title: Case T-249/03: Action brought on 2 July 2003 by "Y" against Commission of the European Communities

text:
6.9.2003              EN                          Official Journal of the European Union                                        C 213/39
Action brought on 24 June 2003 by Miguel Torres,                          Decision of the Board of      Dismissal of the appeal
S.A. against the Office for Harmonisation in the Internal                 Appeal:
                        Market (OHIM)
                                                                          Pleas in law:                 Infringement of the rights of the
                                                                                defence and incorrect application
                        (Case T-247/03)                                                                 of Article 8(1)(b) of (EC) Regu-
                                                                                lation No. 40/94 (risk of con-
                                                                                fusion)
                        (2003/C 213/76)
                  (Language of the case: Spanish)
An action against the Office for Harmonisation in the Internal            Action brought on 2 July 2003 by ‘Y’ against Commission
Market (OHIM) was brought before the Court of First Instance                               of the European Communities
of the European Communities on 24 June 2003 by Miguel
Torres S.A., with offices in Vilafranca del Penedès (Barcelona),
represented by E. Armijo Chávarri, M.Á. Baz de San Ceferino                                        (Case T-249/03)
and A. Castán Pérez-Gómez.
                                                                                (2003/C 213/77)
The applicant claims that the Court should:
                                                                                (Language of the case: French)
—     annul the decision of the First Board of Appeal of OHIM
      of 7 April 2003 handed down in matter R 0998/2001-1;
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 2 July 2003 by ‘Y’, represented by
Pleas in law and main arguments                                           Spyridoula Papanikolaou, lawyer.
Applicant for Com-            Bodegas Muga, S.A.                          The applicant claims that the Court should:
munity trade mark:
                                                                          —     annul the decision of 18 June 2003 of the Director
Community trade mark          Figurative mark ‘Torre Muga’                      General of RELEX terminating the applicant’s assignment
sought:                       Application no. 791.004 sought                    to a post in the Commission’s Delegation abroad;
                              for products in class 33(acholic
                              beverages, except beers)                    —     order the defendant to pay the costs.
Proprietor of mark or         The applicant
sign cited in the oppo-
sition proceedings:
                                                                          Pleas in law and main arguments
Mark or sign cited in         International       trade       mark
opposition:                   no. 252.675, Danish trade mark
                                                                          In support of his action, the applicant alleges a number of
                              no. VR 03.741.1991, German
                                                                          infringements of Articles 7 and 25 of the Staff Regulations, of
                              trade mark no. 2.901.360, Span-
                                                                          the rule in the Administrative Guide for the use of the external
                              ish trade marks nos 130.955,
                                                                          service of DG RELEX, which provides that the duration of an
                              321.331 and 130.956 and
                                                                          assignment to a post is to be four years, and of the principle
                              English          trade         marks
                                                                          of legitimate expectations. He also alleges abuse and misuse of
                              nos 1.039.853 and 1.298.955
                                                                          power and infringements of the Community disciplinary rules
                              TORRES, for products in class 33
                                                                          and of the principle of proportionality.
Decision of the Oppo-         Rejection of the opposition
sition Division:


title: Case T-571/17: Action brought on 22 August 2017 — UG v Commission

text:
               23.10.2017

               EN

               Official Journal of the European Union

               C 357/25

         Action brought on 22 August 2017 — UG v Commission
   (Case T-571/17)
   (2017/C 357/33)
   Language of the case: French

      Parties

      Applicant: UG (represented by: M. Richard and P. Junqueira de Oliveira, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the decision of the European Commission of 18 May 2017 (No R/40/17) and all the decisions which form the basis thereof;

               —

               Order the re-employment of the applicant;

               —

               Order the European Commission to pay pending salaries and damages of EUR 40 000;

               —

               Annul the salary deductions made unlawfully;

               —

               Reimburse the sum of EUR 6 818,81 deducted in excess of the salary deductions made unlawfully;

               —

               Order the European Commission to pay all the costs and to pay the legal fees, provisionally assessed at EUR 10 000.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of the right to be heard, in that the Commission organised no more than a semblance of a procedure prior to dismissal.

               2.

               Second plea in law, alleging material errors vitiating the contested decision, in that the grounds on which it is based are imprecise, not real and not genuine.

               3.

               Third plea in law, alleging misuse of powers, in that the Commission dismissed the applicant because of the applicant’s trade union activities and for having taken parental leave.

               4.

