title: Case T-195/01: Action brought on 20 August 2001 by the Government of Gibraltar against the Commission of the European Communities

text:
27.10.2001             EN                     Official Journal of the European Communities                                       C 303/23
In support of his action for annulment, the applicant also               Grounds of claim:            Incorrect       interpretation   of
alleges infringement of the guidelines adopted by the Com-                                            article 7 (1) (b) of the Council
mission on 18 September 1999, breach of the principle of                                              Regulation No 40/94 — The mark
equal treatment and psychological harassment in the work                                              is sufficiently distinctive. The
place. Finally the applicant claims compensation for damage                                           Applicant claims further that the
he claims to have suffered.                                                                           burden to proof otherwise lays
                                                                                with the Board of Appeal. It is not
                                                                                up to the Applicant to show that
                                                                                article 7(1) (b) of the Council
                                                                                Regulation No 40/94 is not appli-
                                                                                cable.
Action brought on 14 August 2001 by Unilever N.V.
against the Office for Harmonization in the Internal
                              Market
                         (Case T-194/01)
                         (2001/C 303/37)
                                                                         Action brought on 20 August 2001 by the Government
                                                                         of Gibraltar against the Commission of the European
                   (Language of the case: English)                                                Communities
An action against the Office for Harmonization in the Internal                                   (Case T-195/01)
Market was brought before the Court of First Instance of the
European Communities on 14 August 2001 by Unilever N.V.,
a company registered in Rotterdam (Netherlands) represented                                      (2001/C 303/38)
by Dr. Verna von Bomhard and Dr. Andreas Renck of Lovells
Boesebeck Droste, Alicante (Spain).
                                                                                (Language of the case: English)
The applicant claims that the Court should:
                                                                         An action against the Commission of the European Communi-
—     alter the decision of the First Board of Appeal of the             ties was brought before the Court of First Instance of the
      Office for Harmonization in the Internal Market (Trade             European Communities on 20 August 2001 by the Govern-
      Marks and Designs) of 22 May 2001 (Case R 1086/                    ment of Gibraltar, represented by Alastair Sutton, Michael
      2000-1) to provide that the trade mark at hand is eligible         Llamas and Walter Schuster, of White & Case, Brussels
      for registration as a Community trade mark;                        (Belgium).
—     alternatively, the decision be annulled;
                                                                         The applicant claims that the Court should:
—     order the defendant to bear the costs of the proceedings.
                                                                         —     annul the Commission’s decision to open the procedure
                                                                               under Article 88(2), in the form of the letter of 11 July
Pleas in law and main arguments                                                2001 addressed to the United Kingdom;
                                                                         —     order the defendant to pay the costs.
Applicant for the Com-         Unilever N.V.
munity trade mark:
The Community trade            Three dimensional mark (Pebble            Pleas in law and main arguments
mark concerned:                shape)        —         Application
                               No 1 418 250 for certain goods
                               in class 3                                The Government of Gibraltar introduced a tax scheme under
                                                                         which certain companies, under certain conditions, were
Decision of the Exam-          Rejection of the Application              exempt from income tax and subject only to a fixed tax (the
iner:                                                                    exempt company legislation). That legislation was modified by
                                                                         several amendments before and after the accession of the
Decision of the Board of       Partial acceptance of the Appeal          United Kingdom and Gibraltar to the European Communities
Appeal:                                                                  in 1973.
 ---pagebreak--- C 303/24                EN                    Official Journal of the European Communities                                    27.10.2001
The Commission has now decided to open a procedure under                 18 and 23 years after the amendments in question, would
Article 88(2) EC, qualifying the legislation in question as              violate the principle of legal certainty and the legitimate
non-notified new aid. According to the Commission, the                   expectations of the applicant. The time-limit set in
amendments made to the legislation in 1979 and 1983,                     Article 1(b)(iv) of Regulation No 659/1999 for regarding state
following the United Kingdom’s accession to the European                 aid as new aid expired long ago. This principle should,
Communities, were substantial modifications, so that the entire          according to the applicant, also apply in equity to the
scheme had to be qualified as new aid. That decision is now              Commission’s review of alterations to existing aid schemes, as
contested by the applicant.                                              is the case here.
                                                                         Finally, the applicant states that the Commission’s investigation
According to the applicant, the Commission has violated                  prior to the decision was too lengthy, and therefore constitutes
Gibraltar’s rights of defence, by providing an insufficient              a breach of the Commission’s duty to exercise due diligence
statement of the reasons for the contested decision and by               and of the principle of good administration.
insufficiently hearing the Government of Gibraltar as the party
directly and individually concerned by the decision. In addition,
the Commission has violated the United Kingdom’s rights of
defence, in so far as they constitute essential procedural
requirements.
                                                                         Action brought on 14 August 2001 by Société Coopéra-
Further, the applicant claims that the decision is incompatible          tive Agricole GIPAM against Commission of the European
with Article 88 of the EC Treaty and that the Commission has                                       Communities
violated the principle of proportionality and the principles of
legal certainty and legitimate expectations, as well as failing to
fulfil its duty to exercise due diligence.                                                        (Case T-197/01)
                                                                                (2001/C 303/39)
According to the applicant, the legislation in question cannot
be qualified as new aid since that legislation already existed                              (Language of the case: French)
prior to the accession of the United Kingdom to the European
Community, and because the later 1976 and 1983 amend-
ments did not alter the legislation substantially. It should             An action against the Commission of the European Communi-
therefore rather be considered as existing aid under Article 88          ties was brought before the Court of First Instance of the
(1) EC.                                                                  European Communities on 14 August 2001 by Société
                                                                         Coopérative Agricole GIPAM, whose registered office is at
                                                                         Ducos (France), represented by Alain Lorang, Hubert Mazingue
                                                                         and Patrick Leroyer Gravet, lawyers, with an address for service
                                                                         in Luxembourg.
To proceed now under Article 88(2) EC in respect of new aid
would be to impose an unjustified burden with possibly
grave consequences, especially since an investigation under              The applicant claims that the Court should:
Article 88(1) EC Treaty would, for the applicant, constitute a
measure having a comparable effect and less severe conse-
quences. In addition, having regard to the time which has                —     annul Commission Regulation No 896/2001 of 7 May
elapsed since the amendments in question were adopted, the                     2001;
applicant finds the decision disproportionate. In this respect,
the applicant also points out that the amendments in question            —     order the defendant to pay the costs.
are severable from the rest of the tax system and that there is
therefore no need to call in question the entire system.
                                                                         Pleas in law and main arguments
The applicant further claims that since the accession of the
United Kingdom to the European Communities, and since the                In support of its arguments, the applicant claims that the
time when the amendments in question were made, the                      regulation at issue (1) does not comply with Council Regulation
interpretation of ‘state aid’ under EC law has evolved, especially       No 404/1993 (2) for whose application the contested regu-
in relation to fiscal measures. At that time, that type of measure       lation lays down detailed rules. According to the applicant,
was, according to the applicant, not generally regarded as               those rules adversely affect the rights acquired by the applicant
falling within the rules of the EC Treaty concerning state aid.          under the earlier regulations adopted to implement Regulation
There was therefore no reason to notify the legislation at that          No 404/1993. Under those earlier regulations, the applicant
time. To regard that legislation as new aid now, respectively            was characterised as a traditional importer, which is no longer


title: Case C-113/17: Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovak Republic) lodged on 6 March 2017 — QJ v Ministerstvo vnútra Slovenskej republiky, Migračný úrad

text:
               29.5.2017

               EN

               Official Journal of the European Union

               C 168/23

         Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovak Republic) lodged on 6 March 2017 — QJ v Ministerstvo vnútra Slovenskej republiky, Migračný úrad
   (Case C-113/17)
   (2017/C 168/30)
   Language of the case: Slovak

      Referring court

   Najvyšší súd Slovenskej republiky

      Parties to the main proceedings

      Appellant: QJ

      Respondent: Ministerstvo vnútra Slovenskej republiky, Migračný úrad

      Questions referred

               1.

               Must Article 46(3) of Directive 2013/32/EU (1) of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (‘the Procedures Directive’) be interpreted to the effect that a national court deciding on the merits of an applicant’s need for international protection may, on the grounds that a negative decision has been repeatedly set aside and the case referred back to an administrative body on the basis of a repeatedly successful appeal, which has thus been shown to be ineffective, decide itself to grant such protection to the applicant, even if it does not have such competence under national law?

