title: Case C-463/11: Judgment of the Court (Fourth Chamber) of 18 April 2013 (request for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg — Germany) — L v M (Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Article 3(4) and (5) — Determination of the type of plans likely to have significant environmental effects — Building plan ‘for development within an urban area’ exempted from an environmental assessment under national legislation — Incorrect assessment of the qualitative condition of ‘inner city development’ — No effect on the legal validity of the building plan — Effectiveness of the directive undermined)

text:
               8.6.2013

               EN

               Official Journal of the European Union

               C 164/4

         Judgment of the Court (Fourth Chamber) of 18 April 2013 (request for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg — Germany) — L v M
   (Case C-463/11) (1)

   (Directive 2001/42/EC - Assessment of the effects of certain plans and programmes on the environment - Article 3(4) and (5) - Determination of the type of plans likely to have significant environmental effects - Building plan ‘for development within an urban area’ exempted from an environmental assessment under national legislation - Incorrect assessment of the qualitative condition of ‘inner city development’ - No effect on the legal validity of the building plan - Effectiveness of the directive undermined)
   2013/C 164/06
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof Baden-Württemberg

      Parties to the main proceedings

      Applicant: L

      Defendant: M

      Re:

   Request for a preliminary ruling — Verwaltungsgerichtshof Baden-Württemberg — Interpretation of Article 3(4) and (5), of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30) — Scope — National legislation providing for an accelerated procedure not including an environmental impact assessment for the adoption of development plans relating to small areas at local level which meet certain qualitative and quantitative — Incorrect assessment of the qualitative criteria

      Operative part of the judgment

   Article 3(5) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, read in conjunction with Article 3(4) thereof, must be interpreted as precluding national legislation such as that at issue in the main proceedings, pursuant to which breach of a qualitative condition, imposed by the implementing provision of that directive to exempt the adoption of a particular type of building plan from an environmental assessment under that directive, is irrelevant to the legal validity of that plan.

      (1)  OJ C 355, 3.12.2011.


title: Case C-141/10: Action brought on 16 March 2010 — European Commission v Kingdom of the Netherlands

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/19

      Action brought on 16 March 2010 — European Commission v Kingdom of the Netherlands
      (Case C-141/10)
      (2010/C 161/28)
      Language of the case: Dutch

         Parties

         Applicant: European Commission (represented by: V. Kreuschitz and M. van Beek, Agents)

         Defendant: Kingdom of the Netherlands

         Form of order sought

                  —

                  Declare that, by failing to adopt all the measures necessary to set aside the provision under which certain social security benefits are not paid to nationals of other Member States of the European Union who are employed on drilling platforms in the Netherlands, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 13(2)(a) and 3(1) of Regulation (EEC) No 1408/71 (1) and Articles 45 TFEU to 48 TFEU;

                  —

                  Order the Kingdom of the Netherlands to pay the costs.

         Pleas in law and main arguments

                  1.

                  The European Parliament has recently repeatedly requested information from the Commission about Portuguese nationals who work on drilling platforms on the Netherlands’ continental shelf and live in Portugal but do not enjoy the same conditions of employment or social security as employed persons living in the Netherlands.

                  2.

                  Consequently, in accordance with Article 226 EC (now Article 258 TFEU), the Commission sent the Netherlands a letter of formal notice and a reasoned opinion in which it stated that, in its view, Netherlands social security legislation should also apply to nationals of other Member States of the European Union who work on drilling platforms in the Netherlands. The refusal of the Netherlands authorities to award social security benefits to such persons is incompatible with Title II of Regulation (EEC) No 1408/71, in particular with Articles 13(2)(a) and 3(1) thereof, and with Articles 39 EC to 42 EC (now Articles 45 TFEU to 48 TFEU).

                  3.

                  The Netherlands has, to date, failed to adopt all the measures necessary to set aside the provision of national legislation under which certain social security benefits are not paid to nationals of other Member States of the European Union who are employed on drilling platforms in the Netherlands.

                  4.

                  On those grounds, the Commission has to conclude that, by refusing to pay certain social security benefits to nationals of other Member States of the European Union who are employed on drilling platforms in the Netherlands, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 13(2)(a) and 3(1) of Regulation (EEC) No 1408/71 and Articles 45 TFEU to 48 TFEU.

         (1)  Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2).


title: Case C-43/00: Reference for a preliminary ruling by the Vestre Landsret by order of 9 February 2000 in the case of Andersen og Jensen ApS v Skatteministeriet