               Fourth plea in law, alleging infringements of Article 42 of the Staff Regulations of Officials, Clause 5.4 of the Revised Framework Agreement on parental leave following Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC (OJ 2010 L 68, p. 13), Article 7 of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community — Joint declaration of the European Parliament, the Council and the Commission on employee representation (OJ 2002 L 80, p. 29) and Annex IX to the Staff Regulations, failing to follow the disciplinary procedure.

               5.

               Fifth plea in law, alleging that the penalty is disproportionate.


title: Case C-25/05 P: Appeal brought on 26 January 2005 (fax: 24 January 2005) by August Storck KG against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-402/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/10

         Appeal brought on 26 January 2005 (fax: 24 January 2005) by August Storck KG against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-402/02
         August Storck KG
       v
         Office for Harmonisation in the Internal Market (Trade Marks and Designs)

   (Case C-25/05 P)
   (2005/C 69/21)
   Language of the case: German
   An appeal against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-402/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of Justice of the European Communities on 26 January 2005 (fax: 24 January 2005) by August Storck KG, represented by Ilse Rohr, Heidi Wrage-Molkenthin and Tim Reher, Rechtsanwälte, CMS Hasche Sigle, Stadthausbrücke 1-3, D-20355 Hamburg.
   The appellant claims that the Court should:

               1.

               set aside the judgment of the Court of First Instance (Fourth Chamber) of 10 November 2004 in Case T-402/02; (1)

               2.

               grant the forms of order sought at first instance and give final judgment on the dispute or, in the alternative, remit the case to the Court of First Instance;

               3.

               order OHIM to pay the costs of the proceedings.

         Pleas on appeal and main arguments:
   1.   Breach of Article 7(1)(b) of Regulation No 40/94
   The Court of First Instance erred in law by requiring that the mark applied for must differ substantially from other comparable marks in the relevant product market. The distinctive character of the mark should instead be examined on its own merits, without reference to any similar marks on the market.
   In any event, the public interest or a need to preserve the availability [of a mark] are not to be taken into consideration within the context of Article 7(1)(b) of Regulation No 40/94. The monopolisation of marks as such is intended by trade mark law. There is no evidence of an unjustified monopolisation.
   The Office has not relied on other grounds of refusal in the context of which the public interest could be taken into consideration, in particular the grounds of refusal provided for under Article 7(1) (d) to (j) of Regulation No 40/94.
   The mark applied for possesses inherent distinctiveness. The fact that consumers recognise the mark as a sweet wrapper does not prevent it from simultaneously having the function of an indication of trade origin. The colour three-dimensional mark serves as a signal and a recognition factor, especially in cases where the consumer is confronted with a very large choice, as in the confectionery market.
   2.   Breach of the first sentence of Article 74(1) of Regulation No 40/94
   Contrary to the view of the Court of First Instance, the Office should have examined and explained which similar or identical marks exist on the market – as it claims – if it seeks thereby to justify its refusal to register the mark. The Office may not base its decision on facts which have not been proved and which it merely presumes. If the Office considers it necessary – which the appellant does not – to measure the distinctiveness of the mark against sweet wrappers available on the market, it must examine that market situation.
   3.   Breach of Article 73 of Regulation No 40/94
   In order to justify its finding that the mark applied for is devoid of distinctiveness, the Office relies on similar sweet wrappers which it claims exist on the market. The appellant has had no opportunity to express a view on those sweet wrappers allegedly existing on the market, since they have not been produced by the Office.
   The appellant's right to a fair hearing has thereby been infringed.
   4.   Breach of Article 7(3) of Regulation No 40/94
   The mark applied for has at least acquired distinctiveness through its extensive use in the EC. The evidence relating to sales volumes and advertising expenditure for goods designated by that mark should have been taken into account even in the absence of comparative figures concerning the sweet market as a whole which the Office required.
   Contrary to the view expressed by the Office and the Court of First Instance, it is not necessary to adduce evidence for all Member States of the EC that the mark has become distinctive in consequence of the use that has been made of it. In the light of the objective of establishing a single market in all Member States of the EC, it is appropriate to analyse the dissemination and recognition of the mark applied for within the territory of the EC, without regard to national borders. Consequently, the evidence of use adduced by the appellant is sufficient to form the basis for a finding that the mark has distinctive character in the EC.