               2.

               If the answer to the first question is in the affirmative, does an appellate court competent to hear appeals concerning points of fact and law (the Najvyšší súd (Supreme Court) (Slovak Republic)) also have such jurisdiction?

      (1)  OJ 2013 L 180, p. 60.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber) of 18 December 1997 in Case T-90/95: Walter Gill v. Commission of the European Communities (Officials - Medical examinations - Failure to communicate information on state of health - Right to keep his state of health secret)

text:
C 41/20              EN                   Official Journal of the European Communities                                      7.2.98
  JUDGMENT OF THE COURT OF FIRST INSTANCE                            Luxembourg care of Jean-Pascal Lange, 40 Rue de la Syre,
                        (First Chamber)                              Uebersyren, v. Commission of the European Communities
                                                                     (Agents: Julian Currall and Denis Waelbroeck) Ð
                    of 18 December 1997                              application, first, for annulment of the two decisions of
                                                                     the Commission published in Administrative Notices
in Case T-90/95: Walter Gill v. Commission of the
                                                                     Nos 852 of 2 September 1994 and 859 of 8 September
                  European Communities (1)
                                                                     1994, on the ground that the applicant's name was not
(Officials Ð Medical examinations Ð Failure to                       included in those notices on the list of officials considered
communicate information on state of health Ð Right to                the most deserving of promotion to Grade LA 4 in 1994
                keep his state of health secret)                     or on the list of officials actually promoted to grade LA 4
                                                                     in 1994, second, for annulment of the decision of the
                          (98/C 41/41)                               Commission of 3 April 1995 rejecting the applicant's
                                                                     complaint and, third, for an order requiring the defendant
               (Language of the case: French)                        to pay the sum of Bfrs 100 000 by way of compensation
                                                                     for the non-material damage suffered as a result of the
                                                                     irregularity of the promotion procedure Ð the Court of
In Case T-90/95: Walter Gill, former official of the                 First Instance (Fifth Chamber), composed of: R. García-
Commission of the European Communities, represented                  Valdecasas, President, and J. Azizi and M. Jaeger, Judges;
by Jean-NoeÈl Louis, Thierry Demaseure and Ariane                    J. Palacio GonzaÂlez, Administrator, for the Registrar, has
Tornel, of the Brussels Bar, with an address for service in          given a judgment on 18 December 1997, in which it:
Luxembourg at Fiduciaire Myson SARL, 30 Rue de
Cessange, against Commission of the European
Communities (Agents: Julian Curall and Jean-Luc Fagnart)             1. dismisses the action;
Ð application for reparation for the harm suffered by the
applicant as a result of the service-related fault allegedly
committed by the defendant's administration Ð the Court              2. orders the parties to bear their own costs.
of First Instance (First Chamber), composed of A. Saggio,
President, V. Tiili and R. M. Moura Ramos, Judges; H.
Jung, Registrar, gave a judgment on 18 December 1997,                (1) OJ C 248, 23.9.1995.
the operative part of which is as follows:
1. The application is dismissed.
2. Each party shall bear its own costs.
                                                                       JUDGMENT OF THE COURT OF FIRST INSTANCE
3. The applicant shall bear the costs of the expert.                                        (First Chamber)
                                                                                of 18 December 1997
(1) OJ C 137, 3.6.1995.
                                                                     in Case T-222/95: Antonio Angelini v. Commission of the
                                                                                European Communities (1)
                                                                     (Officials Ð Change of place of employment Ð Return to
                                                                     the place of original employment Ð Installation
                                                                                allowance)
  JUDGMENT OF THE COURT OF FIRST INSTANCE                                                     (98/C 41/43)
                    of 18 December 1997
in Case T-142/95: Jean-Louis Delvaux v. Commission of                                (Language of the case: Italian)
                the European Communities (1)
(Officials Ð Promotion Ð Comparative examination of
the merits Ð Staff report Ð Statement of reasons Ð                   In Case T-222/95: Antonio Angelini, an official of the
Identical career conditions Ð Discrimination on grounds              Commission of the European Communities, posted to the
                         of nationality)                             Ispra establishment of the Joint Research Centre,
                                                                     represented by Giuseppe Marchesini, Avvocato with the
                          (98/C 41/42)                               right of audience before the Court of Cassation of the
                                                                     Italian Republic, with an address for service in
               (Language of the case: French)                        Luxembourg at the Chambers of Ernest Arendt, 8Ð10
                                                                     Rue Mathias Hardt, against Commission of the European
                                                                     Communities (Agent: Gianluigi Valsesia) Ð application
In Case T-142/95: Jean-Louis Delvaux, an official of the             for annulment of the decision of the Commission to refuse
Commission of the European Communities, residing at                  to pay to the applicant an installation allowance upon the
Rhode-Saint-GeneÁse (Belgium), represented by Nicolas                latter's return to his original place of employment, after a
LhoeÈst, of the Brussels Bar, with an address for service in         period of employment outwith his institution Ð the Court


title: Case T-349/13: Judgment of the General Court of 4 July 2016 — Orange Business Belgium v Commission (Public service contracts — Tender procedure — Provision of ‘Trans-European Services for Telematics between Administrations — new generation (TESTA-ng)’ — Rejection of a tenderer’s bid — Award of the contract — Transparency — Equal treatment — Non-discrimination — Obligation to state reasons)

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/24

         Judgment of the General Court of 4 July 2016 — Orange Business Belgium v Commission
   (Case T-349/13) (1)

   ((Public service contracts - Tender procedure - Provision of ‘Trans-European Services for Telematics between Administrations - new generation (TESTA-ng)’ - Rejection of a tenderer’s bid - Award of the contract - Transparency - Equal treatment - Non-discrimination - Obligation to state reasons))
   (2016/C 305/32)
   Language of the case: English

      Parties

      Applicant: Orange Business Belgium SA (Brussels, Belgium) (represented by: B. Schutyser and T. Villé, lawyers)

      Defendant: European Commission (represented by: S. Delaude, S. Lejeune and F. Moro, acting as Agents, and by P. Wytinck and B. Hoorelbeke, lawyers)

      Re:

   Application for annulment of the Commission’s decision of 19 April 2013 rejecting the tender submitted by the applicant in the restricted call for tenders DIGIT/R2/PR/2011/039 ‘Trans-European Services for Telematics between Administrations — new generation (TESTA-ng)’, and awarding the contract to another tenderer.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Orange Business Belgium SA to pay the costs.

      (1)  OJ C 252, 31.8.2013.


title: Judgment of the Court (Grand Chamber) of 21 July 2005 in Case C-349/03: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Directive 77/799/EEC — Mutual assistance by the competent authorities — Fields of VAT and excise duties — Partial transposition — Territory of Gibraltar)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/9

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 21 July 2005
   in Case C-349/03: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (1)

   (Failure of a Member State to fulfil obligations - Directive 77/799/EEC - Mutual assistance by the competent authorities - Fields of VAT and excise duties - Partial transposition - Territory of Gibraltar)
   (2005/C 217/16)
   Language of the case: English
   In Case C-349/03: Commission of the European Communities (Agent: R. Lyal), supported by: Kingdom of Spain (Agent: N. Díaz Abad) v United Kingdom of Great Britain and Northern Ireland (Agents: K. Manji and R. Caudwell, assisted by D. Wyatt QC) — action under Article 226 EC for failure to fulfil obligations, brought on 7 August 2003 — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, A. Rosas, R. Silva de Lapuerta and A. Borg Barthet, Presidents of Chambers, R. Schintgen, N. Colneric (Rapporteur), S. von Bahr, J.N. Cunha Rodrigues, G. Arestis, M. Ilešič, J. Malenovský and J. Klučka, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 21 July 2005, in which it:

               1.

               Declares that, by failing to implement in the territory of Gibraltar, in the fields of value added tax and excise duties, Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation, as amended by Council Directive 79/1070/EEC of 6 December 1979 and by Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the EC Treaty;

               2.

               Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs;

               3.

               Orders the Kingdom of Spain to bear its own costs.