text:
29.4.2000               EN                    Official Journal of the European Communities                                            C 122/11
Reference for a preliminary ruling by the Hoge Raad der                  of 2 February 2000, which was received at the Court Registry
Nederlanden by judgment of 4 February 2000 in the case                   on 11 February 2000, for a preliminary ruling in the public
of Herbert Weber v Universal Ogden Services Ltd, a                       inquiry concerning Aaron Theophilus Joseph (trading as
            company incorporated under Scots law                         Woodcroft Haulage), on the following question:
                           (Case C-37/00)
                                                                         Since all serious offences are dealt with under paragraph 2 (a)
                                                                         of Schedule 3, to the 1995 Act, was the removal of the word
                          (2000/C 122/16)                                ‘repeatedly’ in relation to road transport offences (paragraph 2
                                                                         (b) of Schedule 3) necessary in order to implement Council
Reference has been made to the Court of Justice of the                   Directive 98/76/EC (1) of 1 October 1998 and, if so, is the
European Communities by a judgment of the Hoge Raad der                  correct interpretation of 98/76/EC of 1 October 1998 that
Nederlanden (Supreme Court of the Netherlands), which was                mandatory loss of repute must occur if an individual is
received at the Court Registry on 10 February 2000, for a                convicted of 2 or more road transport offences in the course
preliminary ruling in the case of Herbert Weber v Universal              of a single court appearance?
Ogden Services Ltd, a company incorporated under Scots law,
on the following questions:
                                                                         (1) amending Directive 96/2/EC on admission to the occupation of
(a) Must work carried out on the Netherlands section of the                  road haulage operator and road passenger transport operator and
     continental shelf under the North Sea by an employee as                 mutual recognition of diplomas, certificates and other evidence of
                                                                             formal qualifications intended to facilitate for these operators the
     defined in the Wet Arbeid Mijnbouw Noordzee (1) (Law on                 right to freedom of establishment in national and international
     Mining Work in the North Sea) (‘WAMN’) be regarded as                   transport operation (OJ L 277 of 14.10.1998, p. 17).
     or treated as equivalent to work carried out in the
     Netherlands for purposes of the application of Article 5(1)
     of the Brussels Convention? (2)
(b) If so, in order to answer the question whether the employee
     must be regarded as having carried out his work ‘habitually’
     in the Netherlands, must account be taken of the entire
     period of his employment or is only his most recent period
     of employment relevant?
(c) In answering Question (b) must a distinction be drawn                Reference for a preliminary ruling by the Vestre Landsret
     between the period before the WAMN entered into force               by order of 9 February 2000 in the case of Andersen og
     — when Netherlands law had not yet designated a court                                Jensen ApS v Skatteministeriet
     with territorial jurisdiction to deal with a case such as the
     present — and the period after the WAMN entered into
     force?                                                                                (Case C-43/00)
(1) Law of 2 November 1992, Staatsblad 592.                                                        (2000/C 122/18)
(2) Convention of 27 September 1968 on Jurisdiction and the
    Enforcement of Judgements in Civil and Commercial Matters.
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of 9 February 2000 by the
                                                                         Vestre Landsret (Western Regional Court), which was received
                                                                         at the Court Registry on 14 February 2000, for a preliminary
                                                                         ruling in the case of Andersen og Jensen ApS v Skatteminis-
                                                                         teriet (Finance Ministry) on the following questions:
Reference for a preliminary ruling by the Deputy Traffic
Commissioner, North Western Traffic Area (United                         Question 1
Kingdom), by order of 2 February 2000, in the public
inquiry concerning Aaron Theophilus Joseph (trading as
                       Woodcroft Haulage)                                Must the provisions of Directive 90/434/EEC (1) (the merger
                                                                         directive) be understood as meaning that it is contrary to the
                           (Case C-38/00)                                provisions of that directive, in particular Article 2(c) and (i),
                                                                         for the authorities of a Member State to refuse to treat an
                                                                         arrangement as being covered by the directive’s provisions on
                          (2000/C 122/17)                                the transfer of assets where the effect of the arrangement in
                                                                         question is that all of the transferring company’s assets and
Reference has been made to the Court of Justice of the                   liabilities are transferred to a second company (the receiving
European Communities by an order of the Deputy Traffic                   company), with the exception of a minor block of shares and
Commissioner, North Western Traffic Area (United Kingdom),               the proceeds of a loan taken out by the transferring company?
 ---pagebreak--- C 122/12                EN                      Official Journal of the European Communities                                           29.4.2000
Question 2                                                                 (1) May Article 10 of Council Directive 69/335/EEC (1) be
                                                                                relied on by a private individual in dealings with the State,
Does it have any bearing on the answer to Question 1 that it                    even if the latter has not transposed that directive into
can be assumed that the transferring company took out the                       national law?
loan in question with a view to reducing the net value of the
assets and liabilities to be transferred to the receiving company,
inasmuch as the loan proceeds are to remain in the transferring            (2) Must the operations referred to in Article 4(3) of Directive
company while the debt liability is transferred to the receiving                69/335/EEC be regarded as covered by the prohibition laid
company?                                                                        down in Article 10 of the same Community measure, in
                                                                                such a way as to preclude the collection, under the
                                                                                directive, not only of the tax on the raising of capital but
Question 3                                                                      also of any other levy, of whatever kind, in particular one
                                                                                that is a charge rather than a tax?
Does it have any bearing on the answer to Question 1 and/or
Question 2 that it can be assumed that the loan in question
was taken out with a view to making it possible for previous               (3) Must Articles 10 and 12(1)(e) of the same directive be
associates, as a step in a generation change within the                         interpreted as meaning that the fees payable for recordal in
undertaking, to finance the subscription of shares in the                       a (legally binding) commercial register public of resolutions
receiving company?                                                              increasing capital or amending statutes may not vary
                                                                                according to the amount of the increase and the amount
                                                                                of the capital, respectively?
Question 4
Must the provisions of the merger taxation directive, in                   (4) May such variations in the amount of the fee be regarded
particular Article 2(i) thereof, be understood as meaning that                  as depending, directly or indirectly, on the cost of the
it is contrary to those provisions for a condition to be imposed,               service provided?
before an arrangement can be treated as being covered by the
asset-transfer provisions of the directive, under which the
transferring company, the principal shareholders in person or
any other third party may not provide security for the benefit             (5) Does that cost include the salary of officials, agents or
of the receiving company, on the ground that it is indicated                    other public employees, expenses incurred in respect of
that the future cash requirements of the receiving company                      minor operations carried out free of charge, and a portion
are to be financed by working credit from a financial institution               of overheads (rent of premises, data-processing and com-
which wishes to obtain a lien on the shares of the receiving                    munications equipment, electricity, water and the like)
company?                                                                        attributable to registration operations?
(1) of 23 July 1990 on the common system of taxation applicable to
     mergers, divisions, transfers of assets and exchanges of shares       (6) Is it permitted, having regard to the abovementioned
     concerning companies of different Member States.                           articles of the said directive, to regard those variables
                                                                                deriving from increases of capital as a manifestation of
                                                                                standardised charges and, as such, authorised charges?
                                                                           (7) Is it permitted, having regard to the same provisions of the
                                                                                directive, for any fee to be charged in excess of the cost of
                                                                                the service? And if so, to what extent? If the excess were to
Reference for a preliminary ruling by the Supremo                               be manifest and unreasonable, could the amount of the
Tribunal Administrativo (Second Chamber) by judgment                            fees be reduced on an equitable basis?
of that court of 26 May 1999 in the case of Sonae Turismo,
               SGPS, SA, against Fazenda Pública
                           (Case C-45/00)
                                                                           (1) Council Directive 69/335/EEC of 17 July 1969 concerning
                                                                               indirect taxes on the raising of capital (OJ English Special Edition,
                          (2000/C 122/19)
                                                                               1969(II) p. 412).
Reference has been made to the Court of Justice of the
European Communities by judgment of the Supremo Tribunal
Administrativo (Supreme Administrative Court) of 26 May
1999, which was received at the Court Registry on 14 February
2000, for a preliminary ruling in the case of Sonae Turismo,
SGPS, SA, against Fazenda Pública on the following questions:


title: Case T-266/11: Action brought on 19 May 2011 — El Gazaerly v Council

text:
               23.7.2011

               EN

               Official Journal of the European Union

               C 219/20

         Action brought on 19 May 2011 — El Gazaerly v Council
   (Case T-266/11)
   2011/C 219/31
   Language of the case: English

      Parties

      Applicant: Naglaa Abdallah El Gazaerly (London, United Kingdom) (represented by: D. Pannick, QC (Queen's Counsel), R. Lööf, Barrister, and M. O'Kane, Solicitor)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul, in so far as it concerns the applicant, Council Decision 2011/172/CFSP of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63);

               —

               Annul, in so far as it concerns the applicant, Council Regulation (EU) No 270/2011 of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4), implementing Council Decision 2011/172/CFSP;

               —

               Order the defendant to pay damages in sum of EUR 10 000; and

               —

               Order the defendant to bear the applicant’s costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that Article 29 TEU is an erroneous and/or insufficient legal basis for Council Decision 2011/172/CFSP, as:

                           —

                           The aforementioned Decision does not pursue a foreign policy objective;

                           —

                           The adoption of such Decision (and of Council Regulation (EU) No 270/2011) constitutes an abuse of power; and

                           —

                           The inclusion of the applicant in the Annex to Council Decision 2011/172/CFSP (and the corresponding Regulation) was irrational.

               2.

               Second plea in law, alleging that the inclusion of the applicant within the ambit of Council Decision 2011/172/CFSP and Council Regulation (EU) No 270/2011 violates his right to effective judicial protection.

               3.

               Third plea in law, alleging that the inclusion of the applicant within the ambit of Council Decision 2011/172/CFSP and Council Regulation (EU) No 270/2011 violates the principle of proportionality.

               4.

               Fourth plea in law, alleging that the applicant has suffered damages as a direct result of the adoption of Council Decision 2011/172/CFSP and Council Regulation (EU) No 270/2011, which fall to be made good by the Union.


title: Case C-47/05: Order of the President of the Court of 18 January 2007 — Commission of the European Communities v Kingdom of Spain

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/26

         Order of the President of the Court of 18 January 2007 — Commission of the European Communities v Kingdom of Spain
   (Case C-47/05) (1)

   (2007/C 82/50)

      Language of the case: Spanish

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

      (1)  OJ C 82, 2.4.2005.


title: Judgment of the Court (Sixth Chamber) of 10 April 2003 in Case C-167/99: European Parliament v Société d'aménagement et d'équipement de la Région de Strasbourg (SERS) and Ville de Strasbourg (Arbitration clause — Late performance of a contract — Penalties for delay — Interim interest)