      (1)  OJ C 19, 22.1.2005.


title: Case C-233/07: Judgment of the Court (Seventh Chamber) of 8 May 2008 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Environment — Directive 91/271/EEC — Urban waste water treatment — Decision 2001/720/EC — Derogation regarding urban waste water treatment for the agglomeration of the Estoril coast — Infringement of Articles 2, 3 and 5 of Decision 2001/720/EC)

text:
               21.6.2008

               EN

               Official Journal of the European Union

               C 158/7

         Judgment of the Court (Seventh Chamber) of 8 May 2008 — Commission of the European Communities v Portuguese Republic
   (Case C-233/07) (1)

   (Failure of a Member State to fulfil obligations - Environment - Directive 91/271/EEC - Urban waste water treatment - Decision 2001/720/EC - Derogation regarding urban waste water treatment for the agglomeration of the Estoril coast - Infringement of Articles 2, 3 and 5 of Decision 2001/720/EC)
   (2008/C 158/10)
   Language of the case: Portuguese
   Parties

      Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and P. Andrade, acting as Agents)

      Defendant: Portuguese Republic (represented by: L. Fernandes and M.J. Lois, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Articles 2, 3 and 5 of the Commission Decision of 8 October 2001 granting Portugal a derogation regarding urban waste water treatment for the agglomeration of the Estoril coast (OJ 2001 L 269, p. 14)
   Operative part of the judgment
   The Court:

               1.

               Declares that the Portuguese Republic has failed to fulfil its obligations under Articles 2, 3 and 5 of Commission Decision 2001/720/EC granting Portugal a derogation regarding urban waste water treatment for the agglomeration of the Estoril coast, by:

                           —

                           failing to subject, during the bathing season, the urban waste water from the agglomeration of the Estoril coast, prior to discharge into the sea, to at least advanced primary treatment and to a disinfection system in accordance with Article 2 of that decision,

                           —

                           failing to subject, outside the bathing season, the urban waste water from the agglomeration of the Estoril coast, prior to discharge, to at least primary treatments, in accordance with Article 3 of that decision, and

                           —

                           suffering the discharge of urban waste water from the agglomeration of the Estoril coast to produce adverse effects on the environment;

               2.

               Orders the Portuguese Republic to pay the costs.

      (1)  OJ C 170, 21.7.2007.


title: Case C-224/09: Reference for a preliminary ruling from the Tribunale di Bolzano (Italy) lodged on 19 June 2009 — Criminal proceedings against Martha Nussbaumer

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/25

         Reference for a preliminary ruling from the Tribunale di Bolzano (Italy) lodged on 19 June 2009 — Criminal proceedings against Martha Nussbaumer
   (Case C-224/09)
   2009/C 205/42
   Language of the case: Italian

      Referring court

   Tribunale di Bolzano

      Party to the main proceedings

   Martha Nussbaumer

      Questions referred

               1.

               Is the national legislation enacted by Legislative Decree No 81 of 9 April 2008, in particular the rule in Article 90(11) thereof, in breach of the rules laid down in Article 3 of Directive 92/57/EEC, (1) in so far as it derogates, for private works not subject to planning permission, from the requirement imposed on the client or the project supervisor in Article 90(3) of the decree to appoint a coordinator for the preparation stage for a construction site on which more than one contractor is present and fails to give any consideration to the nature of the works or to whether there are particular risks of the kind listed in Annex II to the directive?

               2.

               Is the national legislation enacted by Legislative Decree No 81 of 9 April 2008, in particular the rule in Article 90(11) thereof, in breach of the rules laid down in Article 3 of Directive 92/57/EEC with respect to the requirement for the client or the project supervisor to appoint, in all cases, a coordinator during the execution stage of works on construction sites, irrespective of the type of works concerned, and hence also in the case of private works not subject to planning permission which may entail the risks referred to in Annex II to the Directive?

               3.

               Is Article 90(11) of Legislative Decree No 81 of 9 April 2008, in so far as it requires the coordinator for the execution stage to draw up a safety plan only if, in the case of private works not subject to planning permission, other undertakings besides the original contractor appointed become involved in the course of the project, in breach of Article 3 of Directive 92/57/EEC, which requires a coordinator for the execution stage to be appointed in all cases, irrespective of the type of works involved, and which allows no derogation from the requirement to draw up a safety and health plan where the work concerned involves particular risks, as set out in Annex II to the Directive?