      (1)  OJ C 239 of 04.10.2003.


title: Case C-458/01: Action brought on 29 November 2001 by the Commission of the European Communities against the Italian Republic

text:
6.4.2002               EN                   Official Journal of the European Communities                                     C 84/41
The applicant claims that the Court should:                            Pleas in law and main arguments
—     partially annul the judgment of the Court of First Instance
      of the European Communities of 19 September 2001 in              Article 249 EC (formerly Article 189 of the EC Treaty), which
      Case T-336/999, served on 1 October 2001;                        provides that a directive is binding, as to the result to be
                                                                       achieved, on the Member State to which it is addressed, entails
      annul the decision of the Third Board of Appeal of the           an obligation on the Member States to adhere to the time-
      Office for Harmonisation in the Internal Market of               limits for implementation laid down in directives. That time-
      21 September 1999 in Case R 71/1999-3 relating to                limit expired on 1 July 2000 before the Italian Republic had
      Community trade mark application number 703 231;                 taken the necessary measures to comply with the directive
                                                                       which is the subject of the Commission’s claims.
—     order the Office for Harmonisation in the Internal Market
      to pay the costs of the proceedings.
Pleas in law and main arguments
                                                                       Action brought on 29 November 2001 by the Com-
The same as in Case C-456/01P.                                            mission of the European Communities against Ireland
(1) Not yet published in the court reports.                                                     (Case C-459/01)
                                                                                (2002/C 84/72)
                                                                       An action against Ireland was brought before the Court of
                                                                       Justice of the European Communities on 29 November 2001
Action brought on 29 November 2001 by the Com-                         by the Commission of the European Communities, represented
mission of the European Communities against the Italian                by Christopher Docksey and Karen Banks, acting as agents,
                              Republic                                 with an address for service in Luxembourg.
                          (Case C-458/01)
                                                                       The Applicant requests that the Court should:
                           (2002/C 84/71)
                                                                       1.    declare that by failing to adopt the laws, regulations
                                                                             or administrative provisions necessary to comply with
                                                                             European Parliament and Council Directive 95/46/EC of
An action against the Italian Republic was brought before the                24 October 1995 concerning the protection of individ-
Court of Justice of the European Communities on 29 Novem-                    uals with regard to the processing of personal data and
ber 2001 by the Commission of the European Communities,                      on the free movement of such data (1) and European
represented by Chiara Cattabriga and Arnaud Bordes, acting as                Parliament and Council Directive 97/66/EC of 15 Decem-
Agents.                                                                      ber 1997 concerning the processing of personal data and
                                                                             the protection of privacy in the telecommunications
                                                                             sector (2), or, in any event, by failing to inform the
                                                                             Commission of those measures, Ireland has failed to fulfil
The applicant claims that the Court should:                                  its obligations under the said Directives, and
—     declare that by failing to adopt within the prescribed           2.    order Ireland to pay the costs of this action.
      period the laws, regulations and administrative provisions
      necessary to comply with Council Directive 1999/90/EC
      of 15 November 1999 amending Directive 90/539/EEC
      on animal health conditions governing intra-Community
      trade in and imports from third countries of poultry and         Pleas in law and main arguments
      hatching eggs the Italian Republic has failed to fulfil its
      obligations under the EC Treaty;
                                                                       Article 249 EC, under which a directive shall be binding as to
—     order the Italian Republic to pay the costs.                     the result to be achieved, upon each Member State, carries by


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/36

         Removal from the register of Case C-130/03 (1)

   (2004/C 94/101)
   By order of 28 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-130/03: Commission of the European Communities v Italian Republic.

      (1)  OJ C 146 of 21.06.2003.


title: Case C-330/17: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 2 June 2017 — Verbraucherzentrale Baden-Württemberg e. V. v Germanwings GmbH

text:
               4.9.2017

               EN

               Official Journal of the European Union

               C 293/16

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 2 June 2017 — Verbraucherzentrale Baden-Württemberg e. V. v Germanwings GmbH
   (Case C-330/17)
   (2017/C 293/20)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Verbraucherzentrale Baden-Württemberg e. V.

      Defendant: Germanwings GmbH

      Questions referred

               1.

               Must the air fares for intra-Community air services to be indicated under the second and third sentences of Article 23(1) of Regulation (EC) No 1008/2008 (1) be indicated in a particular currency, in so far as they are not expressed in euro?

               2.

               If Question 1 is answered in the affirmative:
               In which local currency may the prices referred to in Article 2(18) and the second and third sentences of Article 23(1) of Regulation (EC) No 1008/2008 be indicated, where an air carrier established in a Member State (in the present case Germany) advertises and offers an air service with a point of departure in another Member State (in this case the United Kingdom) to a consumer on the internet?
               In this respect, does it depend on whether an internet address with a country-specific top-level domain (in this case: www.germanwings.de) that refers to the Member State in which the air carrier is established and in which the consumer resides is used for the offer?
               Is it relevant that all or the overwhelming majority of air carriers indicate the prices in question in the local currency used in the place of departure?

      (1)  Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation in air services in the Community, OJ 2008 L 293, p. 3.


title: Case T-144/04: Order of the Court of First Instance of 19 May 2008 — TF1 v Commission (Action for annulment — Commission decision classifying certain measures adopted by the French Republic in favour of France 2 and France 3 as State aid compatible with the common market — Time-limit for instituting proceedings — Article 44(1)(c) of the Rules of Procedure — Inadmissibility)

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/33

         Order of the Court of First Instance of 19 May 2008 — TF1 v Commission
   (Case T-144/04) (1)

   (Action for annulment - Commission decision classifying certain measures adopted by the French Republic in favour of France 2 and France 3 as State aid compatible with the common market - Time-limit for instituting proceedings - Article 44(1)(c) of the Rules of Procedure - Inadmissibility)
   (2008/C 171/60)
   Language of the case: French
   Parties

      Applicant: Télévision française 1 SA (TF1) (Nanterre, France) (represented by: J.-P. Hordies and C. Smits, lawyers)

      Defendant: Commission of the European Communities (represented by: J. Bundía Sierra, N. Niejahr and C. Giolito, acting as Agents)

      Intervener in support of the form of order sought by the defendant: French Republic (represented by: G. de Bergues, Agent)
   Re:
   Action for annulment of Commission Decision 2004/838/EC of 10 December 2003 on State aid implemented by France for France 2 and France 3 (OJ 2004 L 361, p. 21).
   Operative part of the order

               1.

               The action is dismissed.

               2.

               Télévision française 1 SA (TF1) is ordered to bear its own costs and pay those of the Commission.

               3.

               The French Republic shall bear its own costs.

      (1)  OJ C 168, 26.6.2004.


title: Case T-259/13: Judgment of the General Court of 30 April 2015 — France v Commission (EAGGF — Guarantee Section — EAGF and EAFRD — Expenditure excluded from financing — Rural development support measures — Areas with natural handicaps — Flat rate financial correction — Expenditure incurred by France — Loading criterion — On-the-spot controls — Procedural safeguards)

text:
               13.7.2015

               EN

               Official Journal of the European Union

               C 228/10

         Judgment of the General Court of 30 April 2015 — France v Commission
   (Case T-259/13) (1)

   ((EAGGF - Guarantee Section - EAGF and EAFRD - Expenditure excluded from financing - Rural development support measures - Areas with natural handicaps - Flat rate financial correction - Expenditure incurred by France - Loading criterion - On-the-spot controls - Procedural safeguards))
   (2015/C 228/11)
   Language of the case: French

      Parties

      Applicant: French Republic (represented by: E. Belliard, D. Colas, C. Candat and G. de Bergues, acting as Agents)

      Defendant: European Commission (represented by: D. Bianchi and G. von Rintelen, acting as Agents)

      Intervener in support of the applicant: Kingdom of Spain (represented initially by N. Díaz Abad and subsequently by A. Sampol Pucurull, abogados del Estado)

      Re:

   Application for the partial annulment of Commission Implementing Decision 2013/123/EU of 26 February 2013 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2013 L 67, p. 20).

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Implementing Decision 2013/123/EU of 26 February 2013 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) in so far as it applies a financial correction to the French Republic in the context of rural development support measures for sheep not covered by an application for sheep premiums for the accounting years 2008 and 2009;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the French Republic to bear three quarters of its own costs and three quarters of the costs incurred by the European Commission;

               4.

               Orders the European Commission to bear one quarter of its own costs and one quarter of the costs incurred by the French Republic;

               5.

               Orders the Kingdom of Spain to bear its own costs.

