to property guaranteed him by Article 17(1) of the Charter and Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, consisting in the fact that, as a result of the breach of the right to good administration, the contested acts limiting the applicant’s right to property were adopted with no legal grounds and contrary to the conditions set out in Article 52(1) of the Charter.


title: Case T-243/09: Judgment of the General Court of 27 September 2012 — Fedecom v Commission (State aid — Fruit and vegetable sector — ‘Contingency plans’ aimed at supporting the fruit and vegetable market in France — Decision declaring the aid to be incompatible with the common market — Concept of State aid — State resources — Joint financing by a public body and by voluntary contributions from producer organisations — Arguments contrary to the facts submitted during the administrative proceedings — Operating aid — Legitimate expectation)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/21

         Judgment of the General Court of 27 September 2012 — Fedecom v Commission
   (Case T-243/09) (1)

   (State aid - Fruit and vegetable sector - ‘Contingency plans’ aimed at supporting the fruit and vegetable market in France - Decision declaring the aid to be incompatible with the common market - Concept of State aid - State resources - Joint financing by a public body and by voluntary contributions from producer organisations - Arguments contrary to the facts submitted during the administrative proceedings - Operating aid - Legitimate expectation)
   2012/C 355/42
   Language of the case: French

      Parties

      Applicant: Fédération de l’organisation économique fruits et légumes (Fedecom) (Paris, France) (represented by: C. Galvez, lawyer)

      Defendant: European Commission (represented by: B. Stromsky, acting as Agent)

      Re:

   Application for annulment of Commission Decision C(2009) 203 final of 28 January 2009 on the ‘contingency plans’ in the fruit and vegetable sector implemented by the French Republic.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Fédération de l’organisation économique fruits et légumes (Fedecom) to pay the costs.

      (1)  OJ C 205, 29.8.2009.


               3.9.2005

               EN

               Official Journal of the European Union

               C 217/31

         Removal from the register of Case C-527/03 (1)

   (2005/C 217/63)

      (Language of the case: Dutch)

   By order of 8 June 2005 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-527/03: Commission of the European Communities v Kingdom of the Netherlands.

      (1)  OJ C 59 of 6.03.2004.


title: Case C-494/11 P: Appeal brought on 23 September 2011 by Otis Luxembourg Sàrl, formerly General Technic-Otis Sàrl, Otis SA, Otis BV, Otis Elevator Company, Otis GmbH & Co. OHG against the judgment of the General Court (Eighth Chamber) delivered on 13 July 2011 in Case T-141/07: Otis Luxembourg Sàrl, formerly General Technic-Otis Sàrl, Otis SA, Otis BV, Otis Elevator Company, Otis GmbH & Co. OHG v European Commission

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/18

         Appeal brought on 23 September 2011 by Otis Luxembourg Sàrl, formerly General Technic-Otis Sàrl, Otis SA, Otis BV, Otis Elevator Company, Otis GmbH & Co. OHG against the judgment of the General Court (Eighth Chamber) delivered on 13 July 2011 in Case T-141/07: Otis Luxembourg Sàrl, formerly General Technic-Otis Sàrl, Otis SA, Otis BV, Otis Elevator Company, Otis GmbH & Co. OHG v European Commission
   (Case C-494/11 P)
   2011/C 347/27
   Language of the case: English

      Parties

      Appellants: Otis Luxembourg Sàrl, formerly General Technic-Otis Sàrl, Otis SA, Otis BV, Otis Elevator Company, Otis GmbH & Co. OHG (represented by: A. Winckler, avocat, J. Temple Lang, solicitor, C.J. Cook, advocate, D. Gerard, avocat)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellants claim that the Court should:

               —

               set aside the Judgment,

               —

               based on the elements available to it, partially annul the Decision and reduce the amount of the fines set forth therein or, as it finds it appropriate, set aside the Judgment and remand the case to the General Court for reconsideration of the relevant elements of facts;

               —

               order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

      Pleas in law and main arguments

   By their first plea, the Appellants dispute the General Court's conclusion that the Commission was entitled to impute liability for GTO's infringement in Luxembourg to Otis SA. This plea is divided into four limbs. First, the General Court committed an error of substantive law by misapplying the legal standard set forth by this Court in C-97/08 P, Akzo Nobel/Commission and the notion of single undertaking. Second, the General Court exceeded its competence by relying on factual elements that were not referred to by the Commission in the Decision and not included in the Commission's case file. Third, the General Court mischaracterized the nature and scope of the legal relationship between GTO and Otis SA, and distorted the facts. Fourth, the General Court failed to provide adequate reasoning in dismissing the breach by the Commission of its duty to treat equally the parent companies of GTO and MEE.
   By their second plea, the Appellants claim that the General Court committed various errors of law in upholding the calculation of the starting amount of the fine for the German infringement. This plea is divided into two limbs. First, the General Court misinterpreted the 1998 Fining Guidelines by considering that the Commission was not required to take into account the size of the affected market when setting the starting amount of the fine. Second, the General Court failed to provide adequate reasoning in relation to the determination of the size of the affected market and the division of the participants into categories.
   By their third plea, the Appellants assert that the General Court made various errors of law and exceeded its competence in denying to Otis the benefit of ‘partial immunity’ pursuant to the last paragraph of point 23(b) of the 2002 Leniency Notice. This plea is divided into two limbs. First, the General Court failed to apply the correct legal test for granting ‘partial immunity’, exceeded its competence by substituting its own assessment of the evidence submitted by Otis to that of the Commission and disregarded settled rules of evidence. Second, the General Court misinterpreted the Commission's duty to state reasons.


title: Case C-500/14: Order of the Court (Third Chamber) of 6 October 2015 (request for a preliminary ruling from the Tribunale ordinario di Torino) — Ford Motor Company v Wheeltrims srl Reference for a preliminary ruling — Designs — Directive 98/71/EC — Article 14 — Regulation (EC) No 6/2002 — Article 110 — So-called ‘repair’ clause — Use by a third party of a mark, in the absence of the proprietor’s consent, for spare parts or accessories for motor vehicles identical to the goods in relation to which the trade mark is registered

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/14

         Order of the Court (Third Chamber) of 6 October 2015 (request for a preliminary ruling from the Tribunale ordinario di Torino) — Ford Motor Company v Wheeltrims srl
   (Case C-500/14) (1)

   (Reference for a preliminary ruling - Designs - Directive 98/71/EC - Article 14 - Regulation (EC) No 6/2002 - Article 110 - So-called ‘repair’ clause - Use by a third party of a mark, in the absence of the proprietor’s consent, for spare parts or accessories for motor vehicles identical to the goods in relation to which the trade mark is registered)
   (2016/C 038/18)
   Language of the case: Italian

      Referring court

   Tribunale ordinario di Torino

      Parties to the main proceedings

      Applicant: Ford Motor Company

      Defendant: Wheeltrims srl

      Operative part of the order

   Article 14 of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs and Article 110 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs must be interpreted as precluding, by way of derogation to the provisions of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks and Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, a manufacturer of spare parts and accessories for motor vehicles, such as hub caps, from affixing to its goods a sign which is identical to a registered trade mark, inter alia for such goods, by a manufacturer of motor vehicles, without the consent of the latter, on the ground that the use which would thus be made of that trade mark constitutes the only means of repairing the vehicle at issue by restoring its original appearance as a complex product.