      (1)  OJ 1992 L 245, p. 6.


title: Case T-192/07: Judgment of the General Court of 9 March 2012 — Comité de défense de la viticulture charentaise v Commission (Competition — Decision rejecting a complaint — No Community interest — Scope of the complaint — Competence of the author of the act — Obligation to state reasons)

text:
               28.4.2012

               EN

               Official Journal of the European Union

               C 126/11

         Judgment of the General Court of 9 March 2012 — Comité de défense de la viticulture charentaise v Commission
   (Case T-192/07) (1)

   (Competition - Decision rejecting a complaint - No Community interest - Scope of the complaint - Competence of the author of the act - Obligation to state reasons)
   2012/C 126/21
   Language of the case: French

      Parties

      Applicant: Comité de défense de la viticulture charentaise (Sainte-Sévère, France) (represented by: C.-E. Gudin, lawyer)

      Defendant: European Commission (represented by: initially F. Arbault and V. Bottka, and subsequently by V. Bottka and L. Malferrari, acting as Agents)

      Re:

   Application for annulment of Commission Decision SG-Greffe (2007) D/202076 of 3 April 2007 dismissing the complaint in Case COMP/38.863/B2-MODEF in relation to infringements of the EC Treaty

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Comité de défense de la viticulture charentaise to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 170, 21.7.2007.


title: Case C-278/99: Reference for a preliminary ruling by the Hoge Raad der Nederlanden, by judgment of 6 July 1999 in the criminal proceedings against G.A.P. van der Burg

text:
18.9.1999            EN                    Official Journal of the European Communities                                        C 265/5
       — the operator must (also) attend to the management            Reference for a preliminary ruling by the Hoge Raad der
           of the business and not (exclusively) to the execu-        Nederlanden, by judgment of 6 July 1999 in the criminal
           tive (production) activities;                                         proceedings against G.A.P. van der Burg
                                                                                (Case C-278/99)
       — the operator must strive to ensure continuity of
           the undertaking, which means inter alla that the                                    (1999/C 265/08)
           must have this principal place of residence in the
           Netherlands;                                               Reference has been made to the Court of Justice of the
                                                                      European Communities by judgment of 6 July 1999 from
                                                                      the Hoge Raad der Nederlanden (Supreme Court of the
       — there must be investment, and long-term commit-              Netherlands), which was received at the Court Registry on
           ments must be entered into?                                26 July 1999, for a preliminary ruling in the criminal proceed-
                                                                      ings against G.A.P. van der Burg on the following questions:
                                                                      1. Must Article 1 of Directive 83/189 (1) be interpreted as
   b) Does Article 44 of the Agreement with Poland/                       meaning that Article C.11.1(1) of the Besluit radio-elektrische
                                                                          inrichtingen (Decree on Radio-Electrical Equipment), which
       Article 45 of the Agreement with the Czech Republic
                                                                          provides that ‘It is prohibited to make commercial adver-
       provide justification for not regarding as self-employed           tisements, or cause commercial advertisements to be made,
       any person who is dependent on and indebted to the                 for transmitting equipment which is not of an approved
       person who recruited her and/or placed her in work,                type’, should be treated as a technical regulation within the
       even though it is established that, as between the                 meaning of Directive 83/189, regard being had to the
       person concerned and that third party, there is no                 statutory rules set out above [...] and in light of the issues
       question of an employment relationship, against which              considered in that context [...]?
       the term ‘self-employed’ in paragraph 4 of Articles 44
       and 45 of the Agreements seeks to establish a barrier?         2. If the answer to Question 1 is in the affirmative: does this
                                                                          have the result that such a provision cannot be applied
                                                                          only if it constitutes a barrier to trace of to the free
                                                                          movement of goods in a specific case, or should it be held
                                                                          that such a provision must be set aside if the provision
                                                                          generally, and thus irrespective of the specific case, has or
                                                                          may have the effect of a barrier to trade?
                                                                      (1) OJ 1983 L 109, p. 8.


title: Case F-15/10: Action brought on 26 February 2010 — Andres and Others v ECB

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/54

         Action brought on 26 February 2010 — Andres and Others v ECB
   (Case F-15/10)
   2010/C 134/91
   Language of the case: French

      Parties

      Applicants: Carlos Andres and Others (Frankfurt-am-Main, Germany) (represented by: M. Vandenbussche and L. Levy, lawyers)

      Defendant: European Central Bank

      Subject-matter and description of the proceedings

   First, annulment of the applicants’ payslips for June 2009 and all earlier or later payslips in so far as those payslips constitute implementation of the reform of the pension scheme decided on 4 May 2009. Second, compensation for the damage suffered by the applicants.

