title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 26 January 1995 in Case T-549/93: D v. Commission of the European Communities (Officials - Disciplinary proceedings - Disciplinary Board - Inquiry - Sexual harassment)

text:
No C 54/16          | EN |                Official Journal of the European Communities                                         4 . 3 . 95
 1 . annuls the Commission decision of 29 March 1993                 4. orders the parties in Case T-62/92 to bear their own
     reducing the assistance initially granted to the applicant            costs.
     by the ESF;
                                                                     í 1 ) OJ No C 28 , 5 . 2 . 1992 and OJ No C 258 , 7. 10 . 1992 .
2. orders the Commission to pay the costs.
(!) OJ No C 120, 30 . 4 . 1994 .
                                                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 26 January 1995
                                                                     on Case T-527/93 : O v. Commission of the European
                                                                                Communities ( a )
 JUDGMENT OF THE COURT OF FIRST INSTANCE                             (Officials   — Action seeking annulment — Decision
                      of 26 January 1995                             suspendingpayment ofremuneration pursuant to Article 60
                                                                                of the Staff Regulations)
in Joined Cases T-90/91 and T-62/92: Henri de Compte v.
                   European Parliament ( J )                                                      ( 95/C 54/29 )
 (Officials — Revocation of a decision recognizing an
occupational disease — Subsequent adoption of a decision                             (Language of the case: French)
refusing to recognize the occupational disease —
                           Annulment)                                In Case T-527/93 : O, an official of the Commission of the
                                                                     European Communities, represented by Jean-Francois
                          ( 95/C 54/28 )
                                                                     Neven, of the Brussels Bar, with an address for service in
                                                                     Luxembourg at the Chambers of Catherine Dessoy, 31 Rue
                (Language of the case: French)                       d'Eich, against Commission of the European Communities
                                                                     (Agents: Sean van Raepenbusch and Gianluigi Valsesia ) —
                                                                     application for the annulment of the Commission decision
In Joined Cases T-90/91 and T-62/92: Henri de Compte, a              of 23 December 1992 ordering suspension, pursuant to
former official of the European Parliament residing at               Article 60 of the Staff Regulations, of payment of the
Strasbourg (France), represented by Edmond Lebrun and                applicant's remuneration with effect from 1 January 1993
Eric Boigelot, of the Brussels Bar, with an address for service      — the Court of First Instance (First Chamber), composed of:
in Luxembourg at the Chambers of Louis Schiltz, 2 Rue du            J.L. Cruz Vila^a, President, H. Kirschner and A.
Fort Rheinsheim. v. European Parliament (Agent: Frangois             Kalogeropoulos,           Judges;     J.     Palacio    Gonzalez,
Vainker) — application, first, for the annulment of the              Administrator, for the Registrar, has given a judgment on
decision of the European Parliament of 18 April 1991 by              26 January 1995 , in which it:
which it retroactively revoked its decision of 24 January
1991 recognizing that the applicant was suffering from an
                                                                     1 . annuls the Commission decision of 23 December 1992
occupational disease within the meaning of Article 73 of the
                                                                           ordering payment of the applicant's remuneration to be
Staff Regulations of officials of the European Communities
and for an order requiring the defendant institution to pay
                                                                           suspended with effect from 1 January 1993;
to him the compensation awarded thereby (Case T-90/91 )              2. orders the Commission to pay all the costs.
and, second, the annulment of the decision of the European
Parliament of 20 January 1992 by which it refused to
                                                                     (!) OJ No C 299, 5 . 11 . 1993 .
recognize that the applicant was suffering from an
occupational disease and for an order requiring the
defendant institution to pay to him the compensation
provided for in that regard ( Case T-62/92 ) — the Court of
First Instance (First Chamber), composed of J.L. Cruz
Vilaga, President, and H. Kirschner and A. Kalogeropoulos,           JUDGMENT OF THE COURT OF FIRST INSTANCE
Judges; H. Jung, Registrar, has given a judgment on
26 January 1995 , in which it:                                                               of 26 January 1995
                                                                     in Case T-549/93 : D v. Commission of the European
                                                                                Communities (*)
1 . dismisses the claims for relief made in the application in
     Case T-90/91 . The European Parliament is ordered to            (Officials — Disciplinaryproceedings — DisciplinaryBoard
     pay to the applicant compensation for non-material                            — Inquiry — Sexual harassment)
     damage in the sum of Bfrs 200 000;                                                             95/C 54/30)
2. dismisses the application in Case T-62/92;                                        (Language of the case: French)
3 . orders the European Parliament in Case T-90/91 to bear          In Case T-549/93 : D, a former official of the Commission of
     its own costs and to pay one quarter of the costs of the       the European Communities, represented by Eric Boigelot, of
     applicant, who is consequently to bear three quarters of       the Brussels Bar, with an address for service in Luxembourg
     his own costs;                                                 at the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim,
 ---pagebreak--- 4. 3. 95            I EN 1                Official Journal of the European Communities                                No C 54/17
v. Commission of the European Communities (Agent: Ana                3 . orders the Court of Justice to pay all the costs.
Maria Alves Vieira ) — application for the annulment of the
Commission's decision of 30 September 1993 imposing on               (M OJ 1994 C 76, 12 . 3 . 1994 .
the applicant the disciplinary measure referred to in Article
86 (2 ) ( f) of the Staff Regulations of Officials of the
European Communities, namely, removal from post
without    withdrawal      or   reduction  of entitlement   to
retirement pension — the Court of First Instance ( Fourth            JUDGMENT OF THE COURT OF FIRST INSTANCE
Chamber ), composed of K. Lenaerts, President, and R.
Schintgen and R. García-Valdecasas, Judges; H. Jung,                                       of 11 January 1995
Registrar, has given a judgment on 26 January 1995, in               in Case T-l 16/94 Cassa Nazionale di Previdenza ed
which it:                                                            Assistenza a favore degli Avvocati e Procuratori v. Council
                                                                                of the European Union (*)
1 . dismisses the application;                                       (Action for annulment — Regulation (EC) No 3604/93
                                                                     specifying definitions for the application of the prohibition
2. orders the parties to bear their own costs, including             of privileged access referred to in Article 104a of the EC
     those relating to the proceedings for interim                                     Treaty — Inadmissibility)
     measures .                                                                                ( 95/C 54/32 )
(!) OJ No C 325, 2 . 12 . 1993 .                                                     (Language of the case: Italian)
                                                                     In Case T- 116/94 : Cassa Nazionale di Previdenza ed
                                                                     Assistenza a favore degli Avvocati e Procuratori,
                                                                     represented by Edilberto Ricciardi, of the Salerno Bar, and
                                                                     by Pietro Adonnino, Mario Sanino, Maurizio de Stefano
                                                                     and Alberto Colabianchi, all of the Rome Bar, with an
JUDGMENT OF THE COURT OF FIRST INSTANCE                              address for service in Luxembourg at the Chambers of M.
                      of 26 January 1995                             Goebel, 6 Rue Heine, against the Council of the European
in Case T-60/94: Myriam Pierrat v. Court of Justice of the           Union (Agents: R. Bandilla and A. Lucidi ) — application for
                  European Communities ( J )                         annulment of Council Regulation ( EC ) No 3604/93 of
(Members ofthe temporary staff— Recruitment ofreaders                13 December 1993 specifying definitions for the application
of judgments — Selection procedure — Rejection of an                 of the prohibition of privileged access referred to in
            application — Duty to state reasons)
                                                                     Article 104a of the Treaty (2), the Court of First Instance
                                                                     (Third Chamber), composed of: J. Biancarelli (President),
                          ( 95/C 54/31                               C.P. Briët and C.W. Bellamy, Judges, H. Jung, Registrar,
                                                                     made an order on 11 January 1995, the operative part of
                (Language of the case: French)                       which is as follows :
                                                                     1 . the action is dismissed as inadmissible.
In Case T-60/94: Myriam Pierrat, a former member of the
temporary staff of the Court of Justice of the European              2. there is no need to rule on the applications to
Communities, residing in Luxembourg, represented by                       intervene.
Georges Vandersanden, of the Brussels Bar, with an address
for service in Luxembourg at the office of Fiduciaire Myson          3 . the applicant shall bear its own costs and those incurred
S.à r.l., 1 Rue Glesener, against Court of Justice of the                 by the Council. Each ofthe interveners shall bear its own
European Communities (Agents : T. Millett and A. May) —                   costs.
application for the annulment of the decisions of the Court
to appoint Mrs B. as reader of judgments and to reject the           (M OJ No C 132, 14. 5 . 1994 .
applicant's application for the post of reader of judgments,         (2 ) OJ No L 332, 31 . 12 . 1993 , p . 4 .
and for the award to the applicant of one symbolic ecu as
compensation for the non-material damage which she
claims to have suffered — the Court of First Instance (First
Chamber ), composed of: J.L. Cruz Vilaça, President, H.
Kirschner and A. Kalogeropoulos, Judges; H. Jung,
Registrar, has given a judgment on 26 January 1995, in               Action brought on 9 January 1995 by Christian
which it:                                                            Vahrenkamp against Council of the European Union and
                                                                              Commission of the European Communities
                                                                                (Case T-l/95 )
1 . annuls the decision of the President of the Court of
    Justice of 27 May 1993 to appoint Mrs B. as reader of                                         95/C 54/33 )
    judgments and the decision, notified to the applicant by
    letter of 8 June 1 993, to reject her application for the                      (Language of the case: German)
    post of reader of judgments;
                                                                     An action against the Council of the European Union and
2. dismisses the remainder of the application;                       the Commission of the European Communities was brought


title: Case C-447/10 P: Order of the President of the Fourth Chamber of the Court of 24 October 2012 — Grain Millers, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Grain Millers GmbH & Co. KG

text:
               6.4.2013

               EN

               Official Journal of the European Union

               C 101/14

         Order of the President of the Fourth Chamber of the Court of 24 October 2012 — Grain Millers, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Grain Millers GmbH & Co. KG
   (Case C-447/10 P) (1)