      (1)  OJ C 46, 9.2.2015.


title: Case T-473/04: Judgment of the Court of First Instance of 19 June 2007 — Asturias Cuerno v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Services carried out for an international organisation — Installation allowance — Daily subsistence allowance)

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/32

         Judgment of the Court of First Instance of 19 June 2007 — Asturias Cuerno v Commission
   (Case T-473/04) (1)

   (Officials - Remuneration - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Services carried out for an international organisation - Installation allowance - Daily subsistence allowance)
   (2007/C 183/62)
   Language of the case: Spanish
   Parties

      Applicant: Cristina Asturias Cuerno (Brussels, Belgium) (represented by: R. García-Gallardo Gil-Fournier and A. Sayagués Torres, lawyers)

      Defendant: Commission of the European Communities (represented by: J. Currall, acting as Agent, assisted by J. Rivas Andrés, J. Gutiérrez Gisbert and M. Canal Fontcuberta, lawyers)
   Re:
   Application for annulment of the Commission's decision of 25 August 2004 not to accept the applicant's complaint of 27 April 2004 and not to grant him the expatriation allowance provided for in Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith.
   Operative part of the judgment
   The Court:

               1.

               Annuls the Commission's decisions of 28 January and 25 August 2004;

               2.

               Declares that the applicant is entitled to the expatriation allowance provided for by Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the installation allowance provided for by Article 5 of that Annex;

               3.

               Dismisses the remainder of the action;

               4.

               Orders the Commission to pay the costs.

      (1)  OJ C 45, 19.2.2005.


title: Case T-241/13: Judgment of the General Court of 16 December 2015 — Greece v Commission (EAGGF — Guarantee Section — EAGF and EAFRD — Expenditure excluded from the financing — Beef and beef products — Sheepmeat and goatmeat — Tobacco — Article 69 of Regulation (EC) No 1782/2003 — Article 31(2) of Regulation (EC) No 1290/2005 — Article 23(1) of Regulation (EC) No 796/2004)

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/44

         Judgment of the General Court of 16 December 2015 — Greece v Commission
   (Case T-241/13) (1)

   ((EAGGF - Guarantee Section - EAGF and EAFRD - Expenditure excluded from the financing - Beef and beef products - Sheepmeat and goatmeat - Tobacco - Article 69 of Regulation (EC) No 1782/2003 - Article 31(2) of Regulation (EC) No 1290/2005 - Article 23(1) of Regulation (EC) No 796/2004))
   (2016/C 048/49)
   Language of the case: Greek

      Parties

      Applicant: The Hellenic Republic (represented by: I. Chalkias, S. Papaïoannou and A. Vasilopoulou, acting as Agents)

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

      Re:

   ACTION for annulment of Commission Implementing Decision 2013/123/EU of 26 February 2013 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2013 L 67, p. 20), so far as it excludes certain expenditure carried out by the Hellenic Republic.

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Implementing Decision 2013/123/EU of 26 February 2013 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2013 L 67, p. 20), so far as it excludes certain expenditure carried out by the Hellenic Republic in the tobacco sector, in respect of claim year 2006;

               2.

               Dismisses the action for the remainder;

               3.

               Orders the European Commission and the Hellenic Republic to bear their own costs.

      (1)  OJ C 207, 20.7.2013.


title: Case C-198/14: Request for a preliminary ruling from the Helsingin hovioikeus (Finland) lodged on 22 April 2014  — Valev Visnapuu v Kihlakunnansyyttäjä (Helsinki), Suomen Valtio — Tullihallitus

text:
               30.6.2014

               EN

               Official Journal of the European Union

               C 202/13

         Request for a preliminary ruling from the Helsingin hovioikeus (Finland) lodged on 22 April 2014 — Valev Visnapuu v Kihlakunnansyyttäjä (Helsinki), Suomen Valtio — Tullihallitus
   (Case C-198/14)
   2014/C 202/15
   Language of the case: Finnish

      Referring court

   Helsingin hovioikeus

      Parties to the main proceedings

      Applicant: Valev Visnapuu

      Defendants: Kihlakunnansyyttäjä (Helsinki), Suomen Valtio — Tullihallitus

      Questions referred

               1.

               Is the permissibility of the Finnish system of beverage packaging duty, under which beverage packaging duty is levied if the packaging is not part of a return system, to be examined in the light of Article 110 TFEU instead of Article 34 TFEU? The return system in question must be a deposit-based system under which the packer of the alcoholic beverages or the importer alone or in accordance with the provisions laid down in the Law on Waste or in the corresponding legislation of the Åland Islands takes care of the reuse or recycling of beverage packagings so that the packaging is refilled or recovered as raw material.

               2.

               If the answer to Question 1 is affirmative, is that system compatible with Articles 1(1), 7 and 15 of Directive 94/62/EC (1) when examined in combination with Article 110 TFEU?

               3.

               If the answer to Question 1 is negative, is that system compatible with Articles 1(1), 7 and 15 of Directive 94/62/EC when examined in combination with Article 34 TFEU?

               4.

               If the answer to Question 3 is negative, is the Finnish beverage packaging duty system to be regarded as authorised on the basis of Article 36 TFEU?

               5.

               May the requirement that a person using alcoholic beverages for commercial or other business purposes needs a separate retail sale licence for his activity relating to imported alcoholic beverages, in a situation in which a Finnish buyer has purchased via the internet or another method of distance selling from a vendor in another Member State alcoholic beverages which the vendor transports to Finland, be regarded as concerning the existence of a monopoly or as part of the operation of a monopoly, so that the provisions of Article 34 TFEU are not therefore an impediment to it, but it is to be evaluated in the light of Article 37 TFEU?

               6.

               If the answer to Question 5 is affirmative, is that licence requirement in such a case compatible with the conditions laid down for State monopolies of a commercial character in Article 37 TFEU?

               7.

               If the answer to Question 5 is negative and Article 34 TFEU is applicable to the case, is the Finnish system, under which, where alcoholic beverages are ordered from abroad via the internet or another means of distance selling, their import for personal consumption is permitted only if the person ordering the goods or a person unconnected to the vendor transported the alcoholic beverages into Finland, and under which a licence in accordance with the Law on Alcohol is otherwise required for the import, a quantitative restriction on imports or a measure having equivalent effect contrary to Article 34 TFEU?

               8.

               If the answer to the preceding question is affirmative, can the system be considered justified and proportionate in order to protect the health and life of humans?

      (1)  European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste (OJ 1994 L 365, p. 10).


title: Case T-466/12: Judgment of the General Court of 17 March 2015 — RFA International v Commission (Dumping — Imports of ferro-silicon originating in Russia — Refusal of applications for a refund of anti-dumping duties paid — Calculation of the export price — Single economic entity — Calculation of the dumping margin — Application of a methodology different from that used in the original investigation — Change in circumstances — Article 2(9) and Article 11(9) of Regulation (EC) No 1225/2009)

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/36

         Judgment of the General Court of 17 March 2015 — RFA International v Commission
   (Case T-466/12) (1)

   ((Dumping - Imports of ferro-silicon originating in Russia - Refusal of applications for a refund of anti-dumping duties paid - Calculation of the export price - Single economic entity - Calculation of the dumping margin - Application of a methodology different from that used in the original investigation - Change in circumstances - Article 2(9) and Article 11(9) of Regulation (EC) No 1225/2009))
   (2015/C 146/48)
   Language of the case: English

      Parties

      Applicant: RFA International, LP (Calgary, Canada) (represented by: B. Evtimov, lawyer)

      Defendant: European Commission (represented by: P. Němečková and A. Stobiecka-Kuik, acting as Agents)

      Re:

   Action for partial annulment of Commission Decisions C(2012) 5577 final, C(2012) 5585 final, C(2012) 5588 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final of 10 August 2012 concerning applications for a refund of anti-dumping duties paid on imports of ferro-silicon originating in Russia, in so far as those decisions refuse reimbursement of the amounts of anti-dumping duties applied for, save for those amounts the applications for which have been found inadmissible because submitted after the statutory time-limits had expired.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders RFA International, LP to pay the costs.