text:
7.6.2003                EN                           Official Journal of the European Union                                                C 135/1
                                                                          I
                                                                   (Information)
                                                      COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       R. Schintgen (Rapporteur), V. Skouris, F. Macken and
                                                                             J.N. Cunha Rodrigues, Judges; L.A. Geelhoed, Advocate Gen-
                                                                             eral; L. Hewlett, Principal Administrator, for the Registrar, has
                         (Sixth Chamber)                                     given a judgment on 10 April 2003, in which it:
                         of 10 April 2003
                                                                             1.    Declares that the application of the European Parliament and
                                                                                the counterclaim of Ville de Strasbourg (France) and Société
in Case C-167/99: European Parliament v Société d’aména-                           d’équipement et d’aménagement de la Région de Strasbourg
gement et d’équipement de la Région de Strasbourg                                  (SERS) are admissible;
               (SERS) and Ville de Strasbourg ( 1)
(Arbitration clause — Late performance of a contract —                       2.    Declares that the Court has full jurisdiction in the case;
             Penalties for delay — Interim interest)
                                                                             3.    Dismisses the counterclaim;
                          (2003/C 135/01)
                    (Language of the case: French)                           4.    Annuls Title VII.1, Chapter A, Section 2(a) and (d) of the
                                                                                opinion of the committee of conciliators of 22 March 1999;
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                             5.    Fixes the contractual date of completion of the buildings referred
                                                                                to in the contract of 31 March 1994 between the European
                                                                                Parliament, Ville de Strasbourg and Société d’équipement et
                                                                                d’aménagement de la Région de Strasbourg (SERS) at 6 Febru-
                                                                                ary 1998;
In Case C-167/99, European Parliament (Agents: T. Millett and
O. Caisou-Rousseau) v Société d’aménagement et d’équipement
de la Région de Strasbourg (SERS), established in Strasbourg
(France) (represented by G. Alexandre) and Ville de Strasbourg               6.    Orders Société d’équipement et d’aménagement de la Région de
(represented by B. Alexandre): Application, firstly, by the                        Strasbourg (SERS) to pay the penalties provided for in
European Parliament under Article 181 of the EC Treaty (now                        clause 5.1 of that contract from 6 February 1998 in accordance
Article 238 EC) for annulment of the opinion of the committee                      with the conditions laid down in that provision;
of conciliators to which the parties appealed, and for the
payment of penalties for late performance, and, secondly, as a
counterclaim, by Société d’aménagement et d’équipement de
la Région de Strasbourg (SERS) and Ville de Strasbourg for                   7.    Exonerates the European Parliament from payment of the
annulment in part of that opinion, the Court (Sixth Chamber),                      interim interest provided for in clause 6.3 of that contract for
composed of: J.-P. Puissochet, President of the Chamber,                           the period from 10 May to 14 December 1998;
 ---pagebreak--- C 135/2                  EN                           Official Journal of the European Union                                              7.6.2003
8.    Dismisses the remainder of the application;                             States relating to trade marks, as amended by the Agreement on the
                                                                              European Economic Area of 2 May 1992. However, the requirements
9.    Orders the parties to bear their own costs.                             deriving from the protection of the free movement of goods enshrined,
                                                                              inter alia, in Articles 28 EC and 30 EC may mean that this rule of
                                                                              evidence needs to be qualified. Accordingly, where a third party
( 1) OJ C 246 of 28.08.1999.                                                  succeeds in establishing that there is a real risk of partitioning of
                                                                              national markets if he himself bears that burden of proof, particularly
                                                                              where the trade mark proprietor markets his products in the European
                                                                              Economic Area using an exclusive distribution system, it is for the
                                                                              proprietor of the trade mark to establish that the products were
                                                                              initially placed on the market outside the European Economic Area
                                                                              by him or with his consent. If such evidence is adduced, it is for the
                  JUDGMENT OF THE COURT                                       third party to prove the consent of the trade mark proprietor to
                                                                              subsequent marketing of the products in the European Economic
                                                                              Area.
                           of 8 April 2003
in Case C-244/00 (Reference for a preliminary ruling from                     (1 ) OJ C 247 of 26.8.2000.
the Bundesgerichtshof): Van Doren + Q.GmbH v Lifestyle
sports + sportswear Handelsgesellschaft mbH, Michael
                                Orth (1)
(Trade marks — Directive 89/104/EEC — Article 7(1) —
Exhaustion of the right conferred by the trade mark —
                                                                                JUDGMENT OF THE COURT
Evidence — Place where the goods are first placed on the
market by the trade mark proprietor or with his consent —
Consent of the trade mark proprietor to placing on the                                                   (Fifth Chamber)
                         market in the EEA)
                                                                                of 10 April 2003
                           (2003/C 135/02)
                                                                              in Case C-305/00 (Reference for a preliminary ruling
                    (Language of the case: German)                            from the Oberlandesgericht Frankfurt am Main): Christian
                                                                              Schulin v Saatgut-Treuhandverwaltungsgesellschaft
                                                                                mbH (1)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                              (Plant varieties — System of protection — Article 14(3) of
                                                                              Regulation (EC) No 2100/94 and Article 8 of Regulation
                                                                              (EC) No 1768/95 — Use by farmers of the product of the
In Case C-244/00: Reference to the Court under Article 177                    harvest — Obligation to provide information to the holder
of the EC Treaty (now Article 234 EC) by the Bundesgerichtshof                                      of the Community right)
(Germany) for a preliminary ruling in the proceedings pending
before that court between Van Doren + Q.GmbH and Lifestyle                                               (2003/C 135/03)
sports + sportswear Handelsgesellschaft mbH, Michael Orth,
on the interpretation of Articles 28 EC and 30 EC and                                             (Language of the case: German)
of Article 7(2) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks (OJ 1989 L 40, p. 1), as amended               (Provisional translation; the definitive translation will be published
by the Agreement on the European Economic Area of                                                 in the European Court Reports)
2 May 1992 (OJ 1994 L 1, p. 3), the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
and R. Schintgen (Presidents of Chambers), C. Gulmann                         In Case C-305/00: Reference to the Court under Article 234
(Rapporteur), A. La Pergola, P. Jann, V. Skouris, F. Macken,                  EC by the Oberlandesgericht Frankfurt am Main (Germany) for
N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate                  a preliminary ruling in the proceedings pending before that
General; H.A. Rühl, Principal Administrator, for the Registrar,               court between Christian Schulin and Saatgut-Treuhandverwal-
has given a judgment on 8 April 2003, in which it has ruled:                  tungsgesellschaft mbH, on the interpretation of the sixth
                                                                              indent of Article 14(3) of Council Regulation (EC) No 2100/
A rule of evidence according to which exhaustion of the trade mark            94 of 27 July 1994 on Community plant variety rights (OJ
right constitutes a plea in defence for a third party against whom the        1994 L 227, p. 1), and Article 8 of Commission Regulation
trade mark proprietor brings an action, so that the existence of the          (EC) No 1768/95 of 24 July 1995 implementing rules on
conditions for such exhaustion must, as a rule, be proved by the third        the agricultural exemption provided for in Article 14(3) of
party who relies on it, is consistent with Community law and, in              Regulation No 2100/94 (OJ 1995 L 173, p. 14), the Court
particular, with Articles 5 and 7 of First Council Directive 89/104/          (Fifth Chamber), composed of: M. Wathelet, President of the
EEC of 21 December 1988 to approximate the laws of the Member                 Chamber, C.W.A. Timmermans, D.A.O. Edward, S. von Bahr


title: Case T-458/08: Action brought on 9 October 2008 — Wilfer v OHIM

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/35

         Action brought on 9 October 2008 — Wilfer v OHIM
   (Case T-458/08)
   (2009/C 6/71)
   Language in which the application was lodged: German
   Parties

      Applicant: Hans-Peter Wilfer (Markneukirchen, Germany) (represented by A. Kockläuner, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 25 July 2008 in Case R 78/2007-4 in its entirety;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: Figurative mark representing the head of a guitar using the colours silver, grey and brown, for goods in Classes 9 and 15 (No 2 639 821)

      Decision of the Examiner: Rejection of the registration

      Decision of the Board of Appeal: Rejection of the appeal
   Pleas in law:

               —

               infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1);

               —

               infringement of the principle of examination of the facts by the Office of its own motion, including disregard for the rules concerning the burden of proof under Article 74(1) of Regulation No 40/94;

               —

               infringement of the requirement to state reasons for the purposes of the first sentence of Article 73 of Regulation No 40/94;

               —

               infringement of the principle of equal treatment.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case T-263/11: Judgment of the General Court of 6 February 2013 — Bopp v OHIM (Representation of a green octagonal frame) (Community trade mark — Application for a Community figurative mark representing a green octagonal frame — Absolute ground for refusal — Distinctive character — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 — Offer of evidence submitted for the first time in the reply — Article 48(1) of the Rules of Procedure of the General Court — Document sent to OHIM by fax — Applicable rules)

text:
               16.3.2013

               EN

               Official Journal of the European Union

               C 79/15

         Judgment of the General Court of 6 February 2013 — Bopp v OHIM (Representation of a green octagonal frame)
   (Case T-263/11) (1)

   (Community trade mark - Application for a Community figurative mark representing a green octagonal frame - Absolute ground for refusal - Distinctive character - Descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 - Offer of evidence submitted for the first time in the reply - Article 48(1) of the Rules of Procedure of the General Court - Document sent to OHIM by fax - Applicable rules)
   2013/C 79/26
   Language of the case: German

      Parties

      Applicant: Carsten Bopp (Glashütten, Germany) (represented by: C. Russ, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Klüpfel and D. Walicka initially, then by K. Klüpfel and A. Pohlmann, Agents)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 11 March 2011 (Case R 605/2010-4), concerning an application for registration as a Community trade mark of a figurative sign representing a green octagonal frame.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 March 2011 (Case R 605/2010-4);

               2.

               Orders OHIM to pay the costs.