      (1)  OJ C 207, 20.7.2013.


title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 21 March 1997 in Case T-41/97 R: Antillean Rice Mills NV v. Council of the European Union (Association of the overseas countries and territories - Safeguard measure - Application for interim measures - Application for suspension of operation - Urgency - None)

text:
No C 181 / 14           EN                       Official Journal of the European Communities                                  14 . 6 . 97
   JUDGMENT OF THE COURT OF FIRST INSTANCE                                  pay provisionally the sum of Fl 258 565,38 , plus interest
                         of 16 April 1997                                   at 5 % from 1 September 1996, together with Fl 20 000
in Case T-80/96 : Ana Maria Fernandes Leite Mateus v.
                                                                            per year for the period between the date when the
                                                                            application for interim measures was lodged until the date
               Council of the European Union (')                            of the judgment of the Court of First Instance on the
(Officials — Open competition — Non-admission to tests                      substance, the President of the Court gave an order on
              — Professional experience required)                           21 March 1997 the operative part of which is as follows:
                            ( 97/C 181 /26 )
                                                                            1 . The application for interim measures is dismissed.
                 (Language of the case: French)
                                                                            2.   The costs are reserved.
In Case T-80/96 : Ana Maria Fernandes Leite Mateus,
residing at Zaventem ( Belgium ), represented by Jean-Noel
Louis, Thierry Demaseure and Ariane Tornel, of the
Brussels Bar, with an address for service in Luxembourg at
the offices of Fiduciaire Myson Sari, 30 Rue de Cessange,
v. Council of the European Union (Agents : Diego Canga
Fano and Therese Blanchet ) — application for annulment                                    ORDER OF THE PRESIDENT
of the decision of 3 October 1995 of the selection board                              OF THE COURT OF FIRST INSTANCE
in open competition Conseil/C/360 not to admit the                                                of 21 March 1997
applicant to the tests in that competition — the Court of
                                                                            in Case T-41 /97 R: Antillean Rice Mills NV v. Council of
First Instance ( First Chamber), composed of: A. Saggio,
President, and V. Tiili and R. M. Moura Ramos, Judges; J.                                        the European Union
Palacio Gonzalez, Administrator, for the Registrar, has                     (Association of the overseas countries and territories —
given a judgment on 16 April 1997, in which it:                             Safeguard measure — Application for interim measures —
                                                                            Application for suspension of operation — Urgency —
 1 . annuls the decision of 3 October 1995 of the selection                                              None)
      board in competition Conseil/C/360 not to admit                                               ( 97/C 181 /28 )
     Ms    Fernandes     Leite Mateus         to  the   tests in  that
      competition;                                                                          (Language of the case: Dutch)
2 . orders the Council to bear its own costs and to pay
                                                                            In Case T-41 /97 R: Antillean Rice Mills NV, established
      the costs of the applicant.
                                                                            in Bonaire, Netherlands Antilles, represented by W.
 (>) OJ No C 233 , 10 . 8 . 1996 .
                                                                            Knibbeler, of the Amsterdam Bar, and K. J. Defares, of the
                                                                            Rotterdam Bar, with an address for service in Luxembourg
                                                                            at the Chambers of M. Loesch, 11 Rue Goethe, supported
                                                                            by Kingdom of the Netherlands ( Agent: M. Fierstra ),
                                                                            against Council of the European Union (Agents : R.
                                                                            Torrent, J. Huber and G. Houttuin ), supported by Italian
                                                                            Republic ( Agent: F. Quadri ) and Commission of the
                ORDER OF THE PRESIDENT                                      European Communities ( Agent: T. van Rijn ) —
           OF THE COURT OF FIRST INSTANCE                                   application for suspension of the operation of Council
                         of 21 March 1997                                   Regulation ( EC ) No 304/97 of 17 February 1997
                                                                            introducing safeguard measures in respect of imports of
in Case T- 179/96 R: J. Antonissen v. Council of the
                                                                            rice originating in the overseas countries and territories
 European Union and Commission of the European                              ( OJ No L 51 , 1997, p. 1 ) and, in the alternative, for
                              Communities
                                                                            adoption of any necessary or appropriate measure — the
 (Milk quotas — Action based on non-contractual liability                   President of the Court of First Instance made an order on
 of the Community — Interim measures — Provisional                          21 March 1997, the operative part of which is as follows :
payment of part of the compensation sought —
                   Conditions — Not fulfilled)                               1 . The Kingdom of the Netherlands is granted leave to
                             ( 97/C 181 /27 )                                    intervene in the interlocutory proceedings in support
                                                                                of the form of order sought by the applicant.
                  (Language of the case: Dutch)
                                                                            2 . The Italian Republic and the Commission are granted
 In Case T-179/96 R: J. Antonissen, residing at Giethem                          leave to intervene in the interlocutory proceedings in
 ( Netherlands ), represented by E. H. Pijnacker Hordijk, of                     support of the form of order sought by the defendant.
 the Amsterdam Bar, and T. P. J. von Oers, of the Bar at
 The Hague, with an address for service in Luxembourg at
 the Chambers of L. Frieden, 62 Avenue Guillaume v.                          3 . The application for interim measures is dismissed.
 Council of the European Union ( Agents : G. Houttuin, A.
 M. Colaert and J. P. Hix ) and Commission of the                           4.   Costs are reserved.
 European Communities ( Agent: T. van Rijn ) —
 application for an order that the European Community


title: Case T-355/13: Action brought on 4 July 2013 — easyJet Airline v Commission

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/44

         Action brought on 4 July 2013 — easyJet Airline v Commission
   (Case T-355/13)
   2013/C 260/79
   Language of the case: English

      Parties

      Applicant: easyJet Airline Co. Ltd (London, United Kingdom) (represented by: M. J. Werner and R. Marian, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare void the Commission’s decision C(2013) 2727 final of 3 May 2013 in Case COMP/39.869 — easyJet/Schiphol; and

               —

               Order the defendant to bear the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the contested decision is vitiated by an error of law (misinterpretation of the provisions of Article 13 of Council Regulation (EC) No 1/2003 (1)) combined with manifest error of assessment (erroneous conclusion that the national proceedings in the Netherlands equated to a national competition authority having dealt with the case).

               2.

               Second plea in law, alleging that the contested decision infringes an essential procedural requirement, namely the failure to give adequate statements for the reasons for its rejection. In addition, the Commission has not considered all the matters of fact and of law which the applicant brought to its attention.

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


title: Case C-490/16: Judgment of the Court (Grand Chamber) of 26 July 2017 (request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije — Slovenia) — A.S. v Republika Slovenija (Reference for a preliminary ruling — Regulation (EU) No 604/2013 — Determination of the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national — Arrival of an exceptionally large number of third-country nationals wishing to obtain international protection — Organisation by the authorities of a Member State of the crossing of the border for the purpose of transit to another Member State — Entry authorised by way of derogation for humanitarian reasons — Article 13 — Irregular crossing of an external border — Period of 12 months from the crossing of the border — Article 27 — Remedy — Scope of judicial review — Article 29 — Period of six months for the purpose of effecting the transfer — Running of the periods — Use of an appeal — Suspensory effect)

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/14

         Judgment of the Court (Grand Chamber) of 26 July 2017 (request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije — Slovenia) — A.S. v Republika Slovenija
   (Case C-490/16) (1)

   ((Reference for a preliminary ruling - Regulation (EU) No 604/2013 - Determination of the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national - Arrival of an exceptionally large number of third-country nationals wishing to obtain international protection - Organisation by the authorities of a Member State of the crossing of the border for the purpose of transit to another Member State - Entry authorised by way of derogation for humanitarian reasons - Article 13 - Irregular crossing of an external border - Period of 12 months from the crossing of the border - Article 27 - Remedy - Scope of judicial review - Article 29 - Period of six months for the purpose of effecting the transfer - Running of the periods - Use of an appeal - Suspensory effect))
   (2017/C 309/19)
   Language of the case: Slovenian

      Referring court

   Vrhovno sodišče Republike Slovenije

      Parties to the main proceedings

      Applicant: A.S.

      Defendant: Republika Slovenija

      Operative part of the judgment

               1.

               On a proper construction of Article 27(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, read in the light of recital 19 of that regulation, an applicant for international protection is entitled, in an appeal against a decision to transfer him, to plead incorrect application of the criterion for determining responsibility relating to the irregular crossing of the border of a Member State, laid down in Article 13(1) of that regulation.

               2.