      Form of order sought

               —

               Annul the payslips for June 2009 in so far as those payslips constitute the initial implementation in regard to the applicants of the reform of the pension scheme decided by the Governing Council on 4 May 2009 and annul, to the same extent, all subsequent payslips and all future pension statements;

               —

               To the extent necessary, annul the decisions rejecting the applications for administrative review and complaints brought under the grievance procedure dated 28 August and 17 December 2009 respectively;

               —

               Consequently, order the defendant to pay the difference between the salary and pension resulting from the decision of the Governing Council of 4 May 2009 and that paid in application of the preceding pension scheme, that difference to be increased by interest for late payment with effect from 15 June 2009 and then on the 15th nof each month until the difference has been completely made up, the rate of interest being the ECB rate, increased by three points;

               —

               Order the defendant to pay damages for the loss suffered by reason of the loss of purchasing power, that loss to be assessed ex aequo et bono, and, on a provisional basis, at 1 % of the monthly salary of each applicant.

               —

               Order the European Central Bank to pay the costs.


C 204/36              EN                    Official Journal of the European Communities                                    17.7.1999
       Removal from the register of Case C-11/98 (1)                          Removal from the register of Case C-23/97 (1)
                        (1999/C 204/78)                                                         (1999/C 204/82)
By order of 21 April 1999 the President of the Court of Justice        By order of 26 April 1999 the President of the Court of Justice
of the European Communities has ordered the removal from               of the European Communities has ordered the removal from
the register of Case C-11/98 (reference for a preliminary ruling       the register of Case C-23/97 (reference for a preliminary ruling
from the Pretura Circondariale di Roma): Abdulreza Kazemi              from the Tribunale di Genova): Palmira Ieropoli, Giovanni
Nava v Confcommercio.                                                  Sgambellone v Banca Carige SpA.
(1) OJ C 113 of 11.4.1998.                                             (1) OJ C 74 of 8.3.1997.
                                                                              Removal from the register of Case C-72/99 (1)
       Removal from the register of Case C-342/98 (1)
                                                                                (1999/C 204/83)
                        (1999/C 204/79)
                                                                       By order of 27 April 1999 the President of the Court of Justice
By order of 21 April 1999 the President of the Court of Justice        of the European Communities has ordered the removal from
of the European Communities has ordered the removal from               the register of Case C-72/99 (reference for a preliminary ruling
the register of Case C-342/98: Commission of the European              from the Landesvergabeamt Tirol): Firma Ortner GmbH v
Communities v Grand Duchy of Luxembourg.                               Innsbrucker Kommunalbetriebe AG.
(1) OJ C 340 of 7.11.1998.                                             (1) OJ C 136 of 15.5.1999.
       Removal from the register of Case C-346/98 (1)                         Removal from the register of Case C-25/97 (1)
                        (1999/C 204/80)                                                         (1999/C 204/84)
By order of 21 April 1999 the President of the Court of Justice        By order of 30 April 1999 the President of the Court of Justice
of the European Communities has ordered the removal from               of the European Communities has ordered the removal from
the register of Case C-346/98: Commission of the European              the register of Case C-25/97 (reference for a preliminary ruling
Communities v Ireland.                                                 from the Tribunale di Genova): Fiduciaria Internazionale Srl v
                                                                       Amministrazione delle Finanze dello Stato.
(1) OJ C 340 of 7.11.1998.
                                                                       (1) OJ C 74 of 8.3.1997.
       Removal from the register of Case C-419/98 (1)                         Removal from the register of Case C-26/97 (1)
                        (1999/C 204/81)                                                         (1999/C 204/85)
By order of 23 April 1999 the President of the Court of Justice        By order of 30 April 1999 the President of the Court of Justice
of the European Communities has ordered the removal from               of the European Communities has ordered the removal from
the register of Case C-419/98 (reference for a preliminary             the register of Case C-26/97 (reference for a preliminary
ruling from the Pretura Circondariale di Genova): Marcella             ruling from the Tribunale di Genova): Giolfo e C. Srl v
Moretti v Baoco Ambrosiano Veneto SpA.                                 Amministrazione delle Finanze dello Stato.
(1) OJ C 20 of 23.1.1999.                                              (1) OJ C 74 of 8.3.1997.