      (1)  OJ C 238, 13.8.2011.


title: Case T-67/17: Action brought on 1 February 2017 — Italytrade v EUIPO — Tpresso (tèespresso)

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/57

         Action brought on 1 February 2017 — Italytrade v EUIPO — Tpresso (tèespresso)
   (Case T-67/17)
   (2017/C 104/79)
   Language in which the application was lodged: Italian

      Parties

      Applicant: Italytrade Srl (Bari, Italy) (represented by: N. Clemente, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Tpresso SA (Zurich, Switzerland)

      Details of the proceedings before EUIPO

      Applicant for the trade mark at issue: Applicant

      Trade mark at issue: European Union word mark ‘tèespresso’ — Application for registration No 13 543 517

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 29 November 2016 in Case R 959/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               alter the contested decision as provided for in Article 65(3) of Regulation No 207/2009 and in any case according to existing rules;

               —

               order, pursuant to Article 134 of the Rules of Procedure of the General Court, EUIPO and the interveners, if any, to pay the costs incurred by Italytrade Srl in the present proceedings;

               —

               alter the decision also with regard to the order for costs and order, pursuant to Article 134(1) of the Rules of Procedure of the General Court, EUIPO and the unsuccessful intervener to pay the costs incurred before the Board of Appeal and the Opposition Division.

      Pleas in law

               —

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

               —

               Infringement of Article 8(5) of Regulation No 207/2009.


title: Case C-261/13 P: Judgment of the Court (Grand Chamber) of 9 December 2014  — Peter Schönberger v European Parliament (Appeal — Petition addressed to the European Parliament — Decision to file the petition — Action for annulment — Concept of a ‘challengeable act’ )

text:
               9.2.2015

               EN

               Official Journal of the European Union

               C 46/8

         Judgment of the Court (Grand Chamber) of 9 December 2014 — Peter Schönberger v European Parliament
   (Case C-261/13 P) (1)

   ((Appeal - Petition addressed to the European Parliament - Decision to file the petition - Action for annulment - Concept of a ‘challengeable act’))
   (2015/C 046/10)
   Language of the case: German

      Parties

      Appellant: Peter Schönberger (represented by: O. Mader, Rechtsanwalt)

      Other party to the proceedings: European Parliament (represented by: U. Rösslein and E. Waldherr, acting as Agents)

      Operative part of the judgment

   The Court:

               1)

               Dismisses the appeal;

               2)

               Orders Mr Peter Schönberger to pay the costs.

      (1)  OJ C 207, 20.7.2013.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 3 June 1997 in Case T-196/95: H v. Commission of the European Communities (Officials - Compulsory retirement - Establishment and tasks of the Invalidity Committee - Articles 53 and 59 (2) of the Staff Regulations - Notification of the decision)

text:
No C 212/26            EN                   Official Journal of the European Communities                                     12 . 7 . 97
1 . The application is dismissed as inadmissible.                      Brussels,     represented     by    Jean-Noel  Louis,  Thierry
                                                                       Demaseure and Ariane Tornel, of the Brussels Bar, with an
2 . Each of the parties shall bear its own costs.                      address for service in Luxembourg at the offices of
                                                                       Fiduciaire Myson Sari, 1 Rue de Cessange, v. Council of
(') OJ No C 275 , 1 . 10 . 1994 .                                      the European Union ( Agents : Jean-Paul Jacqué and Denis
                                                                       Waelbroeck ) — application for annulment of the decision
                                                                       of the Secretary-General of the Council of 3 May 1995
                                                                       rejecting the applicant's application for a grade A 1 post
                                                                       in    the  Directorate-General       for Economic  and    Social
                                                                       Cohesion, Regional Policy, Social Policy, Employment,
  JUDGMENT OF THE COURT OF FIRST INSTANCE                              Social Dialogue, Education and Youth, Culture, and
                          of 28 May 1997                               Audiovisual Media ( DG J ), and of the decision of the
      in Case T-59/96: Jean-Louis Burban v. European                   Secretary-General of the Council of 7 November 1995
                           Parliament ( 1 )                            rejecting the applicant's complaint — the Court of First
                                                                       Instance ( Fifth Chamber ), composed of: R. García
(Officials — Delay in drawing up staff reports — Action
                                                                       Valdecasas, President, and J. Azizi and M. Jaeger, Judges;
for damages — Admissibility — Maladministration —
                                                                       A. Mair, Administrator, for the Registrar, has given a
                                 Loss)
                                                                       judgment on 29 May 1997, in which it:
                           ( 97/C 212/49
               (Language of the case: French)                          1 . dismisses the application;
In Case T-59/96 : Jean-Louis Burban, an official of the                2 . orders the parties to bear their own costs.
European Parliament, residing in Paris, represented by
Jean-Pierre Spitzer, of the Paris Bar, with an address for             C ) OJ No C 77, 16 . 3 . 1996 .
service in Luxembourg at the Chambers of Aloyse May,
31 Grand-Rue, v. European Parliament ( Agents : Yannis
Pantalis, Francis Herbert and Daniel M. Tomasevic ) —
application for compensation for the material and non
material damage suffered by the applicant as a result of
delay in the drawing up of his staff reports for the periods
1991 — 1992 and        1993— 1994 — the         Court of First            JUDGMENT OF THE COURT OF FIRST INSTANCE
Instance ( Fourth Chamber), composed of: K. Lenaerts,                                            of 3 June 1997
President, and P. Lindh and J. D. Cooke, Judges; J. Palacio
Gonzalez, Administrator, for the Registrar, has given a
                                                                       in Case T- 196/95 : H v. Commission of the European
                                                                                Communities O
judgment on 28 May 1997, in which it:
                                                                        (Officials — Compulsory retirement — Establishment and
 1 . orders the Parliament to pay the applicant damages in              tasks of the Invalidity Committee — Articles 53 and 59
     the sum of Bfrs 200 000;                                           (2) of the Staff Regulations — Notification of the
                                                                                decision)
2 . orders the Parliament to pay all the costs.
                                                                                ( 97/C 212/51
 n OJ No C 180, 22 . 6 . 1996 .
                                                                                (Language of the case: French)
                                                                        In Case T-l 96/95 : H, a former official of the Commission
                                                                        of the European Communities, residing in Brussels,
   JUDGMENT OF THE COURT OF FIRST INSTANCE                              represented initially by Pierre-Paul van Gehuchten and
                                                                       Jacques Sambon and subsequently by Lucette Defalque, of
                          of 29 May 1997                                the Brussels Bar, with an address for service in
 in Case T-6/96: Théistocle Contargyris v. Council of the               Luxembourg at the Chambers of Louis Schiltz, 2 Rue du
                       European Union (')                               Fort Rheinsheim, v. Commission of the European
 (Officials — Rejection of application for a post —                     Communities ( Agent: Ana Maria Alves Vieira ) —
 Article 19 (1) of the Council's rules of procedure —                   application for annulment of the Invalidity Committee 's
 Article 45 of the Staff Regulations — Power of the                     opinion of 13 September 1994, of the Commission's
 Secretary-General of the Council to adopt decisions                    decision of 27 September 1994 compulsorily retiring the
 rejecting an application for a post and a complaint —                  applicant and of the Commission's decision of 27 June
 Notice of vacancy — Manifest error of assessment —                      1995 rejecting the applicant's complaint against the
 Articles 7 and 27 of the Staff Regulations — Obligation to             former decision — the Court of First Instance (Third
     provide a statement of reasons — Misuse of powers)                 Chamber), composed of: B. Vesterdorf, President, C. P.
                                                                        Briët and A. Potocki, Judges; B. Pastor, Principal
                             97/ C 212/50
                                                                        Administrator, for the Registrar, has given a judgment on
                                                                         3 June 1997, in which it:
                (Language of the case: French)
 In Case T-6/96 : Théistocle Contargyris, a former official              1 . dismisses the application as inadmissible in so far as it
  of the Council of the European Union, residing in                           seeks annulment, first, of the decision of 27 June 1995
 ---pagebreak---  12 . 7. 97            EN                  Official Journal of the European Communities                               No C 212/27
      rejecting the complaint of 6 April 1995 and, second,                 ORDER OF THE COURT OF FIRST INSTANCE
      of the opinion of the Invalidity Committee of                                           of 15 May 1997
      13 September 1994;
                                                                      in Case T-l 75/96: Georges Berthu v. Commission of the
                                                                                European Communities ( ] )
2 . dismisses the       remainder of the application as               (Economic and monetary policy — Commission proposal
      unfounded;                                                      — Action for annulment — Replacement of the term 'ecu '
                                                                      provided for in Article 109g of the EC Treaty by the term
                                                                                'euro ' — Manifest inadmissibility)
3 . orders the parties to bear their own costs.
                                                                                ( 97/C 212/53
(M OJ No C 333, 9 . 12 . 1995 .
                                                                                (Language of the case: French)
                                                                      In Case T-175/96 : Georges Berthu,        a Member of the
                                                                      European Parliament, represented by       Alexandre Varault,
                                                                      of the Paris Bar, v. Commission            of the European
                                                                      Communities (Agent: Ulrich Wölker )        — application for
      ORDER OF THE COURT OF FIRST INSTANCE                            annulment of the ' decision ' of the Commission contained
                                                                      in a proposal for a regulation submitted to the Council on
                         of 12 May 1997
                                                                      16 October 1996 'on some provisions relating to the
in Case T-561/93 ( 92 ): Tiercé Ladbroke SA v. Commission             introduction of the euro' ( COM(96 ) 499 final ) — the
               of the European Communities ( 1 )                      Court of First Instance (Second Chamber), composed of
                                                                      C. W. Bellamy, President, and A. Kalogeropoulos and J.
                       (Taxation of costs)                            Azizi, Judges; H. Jung, Registrar, made an order on
                           97/C 212/52                                15 May 1997, the operative part of which is as follows:
                                                                      1 . The action is dismissed as manifestly inadmissible.
                 (Language of the case: English)
                                                                      2 . The applicant is ordered to pay the costs.
In Case T-561/93 ( 92 ): Tiercé Ladbroke SA, established in
Brussels, represented by Jeremy Lever QC and Christopher              O OJ No C 9 , 11 . 1 . 1997.
Vajda, of the Bar of England and Wales, and by Stephen
Kon, Solicitor, London, with an address for service in
Luxembourg at the Chambers of Winandy & Err, 60
Avenue Gaston Diderich, against Commission of the
European Communities ( Agents: Francisco Enrique
Gonzalez Diaz and Richard Lyal ), supported by Pari
Mutuel Unifié Beige, established in Brussels, and Societe             Action brought on 28 March 1997 by Starway SA against
Cooperative Auxiliaire PMU Beige, established in Brussels,                        the Council of the European Union
together represented by Thomas Delahaye, Member of the                                         Case T-80/97 )
Bar of the Belgian Cour de Cassation, with an address for
                                                                                ( 97/C 212/54
service in Luxembourg at the Chambers of Charles Turk,
13B Avenue Guillaume — application for taxation of the
costs to be reimbursed by the applicant to the interveners                            (Language of the case: French)
following the order of the President of the Second
Chamber, Extended Composition, of 6 October 1995 ,
removing Case T-561 /93 from the register — the Court of              An action against the Council of the European Union was
First Instance ( Second Chamber), composed of C. W.                   brought before the Court of First Instance of the European
Bellamy, President, A. Kalogeropoulos and J. Azizi,                   Communities on 28 March 1997 by Starway SA, whose
Judges; H. Jung, Registrar, made an order on 12 May                   registered office is at Luynes ( France ), represented by
1997, the operative part of which is as follows:                      Jean-François Bellis and Philippe de Baere, both of the
                                                                      Brussels Bar, with an address for service in Luxembourg at
                                                                      the Chambers of Freddy Brausch, 11 Rue Goethe .
The total amount of the costs to be reimbursed by the
applicant to the interveners is fixed in the sum of Bfrs              The applicant claims that the Court should:
 170 000.
                                                                      — annul Article 2 of Council Regulation (EC ) No 71/97
(') OJ No C 334, 9 . 12 . 1993 .                                          in so far as it applies to the applicant,
                                                                      — order the Council to pay the costs.


