title: Case C-234/06 P: Appeal brought on  24 May 2006  by Il Ponte Finanziaria SpA against the judgement of the Court of First Instance (Fourth Chamber) delivered on  23 February 2006  in Case T-194/03 Il Ponte Finanziaria SpA v OHIM and Marine Entreprise Project — Società Unipersonale di Alberto Fiorenzi Srl

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/23

         Appeal brought on 24 May 2006 by Il Ponte Finanziaria SpA against the judgement of the Court of First Instance (Fourth Chamber) delivered on 23 February 2006 in Case T-194/03 Il Ponte Finanziaria SpA v OHIM and Marine Entreprise Project — Società Unipersonale di Alberto Fiorenzi Srl
   (Case C-234/06 P)
   (2006/C 178/37)
   Language of the case: Italian
   Parties

      Appellant: Il Ponte Finanziaria SpA (represented by: P. Roncaglia, A. Torrigiani Malaspina, M. Boletto, lawyers)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Marina Entreprise Project — Società Unipersonale di Alberto Fiorenzi
   Form of order sought

               (1)

               Set aside the judgement of the Court of First Instance (Fourth Chamber) of 23 February 2003 in Case T-194/03 which dismisses the applicant's action and orders it to pay the costs.

               (2)

               Uphold the action brought by the applicant before the Court of First Instance:

                           (a)

                           by annulling the decision of the Fourth Board of Appeal of the OHIM of 17 March 2003 in Case R 1015/2001-4, on the ground that, by dismissing the applicant's action, it allowed the Community trade mark No 940007 BAINBRIDGE (figurative) for products in Classes 18 to 25;

                           (b)

                           by ordering the OHIM and the intervener to pay the costs of the proceedings at first instance and of the present appeal.

         Pleas in law and main arguments
   The applicant submits that the judgement under appeal is vitiated due to:

               (1)

               Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 in that there is a risk of confusion between the conflicting trade marks:

                           —

                           the Court erred in considering that there was no minimum degree of similarity between the intervener's trade mark BAINBRIDGE and the applicant's family of trade marks including the term ‘THE BRIDGE’, when it itself recognised that the opposing trade mark BAINBRIDGE has a ‘significant’ phonetic similarity to some of the applicant's trade marks; a similarity which is not outweighed by a conceptual difference between between the opposing trade marks, given that the ‘premiss’ on which the Court based itself, according to which the average Italian consumer has sufficient knowledge of the English language to enable them to understand the meaning of the word ‘BRIDGE’ is clearly wrong;

                           —

                           if therefore the opposing trade marks have at least a minimum degree of similarity, the identity of the goods and the highly distinctive character of the applicant's trade marks should have led to a finding of a risk of confusion.

               (2)

               Misapplication of Article 43(2) and (3) of Regulation No 40/94 as the Court did not take into consideration the applicant's word mark No 642952 THE BRIDGE;

                           —

                           as regards the word mark THE BRIDGE, the applicant has provided sufficient proof of use to establish the serious and effective use of the trade mark in question within the meaning of Rule 22(2) of Regulation (EC) No 2868/95;

                           —

                           the Court misapplied Article 43(2) and (3) of Regulation No 40/94 in so far as it did not consider the suitability of the documents provided by the applicant to prove the use of its trade mark but limited itself to stating that the Board of Appeal was correct to not take such a trade mark into consideration as the applicant did not provide proof of continuous use thereof for all of the five reference years, which is not a legal requirement.

               (3)

               Misapplication of Articles 15(2)(a) and 43(2) and (3) of Regulation No 40/94 in that the Court did not take into consideration the applicant's figurative mark No 370836 BRIDGE;

                           —

                           the proof of use produced by the applicant to demonstrate the effective use of the trade mark THE BRIDGE should have been considered sufficient to also demonstrate the use of the trade mark BRIDGE;

                           —

                           in any case, the applicant's figurative mark BRIDGE is to be considered as a ‘defensive’ trade mark for the purposes of the Italian law on trade marks and, as such, is exempt from proof of use;

                           —

                           the Court erred in accepting the argument put forward for the first time by the OHIM (making it in any case inadmissible) that the concept of defensive trade mark is incompatible with the system of protection of the Community trade mark. In fact, several arguments militate in favour of the compatibility of the ‘defensive’ trade mark with the Community system.

               (4)

               Misapplication of Article 8(1)(b) of Regulation No 40/94 in that the fact that the applicant is the proprietor of several trade marks all turning on the word ‘bridge’ (marks in a series) increases the risk of confusion between those trade marks taken as a whole and the trade mark BAINBRIDGE;

                           —

                           the Court, while recognising the fact that the applicant is the proprietor of a ‘family’ of marks in a series turning on the sign ‘Bridge’ was in principle relevant for the purpose of evaluation of the existence of a risk of confusion, in the specific case, omitted to take those trade marks into consideration because they are registered but not used, when in fact the use of those trade marks is not relevant to the fact that they must be considered as a ‘series’.


title: Case T-705/14: Action brought on 26 September 2014 — Unichem Laboratories/Commission

text:
               15.12.2014

               EN

               Official Journal of the European Union

               C 448/31

         Action brought on 26 September 2014 — Unichem Laboratories/Commission
   (Case T-705/14)
   (2014/C 448/40)
   Language of the case: English

      Parties

      Applicant: Unichem Laboratories Ltd (Mumbai, India) (represented by: S. Mobley, H. Sheraton and K. Shaw, Solicitors)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission Decision dated 9 July 2014 relating to a proceeding under Articles 101 and 102 of the Treaty on the Functioning of the EU (Case Comp/AT. 39.612 — perindopril (Servier)) in its entirety, and in any event annul and/or reduce the fine imposed, in so far as it applies to Unichem; and

               —

               order the Commission to pay its own costs and Unichem’s costs in connection with these proceedings.

      Pleas in law and main arguments

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

               1.

               In the first plea in law, the applicant alleges that the Commission lacks jurisdiction to address a decision under Art. 101(1) TFEU to Unichem.

               2.

               In the second plea in law, the applicant alleges that the Commission fails to apply the correct ‘objective necessity’ legal test to determine whether the patent settlement agreement falls within the ambit of Art. 101(1) TFEU.

               3.

               In the third plea in law, the applicant alleges that the Commission breaches the principle of equal treatment by not applying the Technology Transfer Block Exemption Regulation Guidelines to Unichem’s settlement.

               4.

               In the fourth plea in law, the applicant alleges that the Commission errs in law by categorising the settlement as a ‘by object’ Art. 101(1) TFEU violation.

               5.

               In the fifth plea in law, the applicant alleges that the Commission misapplies its own purported Art. 101(1) ‘by object’ legal test to the specific Unichem facts.

               6.

               In the sixth plea in law, the applicant alleges that the Commission errs in law by concluding that the settlement agreement resulted in anticompetitive effects.

               7.

               In the seventh plea in law, the applicant alleges that the Commission breaches its duty under Art. 296 to state reasons why it considers Unichem can be held directly liable for infringement of Art. 101(1) TFEU when it is not a potential competitor of Servier.

               8.

               In the eighth plea in law, the applicant alleges that, in the alternative, the Commission errs in law by not recognising that the settlement agreement satisfies the exemption criteria under Art. 101(3) TFEU.

               9.

               In the ninth plea in law, the applicant alleges that the Commission breaches the rights of defence, principle of sound administration and its duty not to act oppressively to obtain legally privileged documents to use against Unichem.

               10.

               In the tenth plea in law, the applicant alleges that the Commission breaches the general EU principle of equal treatment in its fine calculation by treating Unichem differently to Servier without objective justification.

               11.

               In the eleventh plea in law, the applicant alleges that the Commission infringes the general EU law principle of proportionality, its own fining guidelines and prior established practice when it imposed a fine on Unichem.

               12.