   2013/C 101/28
   Language of the case: English
   The President of the Fourth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 301, 6.11.2010.


title: Case T-796/14: Action brought on 4 December 2014 — Philip Morris v Commission

text:
               16.2.2015

               EN

               Official Journal of the European Union

               C 56/24

         Action brought on 4 December 2014 — Philip Morris v Commission
   (Case T-796/14)
   (2015/C 056/35)
   Language of the case: English

      Parties

      Applicant: Philip Morris Ltd (Richmond, United Kingdom) (represented by: K. Nordlander and M. Abenhaïm, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the application for annulment admissible;

               —

               annul the Decision Ares (2014) 3142109 of the European Commission, dated 24 September 2014, in so far as it refuses to grant the applicant full access to the requested documents, with the exception of the redacted personal data contained therein;

               —

               order the Commission to pay the applicant’s costs for these proceedings.

      Pleas in law and main arguments

   The applicant seeks the annulment of Decision Ares(2014)3142109 of 24 September 2014, whereby the Commission refused to grant the applicant full access to six internal documents drawn up in the context of the preparatory works leading to the adoption of Directive 2014/40/EU on the manufacture, presentation and sale of tobacco and related products (1) (the ‘Contested Decision’).
   In support of the action, the applicant relies on three distinct pleas in law.

               1.

               First plea in law, alleging that the Commission breached its duty to state reasons by failing to explain — for each document — which relevant exception of the Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (the ‘Transparency Regulation’) it applied and on the basis of what factual circumstances and considerations. By relying on the same overall blanket arguments to support the different grounds of refusal (protection of court proceedings, legal advice and the decision-making process), the Commission failed to state the reasons why disclosure of the requested documents would ‘specifically and actually’ undermine each of these interests. More specifically, the Contested Decision does not explain whether the justification invoked for each relevant refusal is ‘court proceedings’ or ‘legal advice’.

               2.

               Second plea in law, alleging that the Commission breached Article 4(2) second indent of the Transparency Regulation by failing to show how disclosure in each case would ‘specifically and actually’ undermine the protection of ‘legal advice’ or ‘court proceedings’. As regards the protection of ‘legal advice’, the Commission’s abstract justifications have all been dismissed in case law and the Commission provides no concrete explanation showing why, in this case, full disclosure of the requested documents would specifically and actually undermine the protection of legal advice. As regards ‘court proceedings’, the Commission again fails to explain, concretely, why disclosure would ‘specifically and actually’ undermine the protection of ‘court proceedings’.

               3.

               Third plea in law, alleging that the Commission breached both subparagraphs of Article 4(3) of the Transparency Regulation by failing to explain how disclosure would specifically and actually undermine the protection of the ‘decision-making process’. As regards the first subparagraph of Article 4(3) of the Transparency Regulation, the Commission failed to identify a ‘decision-making process’ that could still be viewed as ‘ongoing’ and to demonstrate how disclosure would specifically and actually undermine its decision-making process. As regards the second subparagraph of that provision, the Commission failed to show that the requested documents were ‘opinions’ within the meaning of that subparagraph and a fortiori that the risk that disclosure would specifically and actually undermine the decision-making process was serious within the stricter meaning of that subparagraph.

      (1)  Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC, OJ, 2014, L 127, p. 1.


title: Case T-187/02: Action brought on 17 June 2002 by Rüdiger Wienberg (Rechtsanwalt), acting as liquidator in the liquidation of Erba Lautex GmbH Weberei und Veredlung against the Commission of the European Communities

text:
C 219/20              EN                     Official Journal of the European Communities                                        14.9.2002
Pleas in law and main arguments                                         group said to comprise Erba Lautex GmbH in liquidation
                                                                        and Neue Erba Lautex GmbH aid amounting in total to
                                                                        EUR 7,834 million.
The applicant objects to the Commission’s decision to refuse
to appoint him to the higher grade in the category in
accordance with Article 31(2) of the Staff Regulations.
                                                                        The applicant submits that the Commission’s finding that
                                                                        repayment of the capital increase constituted aid was incorrect
In support of his arguments, the applicant claims that the              and thus contravened Article 87(1) EC. The obligation on the
Commission relied on erroneous information and on contra-               State-owned vendor under the contractual clause did not
dictory arguments. By refusing to reclassify the applicant              amount to aid. Moreover, the Commission did not substantiate
despite the large number of diplomas he holds and the                   its supposition as to a 100 % level of aid intensity in connection
experience he possesses, the Commission has committed a                 with a capital increase in favour of Erba Lautex GmbH and
manifest error of assessment. Furthermore, the Commission               thus contravened Article 253 EC.
did not give valid reasons for its decision, thus infringing
Article 25(2) of the Staff Regulations.
                                                                        The applicant further submits that there is no legal basis for
                                                                        the obligation on Erba Lautex GmbH in respect of repayment
                                                                        of rescue and restructuring aid in favour of Neue Erba Lautex
                                                                        GmbH. The Commission decision is based on the erroneous
                                                                        finding that Neue Erba Lautex GmbH was not a successor
                                                                        undertaking under the terms of the exception provided for in
                                                                        footnote 10 of the Guidelines (1).
Action brought on 17 June 2002 by Rüdiger Wienberg
(Rechtsanwalt), acting as liquidator in the liquidation of
Erba Lautex GmbH Weberei und Veredlung against the
         Commission of the European Communities
                                                                        The applicant maintains that the Commission’s finding that
                                                                        Erba Lautex GmbH and Neue Erba Lautex GmbH were to be
                        (Case T-187/02)                                 deemed to constitute a group was erroneous since Neue Erba
                                                                        Lautex GmbH is controlled not by Erba Lautex GmbH but by
                                                                        the liquidator. The findings that no aid has hitherto been
                        (2002/C 219/50)                                 claimed back from Erba Lautex GmbH and that the Com-
                                                                        mission decision of 20 July 1999 has thus not been implement-
                  (Language of the Case: German)                        ed are also erroneous. In consequence of the erroneous
                                                                        assumptions made by the Commission the contested decision
                                                                        was already unlawful and liable to be set aside for breach of
                                                                        Article 87(3)(c) EC in conjunction with the Guidelines.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance on 17 June
2002 by Rüdiger Wienberg (Rechtsanwalt), acting as liquidator           The applicant submits, in the alternative, that the Commission
in the liquidation of Erba Lautex GmbH Weberei und Vered-               was incorrect in its finding that the applicant and Erba Lautex
lung, Dresden, (Germany), represented by Professor U. Ehricke,          GmbH constituted a unit or group of undertakings and that
with an address for service in Luxembourg.                              therefore the ability to approve rescue and restructuring aid
                                                                        could only be assessed in favour of the group, that the
                                                                        Deggendorf doctrine was to be applied and the aid was to
The applicant claims that the Court should:                             be claimed back from both members of the group. The
                                                                        Commission’s decision is said to be based on the erroneous
—     Annul the Commission Decision (C(2002)944 fin) of                 finding that the applicant’s case did not constitute a residual
      12 March 2002 concerning State aid by the Federal                 arrangement under the terms of the exception provided for in
      Republic in favour of Neue Erba Lautex Gmbh and Erba              footnote 10 of the Guidelines. By not applying that exceptional
      Lautex GmbH in liquidation;                                       provision the Commission infringed the principle of equal
                                                                        treatment and provided no objective reason for the unequal
—     Order the defendant to pay the costs.                             treatment.
                                                                        (1 ) Community Guidelines on State aid for rescuing and restructuring
Pleas in law and main arguments                                              firms in difficulty (OJ 1999 C 288, p. 2).
In the contested decision the Commission imposed on the
Federal Republic of Germany the obligation to reclaim from a


title: Case T-144/16: Action brought on 4 April 2016 — Mundipharma v EUIPO — Multipharma (MULTIPHARMA)