title: Case C-158/14: Judgment of the Court (Grand Chamber) of 14 March 2017 (request for a preliminary ruling from the Raad van State — Netherlands) — A, B, C and D v Minister van Buitenlandse Zaken (Reference for a preliminary ruling — Common Foreign and Security Policy (CFSP) — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Common Position 2001/931/CFSP — Framework Decision 2002/475/JHA — Regulation (EC) No 2580/2001 — Article 2(3) — Inclusion of the ‘Liberation Tigers of Tamil Eelam (LTTE)’ on the list of persons, groups and entities involved in terrorist acts — Question referred for a preliminary ruling concerning the validity of that inclusion — Compliance with international humanitarian law — Concept of ‘terrorist act’ — Actions by armed forces during periods of armed conflict)

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/2

         Judgment of the Court (Grand Chamber) of 14 March 2017 (request for a preliminary ruling from the Raad van State — Netherlands) — A, B, C and D v Minister van Buitenlandse Zaken
   (Case C-158/14) (1)

   ((Reference for a preliminary ruling - Common Foreign and Security Policy (CFSP) - Specific restrictive measures directed against certain persons and entities with a view to combating terrorism - Common Position 2001/931/CFSP - Framework Decision 2002/475/JHA - Regulation (EC) No 2580/2001 - Article 2(3) - Inclusion of the ‘Liberation Tigers of Tamil Eelam (LTTE)’ on the list of persons, groups and entities involved in terrorist acts - Question referred for a preliminary ruling concerning the validity of that inclusion - Compliance with international humanitarian law - Concept of ‘terrorist act’ - Actions by armed forces during periods of armed conflict))
   (2017/C 151/02)
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Appellants: A, B, C and D

      Respondent: Minister van Buitenlandse Zaken

      Operative part of the judgment

               1.

               It is not obvious, within the meaning of the case-law based on the judgments of 9 March 1994, TWD Textilwerke Deggendorf (C-188/92, EU:C:1994:90), and of 15 February 2001, Nachi Europe (C-239/99, EU:C:2001:101), that actions for annulment of Council Implementing Regulation (EU) No 610/2010 of 12 July 2010 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) No 1285/2009 or the acts of the European Union preceding that implementing regulation and relating to the inclusion of the ‘Liberation Tigers of Tamil Eelam (LTTE)’ on the list referred to in Article 2(3) of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, brought before the General Court of the European Union by persons in a situation such as that of the appellants in the main proceedings, would have been admissible.

               2.

               As neither Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism nor Regulation No 2580/2001 precludes actions by armed forces during periods of armed conflict, within the meaning of international humanitarian law, from constituting ‘terrorist acts’ for the purposes of those acts of the European Union, the fact that the activities of the ‘Liberation Tigers of Tamil Eelam (LTTE)’ may constitute such actions does not affect the validity of Implementing Regulation No 610/2010 or that of the acts of the European Union preceding that implementing regulation and relating to the inclusion referred to in point 1 of the present operative part.

      (1)  OJ C 194, 24.6.2016.


title: Case C-32/08: Reference for a preliminary ruling from the Juzgado de lo Mercantil Número Uno, Alicante, (Spain), lodged on 28 January 2008 — Fundación Española para la Innovación de la Artesanía (FEIA) v Cul de Sac Espacio Creativo, S.L. and Acierta Product & Position, S.A.

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/14

         Reference for a preliminary ruling from the Juzgado de lo Mercantil Número Uno, Alicante, (Spain), lodged on 28 January 2008 — Fundación Española para la Innovación de la Artesanía (FEIA) v Cul de Sac Espacio Creativo, S.L. and Acierta Product & Position, S.A.
   (Case C-32/08)
   (2008/C 92/25)
   Language of the case: Spanish
   Referring court
   Juzgado de lo Mercantil Número Uno, Alicante
   Parties to the main proceedings

      Applicant: Fundación Española para la Innovación de la Artesanía (FEIA)

      Defendant: Cul de Sac Espacio Creativo, S.L. and Acierta Product & Position, S.A.
   Questions referred

               1.

               Must Article 14(3) of [Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (1)] be interpreted as referring only to Community designs developed in the context of an employment relationship where the designer is bound by a contract governed by employment law whose provisions are such that the designer works under the direction and in the employ of another? or

               2.

               Must the terms ‘employee’ and ‘employer’ in Article 14(3) of Regulation No 6/2002 be interpreted broadly so as to include situations other than employment relationships, such as a relationship where, in accordance with a civil/commercial contract (and therefore one which does not provide that an individual habitually works under the direction and in the employ of another), an individual (designer) undertakes to execute a design for another individual for a settled price and, as a result, it is understood that the design belongs to the person who commissioned it, unless the contract stipulates otherwise?