               In the twelfth plea in law, the applicant alleges that the Commission violates its duty to state reasons pursuant to Art. 296 TFEU in respect of its fine calculation and its assessment of the gravity of Unichem’s alleged infringement.


title: Case T-373/10: Action brought on 8 September 2010 — Villeroy & Boch Austria v Commission

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/36

         Action brought on 8 September 2010 — Villeroy & Boch Austria v Commission
   (Case T-373/10)
   ()
   2010/C 301/61
   Language of the case: German

      Parties

      Applicant: Villeroy & Boch Austria GmbH (Mondsee, Austria) (represented by: A. Reidlinger and S. Dethof, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul the contested decision in so far as it concerns the applicant;

               —

               in the alternative, reduce by an appropriate amount the fine imposed on the applicant in the contested decision;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   The applicant contests Commission Decision C(2010) 4185 final of 23 June 2010 in Case COMP/39092 — Bathroom fittings and fixtures. In the contested decision, fines were imposed on the applicant and on other undertakings on account of infringement of Article 101 TFEU and Article 53 of the EEA Agreement. According to the Commission, the applicant participated in a continuing agreement or concerted practice in the bathroom fittings and fixtures sector in Belgium, Germany, France, Italy, the Netherlands and Austria.
   The applicant puts forward seven pleas in support of its action.
   By its first plea, the applicant alleges breach of Article 101 TFEU and Article 53 of the EEA Agreement on the ground of the finding of a single, continuous and complex infringement. By that unlawful overall assessment the defendant failed to comply with its duty to carry out a legal assessment of the individual conduct of each of the undertakings to which the decision is addressed and unlawfully attributes conduct of third parties which is incapable of being attributed.
   By its second plea, the applicant alleges, in the alternative, breach of the duty to state reasons pursuant to Article 296(2) TFEU, on account of the lack of an individualised statement of reasons for the contested decision.
   By its third plea, the applicant claims that the contested decision should be annulled because the applicant did not participate in the alleged infringements on the relevant product and geographic markets concerned by the decision and because it has not been established that it engaged in a cartel infringement.
   By its fourth plea, the applicant asserts that a fine has been unlawfully imposed jointly and severally on the applicant and its parent company. Such joint and several imposition infringes the principle nulla poena sine lege laid down in Article 49(1) of the Charter of Fundamental Rights of the European Union and the principle of the proportionality of the penalty to the offence, laid down in Article 49(3) of the Charter in conjunction with Article 48(1) thereof, and infringes Article 23 of Regulation (EC) No 1/2003. (1)

   By its fifth plea, the applicant claims that the amount of the fine was miscalculated. The applicant asserts in this respect that, in its calculation, the defendant included turnover of the applicant which from the outset could not be connected with the objections raised.
   By its sixth plea, the applicant alleges that the excessive length of the procedure and the failure to take account thereof in the calculation of the fine amounts to a breach of Article 41 of the Charter of Fundamental Rights of the European Union.
   By its seventh plea, the applicant alleges errors of assessment when the fine was calculated in the evaluation of the applicant’s alleged involvement in the infringement. In this respect, the applicant states that, even on the assumption that an infringement of Article 101 TFEU did occur, as the Commission contends, the fine would be excessive and disproportionate. In the applicant’s submission, the Commission infringed the principle of the proportionality of the penalty to the offence codified in Article 49(3) in conjunction with Article 48(1) of the Charter of Fundamental Rights of the European Union.

      (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, p. 1).


title: Case C-2/05: Reference for a preliminary ruling by the Arbeidshof te Brussel of 23 December 2004 in the case of Rijksdienst voor Sociale Zekerheid. v N.V. Herbosch-Kiere

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/6

         Reference for a preliminary ruling by the Arbeidshof te Brussel of 23 December 2004 in the case of Rijksdienst voor Sociale Zekerheid. v N.V. Herbosch-Kiere
   (Case C-2/05)
   (2005/C 82/14)
   Language of the case: Dutch
   Reference has been made to the Court of Justice of the European Communities by judgment of 23 December 2004 of the Arbeidshof te Brussel (Brussels Higher Labour Court), which was received at the Court Registry on 5 January 2005, for a preliminary ruling in the case of Rijksdienst voor Sociale Zekerheid. v N.V. Herbosch-Kiere on the following questions:
   May a court of the host State examine and/or determine whether a direct relationship exists between the undertaking which has posted a worker and the posted worker himself, in view of the fact that the term ‘undertaking to which he is normally attached’ in Article 14(1)(a) of Regulation (EEC) No 1408/71 (1) requires (pursuant to Decision No 128) that there be a direct relationship throughout the period of posting?
   May a court of a Member State other than that which issued the abovementioned certificate (E 101 certificate) disregard and/or annul that certificate if it appears from the factual circumstances presented for its consideration that the direct relationship between the undertaking which posted the worker and the posted worker himself did not exist during the period of posting?
   Is the competent institution of the State of origin bound by a decision of a court of the host State which, in circumstances such as those set out above, disregards and/or annuls the abovementioned certificate (E 101 certificate)?

      (1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p. 416).


title: Case C-472/02: Reference for a preliminary ruling by the Cour d'appel de Bruxelles by judgment of that Court of 20 December 2002 in the case of Siomab against Institut Bruxellois pour la Gestion de l'Environnement ("IBGE")