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/40

         Action brought on 4 April 2016 — Mundipharma v EUIPO — Multipharma (MULTIPHARMA)
   (Case T-144/16)
   (2016/C 191/53)
   Language in which the application was lodged: German

      Parties

      Applicant: Mundipharma AG (Basle, Switzerland) (represented by: F. Nielsen, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Multipharma SA (Luxembourg, Luxembourg)

      Details of the proceedings before EUIPO

      Applicant for the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: EU word mark ‘MULTIPHARMA’ — Application for registration No 9 537 887

      Proceedings before EUIPO: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of EUIPO of 22 January 2016 in Case R 2950/2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs of the proceedings, including those incurred in the appeal proceedings.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Action brought on 16 April 1997 by Jill Valerie Hanna against the Commission of the European Communities (Case T-117/97)

text:
26 . 7 . 97           EN                  Official Journal of the European Communities                                  No C 228/ 15
     ORDER OF THE COURT OF FIRST INSTANCE                            Garcia-Valdecasas, President, J. Azizi and M. Jaeger,
                       of 28 May 1997                                Judges; H. Jung, Registrar, has made an order on 3 June
                                                                     1997, the operative part of which is as follows:
in Case T-145/95 : Proderec — Formação e Desenvolvi
mento de Recursos Humanos, ACE v. Commission of the                  1 . There is no need to give a decision.
                  European Communities (')
(Action for annulment — Contested measure withdrawn                  2. The defendant shall pay the costs.
in the course of proceedings — No need to give a
                             decision)                               H OJ No C 197, 6 . 7. 1996 .
                           97/C 228/31 )
              (Language of the case: Portuguese)
In Case T-145/95 : Proderec — Forma^ao e Desenvolvi                 Action brought on 16 April 1997 by Jill Valerie Hanna
mento de Recursos Humanos, ACE, whose registered                           against the Commission of the European Communities
office is in Almada ( Portugal ), represented by Manuel                                           ( Case T-117/97)
Rodrigues, of the Lisbon Bar, against Commission of the                                              ( 97/C 228/33 )
European Communities ( Agents : initially Ana Maria Alves
Vieira and Giinter Wilms, subsequently Maria Teresa                                     (Language of the case: French)
Figueira and Knut Simonsson ) — application for the
annulment, under Article 173 of the EC Treaty, of a                  An action against the Commission of the European
 Commission decision notified to the applicant by a letter           Communities was brought before the Court of First
of 11 May 1995 amending and reducing the amount                      Instance of the European Communities on 16 April 1997
initially approved and granted by an earlier decision                by Jill Valerie Hanna, residing at Kraainem ( Belgium ),
 approving File Nos 881311 PI and 880249 P3 — the                    represented by Nicolas Lhoest, of the Brussels Bar, with an
 Court of First Instance ( Fourth Chamber), composed of K.           address for service in Luxembourg at the offices of Fidu
 Lenaerts, President, P. Lindh and J. D. Cooke, Judges; H.           ciaire Myson Sari, 30, Rue de Cessange .
Jung, Registrar, made an order on 28 May 1997, the
 operative part of which is as follows :                             The applicant claims that the Court should:
 1 . There is no need to give a decision.                            — annul the Commission's decision of 12 June 1996
                                                                             rejecting the applicant's request that it give
                                                                             consideration to the possible application of
 2 . The Commission shall pay the costs.                                     Article 31 ( 2 ) of the Staff Regulations,
 O OJ No C 268 , 14 . 10 . 1995 .                                    — annul, in so far as may be necessary, the Commission's
                                                                             decision adopted on 27 December 1996 expressly
                                                                             rejecting the applicant's complaint,
                                                                      — order the defendant to pay all the costs .
     ORDER OF THE COURT OF FIRST INSTANCE                             Pleas in law and main arguments adduced in support:
                         of 3 June 1997
                                                                      The pleas in law and main arguments are the same as in
 in Case T-58/96: Partex — Companhia Portuguesa de Ser               Case T-16/97 ( ! ).
  viços SA v. Commission of the European Communities (')
               (Case not proceeding to judgment)                      ( 5 ) OJ No C 74, 8 . 3 . 1997, p . 27.
                          ( 97/C 228/32
               (Language of the case: Portuguese)
 In Case T-58/96: Partex — Companhia Portuguesa de Ser               Action brought on 16 April 1997 by Richardus
 vi^os SA, having its registered office in Lisbon, represented        Ritterbeeks against the Commission of the European
                                                                                Communities
 by Rui Chancerelle de Machete, Pedro Machete and
 Miguel Pena Machete, of the Lisbon Bar, with an address                                           ( Case T-l 18/97 )
 for service in Luxemburg at the Chambers of Louis                                                     97/C 228/34 )
 Schiltz, 2 Rue du Fort Rheinsheim, against Commission of
 the European Communities (Agents: Francisco de Sousa                                    (Language of the case: French)
 Fialho and Knut Simonsson ) — application for the
 annulment of the decision by which the Commission                    An action against the Commission of the European
 approved the request for payment of the balance relating              Communities was brought before the Court of First
 to File 88 0412 P3 of the European Social Fund — the                  Instance of the European Communities on 16 April 1997
 Court of First Instance ( Fifth Chamber), composed of: R.             by Richardus Ritterbeeks, residing at Landgraaf


title: Case C-430/11: Judgment of the Court (First Chamber) of 6 December 2012 (reference for a preliminary ruling from the Tribunale di Rovigo — Italy) — Criminal proceedings against Md Sagor (Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures for returning illegally staying third-country nationals — National legislation providing for a fine which may be replaced by an order for expulsion or home detention)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/13

         Judgment of the Court (First Chamber) of 6 December 2012 (reference for a preliminary ruling from the Tribunale di Rovigo — Italy) — Criminal proceedings against Md Sagor
   (Case C-430/11) (1)

   (Area of freedom, security and justice - Directive 2008/115/EC - Common standards and procedures for returning illegally staying third-country nationals - National legislation providing for a fine which may be replaced by an order for expulsion or home detention)
   2013/C 26/23
   Language of the case: Italian

      Referring court

   Tribunale di Rovigo

      Party in the main proceedings

   Md Sagor

      Re:

   Reference for a preliminary ruling — Tribunale di Rovigo — Interpretation of Articles 2, 4, 6, 7, 8, 15 and 16 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) and Article 4(3) TEU — National legislation imposing a fine of between EUR 5 000 and EUR 10 000 on a foreign national who unlawfully enters or stays in the national territory — Whether it is possible for an illegal stay to constitute a criminal offence — Whether it is possible to replace the fine with immediate expulsion for a period of not less than five years or a penalty entailing curtailment of liberty (‘permanenza domiciliare’) — Member States’ obligations during the period for transposition of a directive

      Operative part of the judgment

   Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as:

               —

               not precluding Member State legislation, such as that at issue in the main proceedings, which penalises illegal stays by third-country nationals by means of a fine which may be replaced by an expulsion order, and

               —

               precluding Member State legislation which allows illegal stays by third-country nationals to be penalised by means of a home detention order without guaranteeing that the enforcement of that order must come to an end as soon as the physical transportation of the individual concerned out of that Member State is possible.

      (1)  OJ C 25, 28.1.2012.


title: Case T-17/07: Action brought on 16 January 2007 — Miguel Torres, S.L. v OHIM

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/39

         Action brought on 16 January 2007 — Miguel Torres, S.L. v OHIM
   (Case T-17/07)
   (2007/C 82/87)
   Language in which the application was lodged: Spanish
   Parties

      Applicant: Miguel Torres, S.L. (Barcelona, Spain) (represented by: E. Armijo Chávarri, M. Baz de San Cerefino, A. Castán Pérez-Goméz, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Bodegas Navarro López, S.L
   Form of order sought

               —

               The annulment of the decision of the 1st Board of Appeal of OHIM of 26 September 2006 issued in case no R1407/2005-1 with costs awarded against OHIM

         Pleas in law and main arguments

      Applicant for a Community trade mark: Bodegas Navarro Lopéz, S.L.

      Community trade mark concerned: Word mark ‘CITA DEL SOL ’for products and services within classes 33 and 39 (application No. 2.712.982)

      Proprietor of the mark or sign cited in the opposition proceedings: Applicant

      Mark or sign cited in opposition: Community word mark ‘VIÑA SOL ’(mark no 462.523) and national word marks ‘VIÑA SOL ’for products within class 33, label ‘TORRES VIÑA SOL ’for products within class 33, national word mark ‘SOL ’for products within class 33.