      (1)  OJ C 389, 15.12.2012.


title: Case F-3/10: Order of the Civil Service Tribunal (First Chamber) of 26 October 2010 — AB v Commission (Staff cases — Contract staff — Non-renewal of a fixed-term contract — Complaint out of time — Manifest inadmissibility)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/38

         Order of the Civil Service Tribunal (First Chamber) of 26 October 2010 — AB v Commission
   (Case F-3/10) (1)

   (Staff cases - Contract staff - Non-renewal of a fixed-term contract - Complaint out of time - Manifest inadmissibility)
   2011/C 13/73
   Language of the case: English

      Parties

      Applicant: AB (Brussels, Belgium) (represented by: S.A. Pappas, lawyer)

      Defendant: European Commission (represented by: J. Currall and D. Martin, Agents)

      Re:

   Application for annulment of the decision not to renew the applicant’s contract as a member of the contract staff.

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               The applicant shall pay the costs.

      (1)  OJ C 100, 17.4.2010, p. 69.


title: Case T-397/05: Action brought on  3 November 2005  — ARCHI.M.E.D.-E.S v Commission

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/20

         Action brought on 3 November 2005 — ARCHI.M.E.D.-E.S v Commission
   (Case T-397/05)
   (2006/C 74/41)
   Language of the case: French
   Parties

      Applicant: Architecture, Microclimat, Energies Douces — Europe et Sud SARL (ARCHI.M.E.D.-E.S) (Ganges, France) (represented by: P.-P. van Gehuchten, J. Sambon, P. Reyniers, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               declare that the Commission could not terminate the contract of 30 August 2005;

               —

               order the European Commission to pay the sum of EUR 125 906, plus statutory default interest since 12 February 2002;

               —

               order the Commission to pay all the costs of the proceedings.

         Pleas in law and main arguments
   The applicant is party to Contract BU 209-95 concluded with the Commission in consequence of the invitation to tender in connection with the specific programme for research and technological development in the field of non-nuclear energy (1) and covering the execution of a project of renovation of a building in Lyon by using solar and bio-climatic architecture methods. The contract contains an arbitration clause under which the Community judicature has exclusive jurisdiction over disputes between the contracting parties as regards the validity, application and interpretation of the contract.
   In execution of its contractual obligations, the applicant, on 12 December 2001, sent the Commission the final report on the project. The Commission did not accept that report and on 5 July 2002 served on the applicant a decision to recover payments made by refusing to accept certain costs declared by it in that report. Neither exchanges of correspondence between the parties, nor the meetings held, nor the intervention of a mediator could bring about an amicable settlement of the dispute. By registered letter of 30 August 2005, the Commission served the applicant with a final recovery decision preceded by a debit note of 23 August 2005. That decision is the subject of this action brought by the applicant on the basis of the arbitration clause.
   The action seeks, principally, an order that the Commission pay 20 % of the balance of the subsidy allegedly due to the applicant under Contract BU 209-95.
   In support of its claims, the applicant argues that any disagreement with the way the project was executed by the contracting parties should have been expressed by the Commission before the date on which the report was presumed to have been approved (two months from the date of deposit of the final report). In the applicant's view, the Commission is time-barred and cannot therefore constitute itself a creditor of the applicant. Consequently, being time-barred, the Commission remains indebted to the applicant for the balance of the subsidy which it undertook to pay under the contract in question.

      (1)  Programme put in place by Council Decision 94/806/EC of 23 November 1994 (OJ L 334 of 22 December 1994, p. 87).


title: Case T-591/15: Action brought on 13 October 2015 — Transavia Airlines v Commission

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/74

         Action brought on 13 October 2015 — Transavia Airlines v Commission
   (Case T-591/15)
   (2015/C 398/87)
   Language of the case: Dutch

      Parties

      Applicant: Transavia Airlines (Schiphol, Netherlands) (represented by: R. Elkerbout and M. R. Baneke, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Article 1(3) and (in so far as they concern Article 1(3)) Articles 3, 4 and 5 of the decision of the European Commission; and

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

   The applicant seeks the partial annulment of Commission Decision (EU) 2015/1227 of 23 July 2014 on State aid SA.22614 (C 53/07) implemented by France in favour of the Chamber of Commerce and Industry of Pau-Béarn, Ryanair, Airport Marketing Services and Transavia (notified under document C(2014) 5085) (OJ 2015 L 201, p. 109).
   In support of its action, the applicant relies on six pleas in law.

               1.

               First plea in law, alleging infringement of the principle of good administration, set out in Article 41 of the Charter of Fundamental Rights of the European Union, and of the rights of the defence.

                           —

                           The applicant was not, before the contested decision was adopted, given the opportunity to put forward its views.

                           —

                           The Commission was not entitled to deny the applicant’s request of 25 August 2015 for access to certain documents on the file.

               2.

               Second plea in law, alleging breach of Article 107(1) TFEU inasmuch as the alleged aid measures were wrongly attributed to the French State.

                           —

                           The Commission erred in classifying the ‘chambre de commerce et d’industrie de Pau-Béarn’ as a State body.

                           —

                           The Commission contradicts itself in its assessment of the character of the ‘chambre de commerce et d’industrie de Pau-Béarn’.

               3.

               Third plea in law, alleging breach of Article 107(1) TFEU inasmuch as the test of the operator in a market economy was applied incorrectly.

                           —

                           The Commission provided insufficient reasons as to why it applied the profitability test rather than making a comparison with the market price.

                           —

                           The Commission applied the profitability test incorrectly in disregarding the rationale of Pau Airport in accepting the agreement with the applicant, in adopting too short a time-frame and in not making it clear what revenue and benefits for Pau Airport it was taking into account.

               4.

               Fourth plea in law, alleging breach of Article 107(1) TFEU inasmuch as the Commission unduly found that the alleged economic advantage was selective.

               5.

               Fifth plea in law, alleging breach of Article 107(1) TFEU inasmuch as the Commission failed to assess whether the alleged economic advantages also had actual adverse effects on competition.

               6.

               Sixth plea in law, alleging breach of Article 107(1) TFEU and of Article 108(2) TFEU inasmuch as the Commission made an error of assessment and misinterpreted the law in determining that the aid provided to the applicant was equivalent to the cumulative losses for Pau Airport over the period from 2006 to 2009, whereas it ought to have examined what advantage the applicant actually enjoyed in practice.


title: Case T-257/04: Judgment of the Court of First Instance of 10 June 2009 — Poland v Commission (Agriculture — Common organisation of the markets — Transitional measures to be adopted by reason of the accession of new Member States — Regulation (EC) No 1972/2003 laying down measures in respect of trade in agricultural products — Action for annulment — Period within which proceedings must be commenced — Point from which time starts to run — Delay — Amendment of a provision of a regulation — Re-opening of the action against that provision and against all provisions forming a body of rules with it — Partial admissibility — Proportionality — Principle of non-discrimination — Legitimate expectations — Statement of reasons)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/42

         Judgment of the Court of First Instance of 10 June 2009 — Poland v Commission
   (Case T-257/04) (1)

   (Agriculture - Common organisation of the markets - Transitional measures to be adopted by reason of the accession of new Member States - Regulation (EC) No 1972/2003 laying down measures in respect of trade in agricultural products - Action for annulment - Period within which proceedings must be commenced - Point from which time starts to run - Delay - Amendment of a provision of a regulation - Re-opening of the action against that provision and against all provisions forming a body of rules with it - Partial admissibility - Proportionality - Principle of non-discrimination - Legitimate expectations - Statement of reasons)
   2009/C 180/76
   Language of the case: Polish

      Parties

      Applicant: Republic of Poland (represented: initially by J. Pietras, and subsequently by E. Ośniecka-Tamecka, T. Nowakowski, M. Dowgielewicz and B. Majczyna, acting as Agents, assisted by M. Szpunar, lawyer)

      Defendant: Commission of the European Communities (represented: initially by A. Stobiecka-Kuik, L. Visaggio and T. van Rijn, and subsequently by T. van Rijn, H. Tserepa-Lacombe and A. Szmytkowska, acting as Agents)

      Re:

   Action for annulment of Article 3, Article 4(3) and the eighth indent of Article 4(5) of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3), as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004 (OJ 2004 L 39, p. 13) and Commission Regulation (EC) No 735/2004 of 20 April 2004 (OJ 2004 L 114, p. 13).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Republic of Poland to bear its own costs and to pay those of the Commission.