text:
22.2.2003                EN                        Official Journal of the European Union                                        C 44/17
The applicant claims that the Court should:                                Reference for a preliminary ruling by the Cour d’appel de
                                                                           Bruxelles by judgment of that Court of 20 December
                                                                           2002 in the case of Siomab against Institut Bruxellois
—     Declare that by making the granting and payment of a                        pour la Gestion de l’Environnement (‘IBGE’)
      benefit under the career-break benefit scheme subject to
      the condition that the person concerned is habitually
      resident in Belgium, the Kingdom of Belgium has failed
      to fulfil its duties under Article 39 of the EC Treaty,
      Article 7 of Regulation (EEC) No 1612/68 of the Council                                       (Case C-472/02)
      of 15 October 1968 on freedom of movement for
      workers within the Community ( 1), and specifically, so far
      as concerns career breaks in the context of parental leave,
      Article 73 of Council Regulation No 1408/71 of 14 June                                         (2003/C 44/31)
      1971 on the application of social security schemes to
      employed persons and their families moving within the
      Community (2);
—     Order the Kingdom of Belgium to pay the costs.
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by judgment of the Cour d’appel de
Pleas in law and main arguments                                            Bruxelles (Court of Appeal, Brussels) of 20 December 2002,
                                                                           received at the Court Registry on 27 December 2002, for a
                                                                           preliminary ruling in the case of Siomab against Institut
                                                                           Bruxellois pour la Gestion de l’Environnement (‘IBGE’) on the
(The residence clause) The Belgian authorities announced the               following questions:
removal of the clause relating to residence acknowledging
thereby that the Commission’s arguments were well founded.
However, work on compliance has not been completed.
                                                                           Where a Member State has recourse to the mechanism by
(The clauses relating to payment in Belgium) The requirement               which the competent authority of dispatch gives notice of a
that the persons affected by the benefit should have a bank                consignment note under Articles 3(8) and 6(8) of Council
account in Belgium is, in certain cases, such as to call in                Regulation No 259/93 of 1 February 1993 on the supervision
question the effects of the amendments to the legislation at               and control of shipments of waste within, into and out of the
issue. Indeed, there are instances where, in order to open a               European Community (1), must Articles 3(8), 4(3), 6(8), 7(4)
bank account or to maintain it, certain banks require a                    and 26 of the regulation be interpreted as meaning:
certificate of residence.
                                                                           (a)  that the competent authority of dispatch within the
(Procedure for dealing with previous refusals) It is essential, for             meaning of the regulation, which is empowered to verify
the purpose of legal certainty, that the real rights of the                     whether a planned shipment classified in the notification
individual are protected from the harmful consequences of                       as a ‘shipment of waste for recovery’ actually fits that
conduct by the public authorities which is based on rules                       classification, may, when it considers that the classifi-
which are incompatible with Community law. Failure of a                         cation is incorrect,
Member State to fulfil its obligations should not, in any event,
result in a financial advantage for itself. However, although the
Belgian authorities state that anyone whose career-break                        (1) refuse to transmit the consignment note because of
benefit was refused on the basis of the former rules may make                         that incorrect classification and ask the notifier to
a fresh application on the basis of the new rules, the cases                          transmit a new consignment note to it,
concerned will be routinely re-examined; neither is there any
information as to the dissemination of information or on the
procedures which will be put in place for back-payment of the
benefits to persons who have been denied them on the ground                     (2) transmit the consignment note after reclassifying
that they were not resident in Belgium.                                               the planned shipment as a ‘shipment of waste for
                                                                                disposal’,
( 1) OJ, English Special Edition 1968 (II), p 475.
( 2) OJ, English Special Edition 1972 (I), p 159.                               (3) transmit the consignment note containing the incor-
                                                                                rect classification, immediately accompanying its
                                                                                transmission with an objection based on that incor-
                                                                                rect classification?
 ---pagebreak--- C 44/18                 EN                       Official Journal of the European Union                                          22.2.2003
(b)   or, on the contrary, that the competent authority of               Or, must it be considered that the legal definition of waste
      dispatch is required to send the notification as classified        within the meaning of the abovementioned provisions applies
      by the notifier to the competent authority of destination,         only if the polluted earth has been excavated?
      while retaining the power, if it considers that the purpose
      of the shipment has been incorrectly classified, also to
                                                                         (1 ) OJ L 194 of 25.7.1975, p. 39.
      raise a reasoned objection on the basis of that erroneous          (2 ) OJ L 78 of 26.3.1991, p. 32.
      classification, at the same time or subsequently?
( 1) OJ L 30 of 6.2.1993, p. 1.
                                                                         Reference for a preliminary ruling by the Tribunal de
                                                                         Première Instance de Bruxelles by order of that Court of
                                                                         24 December 2002 in the case of Banque Bruxelles
                                                                         Lambert S.A. (‘BBL’) against the Belgian State, Minister of
                                                                         Finance, Department of administration of value added
                                                                                tax, registration and public property
                                                                                (Case C-8/03)
Reference for a preliminary ruling by the Cour d’Appel                                             (2003/C 44/33)
de Bruxelles, 11e Chambre, by judgment of that Court of
3 December 2002 in the case of Ministère public and the
civil party: La Région de Bruxelles-Capitale against 1. Paul             Reference has been made to the Court of Justice of the
Van de Walle, 2. Daniel Laurent, 3. Thierry Mersch and                   European Communities by order of the Tribunal de Première
            the civil defendant: SA Texaco Belgium                       Instance de Bruxelles (Regional Court, Brussels) of 24 Decem-
                                                                         ber 2002, received at the Court Registry on 10 January 2003,
                                                                         for a preliminary ruling in the case of Banque Bruxelles
                            (Case C-1/03)                                Lambert S.A. (‘BBL’) against the Belgian State, Minister of
                                                                         Finance, Department of administration of value added tax,
                                                                         registration and public property, on the following questions:
                           (2003/C 44/32)
                                                                         Are Sociétés d’investissement à capital variable [open-end
                                                                         investment companies] (SICAVs) established in a Member State
                                                                         which have as their sole object the collective investment in
Reference has been made to the Court of Justice of the                   transferable securities of capital raised from the public in
European Communities by judgment of the Cour d’Appel de                  accordance with Council Directive 85/611/EEC of 20 Decem-
Bruxelles, 11e Chambre, (The Court of Appeal, Brussels,                  ber 1985 on the coordination of laws, regulations and
11th Chamber) of 3 December 2002, received at the Court                  administrative provisions relating to undertakings for collec-
Registry on 3 January 2003, for a preliminary ruling in the              tive investment in transferable securities (UCITS) (1), taxable
case of Ministère public and the civil party: La Région de               persons for value-added-tax purposes within the meaning of
Bruxelles-Capitale against 1. Paul Van de Walle, 2. Daniel               Article 4 of the Sixth Council Directive 77/388/EEC of 17 May
Laurent, 3. Thierry Mersch and the civil defendant: SA Texaco            1977 on the harmonization of the laws of the Member States
Belgium on the following questions:                                      relating to turnover taxes — Common system of value added
                                                                         tax: uniform basis of assessment (2), so that the services referred
                                                                         to in Article 9(2)(e) of that directive supplied to them are
                                                                         deemed to be provided at the place where the said SICAVs
Are Article 1(a) of Council Directive 75/442/EEC of 15 July              have established their seat?
1975 (1) on waste, as amended by Directive 91/156/EEC of
18 March 1991 ( 2), which defines waste as meaning ‘any
substance or object which the holder disposes of or is required          If the answer to that question is in the negative, the resolution
to dispose of pursuant to the provisions of national law in              of the case entails determining what types of services provided
force’, and Article 1(b) and (c) of that directive which define          to the SICAVs may benefit from the exemption under
‘producer of waste’ as ‘anyone whose activities produce waste            Article 13B(d)(6) of the Sixth Directive: Is it necessary in this
(“original producer”) and/or anyone who carries out pre-                 context to distinguish between services which comprise the
processing, mixing or other operations resulting in a change             giving of assistance and management advice, on the one hand,
in the nature or composition of this waste’, and ‘holder’ as ‘the        and management services in the strict sense, on the other, the
producer of the waste or the natural or legal person who is in           latter being said to differ from the former in that they imply a
possession of it’, to be interpreted as being capable of applying        power on the manager’s part to take decisions relating to the
to a petroleum company which produces hydrocarbons and                   administration and disposal of the assets under management?
sells them to a manager operating one of its service stations
under a contract of independent management excluding                     (1 ) OJ L 375 of 31.12.1985, p. 3.
any relationship of subordination to that company, if such               (2 ) OJ L 145 of 13.6.1977, p. 1.
hydrocarbons percolate into the ground, thus causing pol-
lution of the earth and subterranean waters?


title: Case C-455/11 P: Appeal brought on 2 September 2011 by Solvay SA against the judgment of the General Court (Sixth Chamber, Extended Composition) delivered on 16 June 2011 in Case T-186/06: Solvay SA v European Commission

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/11

         Appeal brought on 2 September 2011 by Solvay SA against the judgment of the General Court (Sixth Chamber, Extended Composition) delivered on 16 June 2011 in Case T-186/06: Solvay SA v European Commission
   (Case C-455/11 P)
   2011/C 347/16
   Language of the case: English

      Parties

      Appellant: Solvay SA (represented by: O. W. Brouwer, advocaat, M. O'Regan, solicitor)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               quash paragraphs 121 to 170 of the judgment,

               —

               quash paragraphs 394,395 and 402 to 427 of the judgment,

               —

               give final judgment and to annul the contested Decision in so far as it found that (a) the Appellant infringed Article 81 (1) EC between May 1995 and August 1997 and (b) the Appellant was the third undertaking to satisfy the requirements of point 21 of the 2002 Leniency Notice, and to reduce accordingly the fine imposed upon the Appellant, or, in the alternative, to refer the case back to the General Court, and

               —

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

      Pleas in law and main arguments

   The Appellant relies upon two pleas in law. In the judgment under appeal, the General Court partially dismissed the application brought by the Appellant for the partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate).
   By its first plea, the Appellant respectfully contests the General Court's conclusion that the Appellant had participated in an infringement of Articles 81(1) EC and 53(1) EEA between May 1995 and August 1997. The General Court exceeded its powers of review and committed an error of law in concluding that the Appellant had discussed and/or exchanged pricing information and its commercial strategy with other undertakings: such findings could not be made on the basis of the text of the contested Decision. The General Court committed errors in law in upholding the finding in the contested Decision that, by having a common intention to restrict competition, the discussions, negotiations and exchanges of information between hydrogen peroxide manufacturers (including the Appellant) in an unsuccessful attempt to establish a market-sharing arrangement (which did not result in the conclusion of an agreement between them) constituted an infringement of Articles 81(1) EC and 53(1) EEA on the basis that they were, alternatively, either preparatory negotiations for and formed part of the same collusive arrangement as an admitted price-fixing cartel entered into in August 1997 or a concerted practice by virtue of ‘preparing the ground’ for that later cartel and/or constituting a prohibited exchange of information between undertakings. By its second plea, the Appellant respectfully contests the General Court's conclusion that the Commission had not exceeded the margins of its appreciation in finding, in the contested Decision, that another undertaking, Arkema, had met the requirements of point 21 of the Commission's 2002 Leniency Notice on 3 April 2003. The General Court erred in law in defining and applying the concept of ‘significant added value’ and distorted and committed manifest errors of assessment of the evidence, in finding that documents faxed by Arkema on 3 April 2003 without any accompanying explanations represented significant added value under point 21 of the 2002 Leniency Notice. It also committed manifest errors of law and procedure and distorted the evidence in concluding that the Commission was entitled in the contested Decision to reach a different conclusion from that reached by it in Decision C(2006) 2098 of 31 May 2006 concerning a procedure under Article 81 EC and Article 53 of the EEA Agreement (Case COMPlF.38.645 — Methacrylates), in which it found that the same fax of 3 April 2003 of Arkema (which concerned Commission investigations into several suspected cartels, including HP and methacrylates) did not satisfy the requirements of point 21 of the 2002 Leniency Notice until explanations were subsequently provided by Arkema.