23 . 9 . 95             EN                   Official Journal of the European Communities                               No C 248/ 13
      16 of the EEC Treaty ), the prohibition of discrimination         Kingdom of Spain v. Commission of the European
      ( Article 95 of the EEC Treaty) and other provisions of           Communities .
      Community law to make the exporter bear the full costs
      under national law of regular or occasional analyses ?            (') OJ No C 103 , 11 . 4 . 1994 .
(>) OJ No L 180 , 6 . 7 . 1976 , p . 9 .
(2 ) OJ No L 199 , 7. 8 . 1979 , p . 10 .
( 3 ) OJ No L 199 , 7. 8 . 1979 , p . 1 .                                        Removal from the register of Case C-95/94 ( J )
                                                                                ( 95/C 248/29 )
                                                                        By order of 1 1 July 1995 the President of the Sixth Chamber
                                                                        of the Court of Justice of the European Communities
        Removal from the register of Case C-l 80/94 ( )                 ordered the removal from the register of Case C-95/94 :
                            ( 95/C 248 /26 )                            Commission of the European Communities v. Kingdom of
                                                                        Spain.
By order of 12 June 1995 the President of the Sixth Chamber
of the Court of Justice of the European Communities                     (') OJ No C 161 , 11 . 6 . 1994 .
ordered the removal from the register of Case C-l 80/94 :
Commission of the European Communities v. Hellenic
Republic .
                                                                                Removal from the register of Case C-471/93
 (') OJ No C 233 , 20 . 8 . 1994 .                                                              and Case C-47/94 (M
                                                                                ( 95/C 248 /30 )
                                                                        By order of 1 4 July 1995 the President of the Court of Justice
                                                                        of the European Communities ordered the removal from the
         Removal from the register of Case C-67/92 (*)                  register of Case C-471 /93 and Case C-47/94 : United
                            ( 95/C 248/27 )                             Kingdom of Great Britain and Northern Ireland v.
                                                                        Commission of the European Communities, supported by
 By order of 30 June 1995 the President of the Court of                 the Kingdom of Spain, the Italian Republic and the Hellenic
Justice of the European Communities ordered the removal                 Republic .
 from the register of Case C-67/92 ( reference for a
 preliminary ruling from the Tribunal de Grande Instance                 (') OJ No C 43 , 12 . 2 . 1994 and
 de Rennes): Societe l'Hexagone v. Societe des Auteurs,                        OJ No C 90 , 26 . 3 . 1994 .
 Compositeurs et Editeurs de Musique ( SACEM ).
 O OJ No C 86 , 7. 4 . 1992 .
                                                                                Removal from the register of Case C-154/94 ( )
                                                                                95/C 248/31
                                                                         By order of 14 July 1995 the President of the Court of Justice
         Removal from the register of Case C-53/94 ( )                   of the European Communities ordered the removal from the
                             ( 95/C 248/28 )                             register of Case C-154/94 ( reference for a preliminary
                                                                         ruling from the Sozialgericht Berlin ): Bahar Kockaya v.
  By order of 1 1 July 1 995 the President of the Fifth Chamber          Bundesanstalt fiir Arbeit.
  of the Court of Justice of the European Communities
  ordered the removal from the register of Case C-53/94 :                t 1 ) OJ No C 218 , 6 . 8 . 1994 .


title: Case T-469/15: Action brought on 11 August 2015 — Bena Properties v Council

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/36

         Action brought on 11 August 2015 — Bena Properties v Council
   (Case T-469/15)
   (2015/C 337/39)
   Language of the case: French

      Parties

      Applicant: Bena Properties Co. SA (Damascus, Syria) (represented by: E. Ruchat, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare the applicant’s action admissible and well founded;

               —

               Consequently, annul Decision (CFSP) 2015/837 of 28 May 2015 and the subsequent measures implementing it, in so far as they relate to the applicant;

               —

               Order the Council of the European Union to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant raises three pleas in law which are, in essence, identical or similar to those raised in Case T-432/11 in Makhlouf v Council
       (1).