      Decision of the Opposition Division: Rejection of objection

      Decision of the Board of Appeal: Rejection of appeal

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) given that there is a likelihood of confusion between the marks at issue.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.


title: Case T-416/08: Judgment of the General Court of 12 April 2013 — Eesti Autorite Ühing v Commission (Competition — Agreements, decisions and concerted practices — Copyright relating to public performance of musical works via the internet, satellite and cable retransmission — Decision finding an infringement of Article 81 EC — Sharing of the geographic market — Bilateral agreements between national collecting societies — Concerted practices precluding the possibility of granting multi-territory and multi-repertoire licences — Proof — Presumption of innocence)

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/30

         Judgment of the General Court of 12 April 2013 — Eesti Autorite Ühing v Commission
   (Case T-416/08) (1)

   (Competition - Agreements, decisions and concerted practices - Copyright relating to public performance of musical works via the internet, satellite and cable retransmission - Decision finding an infringement of Article 81 EC - Sharing of the geographic market - Bilateral agreements between national collecting societies - Concerted practices precluding the possibility of granting multi-territory and multi-repertoire licences - Proof - Presumption of innocence)
   2013/C 156/52
   Language of the case: English

      Parties

      Applicant: Eesti Autorite Ühing (Tallin, Estonia) (represented by: M. Favart, lawyer)

      Defendant: European Commission (represented by: F. Castillo de la Torre and A. Biolan, acting as Agents)

      Interveners in support of the applicant: International Confederation of Societies of Authors and Composers (CISAC) (Neuilly-sur-Seine, France) (represented by J.-F. Bellis and K. Van Hove, lawyers); and European Broadcasting Union (EBU) (Grand-Saconnex, (Switzerland) (represented by D. Waelbroeck, lawyer, and D. Slater, Solicitor)

      Re:

   Application for annulment in part of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC).

      Operative part of the judgment

   The Court:

               1.

               Annuls Article 3 of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC), in so far as it concerns Eesti Autorite Ühing;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the European Commission to pay the costs.

      (1)  OJ C 313, 6.12.2008.


title: Case T-152/04: Action brought on 26 April 2004 by GRAFTECH INTERNATIONAL LTD. against the Commission of the European Communities

text:
               10.7.2004

               EN

               Official Journal of the European Union

               C 179/11

         Action brought on 26 April 2004 by GRAFTECH INTERNATIONAL LTD. against the Commission of the European Communities
   (Case T-152/04)
   (2004/C 179/22)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 26 April 2004 by GRAFTECH INTERNATIONAL LTD., Wilmington, Delaware, USA, represented by K.P.E. Lasok QC and Brian Hartnett Barristers with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               alternatively, amend the contested decision, in exercise of the Court's unlimited jurisdiction, so as to cause interest at 8.04 % to run only as from 30 September 2003, or as to reduce the rate of interest;

               —

               order the Commission to pay the applicant's costs.

         Pleas in law and main arguments:
   The subject matter of this action is a decision of the Commission, contained in a letter of 17 February 2004, by which the Commission required the applicant to pay interest on a fine imposed by a Commission Decision of 18 July 2001 (1) at the rate of 8.04 % instead of 6.04 %.
   In support of its application, the applicant claims that the Commission has acted unlawfully in seeking to impose the higher of the two possible interest rates. According to the applicant, the delay in the payment of the fine or the provision of a satisfactory financial guarantee for the fine was due to the recognition by the Commission that the applicant could not pay the fine and the efforts by both parties to reach an agreement on what would constitute a satisfactory financial guarantee. The applicant claims that it should not be treated as a party in default in the light of its decision to appeal against the decision imposing the fine and the nature and content of the negotiations undertaken in good faith.
   The applicant furthermore claims that the Commission acted contrary to Article 86(5) of Regulation 2342/2002 (2).
   The applicant also claims that the conduct of the Commission allowed the applicant to legitimately expect that an interest rate of 6.04 % would be imposed.
   The applicant invokes a violation of the principle of good administration because the Commission failed to agree on an appropriate form of a financial guarantee. Also, the applicant claims that the Commission failed to give clear notice that the higher interest rate would be levied during the period of negotiation.
   Finally, the applicant claims that the contested decision is disproportionate. According to the applicant, the justification for the default rate of interest is to deter dilatory behaviour and not to penalise bona fide negotiations that the Commission has willingly embarked upon and continued at its own pace.

      (1)  2002/271/EC: Commission Decision of 18 July 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement - Case COMP/E-1/36.490 - Graphite electrodes (OJ 2002 L 100, p. 1).

      (2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 357, p. 1).


title: Case C-79/09: Action brought on 23 February 2009 — Commission of the European Communities v Kingdom of the Netherlands

text:
               6.6.2009

               EN

               Official Journal of the European Union

               C 129/3

         Action brought on 23 February 2009 — Commission of the European Communities v Kingdom of the Netherlands
   (Case C-79/09)
   2009/C 129/05
   Language of the case: Dutch

      Parties

      Applicant: Commission of the European Communities (represented by D. Triantafyllou and W. Roels, acting as Agents)

      Defendant: Kingdom of the Netherlands

      Form of order sought

               —

               Declare that, by granting exemption from VAT for the making available of personnel in the socio-cultural sector, the health sector and the education sector to so-called Euregios and for promotion of work mobility, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 2(1)(c), Article 24(1) and Article 132 of the VAT Directive; (1)

               —

               order Kingdom of the Netherlands to pay the costs.

      Pleas in law and main arguments

   The Commission submits that the making available of staff in the socio-cultural sector, the health sector and the education sector must be subject to tax in accordance with Articles 2, 9 and 24 of the VAT Directive and that neither the exemptions under Article 132(1)(b), (c), (g) and (i) nor the exemption under Article 132(1)(n) is applicable to this provision of services

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 11).


title: Case C-516/10: Order of the President of the Court of 30 January 2012 — European Commission v Republic of Austria

text:
               14.4.2012

               EN

               Official Journal of the European Union

               C 109/8

         Order of the President of the Court of 30 January 2012 — European Commission v Republic of Austria
   (Case C-516/10) (1)

   2012/C 109/16
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 13, 15.1.2011.


title: Judgment of the Court of 9 October 2001 in Case C-400/99: Italian Republic v Commission of the European Communities (Action for annulment — State aid — Aid to a maritime transport undertaking — Public service contract — Exiting aid or new aid — Initiation of the procedure under Article 88(2) EC — Obligation to suspend — No need to adjudicate or inadmissibility)