title: Case C-154/16: Judgment of the Court (Eighth Chamber) of 18 May 2017 (request for a preliminary ruling from the Augstākās tiesas Administratīvo lietu departaments — Latvia) — ‘Latvijas Dzelzceļš’ VAS v Valsts ienemumu dienests (Reference for a preliminary ruling — Community Customs Code — Regulation (EEC) No 2913/92 — Article 94(1) and Article 96 — External Community transit procedure — Liability of the principal — Articles 203, 204 and Article 206(1) — Incurrence of a customs debt — Unlawful removal from customs supervision — Non-fulfilment of one of the obligations flowing from the use of a customs procedure — Total destruction or irretrievable loss of the goods as a result of the actual nature of the goods or unforeseeable circumstances or force majeure — Article 213 — Payment of the customs debt under joint and several liability — Directive 2006/112/EC — Value added tax (VAT) — Article 2(1), Articles 70 and 71 — Chargeable event and chargeability of the tax — Articles 201, 202 and 205 — Persons liable for payment of the tax — Finding by the customs office at the destination of a freight deficit — Lower unloading device of a wagon-tank incorrectly closed or damaged)

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/15

         Judgment of the Court (Eighth Chamber) of 18 May 2017 (request for a preliminary ruling from the Augstākās tiesas Administratīvo lietu departaments — Latvia) — ‘Latvijas Dzelzceļš’ VAS v Valsts ienemumu dienests
   (Case C-154/16) (1)

   ((Reference for a preliminary ruling - Community Customs Code - Regulation (EEC) No 2913/92 - Article 94(1) and Article 96 - External Community transit procedure - Liability of the principal - Articles 203, 204 and Article 206(1) - Incurrence of a customs debt - Unlawful removal from customs supervision - Non-fulfilment of one of the obligations flowing from the use of a customs procedure - Total destruction or irretrievable loss of the goods as a result of the actual nature of the goods or unforeseeable circumstances or force majeure - Article 213 - Payment of the customs debt under joint and several liability - Directive 2006/112/EC - Value added tax (VAT) - Article 2(1), Articles 70 and 71 - Chargeable event and chargeability of the tax - Articles 201, 202 and 205 - Persons liable for payment of the tax - Finding by the customs office at the destination of a freight deficit - Lower unloading device of a wagon-tank incorrectly closed or damaged))
   (2017/C 239/19)
   Language of the case: Latvian

      Referring court

   Augstākās tiesa

      Parties to the main proceedings

      Applicant:‘Latvijas Dzelzceļš’ VAS

      Defendant: Valsts ienemumu dienests

      Operative part of the judgment

               1.

               Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 must be interpreted as meaning that it does not apply where the total volume of the goods placed under the external Community transit procedure has not been presented to the customs office of destination provided for in that procedure, owing to the total destruction or irretrievable loss of some of the goods, which is proven to a satisfactory standard.

               2.

               Article 204(1)(a) of Regulation No 2913/92 of 12 October 1992, as amended by Regulation No 648/2005 must be interpreted as meaning that where the total volume of goods placed under the external Community transit procedure has not been produced at the customs office of destination laid down in that procedure owing to the total destruction or irretrievable loss of some of the goods, proven to a satisfactory standard, that situation, which constitutes the non-fulfilment of one of the obligations under that procedure, namely to produce goods intact at the customs office of destination, gives rise, in principle, to a customs debt on importation for the part of the goods which was not produced at that customs office. It is for the national court to determine whether a circumstance such as damage to an unloading device meets, in the present case, the criteria of ‘force majeure’ or an ‘unforeseeable circumstance’, within the meaning of Article 206(1) of Regulation No 2913/92, as amended by Regulation No 648/2005, namely, whether it is an abnormal circumstance for a trader in the business of the transportation of liquid substances and extraneous to that trader, and whether the consequences could not have been avoided even if all due care had been exercised. In the context of that determination, that court must, in particular, take into account compliance, by operators such as the principal and the carrier, with the rules and obligations in force regarding the technical condition of tanks and the safety of transportation of liquid substances such as a solvent.

               3.

               Article 2(1)(d) and Articles 70 and 71 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that VAT is not due on the totally destroyed or irretrievably lost part of goods placed under the external Community transit procedure.

               4.

               Article 96(1)(a) in conjunction with Article 204(1)(a) and (3) of Regulation No 2913/92, as amended by Regulation No 648/2005, must be interpreted as meaning that the principal is liable for the payment of the customs debt arising in relation to goods placed under the external Community transit procedure, even if the carrier did not fulfil the obligations to which he was subject under Article 96(2) of that regulation, in particular the requirement to produce those goods intact at the customs office of destination within the prescribed period.

               5.

               Article 96(1)(a) and (2), Article 204(1)(a) and (3) and Article 213 of Regulation No 2913/92, as amended by Regulation No 648/2005, must be interpreted as meaning that the customs authority of a Member State is not obliged to declare the joint and several liability of the carrier who, together with the principal, must be regarded as liable for payment of the customs debt.

      (1)  OJ C 191, 30.5.2016


title: Case C-161/04: Order of the President of the First Chamber of the Court of 6 September 2006 –Republic of Austria v European Parliament and Council of the European Union

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/35

         Order of the President of the First Chamber of the Court of 6 September 2006 –Republic of Austria v European Parliament and Council of the European Union
   (Case C-161/04) (1)

   (2006/C 294/61)

      Language of the case: German

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

      (1)  OJ C 106, 30.04.2004.


title: Case C-163/13: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 2 April 2013 — Turbo.com BV, other party: Staatssecretaris van Financiën

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/19

         Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 2 April 2013 — Turbo.com BV, other party: Staatssecretaris van Financiën
   (Case C-163/13)
   2013/C 171/37
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Turbo.com BV

      Defendant: Staatssecretaris van Financiën

      Question referred

   Should the national authorities and judicial bodies, on the basis of the law of the European Union, refuse to apply the VAT exemption in respect of an intra-Community supply where it is established, on the basis of objective evidence, that there was VAT fraud in respect of the goods concerned and that the taxable person knew or should have known that he was participating therein, even if the national law does not make provision under those circumstances for refusing the exemption?


title: Case F-32/13: Order of the Civil Service Tribunal (Third Chamber) of 27 February 2014  — Walton v Commission (Civil service  — Temporary agent  — Severance grant  — Resignation found by judgment of the General Court of the European Communities  — Determination of the date of resignation  — Authority of res judicata  — Decisions of the appointing authority becoming definitive in the absence of legal action  — Non-observance of the prior administrative procedure  — Manifestly inadmissible)

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/56

         Order of the Civil Service Tribunal (Third Chamber) of 27 February 2014 — Walton v Commission
   (Case F-32/13) (1)

   ((Civil service - Temporary agent - Severance grant - Resignation found by judgment of the General Court of the European Communities - Determination of the date of resignation - Authority of res judicata - Decisions of the appointing authority becoming definitive in the absence of legal action - Non-observance of the prior administrative procedure - Manifestly inadmissible))
   2014/C 142/76
   Language of the case: French

      Parties

      Applicant: Robert Walton (Oxford, United Kingdom) (represented by: F. Moyse, lawyer)

      Defendant: European Commission (represented by: J. Currall and A.-C. Simon, Agents)

      Re:

   Action for annulment of the rejection of the application for reimbursement of the unpaid sum which the Commission ought to pay to the applicant as the severance grant.

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Mr Walton must bear his own costs and is ordered pay the costs incurred by the European Commission.