      (1)  OJ C 290, p. 13.


title: Case C-158/10: Reference for a preliminary ruling from the Raad Van State (Netherlands), lodged on 6 April 2010 — Johan van Leendert Holding BV v Minister van Sociale Zaken en Werkgelegenheid

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/24

      Reference for a preliminary ruling from the Raad Van State (Netherlands), lodged on 6 April 2010 — Johan van Leendert Holding BV v Minister van Sociale Zaken en Werkgelegenheid
      (Case C-158/10)
      (2010/C 161/33)
      Language of the case: Dutch

         Referring court

      Raad van State

         Parties to the main proceedings

         Appellant: Johan van Leendert Holding BV

         Respondent: Minister van Sociale Zaken en Werkgelegenheid

         Question referred

      Must Articles 56 and 57 of the Treaty on the Functioning of the European Union be interpreted as precluding national rules, as set out in Article 2 of the Netherlands Law on the Employment of Foreign Nationals (Wet arbeid vreemdelingen), read in conjunction with Article 1e(1)(c) of the Decree implementing the Law on the Employment of Foreign Nationals (Besluit uitvoering Wet arbeid vreemdelingen), under which an employment permit is required for the posting of workers as referred to in Article 1(3)(b) of Directive 96/71/EC (1)?

         (1)  Directive of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1).


title: Case T-753/15: Judgment of the General Court of 11 October 2016 — Guccio Gucci v EUIPO — Guess? IP Holder (Representation of four interlocking Gs) (EU trade mark — Opposition proceedings — International registration designating the European Union — Application for an EU figurative mark representing four interlocking Gs — Earlier EU and international figurative marks G — Relative ground for refusal — No similarity between the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               21.11.2016

               EN

               Official Journal of the European Union

               C 428/16

         Judgment of the General Court of 11 October 2016 — Guccio Gucci v EUIPO — Guess? IP Holder (Representation of four interlocking Gs)
   (Case T-753/15) (1)

   ((EU trade mark - Opposition proceedings - International registration designating the European Union - Application for an EU figurative mark representing four interlocking Gs - Earlier EU and international figurative marks G - Relative ground for refusal - No similarity between the signs - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 428/17)
   Language of the case: English

      Parties

      Applicant: Guccio Gucci SpA (Florence, Italy) (represented by: P.L. Roncaglia, F. Rossi and N. Parrotta, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: S. Bonne, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Guess? IP Holder LP (Los Angeles, California, United States) (represented by: D. McFarland, Barrister)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 14 October 2015 (Case R 1703/2014-4), relating to opposition proceedings between Guccio Gucci and Guess? IP Holder.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Guccio Gucci SpA to pay the costs, including the costs incurred by Guess? IP Holder LP before the Board of Appeal of the European Union Intellectual Property Office (EUIPO).

      (1)  OJ C 78, 29.2.2016.


title: Case F-103/13: Action brought on 14th October 2013 — ZZ v EMA

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/41

         Action brought on 14th October 2013 — ZZ v EMA
   (Case F-103/13)
   2013/C 367/75
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: S. Rodrigues, A. Blot, lawyers)

      Defendant: EMA

      Subject-matter and description of the proceedings

   The annulment of the appraisal report of the Applicant, covering the period of 15th September 2010 to 16th January 2012.

      Form of order sought

               —

               Annul the Applicant’s performance evaluation report for the period from 15 September 2010 to 15 September 2012 as finalised on 16 January 2013;

               —

               annul, and so far as necessary, EMA Deputy Executive Director’s decision of 2 July 2013, partially rejecting his complaint dated 6 March 2013 against the aforementioned decision;

               —

               order the EMA to pay all the costs incurred by the appellant for the present appeal.


title: Cases C-397/01 to C-403/01: Reference for a preliminary ruling by the Arbeitsgericht Lörrach by orders of 26 September 2001 in the cases of Bernhard Pfeiffer, Wilhelm Roith, Albert Süss, Michael Winter, Klaus Nestvogel, Roswitha Zeller and Matthias Döbele v Deutsches Rotes Kreuz, Kreisverband Waldshut e.V.

text:
5.1.2002               EN                      Official Journal of the European Communities                                         C 3/15
Reference for a preliminary ruling by the Arbeitsgericht                  3.   Is Article 6 of Directive 93/104/EC in itself unconditional
Lörrach by orders of 26 September 2001 in the cases of                         and sufficiently precise to be capable of being relied on
Bernhard Pfeiffer, Wilhelm Roith, Albert Süss, Michael                         by individuals before national courts where the State has
Winter, Klaus Nestvogel, Roswitha Zeller and Matthias                          not properly transposed the directive into national law?
Döbele v Deutsches Rotes Kreuz, Kreisverband Waldshut
                               e.V.
                                                                          (1) OJ L 307, p. 18.
                 (Cases C-397/01 to C-403/01)                             (2) OJ L 183, p. 1.
                          (2002/C 3/21)
Reference has been made to the Court of Justice of the
European Communities by orders of 26 September 2001 of
the Arbeitsgericht Lörrach (Labour Court) Lörrach, which were
received at the Court Registry on 12 October 2001 in the                  Reference for a preliminary ruling by the Hoge Raad der
cases of Bernhard Pfeiffer (C-397/01), Wilhelm Roith                      Nederlanden by judgment of that court of 12 October
(C-398/01), Albert Süss (C-399/01), Michael Winter                        2001 in the case of 1. ADIDAS A.G. and 2. ADIDAS
(C-400/01), Klaus Nestvogel (C-401/01), Roswitha Zeller                    BENELUX B.V. against FITNESS WORLD TRADING Ltd
(C-402/01) and Matthias Döbele (C-403/01) v Deutsches
Rotes Kreuz, Kreisverband Waldshut e.V (German Red Cross,
Waldshut District Association) for a preliminary ruling on the                                    (Case C-408/01)
following questions:
                                                                                (2002/C 3/22)
1(a) Is the reference in Article 1(3) of Council Directive
     93/104/EC (1) of 23 November 1993 concerning certain
     aspects of the organisation of working time to Article 2(2)
     of Council Directive 89/391/EEC (2) of 12 June 1989 on
     the introduction of measures to encourage improvements
     in the safety and health of workers at work, under which             Reference has been made to the Court of Justice of the
     the directives are not applicable where characteristics              European Communities by judgment of the Hoge Raad der
     peculiar to certain specific activities in the civil protection      Nederlanden of 12 October 2001, which was received at the
     services inevitably conflict with their application, to be           Court Registry on 15 October 2001, for a preliminary ruling
     construed as meaning that the plaintiff’s activity as a              in the case of 1. ADIDAS A.G. and 2. ADIDAS BENELUX B.V.
     rescue worker is caught by this exclusion?                           against FITNESS WORLD TRADING Ltd on the following
                                                                          questions:
1(b) Is the concept of road transport in Article 1(3) of
     Directive 93/104/EC to be construed as meaning that                  1.   (a)   Must Article 5(2) of the Directive be interpreted as
     only those driving activities in which by their nature great                    meaning that, under a national law implementing
     distances are covered and, consequently, working times                          that provision, the proprietor of a trade mark which
     cannot be fixed owing to the unforeseeability of any                            is well known in the Member State concerned may
     difficulties are excluded from the scope of the directive,                      also oppose the use of the trade mark or a sign
     or is road transport within the meaning of this provision                       similar to it, in the manner and circumstances
     also to be taken to mean the activity of land-based rescue                      referred to therein, in relation to goods or services
     services, which comprises at least in part the driving of                       which are identical with or similar to those for
     rescue vehicles and attendance on patients during the                           which the trade mark is registered?
     journey?
                                                                               (b) If the answer to Question 1(a) is in the negative:
2.   In view of the judgment in Case C-303/98 Simap [2000]                           where Article 5(2) of the Directive is implemented
     ECR I-0000, paragraphs 73 and 74, is Article 18(1)(b)(i)                        in a national law, must the concept of ‘likelihood of
     of Directive 93/104/EC to be construed as meaning that                          confusion’ referred to in Article 5(1)(b) of the
     consent given individually by a worker must expressly                           Directive be interpreted as meaning that there
     refer to the extension of working time to more than                             exists such a likelihood if a person other than the
     48 hours per week, or may such consent also reside in                           proprietor of the trade mark uses a well-known
     the worker’s agreeing with the employer, in the contract                        trade mark or a sign similar to it, in the manner and
     of employment, that working conditions are to be                                circumstances referred to in Article 5(2) of the
     governed by a collective agreement which itself allows                          Directive, in relation to goods or services which are
     working time to be extended to more than 48 hours on                            identical with or similar to those for which the trade
     average?                                                                        mark is registered?