               On a proper construction of Article 13(1) of Regulation No 604/2013, a third-country national whose entry has been tolerated by the authorities of a first Member State faced with the arrival of an exceptionally large number of third-country nationals wishing to transit through that Member State in order to lodge an application for international protection in another Member State, without satisfying the entry conditions in principle required in that first Member State, must be regarded as having ‘irregularly crossed’ the border of that first Member State, within the meaning of that provision.

               3.

               On a proper construction of Article 13(1), second sentence, of Regulation No 604/2013, read together with Article 7(2) of that regulation, the lodging of an appeal against a transfer decision has no effect on the running of the period laid down in Article 13(1).

         On a proper construction of Article 29(1) and (2) of that regulation, the lodging of such an appeal means that the period laid down by those provisions does not start to run until the final decision on that appeal, including when the court hearing the appeal has decided to request a preliminary ruling from the Court of Justice, as long as that appeal had suspensory effect in accordance with Article 27(3) of that regulation.

      (1)  OJ C 419, 14.11.2016.


title: Action brought on 7 September 1998 by the Commission of the European Communities against Ireland (Case C-331/98)

text:
24.10.98              EN               Official Journal of the European Communities                                     C 327/13
Communities, represented by Richard Wainwright,                   The applicant claims that the Court should:
Principal Legal Adviser, and Olivier Couvert-CasteÂra, a
national civil servant on secondment to the Legal Service,
acting as Agents, with an address for service in                  Ð declare that, by failing to communicate and to adopt
Luxembourg at the office of Carlos Gómez de la Cruz,                  the laws, regulations and administrative measures
Wagner Centre, Kirchberg.                                             necessary in order to comply with Commission
                                                                      Directive 95/32/EC of 7 July 1995 relating to methods
                                                                      of analysis necessary for checking the composition of
The applicant claims that the Court should:                           cosmetic products (1), the Kingdom of Belgium has
                                                                      failed to fulfil its obligations under that directive;
Ð Declare that, by failing to adopt, within the prescribed
    period, the laws, regulations or administrative
    provisions necessary to comply with European                  Ð order the Kingdom of Belgium to pay the costs.
    Parliament and Council Directive 94/60/EC (1) of
    20 December 1994 amending for the 14th time
    Directive 76/769/EEC on the approximation of the              Pleas in law and main arguments adduced in support:
    laws, regulations and administrative provisions of
    the Member States relating to restrictions on the
    marketing and use of certain dangerous substances and         Article 2 of Commission Directive 95/32/EC requires the
    preparations or by failing to inform the Commission           Member States to bring into force the laws, regulations
    thereof, the Kingdom of Belgium has failed to fulfil its      and administrative provisions necessary to comply with
    obligations under the EC Treaty; and                          that directive by no later than 30 September 1996.
Ð Order the Kingdom of Belgium to pay the costs.
                                                                  That deadline has expired but the Kingdom of Belgium
                                                                  has not yet taken the requisite internal steps to transpose
                                                                  the directive in issue.
Pleas in law and main arguments adduced in support:
                                                                  (1) OJ L 178, 28.7.1995, p. 20.
Under Article 2(1) of European Parliament and Council
Directive 94/60/EC, Member States are to adopt and
publish the laws, regulations and administrative provisions
necessary to comply with the directive no later than one
year after the date of its adoption.
That time-limit expired on 20 December 1994 without the           Action brought on 7 September 1998 by the Commission
Kingdom of Belgium having adopted and published the                      of the European Communities against Ireland
necessary provisions in order to comply therewith.                                         (Case C-331/98)
                                                                                (98/C 327/21)
(1) OJ L 365, 31.12.1994, p. 1.
                                                                  An action against Ireland was brought before the Court of
                                                                  Justice of the European Communities on 7 September
                                                                  1998 by the Commission of the European Communities,
                                                                  represented by Richard Wainwright, principal legal
Action brought on 7 September 1998 by the Commission              adviser, acting as agent, with an address for service in
of the European Communities against the Kingdom of                Luxembourg at the office of Carlos Gómez de la Cruz, a
                            Belgium                               member of the Legal Service of the Commission, Centre
                                                                  Wagner, Kirchberg.
                       (Case C-329/98)
                        (98/C 327/20)
                                                                  The applicant claims that the Court should:
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities           Ð declare that by not prohibiting Irish sanitary
on 7 September 1998 by the Commission of the European                 authorities from making any direct discharges of List I
Communities, represented by Michel Nolin, of its Legal                substances to groundwater nor subjecting such
Service, acting as Agent, with an address for service in              authorities to any system of prior investigation and
Luxembourg at the office of Carlos Gómez de la Cruz,                  authorization for direct discharges of List II
Wagner Centre, Kirchberg.                                             substances, contrary, in particular, to Articles 3, 4 and
 ---pagebreak--- C 327/14               EN                Official Journal of the European Communities                                    24.10.98
     5 of Directive 80/68/EEC (1), Ireland has failed to fulfil         in so far as it did not apply Article 90(2) of the EC
     its obligations under the Treaty;                                  Treaty;
Ð order Ireland to pay the costs.                                   Ð order the Commission to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                    Pleas in law and main arguments adduced in support:
According to Article 4 of Council Directive 80/68/EEC,
Member States shall prohibit all direct discharge of                The contested decision was adopted following the
substances in List I annexed to the directive and according         judgment of the Court of First Instance in Case T-49/93
to Article 5 of the directive, Member States shall make             SocieÂteÂ Internationale de Diffusion et d'EÂdition (SIDE) v
subject to prior investigation and authorization all direct         Commission of the European Communities ([1995] ECR
discharge of substances in List II annexed to the directive.        II-2501).
Irish legislation at present does not prohibit direct               According to Article 1 of the contested decision, the aid
discharges by sanitary authorities of substances in List I to       granted to the Centre d'Exportation du Livre FrancËais
groundwater and the general licensing system instituted             (CELF) for handling small orders for French-language
for trade and sewage effluents does not apply to                    books as aid within the meaning of Article 92(1) of the
discharges from a sewer and trade effluent discharged by a          EC Treaty, but is compatible with the common market
sanitary authority in the course of the performance of its          because it satisfies the conditions to qualify for the benefit
powers and duties other than from a sewer.                          of the derogation provided for by Article 92(3)(d) of that
                                                                    Treaty. It is also clear from that article of the contested
                                                                    decision that, since the French Government failed to notify
(1) Council Directive of 17 December 1979 on the protection of
                                                                    that aid to the Commission before implementing it, the
    groundwater against pollution caused by certain dangerous
    substances (L 20, 26.1.1980, p. 43).                            aid was granted unlawfully.
                                                                    It is clear from the recitals in the preamble to the
                                                                    contested decision that the Commission considered that, in
                                                                    accordance with the case-law (judgment in Case C-387/92
                                                                    Banco Exterior de EspanÄa [1994] ECR 872, paragraph 21),
Action brought on 8 September 1998 by the French                    since the aid was compatible with the common market, it
Republic against the Commission of the European                     was not necessary for it to consider whether the aid could,
                           Communities                              by virtue of Article 90(2) of the Treaty, escape the
                                                                    prohibition laid down in Article 92. Furthermore, it is
                        (Case C-332/98)                             clear from the recitals in the preamble to the decision that,
                                                                    in any event, the Commission considered that the French
                          (98/C 327/22)                             Government had not established that CELF was entrusted
                                                                    with the operation of services of general economic
                                                                    interest, since no reference was made to CELF in any
                                                                    legislative or administrative measure.
An action against the Commission of the European
Communities was brought before the Court of Justice of
the European Communities on 8 September 1998 by the
French Republic, represented by Kareen Rispal-Bellanger,            The applicant government considers that, by failing to
Deputy Director for International Financial Law and                 consider whether the aid at issue falls within the scope of
Community Law in the Ministry of Foreign Affairs,                   Article 90(2) of the Treaty, the Commission committed an
and FreÂdeÂrik Million, ChargeÂ de Mission in the same              error of law. The case-law cited above applies only to
Ministry, acting as Agents, with an address for service in          existing' aid. In respect of new aid, such as that in the
Luxembourg at the French Embassy, 8 B Boulevard                     present case, such an examination is necessary since, in
Joseph II.                                                          the absence of notification, that aid could become the
                                                                    subject of recovery.
The French Republic claims that the Court should:
                                                                    Furthermore, the applicant government considers that the
                                                                    aid at issue does fall within the scope of Article 90(2) of
Ð annul the decision of the Commission of the European              the Treaty. It is not necessary, in order for that provision
     Communities of 10 June 1998 (C(1998) 728 final) (1)            to apply, for a body to be entrusted by a legislative or


title: Case C-198/12: Action brought on 26 April 2012 — European Commission v Republic of Bulgaria

text:
               30.6.2012

               EN

               Official Journal of the European Union

               C 194/14

         Action brought on 26 April 2012 — European Commission v Republic of Bulgaria
   (Case C-198/12)
   2012/C 194/23
   Language of the case: Bulgarian

      Parties

      Applicant: European Commission (represented by: T. Scharf, O. Beynet, and S. Petrova, acting as Agents)

      Defendant: Republic of Bulgaria

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that, the Republic of Bulgaria has infringed its obligations, resulting from Article 14(1) of Regulation (EC) No 715/2009 (1) in conjunction with Article 16(1) and (2)(b) thereof, to provide maximum capacity to all market participants and, in particular, services for virtual reverse flow gas transport;

               —

               order the Republic of Bulgaria to pay the costs.