text:
C 348/4                   EN                      Official Journal of the European Communities                                            8.12.2001
personal communications (OJ 1996 L 20, p. 59), in conjunc-                   (Agents: E. De Persio and D. Triantafyllou) — application for
tion with the second and third paragraphs of Article 3a of                   annulment of the Commission decision, notified to the Italian
Commission Directive 90/388/EEC of 28 June 1990 on                           Republic by letter SG(99) D/6463 of 6 August 1999, published
competition in the markets for telecommunications services                   in the Official Journal of the European Communities of
(OJ 1990 L 192, p. 10) as amended by Directive 96/2/EC, the                  23 October 1999 (OJ 1999 C 306, p. 2), to initiate the
Helenic Republic failed to fulfil its obligations under the EC               procedure under Article 88(2) EC concerning State aid C 64/99
Treaty and those Directives — the Court (Sixth Chamber),                     (ex NN 68/99) — Italyl — granted to undertakings in the
composed of: N. Colneric, President of the Second Chamber,                   Tirrenia di Navigazione group, in so far as that decision rules
acting for the President of the Sixth Chamber, C. Gulmann                    on the suspension of the aid in question — the Court,
(Rapporteur), R. Schintgen, V. Skouris, and J.N. Cunha Rodri-                composed of: G.C. Rodrı́guez Iglesias, President, P. Jann,
gues, Judges; D. Ruiz-Jarabo Colomer, Advocate General;                      F. Macken, N. Colneric and S. von Bahr (Presidents of
R. Grass, Registrar, has given a judgment on 16 October 2001,                Chambers), A. La Pergola, J.-P. Puissochet (Rapporteur),
in which it:                                                                 L. Sevón, M. Wathelet, V. Skouris and J.N. Cunha Rodrigues,
                                                                             Judges; C. Stix-Hackl, Advocate General; H. von Holstein,
                                                                             Deputy Registrar, for the Registrar, has given a judgment on
1.    Declares that by failing to adopt, within the prescribed period,       9 October 2001, in which it:
      all the laws, regulations and administrative provisions necessary
      to comply with Article 2(1) and (2) of Commission Directive
      96/2/EC of 16 January 1996 amending Directive                          1.    Dismisses the application by the Commission of the European
      90/388/EEC with regard to mobile and personal communi-                       Communities, based on Article 91(1) of the Rules of Procedure
      cations, in conjunction with the second and third paragraphs of              of the Court of Justice, for a declaration that there is no need to
      Article 3a of Commission Directive 90/388/EEC of 28 June                     adjudicate or that the action is inadmissible;
      1990 on competition in the markets for telecommunications
      services, the Hellenic Republic failed to fulfil its obligations       2.    Declares that the proceedings are to continue as to the substance
      under those Directives;                                                      of the case;
                                                                             3.    Reserves the costs.
2.    Orders the Hellenic Republic to pay the costs.
                                                                             (1) OJ C 20 of 22.1.2000.
(1) OJ C 6 of 8.1.2000, OJ C 366 of 18.12.1999.
                                                                                JUDGMENT OF THE COURT
                  JUDGMENT OF THE COURT                                                                  (Fifth Chamber)
                                                                                of 18 October 2001
                          of 9 October 2001
                                                                             in Case C-441/99 (reference for a preliminary ruling
in Case C-400/99: Italian Republic v Commission of the                       from the Högsta domstolen): Riksskatteverket v Soghra
                     European Communities (1)                                                            Gharehveran (1)
(Action for annulment — State aid — Aid to a maritime                        (Directive 80/987/EEC — Approximation of the laws of the
transport undertaking — Public service contract — Exiting                    Member States relating to the protection of employees in the
aid or new aid — Initiation of the procedure under                           event of the insolvency of their employer — Scope of the
Article 88(2) EC — Obligation to suspend — No need to                        exclusion relating to Sweden provided for in point G of
                   adjudicate or inadmissibility)                            Section I of the Annex to the Directive — Designation of the
                                                                             State as liable to pay guaranteed wage claims — Effect on
                                                                                Directive 80/987/EEC)
                            (2001/C 348/07)
                                                                                (2001/C 348/08)
                      (Language of the case: Italian)
                                                                                (Language of the case: Swedish)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                          (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-400/99: Italian Republic (Agent: U. Leanza, assisted               In Case C-441/99: reference to the Court under Article 177 of
by P.G. Ferri) v Commission of the European Communities                      the EC Treaty (now Article 234 EC) from the Högsta domstolen


title: Case C-203/10: Judgment of the Court (Third Chamber) of 3 March 2011 (reference for a preliminary ruling from the Varhoven administrativen sad (Bulgaria)) — Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna v ‘Auto Nikolovi’ OOD (Directive 2006/112/EC — Value-added tax — Second-hand parts for motor vehicles — Importation into the European Union by a taxable dealer — Margin scheme or normal VAT scheme — Origin of the right of deduction — Direct effect)

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/7

         Judgment of the Court (Third Chamber) of 3 March 2011 (reference for a preliminary ruling from the Varhoven administrativen sad (Bulgaria)) — Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna v ‘Auto Nikolovi’ OOD
   (Case C-203/10) (1)

   (Directive 2006/112/EC - Value-added tax - Second-hand parts for motor vehicles - Importation into the European Union by a taxable dealer - Margin scheme or normal VAT scheme - Origin of the right of deduction - Direct effect)
   2011/C 130/13
   Language of the case: Bulgarian

      Referring court

   Varhoven administrativen sad

      Parties to the main proceedings

      Applicant: Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna

      Defendant:‘Auto Nikolovi’ OOD

      Re:

   Reference for a preliminary ruling — Varhoven administrativen sad na Republika Balgaria — Interpretation of Articles 311(1)(1) and 314, and Article 320(1), first subparagraph, and Article 320(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Margin scheme implemented by a taxable dealer, when he imports second-hand goods into the Community — Concept of ‘second-hand goods’ and relevance, for that concept, of the possibility of actually identifying the goods in question — Moment at which the right to deduct VAT as input tax arises in favour of the taxable dealer — Direct effect of Article 314 of the Directive.

      Operative part of the judgment

               1.

               Article 314 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the margin scheme is not applicable to supplies of goods such as spare parts for motor vehicles, which the taxable dealer himself imported into the European Union under the normal value-added tax scheme.

               2.

               The first subparagraph of Article 320(1) and Article 320(2) of Directive 2006/112 must be interpreted as meaning that they preclude a national provision which provides for the deferral, until the subsequent supply under the normal value added tax scheme, of the right of the taxable dealer to deduct value added tax paid on importation of goods other than works of art, collectors’ items or antiques.

               3.

               Article 314, the first subparagraph of Article 320(1) and Article 320(2) of Directive 2006/112 have direct effect which authorises an individual to rely on them before a national court for the purposes of having national legislation which is incompatible with those provisions disapplied.

      (1)  OJ C 195, 17.7.2010.


title: Order of the Court of First Instance of 10 December 2004 in Case T-196/03: European Federation for Cosmetic Ingredients (EFfCI) v European Parliament and Council of the European Union (Manifest inadmissibility — Concept of measure of individual concern to an applicant — European Economic Interest Group — Contracts being performed — Intellectual property rights)

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/15

      ORDER OF THE COURT OF FIRST INSTANCE

   of 10 December 2004
   in Case T-196/03: European Federation for Cosmetic Ingredients (EFfCI) v European Parliament and Council of the European Union (1)

   (Manifest inadmissibility - Concept of measure of individual concern to an applicant - European Economic Interest Group - Contracts being performed - Intellectual property rights)
   (2005/C 69/29)
   Language of the case: English
   In Case T-196/03: European Federation for Cosmetic Ingredients (EFfCI), established in Brussels (Belgium), represented by K. Van Maldegem and C. Mereu, Lawyers, against European Parliament (Agents: J. L. Rufas Quintana, M. Moore and K. Bradley, with an address for service in Luxembourg) and Council of the European Union (Agents: E. Karlsson and C. Giorgi Fort), application for the annulment of:

               —

               Article 1(2) of Directive 2003/15/EC of the European Parliament and of the Council of 27 February 2003, amending Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products (OJ 2003 L 66, p. 26), in so far as it inserts in Directive 76/768 a new Article 4a(2) and (2.1) and a new Article 4b,

               —

               Article 1(5) of Directive 2003/15, in so far as it adds a new subparagraph to Article 6(3) of Directive 76/768,

         the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, has given a judgment on 10 December, the operative part of which is as follows:

               1.

               The application is dismissed.

               2.

               The applicant is ordered to bear its own costs and to pay those of the defendants.

      (1)  OJ C 184 of 2.8.2003.


title: Judgment of the Court (Sixth Chamber) of 5 February 2004 in Case C-24/00: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) — National legislation exhaustively listing the nutrients which may be added to foodstuffs — Measure having equivalent effect — Justification — Public health — Consumer protection — Proportionality)