      (1)  OJ C 251, 9.10.2004.


title: Case T-136/13: Action brought on 11 March 2013 — Hanwha SolarOne and Others v Parliament and Others

text:
               27.4.2013

               EN

               Official Journal of the European Union

               C 123/22

         Action brought on 11 March 2013 — Hanwha SolarOne and Others v Parliament and Others
   (Case T-136/13)
   2013/C 123/38
   Language of the case: English

      Parties

      Applicants: Hanwha SolarOne (Qidong) Co. Ltd (Qidong, China); Hanwha SolarOne Technology Co. Ltd (Lianyungang, China); Hanwha SolarOne Solar Technology (Shanghai) Co. Ltd (Shanghai, China); et Hanwha Solar Electric Power Engineering Co. Ltd (Qidong) (represented by: F. Graafsma, lawyer)

      Defendants: European Parliament, European Commission and Council of the European Union

      Form of order sought

   The applicants claim that the Court should:

               —

               Annul Regulation (EU) No 1168/2012 of the European parliament and of the Council of 12 December 2012 amending Council Regulation (EC) No 1225/2009 on protection against dumped imports from countries not members of the European Community (OJ 2012 L 344/1), insofar as it was applied to the applicants;

               —

               Annul the Commission’s decision of 3 January 2013 by which it refused to consider the applicants’ market economy treatment (MET) claims; and

               —

               Order the defendants to pay the applicants’ costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on one plea in law.
   The applicants request the annulment of Regulation (EU) No 1168/2012 insofar as it applies to the applicants and applicants’ MET claims submitted to the European Commission, as required under Article 2(7)(c) of the basic Regulation, in the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in the People’s Republic of China (Notice of Initiation published in the Official Journal of the European Union of 6 September 2012, OJ C 269/5). The applicants also request the annulment of the decision of 3 January 2013 in which the Commission refused to consider the applicants’ MET claims submitted in the above-mentioned investigation.
   The applicants submit that Regulation (EU) No 1168/2012, as applied by the Commission to the applicants in the 3 January 2013 decision, and the 3 January decision stating that the Commission would not consider the applicants’ MET claims, frustrate the legitimate expectations of the applicants and are applied retroactively to the detriment of the applicants without valid justifications. As a result, Regulation (EU) No 1168/2012, as applied by the Commission to the applicants in the 3 January 2013 Decision, and the 3 January 2013 Decision, manifestly violate the basic principles of legal certainty and good faith.


title: Case T-187/10: Judgment of the General Court of 10 May 2011 — Emram v OHIM — Guccio Gucci (G) (Community trade mark — Opposition proceedings — Application for the Community figurative mark G — Earlier national and Community figurative marks G — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/25

         Judgment of the General Court of 10 May 2011 — Emram v OHIM — Guccio Gucci (G)
   (Case T-187/10) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark G - Earlier national and Community figurative marks G - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2011/C 186/47
   Language of the case: French

      Parties

      Applicant: Maurice Emram (Marseilles, France) (represented by: M. Benavï, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Guccio Gucci SpA (Florence, Italy) (represented by: F. Jacobacci, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 11 February 2010 (Case R 1281/2008-1), concerning opposition proceedings between Guccio Gucci SpA and Mr Maurice Emram

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders Mr Maurice Emram to pay the costs.

      (1)  OJ C 179, 3.7.2010.


title: Case T-428/07: Action brought on 22 November 2007 — Centre d'Étude et de Valorisation des Algues v Commission

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/48

         Action brought on 22 November 2007 — Centre d'Étude et de Valorisation des Algues v Commission
   (Case T-428/07)
   (2008/C 22/90)
   Language of the case: French
   Parties

      Applicant: Centre d'Étude et Valorisation des Algues SA (CEVA) (Pleubian, France) (represented by: J.-M. Peyrical, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               as the principal claim, find procedural irregularity and breach of the principle that both parties should be heard and therefore annul Commission debit note No 3240908670 of 20 September 2007 and order the Commission to repay the debit note at issue to CEVA;

               —

               in the alternative, find that the errors found in the audit report are not sufficiently serious for Article 3.5 of Annex II to the contract to be applied; annul Commission debit note No 3240908670 of 20 September 2007 in so far as it claims full repayment of the sums paid to CEVA under the SEAHEALTH contract; and order the Commission to repay the debit note at issue in favour of CEVA;

               —

               in the further alternative, appoint an expert of the Court of First Instance's own choice with the task of: taking up again CEVA's method of calculating the time spent on projects; comparing that method with the SEAHEALTH contract and with the actual costs submitted in the cost statements; stating, as a percentage, the difference between the total errors in the registration of work time as presented to the Commission and the total registration of that work time according to the calculation method applicable from that time on at CEVA; carrying out an assessment of the direct working time needed to carry out CEVA's tasks in the context of the SEAHEALTH contract; and stating whether that effective working time could have amounted to fewer than the 7 092,88 hours claimed by CEVA.

         Pleas in law and main arguments
   By this action, the applicant seeks annulment of the debit note by which the Commission ordered the repayment in full of the advances paid to the applicant in relation to the SEAHEALTH contract No QLK1-CT-2002-02433, concerning the project ‘Food, Nutrition and Health’ which was part of the ‘Quality of Life and Management of Living Resources’ key action (1).
   In support of its application, it relies on a plea in law alleging breach of the rights of the defence inasmuch as the Commission, in breach of the principle that both parties should be heard, based its order for repayment on the timesheets and conclusions of OLAF of which the applicant had no knowledge.
   In the alternative, the applicant challenges the Commission's application of Article 3.5 of Annex II and its finding that the facts in this case were sufficiently serious for it to rely on the concept of serious financial irregularities justifying full repayment of the advances.

      (1)  Fifth framework programme of the European Community for research, technological development and demonstration activities (1998-2002).


title: Case T-76/07: Action brought on 12 March 2007 — El Fatmi v Council of the European Union

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/22

         Action brought on 12 March 2007 — El Fatmi v Council of the European Union
   (Case T-76/07)
   (2007/C 117/36)
   Language of the case: Dutch
   Parties

      Applicant: Nouriddin El Fatmi (Amsterdam, Netherlands) (represented by: M.J.G. Uiterwaal, lawyer)

      Defendant: Council of the European Union
   Form of order sought

               —

               Common Position 2002/402/CSFP (OJ 2002 L 344, p. 93) is, in the case of the applicant, wrongly used as the basis for Regulation 2001/2580/EC (OJ 2001 L 344, p. 70) and so the regulation is not binding on the applicant;

               —

               in any event, that regulation should not be applied as against the applicant;

               —

               in any event, Decision 2006/1008/EC of 21 December 2006 (OJ 2006 L 379, p. 123) should be annulled;

               —

               the Council should be ordered to pay the costs.

         Pleas in law and main arguments
   The pleas and main arguments raised by the applicant are the same as in Case T-75/07 Hamdi v Council, apart from the last plea, which is not raised by the applicant in the present case.


title: Case T-685/13: Action brought on 23 December 2013 — Copernicus-Trademarks v OHIM — Blue Coat Systems (BLUECO)

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/41

         Action brought on 23 December 2013 — Copernicus-Trademarks v OHIM — Blue Coat Systems (BLUECO)
   (Case T-685/13)
   2014/C 52/79
   Language in which the application was lodged: German

      Parties

      Applicant: Copernicus-Trademarks Ltd (Borehamwood, United Kingdom) (represented by: L. Pechan and S. Körber, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Blue Coat Systems, Inc. (Sunnyvale, United States of America)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 October 2013 in Case R 2028/2012-1 and alter it to the effect that the appeal is well founded and the opposition is therefore to be rejected in its entirety;

               —

               Order OHIM and Blue Coast Systems, Inc., should the latter intervene in these proceedings, to pay the costs including those incurred in the course of the appeal proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the word mark ‘BLUECO’ for goods in Class 9 — Community trade mark application No 9 724 675

      Proprietor of the mark or sign cited in the opposition proceedings: Blue Coat Systems, Inc.