title: Case C-477/11 P: Order of the Court of 14 May 2012 — Sepracor Pharmaceuticals (Ireland) Ltd v European Commission (Appeals — Regulation (EC) No 726/2004 — Medicinal products for human use — Active substance ‘eszopiclone’ — Marketing authorisation — Procedure — Statement of position by the Commission — Status of ‘new active substance’ — Concept of ‘actionable measure’ )

text:
               6.10.2012

               EN

               Official Journal of the European Union

               C 303/6

         Order of the Court of 14 May 2012 — Sepracor Pharmaceuticals (Ireland) Ltd v European Commission
   (Case C-477/11 P) (1)

   (Appeals - Regulation (EC) No 726/2004 - Medicinal products for human use - Active substance ‘eszopiclone’ - Marketing authorisation - Procedure - Statement of position by the Commission - Status of ‘new active substance’ - Concept of ‘actionable measure’)
   2012/C 303/10
   Language of the case: English

      Parties

      Appellant: Sepracor Pharmaceuticals (Ireland) Ltd (represented by: I. Dodds-Smith, solicitor, D. Anderson QC, and J. Stratford, barrister)

      Other party to the proceedings: European Commission (represented by: M. Wilderspin and M. Šimerdová, acting as Agents)

      Re:

   Appeal brought against the order of the General Court (Fourth Chamber) of 4 July 2011 in Case T-275/09 P Sepracor Pharmaceuticals v Commission, dismissing as inadmissible an application for the annulment of the Commission’s decision of 6 May 2009 finding, in the context of the procedure for granting marketing authorisation for the medicinal product ‘Lunivia’, produced by the appellant, that the active substance ‘eszopiclone’, which it contains, does not constitute a new active substance within the meaning of Article 3(2)(a) of Regulation (EC) No 726/2004 of the European Parliament and of the Council (OJ 2004 L 136, p. 1) — Concept of actionable measure

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Sepracor Pharmaceuticals Ltd is ordered to pay the costs.

      (1)  OJ C 347, 26.11.2011.


title: Judgment of the Court (Fifth Chamber) of 19 October 2004 in Case C-31/03 (reference for a preliminary ruling from the Bundesgerichtshof): Pharmacia Italia SpA (Regulation (EEC) No 1768/92 — Medicinal products — Supplementary protection certificate — Transitional arrangements — Successive authorisations as a veterinary medicinal product and a medicinal product for human use)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/17

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 19 October 2004
   in Case C-31/03 (reference for a preliminary ruling from the Bundesgerichtshof): Pharmacia Italia SpA (1)

   (Regulation (EEC) No 1768/92 - Medicinal products - Supplementary protection certificate - Transitional arrangements - Successive authorisations as a veterinary medicinal product and a medicinal product for human use)
   (2004/C 300/34)
   Language of the case: German
   In Case C-31/03: reference for a preliminary ruling under Article 234 EC from the Bundesgerichtshof (Germany), made by decision of 17 December 2002, received at the Court on 27 January 2003, in the proceedings brought by Pharmacia Italia SpA, formerly Pharmacia & Upjohn SpA — the Court (Fifth Chamber), composed of: R. Silva de Lapuerta, President of the Chamber, C. Gulmann (Rapporteur) and S. von Bahr, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a judgment on 19 October 2004, in which it has ruled:
   The grant of a supplementary protection certificate in a Member State of the Community on the basis of a medicinal product for human use authorised in that Member State is precluded by an authorisation to place the product on the market as a veterinary medicinal product granted in another Member State of the Community before the date specified in Article 19(1) of Council Regulation No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products.

      (1)  OJ C 101 of 26.4.2003.


title: Order of the President of the Court of First Instance of 10 September 2001 in Case T-180/01 R: Euroagri Srl v Commission of the European Communities (Procedure for interim relief — Admissibility)

text:
24.11.2001            EN                       Official Journal of the European Communities                                     C 331/21
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                              Pleas in law and main arguments
                           INSTANCE
                    of 10 September 2001
                                                                          The applicant is a French tyre manufacturer charged, in the
in Case T-180/01 R: Euroagri Srl v Commission of the                      contested decision, with imposing on its dealers general price
                   European Communities                                   conditions and other commercial practices that have been the
                                                                          subject of a proceeding pursuant to Article 82 of the EC
        (Procedure for interim relief — Admissibility)                    Treaty.
                        (2001/C 331/35)
                  (Language of the case: Italian)                         The Commission challenges, first, the system of discounts,
                                                                          including quantitative rebates which, according to the Com-
                                                                          mission, constitute an abuse. The applicant claims that the
In Case T-180/01 R: Euroagri Srl, established in Monte Vidon              contested decision misinterprets Article 82 EC. The Com-
Combatte (Italy), represented by W. Massucci, avocat, against             mission wrongly tries to claim that an undertaking in a
Commission of the European Communities (Agent: L. Visag-                  dominant position may not take advantage of a system of
gio) — application for suspension of the operation of Com-                discounts, and the system of rebates for quantity is not, in
mission Decision C(2001) 1274 of 6 June 2001 cancelling the               practice, a ‘loyalty inducing’ abuse as the Commission claims.
aid granted to the company Euroagri under Commission                      Further the system does not have a partitioning effect, nor is it
Decision C(92) 3124 of 3 December 1992 in the context of                  unfair.
project No 92.IT.06.069 — the President of the Court of First
Instance has made an order on 10 September 2001, in which
he:
                                                                          Second, by the contested decision the Commission complains
1.   Dismissed the application for interim relief;                        that the applicant has introduced premiums, including a
                                                                          ‘service premium’ which, according to the Commission, is
2.   Ordered that the costs be reserved.                                  unfair. The applicant claims that the decision whether a
                                                                          condition is ‘unfair’ or not must be based on objective factors,
                                                                          and not on a mere subjective assessment by the Commission,
                                                                          and that the Commission has not shown that the rules
                                                                          implementing the service premium are unfair. The applicant
                                                                          further denies the allegedly ‘loyalty inducing’ nature of that
                                                                          premium. The fact that an undertaking obtains market infor-
Action brought on 4 September 2001 by Manufacture                         mation from its dealers cannot be regarded as an abuse, but as
Française des Pneumatiques Michelin against the Com-                      falling strictly within the bounds of normal competition.
           mission of the European Communities
                        (Case T-203/01)
                        (2001/C 331/36)                                   Third, the Commission considers that the conditions imposed
                                                                          on the dealers who are members of the ‘Friends of Michelin
                                                                          Club’ by the ‘Commercial Cooperation Agreement’ constitute
                  (Language of the case: French)                          an abuse. The applicant states that the purpose of the Club
                                                                          was to improve professional standards amongst dealers, and
                                                                          that the agreement is not in any way exclusive. The applicant
An action against the Commission of the European Communi-                 denies that the member dealers are under a duty to achieve a
ties was brought before the Court of First Instance of the                certain percentage of their turnover with sales of Michelin
European Communities on 4 September 2001 by Manufacture                   products, and claims that the Commission has infringed the
Française des Pneumatiques Michelin, established in Clermont-             rules on the taking of evidence. The applicant claims that the
Ferrand (France), represented by Jean-François Bellis, Markus             accusations of the Commission as regards the other obligations
Wellinger, Denis Waelbroeck and Mats Johnsson, avocats.                   of the members of the Club are based on systematic prejudice
                                                                          against the applicant, a subjective and flawed interpretation of
                                                                          the facts, and on ignorance of economic reality.
The applicant claims that the Court should:
—    annul the Commission Decision of 20 June 2001 in
     Case COM/E-2/36.041 — PO — Michelin relating to a
     proceeding pursuant to Article 82 EC,                                Further the applicant claims that the Commission has failed to
                                                                          carry out a detailed analysis of the effects of the practices in
—    order the Commission to pay the costs.                               issue.