      (1)  OJ C 207, 20/07/2013, p. 58.


title: Case C-521/12: Judgment of the Court (Second Chamber) of 15 May 2014 (request for a preliminary ruling from the Raad van State (Netherlands)) — T.C. Briels and Others v Minister van Infrastructuur en Milieu (Environment — Directive 92/43/EEC — Article 6(3) and (4) — Conservation of natural habitats — Special areas of conservation — Assessment of the implications for a protected site of a plan or project — Authorisation for a plan or project on a protected site — Compensatory measures — Natura 2000 site Vlijmens Ven, Moerputten & Bossche Broek — Project on the route of the A2 ‘s-Hertogenbosch-Eindhoven motorway)

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/7

         Judgment of the Court (Second Chamber) of 15 May 2014 (request for a preliminary ruling from the Raad van State (Netherlands)) — T.C. Briels and Others v Minister van Infrastructuur en Milieu
   (Case C-521/12) (1)

   ((Environment - Directive 92/43/EEC - Article 6(3) and (4) - Conservation of natural habitats - Special areas of conservation - Assessment of the implications for a protected site of a plan or project - Authorisation for a plan or project on a protected site - Compensatory measures - Natura 2000 site Vlijmens Ven, Moerputten & Bossche Broek - Project on the route of the A2 ‘s-Hertogenbosch-Eindhoven motorway))
   2014/C 212/07
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicants: T.C. Briels, M. Briels-Loermans, R.L.P. Buchholtz, Stichting A2-Platform Boxtel e.o. and Others, H.W.G. Cox, G.P.A. Damman, P.A.M. Goevaers and Others, J.H. van Haaren, L.S.P. Dijkman, R.A.H.M. Janssen, M.M. van Lanschot, J.E.A.M. Lelijveld and Others, A. Mes and Others, A.J.J. Michels, VOF Isphording and Others, M. Peijnenborg, S. Peijnenborg-van Oers, G. Oude Elferink, W. Punte, P.M. Punte-Cammaert, Stichting Reinier van Arkel, E. de Ridder, W.C.M.A.J.G. van Rijckevorsel, M. van Rijckevorsel-van Asch van Wijck, Vereniging tot Behoud van het Groene Hart van Brabant, Stichting Boom en Bosch, Stichting Overlast A2 Vught e.o., Streekraad Het Groene Woud en De Meijerij, A.C.M.W. Teulings, Stichting Bleijendijk, M. Tilman, Vereniging van Eigenaars Appartementengebouw De Heun I and Others, M.C.T. Veroude, E.J.A.M. Widlak, Van Roosmalen Sales BV and Others, M.A.A. van Kessel, Bricorama BV and Others

      Defendant: Minister van Infrastructuur en Milieu

      Re:

   Request for a preliminary ruling — Raad van State — Interpretation of Article 6(3) and (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) — Authorisation of a plan or project on a protected site — Conditions — ‘Concept of adverse effect on the integrity of the site concerned’

      Operative part of the judgment

   Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that a plan or project not directly connected with or necessary to the management of a site of Community importance, which has negative implications for a type of natural habitat present thereon and which provides for the creation of an area of equal or greater size of the same natural habitat type within the same site, has an effect on the integrity of that site. Such measures can be categorised as ‘compensatory measures’ within the meaning of Article 6(4) only if the conditions laid down therein are satisfied.

      (1)  OJ C 55, 23.2.2013.


title: Case T-442/08: Action brought on 3 October 2008 — CISAC v Commission

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/25

         Action brought on 3 October 2008 — CISAC v Commission
   (Case T-442/08)
   (2009/C 82/46)
   Language of the case: English
   Parties

      Applicant: International Confederation of Societies of Authors and Composers (CISAC) (Neuilly-sur-Seine, France) (represented by: J.-F. Bellis and K. Van Hove, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Article 3 of the Commission decision of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COM/C2/38.698 — CISAC); and

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   By means of this application, the applicant seeks the annulment, pursuant to Article 230 EC, of Article 3 of the Commission decision of 16 July 2008 (Case COM/C2/38.698 — CISAC), determining that 24 of CISAC's EEA based societies engaged in a concerted practice in violation of Article 81 EC and Article 53 EEA ‘by coordinating the territorial delineations of the reciprocal representation mandates granted to one another in a way which limits a licence to the domestic territory of each collecting society’.
   The applicant submits that the decision limits the finding of infringement to three specific forms of exploitation of performing rights (internet, satellite transmission and cable retransmission), whilst the reciprocal representation agreements generally cover all forms of exploitation of performing rights.
   In support of its application, the applicant raises the following two main pleas in law:

               (i)

               According to the applicant's submissions, the Commission made an error of assessment and infringed Article 81 EC as well as Article 253 EC by determining that the parallel territorial delineation resulting from the reciprocal representation agreements concluded by the EEA CISAC members constitutes a concerted practice. The applicant considers that the presence of a territorial delineation clause in all the reciprocal representation agreements concluded by its members is not the product of a concerted practice to restrict competition. Rather, this state of affairs exists because all the societies find it in the interest of their members to include such a clause in their reciprocal representation agreements.

               (ii)

               In the alternative, the applicant claims that if there were a concerted practice on territorial delineations, it would not be restrictive of competition within the meaning of Article 81 EC for two reasons. First, the alleged concerted practice on territorial delineations is not illegal because it concerns a form of competition that is not worthy of protection. Second, even if the alleged practice would be considered to restrict competition, it does not infringe Article 81(1) EC according to the applicant's allegations because it is necessary and proportionate to the legitimate objective.


title: Case C-404/03: Reference for a preliminary ruling by the Tribunal de Grande Instance du Mans by judgment of that Court of 8 September 2003 in the case of The Procureur de la Republique against Oliver Dupuy and Hervé Rouvre

text:
C 275/36               EN                        Official Journal of the European Union                                          15.11.2003
Reference for a preliminary ruling by the Tribunal d’in-                 Do the provisions of Community law relating to restrictions
stance du VIIème arrondissement de Paris by judgment of                  on the marketing of dangerous substances and preparations,
that Court of 21 August 2003 in the case of Waterman SA                  and in particular the provisions of Directive 76/769 (1) and
against Directeur Général des Douanes et Droits Indirects                Directive 94/60 (2) of 20 December 1994, prohibit the placing
                                                                         on the market for sale to the public of drying agent products
                                                                         containing lead compounds classified as toxic for reproductive
                         (Case C-400/03)                                 purposes, or do those provisions permit the relevant dero-
                                                                         gation laid down for ‘artists’ paints’ to be applied to those
                                                                         products?
                         (2003/C 275/53)
                                                                         (1) Council Directive 76/769/EEC of 27 July 1976 on the approxi-
                                                                             mation of the laws, regulations and administrative provisions of
Reference has been made to the Court of Justice of the                       the Member States relating to restrictions on the marketing and
European Communities by judgment of the Tribunal d’instance                  use of certain dangerous substances and preparations (OJ L 262
du VIIème arrondissement de Paris of 21 August 2003,                         of 27.9.1976, p. 201).
received at the Court Registry on 26 September 2003, for a               (2) European Parliament and Council Directive 94/60/EC of
preliminary ruling in the case of Waterman SA against                        20 December 1994 amending for the 14th time Directive 76/
Directeur Général des Douanes et Droits Indirects on the                     769/EEC on the approximation of the laws, regulations and
                                                                             administrative provisions of the Member States relating to restric-
following question:
                                                                             tions on the marketing and use of certain dangerous substances
                                                                             and preparations (OJ L 365 of 31.12.1994, p. 1).
Is the Explanatory Note to the Combined Nomenclature
relating to subheadings 4202 12 11 and 4202 12 19, which
clarifies the term ‘in the form of plastic sheeting’ as follows: ‘if
a container has an outer material that is a combination of
materials where the outer layer being visible to the naked eye
is plastic sheeting (e.g., woven fabric of textile fibres in
combination with plastic sheeting) it is irrelevant for classifi-
cation purposes whether the sheeting was manufactured
separately before creating the combined material or whether              Action brought on 29 September 2003 by the Com-
the plastic layer is the result of applying a coating or covering        mission of the European Communities against the Repub-
of plastics to the material ... provided that the resultant outer                                    lic of Finland
layer being visible to the naked eye has the same visual
appearance as an applied layer of manufactured plastic sheet-
ing’, contrary to the tariff?
                                                                                (Case C-407/03)
                                                                                (2003/C 275/55)
                                                                         An action against the Republic of Finland was brought
Reference for a preliminary ruling by the Tribunal de
                                                                         before the Court of Justice of the European Communities on
Grande Instance du Mans by judgment of that Court of
                                                                         29 September 2003 by the Commission of the European
8 September 2003 in the case of The Procureur de la
                                                                         Communities, represented by M. van Beek and M. Huttunen,
   Republique against Oliver Dupuy and Hervé Rouvre
                                                                         acting as Agents, with an address for service in Luxembourg.
                         (Case C-404/03)
                                                                         The Commission claims that the Court should:
                         (2003/C 275/54)
                                                                         1.     Declare that, by failing to require in its legislation with
                                                                                sufficient legal certainty that an appropriate assessment
                                                                                is to be made with respect to all projects, including those
                                                                                which are the subject of an ‘environmental impact
Reference has been made to the Court of Justice of the
                                                                                assessment’, the Republic of Finland has failed to fulfil its
European Communities by judgment of the Tribunal de
                                                                                obligations under Article 6(3) of Council Directive 92/
Grande Instance du Mans (Regional Court, Le Mans) of
                                                                                43/EEC of 21 May 1992 on the conservation of natural
8 September 2003, received at the Court Registry on 29 Sep-
                                                                                habitats and of wild fauna and flora (1);
tember 2003, for a preliminary ruling in the case of The
Procureur de la Republique against Oliver Dupuy and Hervé
Rouvre on the following question:                                        2.     Order the Republic of Finland to pay the costs.