      Mark or sign cited in opposition: the word mark ‘BLUE COAT’ for goods in Class 9 and services in Classes 38 and 42 — Community trade mark No 3 016 235

      Decision of the Opposition Division: the opposition was upheld

      Decision of the Board of Appeal: the appeal was dismissed

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


title: Judgment of the Court (Third Chamber) of 19 June 2003 in Case C-420/01: Commission of the European Communities v Italian Republic (Failure to fulfil obligations — Free movement of goods — Articles 28 EC and 30 EC — Prohibition on the marketing of energy drinks containing caffeine in excess of a certain limit — Public health — Retention of a national provision incompatible with Community law)

text:
C 184/12                EN                            Official Journal of the European Union                                                 2.8.2003
                  JUDGMENT OF THE COURT                                       Bundesvergabekontrollkommission established by the Bundesgesetz über
                                                                              die Vergabe von Aufträgen (Bundesvergabegesetz) (Austrian Federal
                                                                              Public Procurement Law) of 1997.
                           (Sixth Chamber)
                                                                              (1) OJ C 31 of 2.2.2002.
                           of 19 June 2003
in Case C-410/01 (reference for a preliminary ruling from
the Bundesvergabeamt Wien): Fritsch, Chiari & Partner,
Ziviltechniker GmbH, and Others v Autobahnen- und
         Schnellstraßen-Finanzierungs-AG (Asfinag) (1)
                                                                                JUDGMENT OF THE COURT
(Public procurement — Directive 89/665/EEC — Review
procedures relating to the award of public supply and public                                              (Third Chamber)
works contracts — Article 1(3) — Persons to whom review
procedures are accessible — Definition of ‘interest in
                obtaining a public supply contract’)                                                      of 19 June 2003
                            (2003/C 184/21)                                   in Case C-420/01: Commission of the European Commu-
                                                                                nities v Italian Republic (1)
                    (Language of the case: German)                            (Failure to fulfil obligations — Free movement of goods —
                                                                              Articles 28 EC and 30 EC — Prohibition on the marketing
                                                                              of energy drinks containing caffeine in excess of a certain
(Provisional translation; the definitive translation will be published in     limit — Public health — Retention of a national provision
                      the European Court Reports)                                             incompatible with Community law)
                                                                                (2003/C 184/22)
In Case C-410/01: reference to the Court under Article 234 EC
from the Bundesvergabeamt Wien (Austria) for a preliminary                                          (Language of the case: Italian)
ruling in the proceedings pending before that court between
Fritsch, Chiari & Partner, Ziviltechniker GmbH, and Others and
Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag) —                   (Provisional translation; the definitive translation will be published in
on the interpretation of Article 1(3) of Council Directive 89/                                       the European Court Reports)
665/EEC of 21 December 1989, on the coordination of the
laws, regulations and administrative provisions relating to the
application of review procedures to the award of public supply
and public works contracts (OJ 1989 L 395, p. 33), as                         In Case C-420/01, Commission of the European Communities
amended by Council Directive 92/50/EEC of 18 June 1992                        (Agent: H. van Lier and R. Amorosi) v Italian Republic (Agent:
relating to the coordination of procedures for the award of                   U. Leanza, assisted by Fiorilli): Application for a declaration
public service contracts (OJ 1992 L 209, p. 1) — the Court                    that, by applying to drinks produced and marketed in other
(Sixth Chamber), composed of: J.-P. Puissochet, President of the              Member States a rule prohibiting the marketing in Italy of
Chamber, R. Schintgen (Rapporteur), V. Skouris, F. Macken and                 energy drinks containing caffeine in excess of a certain limit,
J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;                    without showing that that limit is necessary and proportionate
M.-F. Contet, Principal Administrator, for the Registrar, gave a              for the protection of public health, the Italian Republic has
judgment on 19 June 2003, the operative part of which is as                   failed to fulfil its obligations under Articles 28 EC and 30 EC,
follows:                                                                      the Court (Third Chamber), composed of: J.-P. Puissochet,
                                                                              President of the Chamber, F. Macken (Rapporteur) and
                                                                              J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;
Article 1(3) of Council Directive 89/665/EEC of 21 December 1989,             R. Grass, Registrar, has given a judgment on 19 June 2003, in
on the coordination of the laws, regulations and administrative provi-        which it:
sions relating to the application of review procedures to the award of
public supply and public works contracts, as amended by Council
Directive 92/50/EEC of 18 June 1992 relating to the coordination              1.    Declares that, by applying to drinks produced and marketed in
of procedures for the award of public service contracts, precludes an               other Member States a rule prohibiting the marketing in Italy
undertaking which has participated in a public procurement procedure                of energy drinks containing caffeine in excess of a certain limit,
from being considered to have lost interest in obtaining that contract              without showing that that limit is necessary and proportionate
on the ground that, prior to making an application for a review                     for the protection of public health, the Italian Republic has
procedure, it has failed to appeal to a conciliation body, such as the              failed to fulfil its obligations under Articles 28 EC and 30 EC;
 ---pagebreak--- 2.8.2003                 EN                           Official Journal of the European Union                                                C 184/13
2.    Orders the Italian Republic to pay the costs.                                             JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
(1) OJ C 31 of 2.2.2002.
                                                                                of 12 June 2003
                                                                              in Case C-425/01: Commission of the European Commu-
                                                                                nities v Portuguese Republic (1)
                                                                              (Failure of a Member State to fulfil obligations — Incom-
                                                                              plete transposition of Directive 89/391/EEC — Safety and
                                                                                health of workers)
                                                                                (2003/C 184/24)
                   JUDGMENT OF THE COURT
                                                                                (Language of the case: Portuguese)
                            (Fifth Chamber)                                   (Provisional translation; the definitive translation will be published in
                                                                                the European Court Reports)
                           of 26 June 2003
                                                                              In Case C-425/01, Commission of the European Communities
                                                                              (Agents: H. Kreppel and M. França) v Portuguese Republic
in Case C-422/01 (Reference for a preliminary ruling from                     (Agents: L. Fernandes and F. Ribeiro Lopes): Application for a
the Regeringsrätten): Försäkringsaktiebolaget Skandia                         declaration that the Portuguese Republic has failed to fulfil its
          (publ), Ola Ramstedt v Riksskatteverket (1)                         obligations under Articles 4 and 10 to 12 of Council Directive
                                                                              89/391/EEC of 12 June 1989 on the introduction of measures
                                                                              to encourage improvements in the safety and health of workers
(Occupational endowment pension insurance — Policy taken                      at work (OJ 1989 L 183, p. 1), the Court (Fifth Chamber),
out with a company in another Member State — Difference                       composed of: M. Wathelet, President of the Chamber, C.W.
    in tax treatment — Compatibility with Article 49 EC)                      A. Timmermans, P. Jann, S. von Bahr (Rapporteur) and
                                                                              A. Rosas, Judges; C. Stix-Hackl, Advocate General; R. Grass,
                                                                              Registrar, has given a judgment on 12 June 2003, in which it:
                            (2003/C 184/23)
                                                                              1.    Dismisses the action;
                     (Language of the case: Swedish)                          2.    Orders the Commission of the European Communities to pay
                                                                                the costs.
(Provisional translation; the definitive translation will be published in
                                                                              (1) OJ C 348 of 8.12.2001.
                       the European Court Reports)
In Case C-422/01: Reference to the Court under Article 234
EC by the Regeringsrätten (Sweden) for a preliminary ruling in                                  JUDGMENT OF THE COURT
the proceedings pending before that court between Försäk-
ringsaktiebolaget Skandia (publ), Ola Ramstedt and Riksskatte-                                           (Fifth Chamber)
verket, on the interpretation of the EC Treaty and Article 49
EC in particular, the Court (Fifth Chamber), composed of:                                                of 5 June 2003
M. Wathelet (Rapporteur), President of the Chamber,
C.W.A. Timmermans, A. La Pergola, P. Jann and A. Rosas,                       in Case C-438/01 (Reference for a preliminary ruling from
Judges; P. Léger, Advocate General; R. Grass, Registrar, has                  the Cour de cassation): Design Concept SA v Flanders
given a judgment on 26 June 2003, in which it has ruled:                                                    Expo SA (1)
                                                                              (Sixth VAT Directive — Article 9(2)(e) — Place of taxable
Article 49 EC precludes an insurance policy issued by an insurance               transactions — Fiscal connection — Advertising services)
company established in another Member State which meets the
conditions laid down in national law for occupational pension insur-                                     (2003/C 184/25)
ance, apart from the condition that the policy must be issued by an
insurance company operating in the national territory, from being                                  (Language of the case: French)
treated differently in terms of taxation, with income tax effects which,
depending on the circumstances in the individual case, may be less            (Provisional translation; the definitive translation will be published in
favourable.                                                                                the European Court Reports)
(1) OJ C 84 of 6.4.2002.                                                      In Case C-438/01: Reference to the Court under Article 234
                                                                              EC by the Cour de cassation (Luxembourg) for a preliminary
                                                                              ruling in the proceedings pending before that court between