text:
C 85/2                  EN                            Official Journal of the European Union                                              3.4.2004
3.  Article 3(1)(c) of Directive 89/104 precludes registration of a                 For the purposes of determining whether Article 3(1)(c) of
    trade mark which consists exclusively of signs or indications                   Directive 89/104 applies to such a mark, it is irrelevant
    which may serve, in trade, to designate characteristics of the                  whether or not there are synonyms capable of designating the
    goods or services in respect of which registration is sought, and               same characteristics of the goods or services mentioned in the
    that is the case even when there are more usual signs or                        application for registration or that the characteristics of the
    indications for designating the same characteristics and regard-                goods or services which may be the subject of the description are
    less of the number of competitors who may have an interest in                   commercially essential or merely ancillary.
    using the signs or indications of which the mark consists.
                                                                              6.    Directive 89/104 prevents a trade mark registration authority
                                                                                from registering a mark for certain goods or services on
                                                                                condition that they do not possess a particular characteristic.
    Where the applicable national law provides that the exclusive
    right conferred by registration, by a competent authority in an           7.    The practice of a trade mark registration authority which
    area in which a number of officially recognised languages                       concentrates solely on refusing to register >manifestly inadmis-
    coexist, of a word mark expressed in one of those languages                     sible marks is incompatible with Article 3 of Directive 89/104.
    extends automatically to its translation in the other languages,
    the authority must ascertain as regards each of those translations
    whether the mark actually consists exclusively of signs or                (1) OJ C 47 of 19.2.2000.
    indications which may serve, in trade, to designate characteristics
    of those goods or services.
4.  Article 3(1) of Directive 89/104 must be interpreted as
    meaning that a mark which is descriptive of the characteristics
                                                                                JUDGMENT OF THE COURT
    of certain goods or services but not of those of other goods or
    services for the purposes of Article 3(1)(c) of Directive 89/104
    cannot be regarded as necessarily having distinctive character in                                   (Sixth Chamber)
    relation to those other goods or services for the purposes of
    subparagraph (b) of the provision.
                                                                                of 5 February 2004
                                                                              in Case C-24/00: Commission of the European Communi-
    It is of no relevance that a mark is descriptive of the                                        ties v French Republic (1)
    characteristics of certain goods or services under Article 3(1)(c)
    of Directive 89/104 when it comes to assessing whether the
    same mark has distinctive character in relation to other goods            (Failure of a Member State to fulfil obligations — Articles 30
    or services for the purposes of Article 3(1)(b) of the Directive.         and 36 of the EC Treaty (now, after amendment, Articles 28
                                                                              EC and 30 EC) — National legislation exhaustively listing
                                                                              the nutrients which may be added to foodstuffs — Measure
                                                                              having equivalent effect — Justification — Public health —
                                                                                Consumer protection — Proportionality)
5.  Article 3(1)(c) of Directive 89/104 must be interpreted as
    meaning that a mark consisting of a word composed of                                                 (2004/C 85/02)
    elements, each of which is descriptive of characteristics of the
    goods or services in respect of which registration is sought, is
    itself descriptive of the characteristics of those goods or services                           (Language of the case: French)
    for the purposes of that provision, unless there is a perceptible
    difference between the word and the mere sum of its parts: that           (Provisional translation; the definitive translation will be published
    assumes either that because of the unusual nature of the                                      in the European Court Reports)
    combination in relation to the goods or services the word creates
    an impression which is sufficiently far removed from that
    produced by the mere combination of meanings lent by the
    elements of which it is composed, with the result that the word
    is more than the sum of its parts, or that the word has become            In Case C-24/00, Commission of the European Communities
    part of everyday language and has acquired its own meaning,               (Agents: R. B. Wainwright and O. Couvert-Castéra) with an
    with the result that it is now independent of its components. In          address for service in Luxembourg, v French Republic (Agents:
    the latter case, it is necessary to ascertain whether a word which        initially R. Abraham and R. Loosli-Surrans, and, subsequently,
    has acquired its own meaning is not itself descriptive for the            J.-F. Dobelle andR. Loosli-Surrans) with an address for service
    purposes of the same provision.                                           in Luxembourg: Application for a declaration that:
 ---pagebreak--- 3.4.2004                EN                          Official Journal of the European Union                                                   C 85/3
—     by failing to adopt legislation ensuring the free movement                              JUDGMENT OF THE COURT
      of foodstuffs for daily consumption and foodstuffs intend-
      ed for particular nutritional uses, which are lawfully
      manufactured and/or marketed in other Member States                                             (Sixth Chamber)
      but contain additives (such as vitamins, minerals and
      other ingredients) not provided for under French legis-
      lation;
                                                                                of 12 February 2004
—     by failing to provide for a simplified procedure for having
      a substance included on the national list of authorised               in Case C-265/00 (Reference for a preliminary ruling from
      additives, which is necessary if the above foodstuffs are             the Cour de justice Benelux): Campina Melkunie BV v
      to be marketed in France;                                                                 Benelux-Merkenbureau (1)
—     by hindering the marketing in France of the above                     (Approximation of laws — Trade marks — Directive 89/
      foodstuffs without establishing that their marketing poses            104/EEC — Article 3(1) — Ground for refusal to register
      a risk to public health,                                              — Neologism composed of elements each of which is
                                                                            descriptive of characteristics of the goods or services con-
                                                                                cerned)
the French Republic has failed to fulfil its obligations under
Article 30 of the EC Treaty (now, after amendment, Article 28
EC), the Court (Sixth Chamber), composed of: V. Skouris,                                                (2004/C 85/03)
acting for the President of the Sixth Chamber, C. Gulmann,
J.N. Cunha Rodrigues, R. Schintgen and F. Macken (Rappor-
teur), Judges; J. Mischo, Advocate General; H. von Holstein,                                     (Language of the case: Dutch)
Deputy Registrar, has given a judgment on 5 February 2004,
in which it:
                                                                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
1.    Declares that, by failing to provide for a simplified procedure
      for having included on the national list of authorised nutrients
      those added to foodstuffs for daily consumption and foodstuffs
      intended for particular nutritional uses which are lawfully
      manufactured and/or marketed in other Member States,                  In Case C-265/00: Reference to the Court under Article 234
                                                                            EC by the Benelux-Gerechtshof for a preliminary ruling in the
                                                                            proceedings pending before that court between Campina
      and
                                                                            Melkunie BV and Benelux-Merkenbureau, on the interpretation
                                                                            of Articles 2 and 3(1) of First Council Directive 89/104/EEC of
      by hindering the marketing in France of certain foodstuffs, such      21 December 1988 to approximate the laws of the Member
      as food supplements and dietary products containing the               States relating to trade marks (OJ 1989 L 40, p. 1), the Court
      substances L-tartrate and L-carnitine, and confectionery and          (Sixth Chamber), composed of: V. Skouris, acting for the
      drinks to which certain nutrients have been added, without            President of the Sixth Chamber, C. Gulmann, J. N. Cunha
      establishing that the marketing of such foodstuffs entails a real     Rodrigues, R. Schintgen and F. Macken (Rapporteur), Judges;
      risk for public health,                                               D. Ruiz-Jarabo Colomer, Advocate General; H. von Holstein,
                                                                            Deputy Registrar, has given a judgment on 12 February 2004,
      the French Republic has failed to fulfil its obligations under        in which it has ruled:
      Article 30 of the EC Treaty (now, after amendment, Article 28
      EC);
                                                                            Article 3(1)(c) of First Council Directive 89/104/EEC of 21 Decem-
                                                                            ber 1988 to approximate the laws of the Member States relating to
2.    Dismisses the remainder of the application; Orders the Com-           trade marks must be interpreted as meaning that a trade mark
      mission of the European Communities and the French Republic           consisting of a neologism composed of elements, each of which is
      to pay their own costs.                                               descriptive of characteristics of the goods or services in respect of
                                                                            which registration is sought, is itself descriptive of the characteristics
                                                                            of those goods or services for the purposes of that provision, unless
                                                                            there is a perceptible difference between the neologism and the mere
                                                                            sum of its parts: that assumes that, because of the unusual nature of
(1) OJ C 149 of 27.5.2000.
                                                                            the combination in relation to the goods or services, the word creates
                                                                            an impression which is sufficiently far removed from that produced
                                                                            by the mere combination of meanings lent by the elements of which
                                                                            it is composed, with the result that the word is more than the sum of
                                                                            its parts.


title: Judgment of the court (Second Chamber) 7 March 2002 in Case C-29/01: Commission of the European Communities v Kingdom of Spain (Failure by a Member State to fulfil its obligations — Failure to transpose Directive 96/61/EC)

text:
18.5.2002               EN                      Official Journal of the European Communities                                            C 118/15
                 JUDGMENT OF THE COURT                                     2.    Orders the Italian Republic to pay the costs.
                         (Fourth Chamber)                                  (1) OJ C 355 of 9.12.2000.
                           7 March 2002
in Case C-365/00: Commission of the European Communi-
                     ties v Italian Republic (1)
                                                                                JUDGMENT OF THE COURT
(Failure by a Member State to fulfil its obligations —
Directive 76/768/EEC — Provision of national law concern-
ing the information that must be given on the packaging of                                         (Second Chamber)
cosmetic products — Natural or artificial origin of perfume
    essences or fragrances contained in cosmetic products)                                            7 March 2002
                          (2002/C 118/22)                                  in Case C-29/01: Commission of the European Communi-
                                                                                ties v Kingdom of Spain (1)
                    (Language of the case: Italian)
                                                                           (Failure by a Member State to fulfil its obligations — Failure
                                                                                to transpose Directive 96/61/EC)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                                (2002/C 118/23)
                                                                                (Language of the case: Spanish)
In Case C-365/00, Commission of the European Communities
(agents: R. B. Wainwright and R. Amorosi) v Italian Republic               (Provisional translation; the definitive translation will be published
(agent: U. Leanza, assisted by I. M. Braguglia): Application for                              in the European Court Reports)
a declaration that, by having enacted and maintained in force
Article 28 of Law No 128 of 24 April 1998 making provision
for the implementation of obligations resulting from Italy’s
membership of the European Communities — Community
Law 1995-1997, which makes it a requirement that the labels                In Case C-29/01, Commission of the European Communities
of cosmetic products state whether the perfume essences or                 (agent: G. Valero Jordana) v Kingdom of Spain (agent:
fragrances contained in them are of natural or artificial origin,          M. López-Monı́s Gallego): Application for a declaration that,
the Italian Republic has failed to fulfil its obligations under            by failing to adopt the laws, regulations and administrative
Council Directive 76/768/EEC of 27 July 1976 on the                        measures necessary in order to comply with Council Directive
approximation of the laws of the Member States relating to                 96/61/EC of 24 September 1996 concerning integrated pol-
cosmetic products (OJ 1976 L 262, p. 169), as amended by                   lution prevention and control (OJ 1996 L 257, p. 26), or, in
Council Directive 93/35/EEC of 14 June 1993 (OJ 1993                       any event, by failing to communicate the same to the
L 151, p. 32), and, in particular, under the third subparagraph            Commission, the Kingdom of Spain has failed to fulfil its
of Article 6(1)(g) thereof, the Court (Fourth Chamber), compo-             obligations under that directive, the Court (Second Chamber),
sed of: S. von Bahr, President of the Chamber, D.A.O. Edward               composed of: N. Colneric, President of the Chamber,
(Rapporteur) and A. La Pergola, Judges; D. Ruiz-Jarabo Colom-              R. Schintgen (Rapporteur) and V. Skouris, Judges; C. Stix-
er, Advocate General; R. Grass, Registrar, has given a judgment            Hackl, Advocate General; R. Grass, Registrar, has given a
on 7 March 2002, in which it:                                              judgment on 7 March 2002, in which it:
                                                                           1.    Declares that, by failing to adopt the laws, regulations and
1.    Declares that, by having enacted and maintained in force                   administrative measures necessary in order to comply with
      Article 28 of Law No 128 of 24 April 1998 making provision                 Council Directive 96/61/EC of 24 September 1996 concerning
      for the implementation of obligations resulting from Italy’s               integrated pollution prevention and control, the Kingdom of
      membership of the European Communities — Community Law                     Spain has failed to fulfil its obligations under that directive;
      1995-1997, which makes it a requirement that the labels of
      cosmetic products state whether the perfume essences or fra-
      grances contained in them are of natural or artificial origin, the   2.    Orders the Kingdom of Spain to pay the costs.
      Italian Republic has failed to fulfil its obligations under the
      third subparagraph of Article 6(1)(g) of Council Directive 76/
                                                                           (1) OJ C 61 of 24.2.2001.
      768/EEC of 27 July 1976 on the approximation of the laws
      of the Member States relating to cosmetic products, as amended
      by Council Directive 93/35/EEC of 14 June 1993;