      Pleas in law and main arguments

   By the present action, the Commission seeks a declaration that the Republic of Bulgaria has infringed its obligations resulting from Article 14(1) of Regulation (EC) No 715/2009 in conjunction with Article 16(1) and (2)(b) thereof, which replace Article 14(1) and Article 5(1) and (2) of Regulation (EC) No 1775/2005.
   Those obligations are the following:

               —

               The obligations resulting from Article 14(1) of Regulation (EC) No 715/2009 in conjunction with Article 16(1) and (2)(b) thereof to provide maximum capacity to all market participants and, in particular, services for virtual reverse flow gas transport.
               According to the Bulgarian authorities, the reason why the abovementioned obligation to provide maximum capacity was not fulfilled is that there is no physical connection between the transit system and the national gas transport system of the Republic of Bulgaria, and that those systems are subject to different regulations.
               A further reason why that obligation was not fulfilled, claim the Bulgarian authorities, is that there are three interstate agreements in force between the Republic of Bulgaria and the Government of the USSR, which were concluded in 1986 and 1989.
               The Commission contends that, if the interstate trade agreement of 27 April 1998 between OOO Gazprom and Bulgartransgaz EAD impedes the fulfilment by the Bulgarian authorities of their obligation to provide maximum capacity, the Republic of Bulgaria is required, pursuant to Article 351(2) of the Treaty on the Functioning of the European Union, to take all appropriate steps to eliminate such incompatibilities with the provisions of European Union law.

      (1)  Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p. 36).


title: Case T-32/11: Judgment of the General Court of 10 February 2012 — Verenigde Douaneagenten v Commission (Customs union — Imports of raw cane sugar from the Netherlands Antilles — Post-clearance recovery of import duties — Request for remission of import duties — Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92 — Infringement of essential procedural requirements)

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/21

         Judgment of the General Court of 10 February 2012 — Verenigde Douaneagenten v Commission
   (Case T-32/11) (1)

   (Customs union - Imports of raw cane sugar from the Netherlands Antilles - Post-clearance recovery of import duties - Request for remission of import duties - Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92 - Infringement of essential procedural requirements)
   2012/C 89/34
   Language of the case: Dutch

      Parties

      Applicant: Verenigde Douaneagenten BV (Rotterdam, Netherlands) (represented by: J. van der Meché and S. Moolenaar, lawyers)

      Defendant: European Commission (represented by: L. Bouyon and B. Burggraaf, acting as Agents)

      Re:

   Application for annulment of Commission Decision C(2010) 6754 final of 1 October 2010 finding that there should be post-clearance recovery of import duties and that remission of those duties is not justified in a particular case (REC 02/09).

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision C(2010) 6754 final of 1 October 2010 in so far as it determines that the remission of import duties in the sum of EUR 531 985,59, pursuant to Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, is not justified;

               2.

               Dismisses the remainder of the action;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 103, 2.4.2011.


title: Case C-285/03: Action brought on 2 July 2003 by the Hellenic Republic against the Commission of the European Communities

text:
C 213/16               EN                        Official Journal of the European Union                                           6.9.2003
Reference for a preliminary ruling by the College van                    Bruxelles (Court of Appeal, Brussels) of 19 June 2003, received
Beroep voor het Bedrijfsleven by judgment of that Court                  at the Court Registry on 2 July 2003, for a preliminary ruling
of 27 June 2003 in the proceedings between A.H. Kuipers                  in the proceedings between the Belgian State and Temco
                  and the Productschap Zuivel                            Europe S.A. on the following question:
                         (Case C-283/03)
                                                                         May Article 13B(b) of the Sixth Directive be interpreted to
                                                                         mean that transactions, corresponding in Belgian law to a
                         (2003/C 213/26)
                                                                         contract of indefinite duration by which one company, by a
                                                                         number of contracts with associated companies, simul-
                                                                         taneously grants a licence to occupy a single property in return
                                                                         for a payment set partially but essentially on the basis of the
Reference has been made to the Court of Justice of the                   area occupied, where the inherent insecurity of a licence is
European Communities by judgment of the College van Beroep               absent owing to the fact that the transferees and the transferor
voor het Bedrijfsleven (Administrative Court for Trade and               are under common management, constitute a letting of
Industry) of 27 June 2003, received at the Court Registry on             immovable property within the meaning of Community law,
30 June 2003, for a preliminary ruling in the proceedings                or, in other words, does the independent Community law
between A.H. Kuipers and the Productschap Zuivel on the                  concept of the ‘letting of immovable property’ in Article 13B(b)
following questions:                                                     of the Sixth Directive (1) cover use, for consideration, of an
                                                                         immovable asset for purposes other than those of the tax-
1.    Is a national system of quality deductions and sup-                payer’s business — which definition is adopted in
      plements for raw milk delivered to the dairy, such as that         Article 44(3)(2) in fine of the Belgian Code de la TVA — that
      at issue, consistent with Regulation (EEC) No 804/68 (1)           is to say, the grant under a licence of indefinite duration of a
      on the common organisation of the market in milk and               non-exclusive right of occupation in return for a monthly
      milk products and in particular with the prohibition of            payment, albeit fluctuating and partly dependent on the profits
      ‘equalisation between the prices’ in Article 24(2) (now,           of one of the contracting parties, where the inherent insecurity
      after consolidation of amendments to the text,                     of a licence is absent owing to the fact that the transferees and
      Article 38(2) of Regulation (EC) No 1255/99)?                      the transferor are under common management?
2.    Is a national system of quality supplements for raw milk
      delivered to the dairy, such as that at issue, consistent          (1 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
      with the prohibition of aids in Article 24(1) of Regulation             harmonization of the laws of the Member States relating to
      (EEC) No 804/68?                                                        turnover taxes — Common system of value added tax: uniform
                                                                              basis of assessment (OJ L 145 of 13.06.1977, p. 1).
3.    If Question 2 is answered in the affirmative, is such a
      national system to be regarded as aid the grant of which
      must be notified beforehand to the Commission under
      Article 93(3) of the EC Treaty (now Article 88(3) EC)?
( 1) OJ L 148 of 28.06.1968, p. 13.
                                                                         Action brought on 2 July 2003 by the Hellenic Republic
                                                                            against the Commission of the European Communities
Reference for a preliminary ruling by the Cour d’Appel                                              (Case C-285/03)
de Bruxelles by judgment of that Court of 19 June 2003
in the proceedings between the Belgian State and Temco
                           Europe S.A.                                                              (2003/C 213/28)
                         (Case C-284/03)
                         (2003/C 213/27)                                 An action against the Commission of the European Communi-
                                                                         ties was brought on 2 July 2003 by the Hellenic Republic,
                                                                         represented by Vasilios Kondolaimos, state legal adviser, and
                                                                         by Yoannis Xhalkias, of the state legal service, with an address
Reference has been made to the Court of Justice of the                   for service in Luxembourg at the Greek Embassy, 27 Rue
European Communities by judgment of the Cour d’Appel de                  Marie-Adélaïde.
 ---pagebreak--- 6.9.2003              EN                         Official Journal of the European Union                                              C 213/17
The applicant claims that the Court should:                                     impact assessment being carried out, it appears when
                                                                                approval of reserved matters is sought that the project
Annul or vary Commission Decision C(2003) 1539 in connec-                       may have significant effects on the environment by virtue
tion with the exclusion from Community financing of certain                     inter alia of its nature, size or location (article 2(1) of the
expenditure by the Member States in the context of the EAGGF                    Directive)?
— Guarantee section, in regard to the chapter concerning
financial corrections imposed on the Hellenic Republic in the            (3) In circumstances where:
sector of arable cultivation for the financial years 2000 and
2001.
                                                                                (a)   national planning law provides for the grant of
                                                                                outline planning permission at an initial stage of the
                                                                                planning process and requires consideration by the
                                                                                competent authority at that stage as to whether an
Pleas in law and main arguments
                                                                                environmental impact assessment is required for
                                                                                purposes of the Directive; and
—     Misinterpretation of provisions;
—     Misappraisal of factual circumstances;                                    (b) the competent authority then determines that it is
                                                                                unnecessary to carry out an environmental impact
                                                                                assessment and grants outline planning permission
—     Defective statement of reasons;
                                                                                subject to conditions reserving specified matters for
                                                                                later approval; and
—     Misinterpretation and misapplication of Article 5(2)(c)
      of Regulation (EEC) No 729/70 in conjunction with
      Document VI/5330/97;                                                      (c)   that decision can then be challenged in the national
                                                                                courts;
—     Misinterpretation and misapplication of Articles 6 and 7
      of Regulation No 3508/92.                                                 may national law, consistently with the Directive, pre-
                                                                                clude a competent authority from requiring that an
                                                                                environmental impact assessment be carried out at a later
                                                                                stage of the planning process?
                                                                         (1 ) Council Directive 85/337/EEC of 27 June 1985 on the assessment
                                                                              of the effects of certain public and private projects on the
Reference for a preliminary ruling by the House of Lords                      environment (OJ L 175, 05.07.1985, p. 40).
by order of that court dated 30 June 2003, in the case of
Regina against London Borough of Bromley, ex parte
                       Diane Barker (FC)
                        (Case C-290/03)
                        (2003/C 213/29)
                                                                         Reference for a preliminary ruling by the VAT and Duties
                                                                         Tribunals, Manchester Tribunal Centre, by direction of
                                                                         that court dated 30 June 2003, in the case of MyTravel plc
Reference has been made to the Court of Justice of the
                                                                                against Commissioners of Customs and Excise
European Communities by an order of the House of Lords
dated 30 June 2003, which was received at the Court Registry
on 3 July 2003, for a preliminary ruling in the case of Regina                                      (Case C-291/03)
and London Borough of Bromley, ex parte Diane Barker (FC)
on the following questions:
                                                                                (2003/C 213/30)
(1) Is identification of ‘the decision of the competent auth-
      ority or authorities which entitles the developer to
      proceed with the project’ (article 1(2) of Directive 85/
      337/EEC (1) (‘the Directive’)) exclusively a matter for the
      national court applying national law?                              Reference has been made to the Court of Justice of the
                                                                         European Communities by direction of the VAT and Duties
(2) Does the Directive require an environmental impact                   Tribunals, Manchester Tribunal Centre, dated 30 June 2003,
      assessment to be carried out if, following the grant of            which was received at the Court Registry on 4 July 2003, for a
      outline planning permission subject to conditions that             preliminary ruling in the case of MyTravel plc and Com-
      reserved matters be approved, without an environmental             missioners of Customs and Excise on the following questions:


title: Case T-187/06: Action brought on 18 July 2006 — Ralf Schräder v Community Plant Variety Office

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/39

         Action brought on 18 July 2006 — Ralf Schräder v Community Plant Variety Office
   (Case T-187/06)
   (2006/C 212/68)
   Language of the case: German
   Parties

      Applicant(s): Ralf Schräder (Lüdinghausen, Germany) (represented by: T, Leidereiter, W.-A. Schmidt and I. Memmler, lawyers)

      Defendant(s): Community Plant Variety Office (CPVO)
   Form of order sought

               —

               Amendment of the decision by the Board of Appeal of the CPVO of 2 May 2006 (Az. 003/2004) so as to allow the applicant's appeal against the defendant's decision No R 446 and to grant plant variety right in respect of plant variety right application SUMCOL 01(No 2001/0905);

               —

               In the alternative, annulment of the decision by the defendant's Board of Appeal of 2 May 2006 (Az. A003/2004) with a direction to the defendant to make a fresh decision on that application in the light of the judgment;

               —

               In the alternative, annulment of the decision of the defendant's Board of Appeal of 2 May 2006 (Az. A003/2004);

               —

               The CPVO to pay the costs.

         Pleas in law and main arguments

      Community plant variety right at issue: SUMCOL 01 (Variety application No. 2001/0905).

      Decision of the Committee: Rejection of the application.

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

      Grounds: In particular, infringement of Article 62 in conjunction with Article 7 of Council Regulation (EC) No 2100/94 (1) through legal misassessment of the content; according to the applicant, the plant variety in respect of which application was made is eligible for protection because it has the necessary distinctiveness; Infringement of Article 76 of Regulation No 2100/94 on account of insufficient examination of the content, and of Article 75 of that regulation for infringement of the right to a fair hearing.

      (1)  Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).


title: Case T-67/16: Order of the General Court of 21 December 2016 — fleur ami v EUIPO — 8 seasons design (Lamps)

text:
               20.2.2017

               EN

               Official Journal of the European Union

               C 53/47

         Order of the General Court of 21 December 2016 — fleur ami v EUIPO — 8 seasons design (Lamps)
   (Case T-67/16) (1)

   (2017/C 053/57)
   Language of the case: German
   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 111, 29.3.2016.


title: Case T-167/01: Action brought on 17 July 2001 by Schmitz-Gotha Fahrzeugwerke GmbH against the Commission of the European Communities