title: Case T-430/10: Action brought on 17 September 2010 — Magnesitas de Rubián and Others v Commission

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/39

         Action brought on 17 September 2010 — Magnesitas de Rubián and Others v Commission
   (Case T-430/10)
   ()
   2010/C 317/71
   Language of the case: Spanish

      Parties

      Applicants: Magnesitas de Rubián SA (Incio, Spain), Magnesitas Navarras SA (Zubiri, Spain), Ellinikoi Lefkolithoi Anonimos Metalleftiki Viomichaniki Naftiliaki kai Emporiki Etaireria (Athens, Greece) (represented by: H. Brokelmann and P. Martínez-Lage, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               principally delete paragraph 3 of the Reference Document on Best Available Techniques in the Cement, Lime and Magnesium Oxide Manufacturing Industries (OJ C 166 of 25 June 2010), and the references to the magnesium oxide industry which appear in the other paragraphs of that document;

               —

               in the alternative, and in the event that the General Court does not delete paragraph 3 of the reference document in its entirety, annul in any event paragraph 3.5.5.4, including in particular the emission levels in Table 3.11, and

               —

               in any event, order the Commission to pay the costs.

      Pleas in law and main arguments

   This action is directed against an act adopted by the Commission in the framework of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (1) that establishes a system of pollution control and provides for an authorisation mechanism for certain industrial installations.
   That act considers the best available technique (BAT) is the reduction of SOx derived from the gases produced and fixes emission levels for SOx that, apart from being lower than in any other sector, are only achievable in the applicants’ opinion by the use of techniques which cause serious environmental damage. Furthermore, the applicants argue that the emission levels are to be determined on the basis of the data supplied by a single undertaking and disregarding the procedure established for that.
   In support of its application, the applicants raise four pleas in law.

               —

               Lack of competence by the Commission
               The applicants assert in that connection that the Commission lacks competence to include the manufacture of magnesium oxide in the contested act.

               —

               Infringement of essential procedural requirements
               According to the applicants, the contested act contains three infringements of essential procedural requirements:

                           —

                           Failure to communicate to the applicants the opening of the drafting procedure for the contested act and their delayed participation in the latter;

                           —

                           the absence in the contested act of the ‘split views’ presented by the applicants, and

                           —

                           failure to observe the period laid down for the analysis of the final draft of the contested act.

               —

               Infringement of Article 1 of Directive 2008/1 relating to the integrated prevention and control of pollution, in so far as the contested act violates the objective set out in Article 1 thereof, consistent with environmental protection considered as a whole.

               —

               Infringement of the general principle of equal treatment.
               The applicants take the view that the contested act infringes the principle of equal treatment by treating in the same way undertakings which are in different situations.

      (1)  OJ 2008 L 24, p. 8.


title: Case T-87/10: Judgment of the General Court of 11 October 2011 — Chestnut Medical Technologies v OHIM (PIPELINE) (Community trade mark — Application for registration of the Community word mark PIPELINE — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Obligation to state the reasons on which the decision is based — Article 75 of Regulation No 207/2009)

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/29

         Judgment of the General Court of 11 October 2011 — Chestnut Medical Technologies v OHIM (PIPELINE)
   (Case T-87/10) (1)

   (Community trade mark - Application for registration of the Community word mark PIPELINE - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Obligation to state the reasons on which the decision is based - Article 75 of Regulation No 207/2009)
   2011/C 347/46
   Language of the case: English

      Parties

      Applicant: Chestnut Medical Technologies, Inc. (Menlo Park, California, United States) (represented by: H.P. Kunz-Hallstein and R. Kunz-Hallstein, lawyers)

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

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 10 December 2009 (Case R 968/2009-2) concerning an application for registration of the word mark PIPELINE as a Community trade mark

      Operative part of the judgment

   The General Court:

               1.

               Dismisses the action;

               2.

               Orders Chestnut Medical Technologies, Inc. to pay the costs.

      (1)  OJ C 100, 17.4.2010.


title: Judgment of the Court of First Instance of 4 May 2005 in Case T-30/04 João Andrade Sena v European Aviation Safety Agency (AESA staff — Rejection of candidature for the post of Executive Director — Recruitment procedure — Statement of reasons — Manifest error of assessment — Principle of good administration)

text:
               9.7.2005

               EN

               Official Journal of the European Union

               C 171/19

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 4 May 2005
   in Case T-30/04 João Andrade Sena v European Aviation Safety Agency (1)

   (AESA staff - Rejection of candidature for the post of Executive Director - Recruitment procedure - Statement of reasons - Manifest error of assessment - Principle of good administration)
   (2005/C 171/35)
   Language of the case: French
   In Case T-30/04: João Andrade Sena, residing in Rhode-Saint-Genèse (Belgium), represented by G. Vandersanden, L. Levi and A. Finchelstein, lawyers, with an address for service in Luxembourg, against European Aviation Safety Agency (AESA) (Agent M. Junkkari assisted by D. Waelbroeck and I. Antypas, lawyers) — application for annulment of AESA's decisions to reject the applicant's candidature for the post of Executive Director and appoint another candidate to that post and also application for the payment of damages in respect of material and non-material damage — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, P. Lindh and V. Vadapalas, Judges; I. Natsinas, Registrar, gave a judgment on 4 May 2005, in which it:

               1.

               Dismisses the application;

               2.

               Orders AESA to pay the costs.

      (1)  OJ C 94, 17.4.2004.


title: Case T-594/15: Action brought on 14 October 2015 — Metabolic Balance Holding GmbH v OHIM (Metabolic Balance)

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/76

         Action brought on 14 October 2015 — Metabolic Balance Holding GmbH v OHIM (Metabolic Balance)
   (Case T-594/15)
   (2015/C 398/88)
   Language of the case: German

      Parties

      Applicant: Metabolic Balance Holding GmbH (Isen, Germany) (represented by: W. Riegger, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Community figurative mark containing the word element ‘Metabolic Balance’ — Application for registration No 1 2 5 86  137

      Contested decision: Decision of the First Board of Appeal of OHIM of 12 August in Case R 2156/2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs, including those of the proceedings before the Board of Appeal.