title: Case C-418/02: Reference for a preliminary ruling by the Bundespatentgericht by order of that Court of 15 October 2002 in the appeal matter of PRAKTIKER Bau- und Heimwerkermärkte AG

text:
25.1.2003               EN                    Official Journal of the European Communities                                        C 19/17
      —     by accepting the systematic refusal by the Tekhniko          1.   Does retail trading constitute a service within the meaning
            Epimelitirio Elladas (TEE) (Technical Chamber of                  of Article 2 of the Directive?
            Greece), registration with which is an essential
            precondition in order to pursue the profession of                 If the answer to this question should be affirmative:
            architect in Greece, to register Community nationals
            holding non-Greek qualifications which should be             2.   To what extent must the content of such services by a
            recognised under Council Directive 85/384/EEC of                  retailer be specifically stated in order to guarantee the
            10 June 1985 on the mutual recognition of dip-                    certainty of the subject-matter of trade-mark protection
            lomas, certificates and other evidence of formal                  that is required in order to
            qualifications in architecture, including measures
            to facilitate the effective exercise of the right of
            establishment and freedom to provide services (1),                (a)   fulfil the function of the trade mark pursuant to
                                                                                Article 2 of the Directive, namely distinguishing the
            the Hellenic Republic has failed to fulfil its obli-                    goods or services of one undertaking from those of
            gations under Articles 6(2), 10 and 12 of that                          other undertakings, and
            directive;
(b)   order the Hellenic Republic to pay the costs.                           (b) define the scope of protection of such a trade mark
                                                                                in the event of a conflict?
Pleas in law and main arguments                                          3.   To what extent is it necessary to define the scope of
                                                                              similarity (Article 4(1)(b) and Article 5(1)(b) of the
                                                                              Directive) between those services by a retailer and
The Commission alleges that the Hellenic Republic has failed
to transpose Directive 85/384 into national law correctly
inasmuch as the Greek legislation lays down: (i) a parallel                   (a)   the other services provided in connection with the
system for contesting diplomas, certificates and other evidence                     sale of goods, or
of formal qualifications beyond that provided for by the
directive (referral to the advisory committee for architecture);              (b) the goods sold by that particular retailer?
and (ii) an obligation on the other Member States beyond that
owed by them under Article 6(1) of the directive.
In addition, the Commission alleges that the defendant has
implemented the directive inappropriately by reason of incor-
rect administrative practice on the part of the Tekhniko
Epimelitirio Elladas (TEE). In its submission, the TEE either
does not examine in due time applications for entry on the
register or does not inform applicants, giving reasons, of the           Appeal brought on 21 November 2002 by Europe Chemi-
refusal to register them.                                                Con (Deutschland) GmbH against the judgment delivered
                                                                         on 12 September 2002 by the Fourth Chamber (Extended
( 1) OJ L 223, 21.8.1985, p. 15.                                         Composition) of the Court of First Instance of the
                                                                         European Communities in case T-89/00 ( 1) between Euro-
                                                                         pe Chemi-Con (Deutschland) GmbH and the Council of
                                                                         the European Union, supported by the Commission of
                                                                                the European Communities
Reference for a preliminary ruling by the Bundespat-
entgericht by order of that Court of 15 October 2002 in                                         (Case C-422/02 P)
the appeal matter of PRAKTIKER Bau- und Heimwerker-
                            märkte AG
                                                                                (2003/C 19/31)
                         (Case C-418/02)
                          (2003/C 19/30)
                                                                         An appeal against the judgment delivered on 12 September
                                                                         2002 by the Fourth Chamber (Extended Composition) of the
Reference has been made to the Court of Justice of the                   Court of First Instance of the European Communities in case
European Communities by order of the Bundespatentgericht                 T-89/00 between Europe Chemi-Con (Deutschland) GmbH
(Federal Patents Court) of 15 October 2002, received at the              and the Council of the European Union, supported by the
Court Registry on 20 November 2002, for a preliminary ruling             Commission of the European Communities, was brought
in the appeal matter of PRAKTIKER Bau- und Heimwerker-                   before the Court of Justice of the European Communities on
märkte AG on the following questions on the interpretation of            21 November 2002 by Europe Chemi-Con (Deutschland)
the First Council Directive 89/104/EEC of 21 December 1988               GmbH, established in Nuremberg (Germany), represented by
to approximate the laws of the Member States relating to trade           K. Adamantopoulos, J. J. Gutiérrez Gisbert and J. Branton,
marks (OJ L 40 1989, p. 1):                                              lawyers, with an address for service in Luxembourg.


title: Case T-511/12: Order of the General Court of 28 November 2013 — Refrigue-confecções para o frio v OHIM — Sixty International (Refrigue for cold)

text:
               15.2.2014

               EN

               Official Journal of the European Union

               C 45/44

         Order of the General Court of 28 November 2013 — Refrigue-confecções para o frio v OHIM — Sixty International (Refrigue for cold)
   (Case T-511/12) (1)

   2014/C 45/79
   Language of the case: Italian
   The President of the Eighth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 38, 9.2.2013.


title: Judgment of the court of first instance 3 March 2004 inCase T-48/01: François Vainker and Brenda Vainker v European Parliament (Officials— Occupational disease — Article 73 of the Staff Regulations — Claim for damages— Irregularities in the procedure for recognition of the occupational originof a disease — Damage — Damage suffered by the spouse of a former official)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/55

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   3 March 2004
   in Case T-48/01: François Vainker and Brenda Vainker v European Parliament (1)

   (Officials - Occupational disease - Article 73 of the Staff Regulations - Claim for damages - Irregularities in the procedure for recognition of the occupational origin of a disease - Damage - Damage suffered by the spouse of a former official)
   (2004/C 106/106)
   Language of the case: English
   In Case T-48/01, François Vainker, former official of the European Parliament and Brenda Vainker, his wife, resident in Middlesex (United Kingdom), represented by J. Grayston and A. Bywater, solicitors, v European Parliament (Agents: H. von Hertzen and D. Moore and D. Waelbroeck): Application for damages pursuant to Article 236 EC and the second paragraph of Article 288 EC, in order to make good damage allegedly suffered, first, by the applicant, Mr Vainker, by reason of the fact that he has contracted an occupational disease and, second, by the applicants as a result of the mishandling by the defendant institution of the claim for compensation under Article 73 of the Staff Regulations of Officials of the European Communities, the Court of First Instance (Second Chamber), composed of: N.J. Forwood, President of Chamber, J. Pirrung and A.W.H. Meij, Judges; H. Jung, Registrar, has given a judgment on 3 March 2004, in which it:

               1.

               Orders the Parliament to pay Mr Vainker the sum of EUR 60 000.

               2.

               Orders the Parliament to pay the applicant, Mr Vainker, the sum of GBP 8 244.94 by way of reimbursement of legal costs incurred during the procedure for recognition of the occupational origin of Mr Vainker's disease.

               3.

               Orders the Parliament to pay the applicant, Mr Vainker, default interest on the sum of EUR 617 617.94 from 29 November 1999 to 9 January 2002. The rate of that interest must be calculated on the basis of the rate fixed by the European Central Bank for its main refinancing operations, in force from time to time during the period concerned, plus two percentage points.

               4.

               Dismisses the remainder of the application.

               5.

               Orders the Parliament to pay its own costs and two thirds of those of the applicants.