title: Case T-235/02: Action brought on 5 August 2002 by Strongline A/S against the Office for Harmonisation in the Internal Market

text:
28.9.2002              EN                      Official Journal of the European Communities                                       C 233/33
Pleas in law and main arguments                                           Communities on 2 August 2002 by Kharis Alexandratos
                                                                          and Maria Panagiotou, resident in Brussels, represented by
                                                                          K. Tagaras, Lawyer, with an address for service in Luxembourg.
The applicants, being the President of AIFO (Associazione
Italiana Frantoiani Oleari) and that association itself, seek
annulment of Commission Regulation (EC) No 1019/2002 of                   The applicants claim that the Court should:
13 June 2002 on marketing standards for olive oil ( 1).
                                                                          —     allow the application;
In support of their claims, they plead infringement of
Article 33, the second subparagraph of Article 34(2) and                  —     annul the contested measures so that the defendant is
Articles 153, 157 and 253 of the EC Treaty. They maintain                       obliged to allow the applicants to sit the oral tests;
in that regard that the contested regulation favours the
maintenance of the dominant positions occupied by large                   —     order the defendant to pay the costs.
undertakings in the sector concerned, thereby impeding the
development of small and medium-sized undertakings, and
that it does not provide consumers with guarantees as to the
provenance and authenticity of the product. In particular, the            Pleas in law and main arguments
regulation provides that the labelling is to bear information on
the category of olive oil concerned, but that information is
inadequate to guarantee the intrinsic quality of the product.             This is an action challenging the decision of the selection
More specifically, it provides that the designation of origin of          board for Council Open Competition A/393 to award the
virgin and extra virgin olive oils is to be purely optional,              applicants a fail mark in one of the written tests and not to
whereas, for consumers, the geographical origin of the raw                allow them to sit the oral tests.
materials is invariably a point of major importance. The
regulation requires the product to be presented to the final
consumer in packaging of a maximum capacity of five litres,               The applicants plead infringement of the first paragraph of
to the prejudice of small operators such as pressers, who                 Article 27 of the Staff Regulations and of the principle of equal
generally sell the product in bulk on the spot.                           treatment. They contend that the infringement is aggravated
                                                                          by the defendant’s refusal to grant requests made by them
                                                                          seeking information concerning the guidelines and criteria for
Moreover, the contested regulation does not provide adequate
                                                                          marking their papers and comparing them with those of the
guarantees as to the provenance and authenticity of the
product, thus impeding the marketing of types of oil which                successful candidates.
are of higher quality and are more susceptible to direct control
by the consumer, such as that sold directly by the presser.               Furthermore, in the applicants’ submission that refusal renders
                                                                          the contested measures liable to annulment also by reason of
From another standpoint, and contrary to the objective of                 breach of the duty to state reasons for measures adversely
the common agricultural policy, the contested regulation                  affecting them and of the principle of transparency in conjunc-
discourages the distribution of high-quality olive oil such as            tion with Article 255 EC concerning access to documents.
that marketed directly by pressers, and acts as a disincentive
to productivity, technical progress and rational agricultural
development.
( 1) OJ L 155 of 14.6.2002, p. 27.
                                                                          Action brought on 5 August 2002 by Strongline A/S
                                                                          against the Office for Harmonisation in the Internal
                                                                                Market
Action brought on 2 August 2002 by Kharis Alexandratos                                            (Case T-235/02)
and Maria Panagiotou against the Council of the European
                               Union
                                                                                (2002/C 233/59)
                         (Case T-233/02)
                                                                                (Language of the case: English)
                         (2002/C 233/58)
                    (Language of the Case: Greek)
                                                                          An action against the Office for Harmonisation in the Internal
                                                                          Market was brought before the Court of First Instance of the
                                                                          European Communities on 5 August 2002 by Strongline A/S,
An action against the Council of the European Union was                   represented by Mr Jacob S. Ørndrup at Gorrissen, Federspiel,
brought before the Court of First Instance of the European                Kierkegaard in Copenhagen, Denmark.
 ---pagebreak--- C 233/34              EN                       Official Journal of the European Communities                                        28.9.2002
The applicant claims that the Court should:                                                              —     Registration of the Scala Inc’s
                                                                                Community trade mark
                                                                                application is an infringe-
—     annul the First Board of Appeal’s decision of 27 May                                                     ment of Article 8(1) of
      2002 in Case R 830/2001-1;                                                                               Council Regulation No 40/
                                                                                94, as the applicant is the
—     remit the case to the First Board of Appeal;                                                             owner of two earlier and
                                                                                identical trade marks which
                                                                                are registered for identical or
—     order each party to bear its own costs.                                                                  similar goods.
Pleas in law and main arguments
                                                                          Action brought on 8 August 2002 by Luigi Marcuccio
Applicant for the Com-         Scala Inc., USA                              against the Commission of the European Communities
munity trade mark:
                                                                                (Case T-236/02)
The Community trade            Word mark SCALA for ‘computer
mark concerned:                software’ in class 9.                                               (2002/C 233/60)
Proprietor to the right to     The Applicant                                                  (Language of the case: Italian)
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:                                                              An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 8 August 2002 by Luigi Marcuccio,
Trade mark or sign             Danish trade mark registration no.
asserted by way of oppo-       VR 1300 1989 SCALA (word                   represented by Luciano Garofalo, lawyer.
sition in the opposition       mark), registered on 17 March
proceedings:                   1989, and German trade mark                The applicant claims that the Court should:
                               registration no. 2059843 SCALA
                               (Word mark), registered on                 —    annul the decision changing the ‘affectation de l’emploi
                               15 March 1994. These two marks                  A7/A6 et de son titulaire M. Luigi Marcuccio (n. Personnel
                               are registered for a range of goods             048092), fonctionnaire de grade A7’ (‘transferring the
                               in classes 9 and 16. The appli-                 A6/A7 post and its holder, Mr Luigi Marcuccio (Staff
                               cant’s opposition was based on                  No 048092), a grade A7 official’) from the Directorate-
                               some of the goods for which                     General for Development, Commission’s Delegation in
                               the earlier mark was registered,                Luanda (Angola) to the Directorate-General for Develop-
                               specifically ‘counterprograms sto-              ment in Brussels; the said decision was adopted by the
                               red on datacarriers’ and ‘date pro-             Director-General for Development, Mr Koos Richelle, on
                               cessing programs stored on data                 18 March 2002;
                               carriers’ in class 9, and was direct-
                               ed against all the goods specified         —    order the defendant:
                               in Scala Inc’s application
                                                                               —     to pay compensation for the non-material, existen-
Decision of the Oppo-          Refusal of the application                            tial, biological, physical, psychological and material
sition Division:                                                                     damage suffered by the applicant as a result of the
                                                                                decision contested in these proceedings, in the sum
                                                                                of 100 000 (one hundred thousand) euros or such
Decision of the Board of       Refusal of he application                             greater or lesser sum as the Court may think fair and
Appeal:                                                                              equitable;
Grounds of claim:              —     The documents submitted by                —     to pay all the salary-related allowances connected
                                     the Applicant to the Oppo-                      with the performance by the said Marcuccio of his
                                     sition Division did comply                      duties in Angola, with effect from the date on which
                                     with Rule 16(2) of Regu-                        his transfer took effect (1 April 2002), together with
                                     lation (EC) No. 2868/95,                        interest thereon at the rate of 10 % per annum,
                                     implementing Council Regu-                      compounded annually;
                                     lation No 40/94, on the
                                     Community Trade Mark                      —     to pay the costs.


title: Case C-281/10 P: Appeal brought on 4 June 2010 by PepsiCo, Inc. against the judgment of the General Court (Fifth Chamber) delivered on 18 March 2010 in Case T-9/07: Grupo Promer Mon Graphic SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), PepsiCo, Inc.

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/23

         Appeal brought on 4 June 2010 by PepsiCo, Inc. against the judgment of the General Court (Fifth Chamber) delivered on 18 March 2010 in Case T-9/07: Grupo Promer Mon Graphic SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), PepsiCo, Inc.
   (Case C-281/10 P)
   ()
   2010/C 234/38
   Language of the case: English

      Parties

      Appellants: PepsiCo, Inc. (represented by: E. Armijo Chávarri, A. Castán Pérez-Gómez, abogados, V. von Bomhard, Rechtsanwältin)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Grupo Promer Mon Graphic SA

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside the judgment of the General Court of 18 March 2010 in Case T-9/07,

               —

               Give final judgment on the dispute by rejection the order sought at first instance or, in the alternative, remit the case to the General Court and

               —

               Order that the costs of the proceedings be borne by the applicant at first instance.

      Pleas in law and main arguments

   The appellant submits that the contested judgment should be annulled on the grounds that the General Court violated article 25(1) (d) of Council Regulation (EC) No. 6/2002 (1) by:

               a)

               failing to take into account the constraints on the designer in developing the contested design;

               b)

               wrongly interpreting the notion of the ‘informed user’ and his attention level;

               c)

               applying erroneous criteria in its assessment of ‘different overall impression’;

               d)

               carrying out a comparison between the designs based on actual products in the file rather than on the designs as registered;

               e)

               basing the comparison on distorted facts.

      (1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs
   OJ L 3, p. 1