               3.

               In the event that the answer to the second question is in the negative, on the ground that the production of designs within an employment relationship and the production of designs within a non-employment relationship constitute different factual situations,

                           (a)

                           is it necessary to apply the general rule in Article 14(1) of Regulation No 6/2002 and, consequently, must the designs be construed as belonging to the designer, unless the parties stipulate otherwise in the contract? or

                           (b)

                           must the Community design court rely on national law governing designs in accordance with Article 88(2) of Regulation No 6/2002?

               4.

               In the event that national law is to be relied on, is it possible to apply national law where it places on an equal footing (as Spanish law does) designs produced in the context of an employment relationship (the designs belong to the employer, unless it has been agreed otherwise) and designs produced as a result of a commission (the designs belong to the party who commissioned them, unless it has been agreed otherwise)?

               5.

               In the event that the answer to the fourth question is in the affirmative, would such a solution (the designs belong to the party who commissioned them, unless it has been agreed otherwise) conflict with the negative answer to the second question?

      (1)  OJ 2002 L 3, p. 1.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 15 October 1998 in Case C-324/97: Commission of the European Communities v. Italian Republic (Failure of a Member State to fulfil its obligations - Directive 95/27/EC - Failure to transpose within the prescribed period)

text:
C 378/4                 EN                 Official Journal of the European Communities                                      5.12.98
1. Declares that, by failing to adopt within the prescribed                excavator-loaders, the Italian Republic has failed to
     period the laws, regulations and administrative                       fulfil its obligations under that directive;
     provisions necessary to comply with Council Directive
     93/40/EEC of 14 June 1993 amending Directives 81/                2. Orders the Italian Republic to pay the costs.
     851/EEC and 81/852/EEC on the approximation of
     the laws of the Member States relating to veterinary
                                                                      (1) OJ C 331, 1.11.1997.
     medicinal products, the French Republic has failed to
     fulfil its obligations under that directive;
2. Orders the French Republic to pay the costs.
(1) OJ C 318, 18.10.1997.                                                              JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                                                                                of 15 October 1998
                                                                             in Case C-326/97: Commission of the European
                                                                                Communities v. Kingdom of Belgium (1)
                 JUDGMENT OF THE COURT                                (Failure of a Member State to fulfil its obligations Ð
                         (Sixth Chamber)
                                                                      Directive 95/27/EC Ð Failure to transpose within the
                                                                                prescribed period)
                       of 15 October 1998
                                                                                (98/C 378/08)
       in Case C-324/97: Commission of the European
                Communities v. Italian Republic (1)                                     (Language of the case: French)
(Failure of a Member State to fulfil its obligations Ð
Directive 95/27/EC Ð Failure to transpose within the                    (Provisional translation; the definitive translation will be
                        prescribed period)                                       published in the European Court Reports)
                          (98/C 378/07)
                                                                      In Case C-326/97: Commission of the European
                                                                      Communities (Agent: Paolo Stancanelli) v. Kingdom of
                  (Language of the case: Italian)
                                                                      Belgium (Agent: Anni Snoecx) Ð Application for a
                                                                      declaration that, by failing to adopt the laws, regulations
                                                                      and administrative provisions necessary to comply with
  (Provisional translation; the definitive translation will be        European Parliament and Council Directive 95/27/EC of
           published in the European Court Reports)                   29 June 1995 amending Council Directive 86/662/EEC on
                                                                      the limitation of noise emitted by hydraulic excavators,
In Case C-324/97: Commission of the European                          rope-operated excavators, dozers, loaders and excavator-
Communities (Agent: Paolo Stancanelli) v. Italian Republic            loaders (OJ L 168, 18.7.1995, p. 14), or, in any event, by
(Agent: Umberto Leanza, assisted by Pier Giorgio Ferri) Ð             not communicating them to the Commission, the
Application for a declaration that, by failing to adopt the           Kingdom of Belgium has failed to fulfil its obligations
laws, regulations and administrative provisions necessary             under that directive, Ð the Court (Sixth Chamber),
to comply with European Parliament and Council                        composed of: P. J. G. Kapteyn, President of the Chamber,
Directive 95/27/EC of 29 June 1995 amending Council                   G. Hirsch, G. F. Mancini, H. Ragnemalm and R.
Directive 86/662/EEC on the limitation of noise emitted               Schintgen (Rapporteur), Judges; N. Fennelly, Advocate-
by hydraulic excavators, rope-operated excavators, dozers,            General; R. Grass, Registrar, has given a judgment on
loaders and excavator-loaders (OJ L 168, 18.7.1995,                   15 October 1998, in which it:
p. 14), or, in any event, by not communicating them to the
Commission, the Italian Republic has failed to fulfil its             1. Declares that, by failing to adopt within the prescribed
obligations under that directive, Ð the Court (Sixth                       period the laws, regulations and administrative
Chamber), composed of: P. J. G. Kapteyn, President of the                  provisions necessary to comply with European
Chamber, G. Hirsch, G. F. Mancini, H. Ragnemalm and                        Parliament and Council Directive 95/27/EC of 29 June
R. Schintgen (Rapporteur), Judges; N. Fennelly, Advocate-                  1995 amending Council Directive 86/662/EEC on the
General; R. Grass, Registrar, has given a judgment on                      limitation of noise emitted by hydraulic excavators,
15 October 1998, in which it:                                              rope-operated excavators, dozers, loaders and
                                                                           excavator-loaders, the Kingdom of Belgium has failed
                                                                           to fulfil its obligations under that directive;
1. Declares that, by failing to adopt within the prescribed
     period the laws, regulations and administrative
     provisions necessary to comply with European                     2. Orders the Kingdom of Belgium to pay the costs.
     Parliament and Council Directive 95/27/EC of 29 June
     1995 amending Council Directive 86/662/EEC on the                (1) OJ C 331, 1.11.1997.
     limitation of noise emitted by hydraulic excavators,
     rope-operated excavators, dozers, loaders and