      (1)  OJ C 186 of 30.06.2001.


title: Case C-548/14 P: Order of the Court (Third Chamber) of 17 September 2015 — Arnoldo Mondadori Editore SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Grazia Equity GmbH (Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Community trade mark — Regulation (EC) No 40/94 — Application for registration of the word mark GRAZIA — Opposition by the proprietor of the international, Community and national word and figurative marks including the word element ‘GRAZIA’ — Rejection of the opposition — Article 8(1)(b) — Likelihood of confusion — Article 8(5) — Reputation)

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/8

         Order of the Court (Third Chamber) of 17 September 2015 — Arnoldo Mondadori Editore SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Grazia Equity GmbH
   (Case C-548/14 P) (1)

   ((Appeal - Article 181 of the Rules of Procedure of the Court of Justice - Community trade mark - Regulation (EC) No 40/94 - Application for registration of the word mark GRAZIA - Opposition by the proprietor of the international, Community and national word and figurative marks including the word element ‘GRAZIA’ - Rejection of the opposition - Article 8(1)(b) - Likelihood of confusion - Article 8(5) - Reputation))
   (2015/C 398/09)
   Language of the case: English

      Parties

      Appellant: Arnoldo Mondadori Editore SpA (represented by: G. Dragotti, R. Valenti, S. Balice and E. Varese, avvocati)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: A. Schifko, acting as Agent) and Grazia Equity GmbH (represented by: M. Müller, Rechtsanwalt)

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Arnoldo Mondadori Editore SpA shall bear its own costs and pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

               3.

               Grazia Equity GmbH shall bear its own costs.

      (1)  OJ C 73, 2.3.2015.


title: Case C-50/00 P: Appeal brought on 16 February 2000 against the judgment delivered on 23 November 1999 by the Third Chamber of the Court of First Instance of the European Communities in Case T-173/98 between Unión de Pequeños Agricultores and Council of the European Union

text:
24.6.2000                EN                      Official Journal of the European Communities                                          C 176/3
                  JUDGMENT OF THE COURT                                     Appeal brought on 16 February 2000 against the judg-
                                                                            ment delivered on 23 November 1999 by the Third
                                                                            Chamber of the Court of First Instance of the European
                          (Sixth Chamber)                                   Communities in Case T-173/98 between Unión de
                                                                            Pequeños Agricultores and Council of the European
                                                                                Union
                          of 13 April 2000
                                                                                (Case C-50/00 P)
in Case C-274/98: Commission of the European Communi-
                    ties v Kingdom of Spain (1)                                                      (2000/C 176/05)
                                                                            An appeal against the judgment delivered on 23 November
(Failure by a Member State to fulfil its obligations —                      1999 by the Third Chamber of the Court of First Instance of
                       Directive 91/676/EEC)                                the European Communities in Case T-173/98 between Unión
                                                                            de Pequeños Agricultores and Council of the European was
                                                                            brought before the Court of Justice of the European Communi-
                           (2000/C 176/04)                                  ties on 16 February 2000 by the Unión de Pequeños Agricul-
                                                                            tores, represented by Javier Ledesma Bartret and José Jiménez
                                                                            Laiglesia Oñate, with an address for service in Luxembourg
                                                                            care of Concepción Llaser Moyano, 22 Rue Wenkelhiel,
                    (Language of the case: Spanish)                         L-5680 Dalheim.
                                                                            The appellant claims that the Court should:
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                          1. Set aside the order of the Court of First Instance of
                                                                                23 November 1999 in Case T-173/98;
In Case C-274/98: Commission of the European Communities                    2. Pursuant to Article 55 of the Statute of the Court of Justice
(Agents: E. Gippini Fournier and F. de Sousa Fialho) v Kingdom                   of the EC declare admissible the main action brought on
of Spain (Agent: M. López-Monı́s Gallego) — application for a                   20 October 1998 by the appellant and refer the case back
declaration that by failing to establish action programmes                       to the Court of First Instance for judgment on the merits
pursuant to Article 5 of Council Directive 91/676/EEC of                         of the case.
12 December 1991 concerning the protection of waters
against pollution caused by nitrates from agricultural sources
(OJ 1991 L 375, p. 1; corrigendum to the Spanish version in
OJ 1993 L 92, p. 51), the Kingdom of Spain has failed to fulfil             Pleas in law and main arguments
its obligations under the EC Treaty — the Court (Sixth
Chamber), composed of: J.C. Moitinho de Almeida, President
of the Chamber, R. Schintgen, G. Hirsch, V. Skouris and                     Irregular procedure and breach of Community law:
F. Macken (Rapporteur), Judges; G. Cosmas, Advocate General;
R. Grass, Registrar, has given a judgment on 13 April 2000, in
which it:                                                                   — the order misunderstands and misinterprets the arguments
                                                                                submitted by the appellant in so far as it relies on the
                                                                                fundamental right to effective judicial protection. There
1. Declares that by not establishing the action programmes referred              was no justification for infringing the appellant’s funda-
    to in Article 5 of Council Directive 91/676/EEC of 12 December               mental right to effective judicial protection as a result of
    1991 concerning the protection of waters against pollution                   declaring its action inadmissible despite the ‘non-existence’
    caused by nitrates from agricultural sources the Kingdom of                  of an internal remedy, whereas, in the instant case, the
    Spain has failed to fulfil its obligations under the directive;              finding of inadmissibility in the appellant’s view does not
                                                                                meet the requirement of ‘effectiveness’ required by the
                                                                                fundamental right relied upon.
2. Orders the Kingdom of Spain to pay the costs.
                                                                            — the grounds for the order are inadequate as regards
                                                                                the appellant’s line of reasoning so far as concerns its
                                                                                fundamental right to effective judicial protection, and it
(1) OJ C 278 of 5.9.1998.                                                        again misunderstands the arguments put forward by the
                                                                                appellant.
                                                                            — the grounds of the order are contradictory with regard to
                                                                                the consideration of the principle of right to a fair hearing.
 ---pagebreak--- C 176/4                 EN                    Official Journal of the European Communities                                      24.6.2000
— the order infringes the fundamental right of the appellant             Pleas in law and main arguments
     to effective judicial protection as a general principle of
     Community law and the very system of remedies estab-
     lished in the Treaties. The appellant does not plead the            Infringement of Council Regulation (EEC) No 3760/92 (2):
     system of remedies established in the Treaty in the present
     case, but rather that the contested order failed to make any
     analysis as to the effectiveness of the fundamental right           — According to the Kingdom of Spain, the contested pro-
     relied upon in its action. Such failure to take this into                vision violates the principle of relative stability, and that
     account and the decision in the order that the duty to                   issue was not resolved in the judgment delivered on
     safeguard the effectiveness of judicial protection is a matter           5 October 1999 in Case C-179/95 Spain v Council.
     for the judicial systems of the Member States amounts to a
     breach of the system of remedies laid down in the former
     Article 173 of the Treaty. By misapplying the principle of          — The Kingdom of Spain considers that Article 9 of Regu-
     the duty to cooperate in good faith incumbent on the                     lation No 3760/92 is not applicable to a measure such as
     Member States, the order transfers to the latter the duty to             that contested, for the following reasons:
     apply a fundamental right in the context of Article 173 of
     the Treaty, fails to take account of the fact that the                   (1) the exchanges of quotas authorised by Article 9 of
     appellant claimed at first instance that its fundamental                      Regulation No 3760/92 must accord with the prin-
     rights had been infringed by the contested measure, fails                     ciples of the common fisheries policy and of Com-
     to mention that the remaining rights relied upon by the                       munity legislation, which include the principle of
     appellant may only be protected before the Community                          relative stability;
     judicature and, finally, does not state that the duty of the
     Community judicature is to ascertain whether Community
     acts are valid in accordance with fundamental rights.                    (2) in accordance with the abovementioned Article 9,
                                                                                exchanges of fishing availabilities are a matter falling
                                                                                within the competence of the Member States, which
                                                                                are required only to notify the Commission of them; in
                                                                                the present case, however, it is the Council that has
                                                                                decided that 3 000 tonnes may be fished by Portugal
                                                                                in waters of the Bay of Biscay and that they may be
                                                                                subsequently ceded to France;
Action brought on 7 March 2000 by the Kingdom of                              (3) although the legal basis of Council Regulation No
      Spain against the Council of the European Union                              685/95 on the management of the fishing effort
                                                                                relating to certain Community fishing areas and
                                                                                resources is clearly Article 43 of the EC Treaty (now
                           (Case C-81/00)                                          Article 37 EC), that does not mean that the Council
                                                                                may use that regulation in order to disregard the
                                                                                principles established in the basic fisheries regulation
                          (2000/C 176/06)                                          (that is to say, Regulation No 3760/92), in particular
                                                                                the principle of relative stability.
An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-             — The contested provision, which has no scientific basis
ties on 7 March 2000 by the Kingdom of Spain, represented                     whatever, gives rise to a de facto alteration to the TAC
by Rosario Silva, de Lapuerta, acting as Agent, with an address               fixed for the year 2000 in respect of anchovies, reducing it
for service in Luxembourg at the Spanish Embassy, 4-6                         to 16 000 tonnes in ICES zone VIII from a figure of
Boulevard Emmanuel Servais.                                                   19 000. In so doing, it infringes Regulation No 3760/92,
                                                                              since, instead of achieving the objective of rational and
                                                                              responsible exploitation of the available resources, it results
The applicant claims that the Court should:                                   in over-fishing of a species such as the anchovy in ICES
                                                                              zone VIII.
— annul the point relating to anchovies referred to in note
     (2) to the item relating to stocks of ‘Anchovy; Zone: IX, X,
     CECAF 34.1.1’ contained in Annex I D to Council
     Regulation (EC) No 2742/1999 (1) of 17 December 1999                (1) OJ L 341 of 31.12.1999, p. 1.
     fixing for 2000 the fishing opportunities and associated            (2) Establishing a Community system for fisheries and aquaculture
     conditions for certain fish stocks and groups of fish stocks,           (OJ L 389 of 31.12.1992, p. 1, with corrigendum in OJ L 92 of
     applicable in Community waters and, for Community                       16.4.1993, p. 51).
     vessels, in waters where limitations in catch are required
     and amending Regulation (EC) No 66/98;
— order the defendant institution to pay the costs.