title: Case F-120/06 R: Order of the President of the Civil Service Tribunal of 14 December 2006 — Dálnoky v Commission (Application for interim measures — Notice of competition — Admissibility of main action — Urgency — None)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/50

         Order of the President of the Civil Service Tribunal of 14 December 2006 — Dálnoky v Commission
   (Case F-120/06 R)
   (Application for interim measures - Notice of competition - Admissibility of main action - Urgency - None)
   (2006/C 331/111)
   Language of the case: English
   Parties

      Applicant: Noémi Dálnoky (Brussels, Belgium) (represented by: P. Horváth, lawyer)

      Defendant: Commission of the European Communities (represented by: J. Currall and H. Kraemer, Agents)
   Re:
   Suspension of the operation of the tests in Open Competition EPSO/AD/47/06 pending judgment on the application for annulment of the notice of that competition published in the Official Journal of the European Union of 21 June 2006 (OJ 2006 C 145 A, p. 1).
   Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Judgment of the Court (First Chamber) of 16 December 2004 in Case 520/03 (reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana): José Vicente Olaso Valero v Fondo de Garantía Salarial (Fogasa) (Social policy — Protection of workers in the event of the insolvency of their employer — Directive 80/987/EEC — Scope — Definition of ‘claims’ — Definition of ‘pay’ — Compensation payable in the event of unfair dismissal)

text:
               19.2.2005

               EN

               Official Journal of the European Union

               C 45/9

      JUDGMENT OF THE COURT

   (First Chamber)
   of 16 December 2004
   in Case 520/03 (reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana): José Vicente Olaso Valero v Fondo de Garantía Salarial (Fogasa) (1)

   (Social policy - Protection of workers in the event of the insolvency of their employer - Directive 80/987/EEC - Scope - Definition of ‘claims’ - Definition of ‘pay’ - Compensation payable in the event of unfair dismissal)
   (2005/C 45/18)
   Language of the case: German
   In Case C-520/03: reference for a preliminary ruling under Article 234 EC from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain), made by decision of 27 November 2003, received at the Court on 15 December 2003, in the proceedings between José Vicente Olaso Valero and Fondo de Garantía Salarial (Fogasa) – the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, N. Colneric (Rapporteur), K. Schiemann and E. Juhász, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 16 December 2004, in which it has ruled that:

               1.

               It falls to the national court to determine whether the word ‘pay’, as defined by national law, includes compensation for unfair dismissal. If it does, such compensation falls within the ambit of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, as it stood before it was amended by Directive 2002/74/EC of the European Parliament and the Council of 23 September 2002 amending Directive 80/987.

               2.

               Where, according to the national legislation in question, claims corresponding to compensation for unfair dismissal, awarded by judgment or administrative decision, fall within the definition of ‘pay’, identical claims, established in a conciliation procedure such as that in question in the circumstances of this case, must be regarded as employees' claims arising from contracts of employment or employment relationships and as relating to pay for the purposes of Directive 80/987. The national court must set aside domestic legislation which, in breach of the principle of equality, excludes the latter claims from the definition of ‘pay’ under that legislation.

      (1)  OJ C 59 of 06.03.2004.


               22.1.2005

               EN

               Official Journal of the European Union

               C 19/17

         Removal from the register of Case C-62/04 (1)

   (2005/C 19/38)

      (Language of the case: Italian)

   By order of 28 September 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-62/04: Commission of the European Communities v Italian Republic.

      (1)  OJ C 85 of 3.4.2004.


title: Case C-566/10 P: Judgment of the Court (Grand Chamber) of 27 November 2012 — Italian Republic v European Commission, Republic of Lithuania, Hellenic Republic (Appeal — Rules on languages — Notices of open competitions for the recruitment of administrators and assistants — Publication in full in three official languages — Language of the tests — Choice of the second language among three official languages)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/3

         Judgment of the Court (Grand Chamber) of 27 November 2012 — Italian Republic v European Commission, Republic of Lithuania, Hellenic Republic
   (Case C-566/10 P) (1)

   (Appeal - Rules on languages - Notices of open competitions for the recruitment of administrators and assistants - Publication in full in three official languages - Language of the tests - Choice of the second language among three official languages)
   2013/C 26/04
   Language of the case: Italian

      Parties

      Appellant: Italian Republic (represented by: G. Palmieri, Agent, P. Gentili, avvocato dello Stato)

      Other parties to the proceedings: European Commission (represented by: J. Currall and J. Baquero Cruz, Agents, assisted by A. Dal Ferro, avvocato), Republic of Lithuania, Hellenic Republic (represented by: A. Samoni-Rantou, S. Vodina and G. Papagianni, Agents)

      Re:

   Appeal against the judgment delivered by the General Court (Sixth Chamber) on 13 September 2010 in Joined Cases T-166/07 and T-285/07 Italy v Commission by which the General Court dismissed an application for annulment of Notices of Open Competition EPSO/AD/94/07 (OJ 2007 C 45 A, p. 3), EPSO/AST/37/07 (OJ 2007 C 45 A, p. 15) and EPSO/AD/95/07 (OJ 2007 C 103 A, p. 7)

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the General Court of the European Union of 13 September 2010 in Joined Cases T-166/07 and T-285/07;

               2.

               Annuls the notices of open competitions EPSO/AD/94/07 to constitute a reserve pool of Administrators (AD 5) in the field of information, communication and the media, EPSO/AST/37/07 to constitute a reserve pool of Assistants (AST 3) in the field of communication and information and EPSO/AD/95/07 to constitute a reserve pool of Administrators (AD 5) in the field of information science (library/documentation);

               3.

               Orders the European Commission to pay the costs of the Italian Republic and to bear its own costs in both sets of proceedings;

               4.

               Orders the Hellenic Republic and the Republic of Lithuania to bear their own costs.

      (1)  OJ C 63, 26.02.2011.


title: Case C-268/15: Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 8 June 2015 — Fernand Ullens de Schooten v Ministre des Affaires Sociales et de la Santé Publique and Ministre de la Justice

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/19

         Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 8 June 2015 — Fernand Ullens de Schooten v Ministre des Affaires Sociales et de la Santé Publique and Ministre de la Justice
   (Case C-268/15)
   (2015/C 279/24)
   Language of the case: French

      Referring court

   Cour d’appel de Bruxelles

      Parties to the main proceedings

      Applicant: Mr Fernand Ullens de Schooten

      Defendants: Ministre des Affaires Sociales et de la Santé Publique and Ministre de la Justice

      Questions referred

               1.