      Pleas in law

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009;

               —

               Infringement of Article 7(1)(c) of Regulation No 207/2009.


title: Case C-454/15: Judgment of the Court (Second Chamber) of 24 November 2016 (request for a preliminary ruling from the Hessisches Landesarbeitsgericht — Germany) — Jürgen Webb-Sämann v Christopher Seagon (acting as liquidator in the insolvency of Baumarkt Praktiker DIY GmbH) (Reference for a preliminary ruling — Social policy — Directive 2008/94/EC — Article 8 — Protection of employees in the event of the insolvency of their employer — Provisions related to social security — Scope — Measures necessary to protect immediate or prospective entitlements of employees under supplementary pension schemes — Obligation to provide for a right to have outstanding pension contributions excluded from the scope of insolvency proceedings — Absence)

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/12

         Judgment of the Court (Second Chamber) of 24 August 2015 (request for a preliminary ruling from the Hessisches Landesarbeitsgericht — Germany) — Jürgen Webb-Sämann v Christopher Seagon (acting as liquidator in the insolvency of Baumarkt Praktiker DIY GmbH)
   (Case C-454/15) (1)

   ((Reference for a preliminary ruling - Social policy - Directive 2008/94/EC - Article 8 - Protection of employees in the event of the insolvency of their employer - Provisions related to social security - Scope - Measures necessary to protect immediate or prospective entitlements of employees under supplementary pension schemes - Obligation to provide for a right to have outstanding pension contributions excluded from the scope of insolvency proceedings - Absence))
   (2017/C 030/11)
   Language of the case: German

      Referring court

   Hessisches Landesarbeitsgericht

      Parties to the main proceedings

      Applicant: Jürgen Webb-Sämann

      Defendant: Christopher Seagon (acting as liquidator in the insolvency of Baumarkt Praktiker DIY GmbH)

      Operative part of the judgment

   Article 8 of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer must be interpreted as meaning that it does not require that, in the event of employer insolvency, money withheld from a former employee’s salary converted into pension contributions, which that employer should have paid into a pension fund on behalf of that employee, be excluded from the scope of insolvency proceedings.

      (1)  OJ C 389, 23.11.2015.


title: Case T-264/10: Action brought on 16 June 2010 — Spain v Commission

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/53

         Action brought on 16 June 2010 — Spain v Commission
   (Case T-264/10)
   ()
   2010/C 221/84
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: Mrs Nuria Díaz Abad, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul the decision of the European Commission of 10 May 2010 declaring the suspension of the interim payment application submitted by Spain on 18 December 2009 on the grounds stated in Section 1 of the legal reasoning set out in the originating application;

               —

               Uphold the claim that the European Commission should pay interest on account of the delay in the actual payment of the interim sums applied for and improperly suspended;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   The present action is brought against the Commission’s decision to interrupt the payment deadline in respect of the interim payment application submitted by Spain on 18 December 2009. That interim payment application, for a total amount of EUR 37 320 854,12, relates to the Operational Programme for Community Assistance of the European Social Fund for Fighting Discrimination in the framework of the Objectives of Convergence and Regional Competitiveness and Employment in Spain (CCI 2007ES05UPO002).
   The pleas in law and main arguments are the same as those already raised in Case T-263/10 Spain v Commission.


title: Case T-60/13: Judgment of the General Court of 23 September 2015 — Appelrath-Cüpper v OHIM — Ann Christine Lizenzmanagement (AC) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark AC — Earlier figurative national and international trade marks AC ANN CHRISTINE and earlier figurative Community trade marks AC ANN CHRISTINE OCEAN and AC ANN CHRISTINE INTIMATE — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               23.11.2015

               EN

               Official Journal of the European Union

               C 389/27

         Judgment of the General Court of 23 September 2015 — Appelrath-Cüpper v OHIM — Ann Christine Lizenzmanagement (AC)
   (Case T-60/13) (1)

   ((Community trade mark - Opposition proceedings - Application for figurative Community trade mark AC - Earlier figurative national and international trade marks AC ANN CHRISTINE and earlier figurative Community trade marks AC ANN CHRISTINE OCEAN and AC ANN CHRISTINE INTIMATE - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2015/C 389/28)
   Language of the case: English

      Parties

      Applicant: Reiner Appelrath-Cüpper Nachf. GmbH (Cologne, Germany) (represented by: C. Schumann and A. Berger, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Ann Christine Lizenzmanagement GmbH & Co. KG (Vienna, Austria) (represented by: M. Hartmann, N. Voß and S. Fröhlich, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 28 November 2012 (Case R 108/2012-4), concerning opposition proceedings between Ann Christine Lizenzmanagement GmbH & Co. KG and Reiner Appelrath-Cüpper Nachf. GmbH.

      Operative part of the judgment

   The Court:

               1.

               Orders that the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 November 2012 (Case R 108/2012-4) is annulled in so far as it upheld in part the opposition brought by Ann Christine Lizenzmanagement GmbH & Co. KG;

               2.

               Orders OHIM to bear its own costs and to pay half the costs incurred by Reiner Appelrath-Cüpper Nachf. GmbH;

               3.

               Orders Ann Christine Lizenzmanagement GmbH & Co. KG to bear its own costs and to pay half the costs incurred by Reiner Appelrath-Cüpper Nachf. GmbH for the purposes of the proceedings before the Board of Appeal.

      (1)  OJ C 101, 6.4.2013.


title: Case F-6/08: Action brought on 7 January 2008 — Blais v European Central Bank

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/39

         Action brought on 7 January 2008 — Blais v European Central Bank
   (Case F-6/08)
   (2008/C 142/72)
   Language of the case: German
   Parties

      Applicant: Jessica Blais (Frankfurt am Main, Germany) (represented by: B. Karthaus, lawyer)

      Defendant: European Central Bank
   The subject-matter and description of the proceedings
   Annulment of the decision of the European Central Bank refusing to pay the applicant expatriation allowance on the ground that during the 10 years before her entry into the defendant's service, her place of residence was not outside the territory of the Member State in which she was employed, as required by Article 17(ii) of the Conditions of Employment (CoE).
   Form of order sought

               —

               Annul the decision of the European Central Bank of 15 August 2007, in the form of a communication from the President of the European Central Bank dated 8 November 2007, not to pay the applicant expatriation allowance;

               —

               Order the defendant to pay the costs.


title: Case C-534/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 3 December 2008 — KLG Europe Eersel BV v Reedereikontor Adolf Zeuner GmbH

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/33

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 3 December 2008 — KLG Europe Eersel BV v Reedereikontor Adolf Zeuner GmbH
   (Case C-534/08)
   (2009/C 44/54)
   Language of the case: Dutch
   Referring court
   Hoge Raad der Nederlanden
   Parties to the main proceedings

      Appellant: KLG Europe Eersel BV

      Respondent: Reedereikontor Adolf Zeuner GmbH
   Questions referred

               1.

               Does the term ‘between the same parties’ in Article 34(3) of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters refer to the rules on the subjective scope of the operation of judgments of the Member States concerned, or is it intended to give to the subjective scope of the operation of the competing judgments a more precise interpretation in isolation from that regulation?

               2.

               If the answer to the first question is that the term ‘the same parties’ is intended to give to the subjective scope of the operation of the competing judgments a more precise interpretation in isolation from Regulation No 44/2001:

                           (i)

                           must, in the interpretation of that term in Article 34(3) of Regulation No 44/2001, support be sought in the interpretation which the Court of Justice of the European Communities gave to the term ‘between the same parties’ in Article 21 of the Brussels Convention (now Article 27 of Regulation No 44/2001) in its judgment in Case C-351/96 Drouot assurances v CMI and Others [1998] ECR I-3075; and

                           (ii)

                           must K-Line, which was a party to the Rotterdam proceedings, but not to the Düsseldorf proceedings, be deemed, because of the assignment and mandate, to be ‘the same party’ as Zeuner, which was a party to the Düsseldorf proceedings, but not to the Rotterdam proceedings?

               3.

               If reliance on the ground for refusal laid down in Article 34(3) of Regulation No 44/2001 is to succeed,

                           (i)

                           must the judgment given in the Member State in which recognition is sought have acquired the force of res judicata?

                           (ii)

                           must the judgment given in the Member State in which recognition is sought precede the submission of the application for enforcement or the granting of the order for enforcement?