title: Case T-183/06: Judgment of the Court of First Instance of 30 September 2009 — Portugal v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Flax textile — Effectiveness of checks)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/40

         Judgment of the Court of First Instance of 30 September 2009 — Portugal v Commission
   (Case T-183/06) (1)

   (EAGGF - Guarantee Section - Expenditure excluded from Community financing - Flax textile - Effectiveness of checks)
   2009/C 282/74
   Language of the case: Portuguese

      Parties

      Applicant: Portuguese Republic (represented by: L. Inez Fernandes, acting as Agent, assisted by C. Botelho Moniz and E. Maia Cadete, lawyers)

      Defendant: Commission of the European Communities (represented by: M. Afonso, L. Parpala and F. Jimeno Fernández, acting as Agents)
   Re:
   Application for partial annulment of Commission Decision 2006/334/EC of 28 April 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2006 L 124, p. 21).

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision 2006/334/EC of 28 April 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) in so far as it excludes all of the expenditure incurred by the Portuguese Republic in the flax sector.

               2.

               Orders the Commission of the European Communities to pay the costs.

      (1)  OJ C 212, 2.9.2006.


title: Case C-534/07 P: Judgment of the Court (First Chamber) of 3 September 2009 — William Prym GmbH & Co. KG, Prym Consumer GmbH & Co. KG v Commission of the European Communities (Appeal — Competition — Agreements, decisions and concerted practices — European haberdashery market (needles) — Market sharing agreements — Infringement of the rights of the defence — Obligation to state the reasons on which the decision is based — Fine — Guidelines — Gravity of the infringement — Actual impact on the market — Implementation of the cartel)

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/5

         Judgment of the Court (First Chamber) of 3 September 2009 — William Prym GmbH & Co. KG, Prym Consumer GmbH & Co. KG v Commission of the European Communities
   (Case C-534/07 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - European haberdashery market (needles) - Market sharing agreements - Infringement of the rights of the defence - Obligation to state the reasons on which the decision is based - Fine - Guidelines - Gravity of the infringement - Actual impact on the market - Implementation of the cartel)
   2009/C 256/08
   Language of the case: German

      Parties

      Appellants: William Prym GmbH & Co. KG, Prym Consumer GmbH & Co. KG (represented by: H.-J. Niemeyer, C. Herrmann and M. Röhrig, Rechtsanwälte)

      Other party to the proceedings: Commission of the European Communities (represented by: F. Castillo de la Torre and K. Mojzesowicz, acting as Agents)

      Re:

   Appeal brought against the judgment of the Court of First Instance (Second Chamber) of 12 September 2007 in Case T-30/05 Prym and Prym Consumer v Commission, in which the Court fixed the amount of the fine imposed on the applicants by Article 2 of Commission Decision C(2004) 4221 final of 26 October 2004 relating to a procedure for the application of Article 81 EC (Case COMP/F-1/38.338-PO/Needles) at EUR 27 million — Agreement, decision or concerted practice in the market for haberdashery (needles)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders William Prym GmbH & Co. KG and Prym Consumer GmbH & Co. KG to pay the costs.

      (1)  OJ C 37, 9.2.2008.


title: Case T-120/00: Action brought on 3 May 2000 by The Procter & Gamble Company against the Office for Harmonization in the Internal Market

text:
C 192/22              EN                     Official Journal of the European Communities                                     8.7.2000
Pleas in law and main arguments                                         Contested        decision     Refusal of registration by the
                                                                        before the Board of           examiner
Trademark concerned:          Three dimensional trademark in            Appeal:
                              the form of tablets — Application
                              No 954453                                 Grounds for appeal:           Infringement of Article 7(1)(b) of
                                                                                Regulation 40/94.
Product or Service:           Products in Class 3 of the Nice
                              Agreement (in particular, washing
                              and bleaching preparations for
                              laundry use; preparations for the
                              washing of dishes, soaps)
Contested        decision     Refusal of registration by the
before the Board of           examiner                                  Action brought on 3 May 2000 by The Procter & Gamble
Appeal:                                                                 Company against the Office for Harmonization in the
                                                                                Internal Market.
Grounds for appeal:           Infringement of Article 7(1)(b) of
                              Regulation 40/94.
                                                                                (Case T-121/00)
                                                                                (2000/C 192/42)
                                                                                (Language of the case: English)
Action brought on 3 May 2000 by The Procter & Gamble
Company against the Office for Harmonization in the                     An action against the Office for Harmonization in the Internal
                        Internal Market                                 Market was brought before the Court of First Instance of the
                                                                        European Communities on 3 May 2000 by The Procter &
                        (Case T-120/00)                                 Gamble Company, represented by C.J.J.C. van Nispen and
                                                                        G. Kuipers of De Brauw Blackstone Westbroek, The Hague,
                        (2000/C 192/41)                                 Netherlands.
                                                                        The applicant claims that the Court should:
                  (Language of the case: English)
                                                                        — annul Decision R529/1999-1 of the First Board of Appeal
An action against the Office for Harmonization in the Internal              of the OHIM of 29 February 2000, in so far as it finds that
Market was brought before the Court of First Instance of the                the Mark does not satisfy the conditions as laid down in
European Communities on 3 May 2000 by The Procter &                         Article 7(1)(b) of Regulation No 40/94; and
Gamble Company, represented by C.J.J.C. van Nispen and
G. Kuipers of De Brauw Blackstone Westbroek, The Hague,                 — order the OHIM to pay the costs.
Netherlands.
The applicant claims that the Court should:                             Pleas in law and main arguments
— annul Decision R520/1999-1 of the First Board of Appeal               Trademark concerned:          Three dimensional trademark in
    of the OHIM of 29 February 2000, in so far as it finds that                                       the form of tablets Application
    the Mark does not satisfy the conditions as laid down in                                          No 960427
    Article 7(1)(b) of Regulation No 40/94; and
                                                                        Product or Service:           Products in Class 3 of the Nice
— order the OHIM to pay the costs.                                                                    Agreement (in particular, washing
                                                                                and bleaching preparations for
                                                                                laundry use; preparations for the
Pleas in law and main arguments                                                                       washing of dishes, soaps)
Trademark concerned:          Three dimensional trademark in            Contested        decision     Refusal of registration by the
                              the form of tablets — Application         before the Board of           examiner
                              No 954479                                 Appeal:
Product or Service:           Products in Class 3 of the Nice           Grounds for appeal:           Infringement of Article 7(1)(b) of
                              Agreement (in particular, washing                                       Regulation 40/94.
                              and bleaching preparations for
                              laundry use; preparations for the
                              washing of dishes, soaps)