text:
C 275/16               EN                     Official Journal of the European Communities                                     29.9.2001
The applicant states in that respect that, in Case C-257/98              Pleas in law and main arguments
P Lucaccioni v Commission, the damages sought were exam-
ined by the Court of Justice only in the context of the Staff
Regulations and with regard to occupational diseases. Despite
the fact that the Medical Committee’s report had given the
diagnosis date as January 1990, the Court took the view that             By its decision of 28 March 2001, the Commission ordered
payment of the compensation/interest should be dated from                the Federal Republic of Germany to recover aid totalling
April 1994, the date on which the proceedings were brought               DEM 34 978 000 from Lintra Beteiligungsholding GmbH
to a close. It is therefore evident that the Court did not take          and/or its subsidiaries, including Gothaer Fahrzeugwerke
into account the non-material and biological damage suffered             GmbH.
by the applicant and unquestionably caused by the European
Commission from September 1967 until April 1994, or at
least until November 1980, in accordance with the legal rules
currently in force, the Charter of fundamental rights of the
European Union and the Convention on Human Rights.                       Gotha Fahrzeugwerke GmbH’s main activity was in the vehicle
                                                                         construction business. The company’s assets in that area were
                                                                         transferred to the applicant. According to the applicant, the
                                                                         Commission may be acting on the assumption that the
(1) Case T-165/95 Lucaccioniv Commission [1998] ECR FP-IA-               applicant is the (partial) legal successor to Gothaer Fahr-
    203,II-67.
                                                                         zeugwerke GmbH, thereby establishing liability for repayment
                                                                         on the part of the applicant even though only assets were
                                                                         acquired.
                                                                         According to the applicant, Gothaer Fahrzeugwerk GmbH,
                                                                         which is currently in liquidation, repaid its share of the total
Action brought on 17 July 2001 by Schmitz-Gotha                          amount of aid to be repaid. If, however, that company were to
                                                                         be declared insolvent, that repayment might be called back
Fahrzeugwerke GmbH against the Commission of the
                                                                         into question and the corresponding amount partially or
                     European Communities
                                                                         wholly included in the general insolvency mass. For that
                                                                         reason, the applicant has a legal interest in Commission’s
                         (Case T-167/01)                                 decision being annulled.
                        (2001/C 275/31)
                                                                         The applicant argues that there has been an infringement of
                   (Language of the case: German)                        essential procedural requirements on account of inadequate
                                                                         reasoning for the decision, inasmuch as the Commission holds
                                                                         that the decision enables a requirement for repayment to be
                                                                         established against the applicant. The applicant submits that,
An action against the Commission of the European Communi-                if the Commission orders in a decision that aid should be
ties was brought before the Court of First Instance of the               reclaimed from certain undertakings named in that decision,
European Communities on 17 July 2001 by Schmitz-Gotha                    that decision is limited solely to those particular undertakings.
Fahrzeugwerke GmbH, Gotha (Germany), represented by                      If, however, the Commission takes the view that other, third-
Martin Matzat, Rechtsanwalt.                                             party, undertakings, which are legally independent and have
                                                                         merely had assets transferred to them, may also be held liable
                                                                         for repayment of the aid, such a view requires that those
The applicant claims that the Court should:                              undertakings be specifically named in the decision itself and
                                                                         that a detailed justification be provided as to why the factual
                                                                         requirements for such liability are present.
—     annul Commission Decision No C 41/99 (ex N 49/95) of
      28 March 2001 in so far as it holds the applicant liable
      in respect of the portion of aid due for repayment
      attributable to Gothaer Fahrzeugwerk GmbH;
                                                                         The applicant further argues that, by assuming or declaring
—     in the alternative, should the Commission’s decision not           the applicant to be liable, the Commission has infringed the
      be open to a challenge in part, annul the above decision           Treaty. It maintains, inter alia, that to hold the acquirers of
      in its entirety;                                                   assets unrestrictedly liable is not compatible with Community
                                                                         principles. In particular, such comprehensive liability infringes
                                                                         the principle of proportionality. Moreover, the claims for
—     order the Commission to pay the costs.                             repayment bore no relation to the assets taken over.
 ---pagebreak--- 29.9.2001              EN                     Official Journal of the European Communities                                       C 275/17
Finally, the applicant argues that the Commission has misused            The Commission found that these terms and conditions of sale
its discretion in ordering repayment at Gothaer Fahrzeugwerk             were contrary to Article 81(1) of the EC Treaty since they
GmbH’s expense of aid totalling DEM 7 100 136. It argues                 restricted parallel imports and exports to other Member States.
that the Commission did not take account of Gothaer Fahr-                This decision is now contested by the applicant.
zeugwerk GmbH’s contribution to the overall result. It adds
that DEM 3300000 were undeniably used in accordance with
the initial objective, and that the remaining amount of                  In support of its Application, the applicant contests the
DEM 3800336 was determined on the basis of a distribution                applicability of Article 81(1) EC Treaty on the grounds that
ration arbitrarily adopted by the Commission, so that the                the conditions of sale do not constitute an agreement and they
contested decision is contrary to Community law and void.                have no restrictive object or effect. The applicant further claims
                                                                         that the conditions of sale compensate for a market irregularity
                                                                         caused by the setting of prices by the Spanish authorities. In
                                                                         the alternative, the applicant claims the conditions of sale are
                                                                         eligible for an exemption under Article 81(3) EC Treaty.
Action brought on 23 July 2001 by Glaxo Wellcome plc
  against the Commission of the European Communities
                                                                         Action brought on 3 August 2001 by Euroagri s.r.l. against
                        (Case T-168/01)                                           Commission of the European Communities
                        (2001/C 275/32)                                                           (Case T-180/01)
                   (Language of the case: English)                                                (2001/C 275/33)
                                                                                (Language of the case: Italian)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 23 July 2001 by Glaxo Wellcome                   An action against the Commission of the European Communi-
plc, having its registered office in Middlesex (UK), represented         ties was brought before the Court of First Instance of the
by I.S. Forrester Q.C. and A.P. Schulz of White & Case                   European Communities on 3 August 2001 by Euroagri s.r.l.,
Brussels, F. Depoortere, T. Louko and I. Vandenborre of                  represented by Walter Masucci, lawyer.
Skadden, Arps, Slate, Meagher & Flom LLP, Brussels, and
S. Martinez Lage of Martinez Lage & Associados                           The applicant claims that the Court should:
                                                                         —     annul the decision of the Commission of the European
The applicant claims that the Court should:                                    Communities of 6 June 2001 C(2001)1274;
—      annul the Commission decision of 8 May 2001;                      —     in the alternative, annul in part the contested decision
                                                                               and reduce, in proportion with the actual investments
—      take such other or further steps as justice may require;                made, the financial contribution allocated to Euroagri
                                                                               s.r.l. by the Commission’s decision of 3 December 1992;
—      order the Commission to pay the costs.
                                                                         —     order the Commission of the European Communities to
                                                                               pay the costs.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
The applicant notified its new terms and conditions of sale to
the Commission pursuant to Regulation 17/62. The new terms               By this application, the applicant company seeks the annul-
and conditions of sale of the applicant consisted of two                 ment of the decision of the Commission of the European
different pricing systems for its pharmaceutical products. The           Communities of 6 June 2001 C(2001)1274 cancelling the
first one was used for products to be sold in Spain and financed         contribution allocated to the applicant itself by decision
by the Spanish Social Security system. In this case the prices           C(92)3124 of 3 December 1992, pursuant to Council Regu-
were, according to the applicant, all set by the Spanish                 lation (EEC) No 4256/88 of 19 December 1988, laying down
authorities at a low level. The second system applied to                 provisions for implementing Regulation (EEC) No 2052/88 as
products to be sold outside the scope of the Spanish price               regards the EAGGF Guidance Section (1) in the context of
setting system by wholesalers authorised according to Spanish            project No 92. IT.06.069 entitled ‘Pilot demonstration project
Law. In the latter system, the prices were set by the applicant.         for the use of new “Endovena” technology on fruit trees’.


title: Case C-634/16 P: Appeal brought on 7 December 2016 by European Union Intellectual Property Office against the judgment of the General Court (Sixth Chamber) delivered on 28 September 2016 in Case T-476/15: European Food SA v European Union Intellectual Property Office

text:
               20.3.2017

               EN

               Official Journal of the European Union

               C 86/7

         Appeal brought on 7 December 2016 by European Union Intellectual Property Office against the judgment of the General Court (Sixth Chamber) delivered on 28 September 2016 in Case T-476/15: European Food SA v European Union Intellectual Property Office
   (Case C-634/16 P)
   (2017/C 086/09)
   Language of the case: English

      Parties

      Appellant: European Union Intellectual Property Office (represented by: M. Rajh, Agent)

      Other parties to the proceedings: European Food SA, Société des produits Nestlé SA

      Form of order sought

   The appellant claims that the Court should:

               —

               Annul the contested Judgment

               —

               Order European Food to pay the costs incurred by the Office.

      Pleas in law and main arguments

   First, the General Court disregarded that Regulations No 207/2009 (1) and No 2868/95 (2) provide for two types of time-limit for submissions in proceedings before the Office: those specified in the legislation itself and which can thus not be extended by the Office, and those to be set by the Office in each individual case for the proper organization of the proceedings and which can, where appropriate according to the specific circumstances of the case, be extended on the parties’ request. The General Court’s statement that there is no time-limit applicable to invalidity proceedings based on absolute grounds is therefore erroneous.
   Second, the General Court misconceived the meaning and effect of Article 76(2) of Regulation 207/2009. This article applies to all types of proceedings before the Office and to all applicable time-limits, namely (i) to those set directly by Regulations No 207/2009 and No 2868/95 and (ii) to those set up by EUIPO in the exercise of its competence to organize the procedures before it.
   Third, by concentrating on the third subparagraph of Rule 50(1) of Regulation No 2868/95, the General Court disregarded the core significance of that rule which lies in its first subparagraph, namely that the Board of Appeal is subject to the same procedural provisions as the division that issued the decision under appeal. The first subparagraph is not confined to opposition proceedings but applies to all proceedings, including cancellation proceedings.
   Fourth, the Judgment under Appeal infringed Article 76(2) of Regulation No 207/2009 in that it (i) failed to apply this provision to the time-limits set by the Office and (ii) deprived the Board of Appeal of its power under Article 76(2) of Regulation No 207/2009 to assess whether the evidence submitted for the first time qualified as being ‘new’ and, failing this, to exercise its discretion as to the admissibility of that evidence.
   Finally, the Contested Judgment disrupts the balance between the parties’ respective procedural rights by giving any party in invalidity proceedings an unconditional right to submit any evidence at any stage of proceedings before the Office, including on appeal. This deprives the defendant of one step of administrative examination where the cancellation applicant deliberately chooses not to submit any — or any relevant — fact or evidence before the Cancellation Division. Moreover, by giving any party in invalidity proceedings an unconditional right to submit any evidence at any stage of proceedings is also in breach of the principles of procedural economy and sound administration.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark OJ 2009, L 78, p. 1

      (2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark OJ 1995, L 303, P. 1