               Does Community law, and in particular the principle of effectiveness, in certain circumstances and, in particular, those described in paragraph 38 of the present judgment, require the national limitation period, as [that prescribed by] Article 100 of the Coordinated Laws on State Accounting applicable to a claim for compensation made by an individual against the Belgian State for infringement of Article 43 of the EC Treaty (now Article 49 TFEU) by the legislature, not to start to run until that infringement has been ascertained or, on the contrary, is the principle of effectiveness sufficiently well upheld in those circumstances by the opportunity open to that individual to interrupt the limitation period by having process served by a huissier de justice?

               2.

               Must Articles 43 EC, 49 EC and 56 EC and the concept of a ‘purely internal situation’, which is liable to limit reliance on those provisions by a litigant in proceedings before a national court, be interpreted as precluding the application of [EU] law in proceedings between a Belgian citizen and the Belgian State in which redress is sought for damage caused by an alleged infringement of Community law resulting from the adoption and maintaining in force of Belgian legislation of the same kind as Article 3 of Royal Decree No 143 of 30 December 1982 which applies without distinction to Belgian nationals and nationals of other Member States?

               3.

               Must the principle of the primacy of Community law and Article 4(3) TEU be interpreted as not allowing the rule of the authority of res judicata to be disapplied in connection with the re-examination or setting aside of a judicial decision which has become res judicata and which proves to be contrary to [EU] law but, on the contrary, as allowing a national rule establishing the authority of res judicata to be disapplied when the latter requires the adoption, on the basis of that judicial decision which has become res judicata but is contrary to [EU] law, of another judicial decision which would perpetuate the infringement of [EU] law by the first judicial decision?

               4.

               Could the Court confirm that the question whether the rule of the authority of res judicata must be set aside in the event of a judicial decision which has become res judicata but is contrary to [EU] law in the context of an application for review or setting aside of that decision is not a question materially identical, within the meaning of the judgments [DaCosta and Others (28/62 to 30/62, EU:C:1963:6) and Cilfit and Others (283/81, EU:C:1982:335)], to the question whether the rule of the authority of res judicata is contrary to [EU] law in the context of an application for a (new) decision which would repeat the infringement of [EU] law, so that the court giving judgment at last instance cannot escape its obligation to make a reference for a preliminary ruling?


title: Case F-69/06: Order of the Civil Service Tribunal of 20 November 2006 — Andersson and Others v Commission

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/88

         Order of the Civil Service Tribunal of 20 November 2006 — Andersson and Others v Commission
   (Case F-69/06) (1)

   (2006/C 326/178)

      Language of the case: French

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

      (1)  OJ C 190, 12.8.2006, p. 35.


title: Case T-408/05: Action brought on  16 October 2005  — Luigi Marcuccio v Commission

text:
               28.1.2006

               EN

               Official Journal of the European Union

               C 22/18

         Action brought on 16 October 2005 — Luigi Marcuccio v Commission
   (Case T-408/05)
   (2006/C 22/35)
   Language of the case: Italian
   Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: Alessandro Distante, lawyer)

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

               —

               annul the implied decision rejecting the request of 11 October 2004;

               —

               annul, so far as necessary, the decision of 4 August 2005;

               —

               order the defendant to pay the applicant the additional sum of EUR 381.04 needed to make up 100 % (one hundred per cent) reimbursement of medical expenses;

               —

               order the defendant to pay the applicant default interest at the rate of 10 % (ten per cent), with annual capitalisation from 11 October 2004 until actual payment;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant in this case objects to the defendant's refusal to reimburse 100 % of the medical expenses incurred by him.
   The pleas and main arguments are those relied on in Case T-18/04 Marcuccio v Commission
       (1).
   In particular, the applicant alleges absolute failure to state reasons, manifest error of assessment and infringement of Article 72 of the Staff Regulations and of the duty to have regard to the welfare of officials, the duty of non-discrimination and the principle of sound administration.

      (1)  OJ C 71 of 20.3.2004, p. 38.


title: Judgment of the Court (Sixth Chamber) of 9 September 2004 in Case C-454/03: Commission of the European Communities v Kingdom of Belgium (Failure by a Member State to fulfil its obligations — Failure to transpose Directive 98/44/EC)

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/11

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 9 September 2004
   in Case C-454/03: Commission of the European Communities v Kingdom of Belgium (1)

   (Failure by a Member State to fulfil its obligations - Failure to transpose Directive 98/44/EC)
   (2004/C 262/23)
   Language of the case: French
   In Case C-454/03: Commission of the European Communities (Agents: K. Banks) v Kingdom of Belgium (Agent: E. Dominkovits) — action for failure to fulfil obligations under Article 226 EC — the Court (Sixth Chamber), composed of: J.-P. Puissochet, President of Chamber, F. Macken (Rapporteur) and S. von Bahr, Judges; F.G. Jacobs, Advocate General; R.Grass, Registrar, gave a judgment on 9 September 2004, the operative part of which is as follows:

               1.

               By failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, the Kingdom of Belgium has failed to fulfil its obligations under Article 15 of that directive.

               2.

               The Kingdom of Belgium is ordered to pay the costs.

      (1)  OJ C 289 of 29.11.2003.


title: Case C-202/09: Judgment of the Court (Eighth Chamber) of 26 November 2009 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Directive 2006/24/EC — Electronic communications — Respect for private life — Retention of data generated or processed in connection with the provision of electronic communications services — Failure to transpose within the prescribed period)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/16

         Judgment of the Court (Eighth Chamber) of 26 November 2009 — Commission of the European Communities v Ireland
   (Case C-202/09) (1)

   (Failure of a Member State to fulfil obligations - Directive 2006/24/EC - Electronic communications - Respect for private life - Retention of data generated or processed in connection with the provision of electronic communications services - Failure to transpose within the prescribed period)
   2010/C 24/26
   Language of the case: English

      Parties

      Applicant: Commission of the European Communities (represented by: L. Balta and A.-A. Gilly, Agents)

      Defendant: Ireland (represented by: D. O’Hagan, Agent)

      Re:

   Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the provisions necessary to comply with Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, Ireland has failed to fulfil its obligations under that directive.

               2.

               Orders Ireland to pay the costs.

      (1)  OJ C 167, 18.7.2009.


title: Case C-242/07 P: Appeal brought on 18 May 2007 by the Kingdom of Belgium against the order of the Court of First Instance (Fourth Chamber) of 15 March 2007 in Case T-5/07 Belgium v Commission

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/14

         Appeal brought on 18 May 2007 by the Kingdom of Belgium against the order of the Court of First Instance (Fourth Chamber) of 15 March 2007 in Case T-5/07 Belgium v Commission
   (Case C-242/07 P)
   (2007/C 170/25)
   Language of the case: French
   Parties

      Appellant: Kingdom of Belgium (represented by: L. Van den Broeck, acting as Agent, J.-P. Buyle and C. Steyaert, avocats)

      The other party to the proceedings: Commission of the European Communities
   Forms of order sought

               —

               annul the contested order;

               —

               declare that the action for annulment brought by the appellant against the European Commission (T-5/07) is admissible and, consequently, grant the forms of order sought by the appellant contained in its application for annulment and, if appropriate, refer the matter back to the Court of First Instance to rule on the merits of that application;

               —

               order the Commission to pay the costs of the appeal and of the application before the Court of First Instance.

         Pleas in law and main arguments
   The appellant puts forward four grounds in support of its appeal.
   By its first ground of appeal the appellant claims that the contested order is vitiated by a failure to state adequate reasons in so far as, infringing Article 111 of the Rules of Procedure of the Court of First Instance, the order cites the case-law relating to unforeseeable circumstances and excusable error without stating the reasons why the circumstances put forward by the appellant do not constitute such unforeseeable circumstances or are not the source of such an excusable error.
   By its second ground of appeal the appellant further claims that the Court of First Instance erred in law in the application of the conditions for the existence of an excusable error, in deciding that issues linked to the functioning of the appellant's services cannot, of themselves, render the error committed excusable. Community case-law, relating to excusable error states that it covers exceptional circumstances, without any restrictions as to the context in which those circumstances occur.
   By its third ground of appeal the appellant claims that the Court of First Instance erred in law, or, at the very least, failed to comply with its duty to give reasons, by failing to examine one of the arguments that had been raised before it, based on the excessive procedural rigour which the appellant would be subject to if its appeal was rejected as inadmissible even though, in the present action, it has shown great care and, in particular, sent the application by fax well before the expiry of the time-limit for bringing an appeal.
   By its fourth ground of appeal the appellant claims that the rejection of an application, on the ground that it is out of time, when the application was sent beforehand, within the requisite period, by fax, to the registry is contrary to the principle of proportionality. Compliance with that principle means an application lodged with the Registry by fax within the requisite time period set down by the EC Treaty should not be declared inadmissible — even when the original signed application arrives at the Registry more than ten days later — as long as that application was lodged within ten days following the last day on which the lodging of the application by fax was possible.