      (1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).


title: Case T-592/13: Action brought on 11 November 2013 — Ratioparts-Ersatzteile v OHIM — Norwood Industries (NORTHWOOD professional forest equipment)

text:
               25.1.2014

               EN

               Official Journal of the European Union

               C 24/29

         Action brought on 11 November 2013 — Ratioparts-Ersatzteile v OHIM — Norwood Industries (NORTHWOOD professional forest equipment)
   (Case T-592/13)
   2014/C 24/52
   Language in which the application was lodged: German

      Parties

      Applicant: Ratioparts-Ersatzteile-Vertriebs GmbH (Euskirchen, Germany) (represented by: M. Koch, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Norwood Industries (Kilworthy, Canada)

      Form of order sought

               —

               Amend the decision of the Second Board of Appeal of 28 August 2013 (case R 356/2013-2) so as to dismiss in its entirety Opposition B1771461; and

               —

               Order the opponent to pay the costs of the opposition proceedings and the respondent in the appeal to pay the costs of the appeal.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Ratioparts-Ersatzteile-Vertriebs GmbH

      Community trade mark concerned: Figurative mark ‘NORTHWOOD professional forest equipment’ for goods and services in Classes 8, 9, 20, 25 and 35 — Community trade mark No 9 412 776

      Proprietor of the mark or sign cited in the opposition proceedings: Norwood Industries

      Mark or sign cited in opposition: Community word mark ‘NORWOOD’ for goods in Class 7

      Decision of the Opposition Division: Opposition upheld in part

      Decision of the Board of Appeal: Appeal dismissed

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


title: Case T-355/02: Action brought on 29 November 2002 by Mühlens GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
22.3.2003              EN                           Official Journal of the European Union                                           C 70/23
Action brought on 29 November 2002 by Mühlens GmbH                          Decision of the Oppo-          Dismissal of the opposition
& Co. KG against the Office for Harmonisation in the                        sition Board:
         Internal Market (Trade Marks and Designs)
                                                                            Decision of the Board of       Dismissal of the applicant’s appeal
                                                                            Appeal:
                          (Case T-355/02)
                                                                            Grounds of claim:              —    The goods are partly ident-
                          (2003/C 70/38)                                                                        ical, or to a great extent
                                                                                similar
(Language of the case to be decided in accordance with Article 131(2)                                      —    There is great similarity in
of the Rules of Procedure — Language in which the application was                                               relation to the marks
                           drafted: German)
                                                                                —    There is a risk of confusion
                                                                                between the marks that are
                                                                                comparable
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
29 November 2002 by Mülhens GmbH & Co. KG, Köln
(Germany), represented by T. Schulte-Beckhausen. Also a party
before the Board of Appeal: Zirh International CDRP, New
York, United States of America
The applicant claims that the Court should:                                 Action brought on 13 December 2002 by Dorte Schmidt-
                                                                            Brown against Commission of the European Communities
—     annul the decision of the Second Board of Appeal of
      1 October 2002 (File No R 657/2001-2;
                                                                                (Case T-387/02)
—     order the defendant to pay the costs.
                                                                                (2003/C 70/39)
Pleas in law and main arguments                                                                (Language of the case: French)
Applicant for the Com-           ZIRH International CDRP
munity trade mark:
Community trade mark             Word mark ‘ZIRH’ for goods and             An action against the Commission of the European Communi-
concerned:                       services in Classes 3 and 42 (inter        ties was brought before the Court of First Instance of the
                                 alia, Soaps; perfumery; essential          European Communities on 13 December 2002 by Dorte
                                 oils; cosmetics; hair lotions and          Schmidt-Brown, residing in Wellen (Germany), represented by
                                 Hygienic and beauty care services)         Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers.
                                 — Application No 1316744
Owner of the right to            The applicant
the trade mark or sign                                                      The applicant claims that the Court should:
asserted by way of oppo-
sition in the opposition
                                                                            —     annul the decision of the Commission of 26 April 2002
proceedings:
                                                                                rejecting the applicant’s request seeking:
Trade mark or sign               The figurative mark ‘Sir’ for Goods
asserted by way of oppo-         in Class 3 (Perfumery, essential                 —    aid and assistance from her institution in the action
sition in the opposition         oils, cosmetics, dentifrices, soaps,                  brought before the courts of the United Kingdom
proceedings:                     hair lotions.                                         against Eurogramme Ltd;


title: Case T-90/10: Action brought on 19 February 2010 — Ferriere Nord SpA v European Commission

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/60

         Action brought on 19 February 2010 — Ferriere Nord SpA v European Commission
   (Case T-90/10)
   2010/C 113/92
   Language of the case: Italian

      Parties

      Applicant(s): Ferriere Nord SpA (Osoppo, Italy) (represented by: W. Viscardini, avvocato, G. Donà, avvocato)

      Defendant(s): European Commission

      Form of order sought

               —

                     As a main claim
                  , annulment, pursuant to Article 263 of the Treaty on the functioning of the European Union, of the decision of the European Commission of 30 September 2009 C(2009) 7492 final — as amended and supplemented by the decision of the European Commission of 8 December 2009 C(2009) 9912 final, notified on 9 December 2009 — which imposed a fine of EUR 3 570 000 on the applicant following a procedure under Article 65 of the ECSC Treaty (COMP/37.956 — Concrete reinforcing bar, re-adoption).

               —

                     In the alternative
                  , partial annulment of decision C(2009) 7492 final — as amended and supplemented by decision C(2009) 9912 final — and concomitant reduction of the fine.

      Pleas in law and main arguments

   The application is directed against the decision of 30 September 2009, as amended and supplemented by the decision of 8 December 2009, by which the Commission imposed a penalty for a breach of Article 65 CS on the basis of Regulation (EC) No 1/2003. (1)

   The pleas in law and main arguments are similar to those relied on in other actions brought against the above decision.
   In particular, the applicant raises the following pleas inter alia:

               —

               the Commission had no authority to impose a penalty for a breach of the ECSC Treaty after that treaty ceased to be in force;

               —

               there was no prior notification of a fresh ‘statement of objections’;

               —

               there was no fresh hearing before the Hearing Officer;

               —

               the final report of the Hearing Officer postdated the decision of 30 September 2009;

               —

               the decision of 30 September 2009 was adopted without the annexes mentioned in it.

         In the alternative, the applicant seeks the annulment in part of the above decisions, on various grounds, which include the following:

               —

               erroneous legal assessment of the facts (as regards the duration of participation in the cartel, the objections put forward, the basic price, the supplement for larger sizes, the limitation of output and/or sales);

               —

               the disproportionate amount of the fine in relation to the seriousness and duration of the infringement;

               —

               failure to take account of mitigating circumstances;

               —

               misapplication of the criteria laid down by the Commission Notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, 4.1.2003, p. 1).


title: Case T-477/07: Order of the Court of First Instance of 3 September 2008 — Cofra v Commission (Action for annulment — Access to documents — Withdrawal of the decision refusing access — Disclosure of documents contrary to the express opinion of their author — No need to adjudicate)

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/26

         Order of the Court of First Instance of 3 September 2008 — Cofra v Commission
   (Case T-477/07) (1)

   (Action for annulment - Access to documents - Withdrawal of the decision refusing access - Disclosure of documents contrary to the express opinion of their author - No need to adjudicate)
   (2008/C 272/50)
   Language of the case: Italian
   Parties

      Applicant: Cofra srl (Bari, Italy) (represented by: A. Calabrese, lawyer)

      Defendant: Commission of the European Communities (represented by: P. Costa de Oliveira and G. Conte, acting as Agents)
   Re:
   Annulment of the decision of the Commission of 17 October 2007 refusing the applicant access to certain documents sent by the Italian authorities to the Commission in proceedings concerning an aid scheme
   Operative part of the order

               1.

               There is no longer any need to adjudicate on the action.

               2.

               Each party shall bear its own costs.

      (1)  OJ C 64, 8.3.2008.