title: Case T-150/09: Action brought on 10 April 2009 — Ningbo Yonghong Fasteners v Conseil

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/53

         Action brought on 10 April 2009 — Ningbo Yonghong Fasteners v Conseil
   (Case T-150/09)
   2009/C 141/109
   Language of the case: English

      Parties

      Applicant: Ningbo Yonghong Fasteners Co. Ltd (represented by: F. Graafsma and J. Cornelis, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               annulment of Council Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China; and

               —

               order the Council to pay the applicant’s costs.

      Pleas in law and main arguments

   The applicant requests the annulment of Council Regulation (EC) No 91/2009, of 26 January 2009, imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (1) on the basis of an alleged infringement of Articles 2(7) (b) and (c) of Regulation (EC) No 384/96 (2) and on the basis of a manifest error of assessment of the facts in rejecting applicant’s Market Economy Treatment (“MET”) claim.
   The applicant claims first, that the Commission failed to take a decision on MET within the statutory deadline pursuant to Article 2(7) (c) second paragraph of Regulation (EC) No 384/96. It is submitted that by making a MET decision after if had received all the information requested in the anti-dumping questionnaire, the Commission violated its obligation provided in the aforementioned provision intended to ensure that the question as to whether a producer meets the MET criteria is not decided on the basis of its effect on the calculation of the dumping margin.
   Second, the applicant submits that the Council committed a manifest error of assessment in concluding that the applicant’s cost of the major input, steel wire rod, did not substantially reflect market values pursuant to Article 2(7)(c) of Regulation (EC) No 384/96. It is submitted that this manifest error of assessment is attributable to the Commission and the Council’s breach of their obligations of due diligence and proper administration by not carefully and impartially examining all of the relevant evidence before them.
   Finally, the applicant contends that the Council’s interpretation of Article 2 (7) (b) and (c) of Regulation (EC) No 384/96 constitutes an impermissible interpretation and thus an infringement of the said provision. The applicant, moreover, claims that the Council’s interpretation of Article 2 (7) (b) (c) not only disregards the fact that the MET assessment needs to be carried out at the company-specific level, but the Council’s interpretation also imposes an unreasonable burden of proof. In addition, the Council’s interpretation, according to the applicant, renders the possibility to adjust costs of production that are distorted by a particular market situation pursuant to Article 2 (5) of Regulation (EC) No 384/96 redundant and as such conflicts with the obligation to interpret a provision of Community law in accordance with its context and its aim.

      (1)  OJ 2009, L 29, p. 1

      (2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996, L 56, p. 1)


title: Case T-288/08: Action brought on 25 July 2008 — Cadila Healthcare v OHIM — Novartis (ZYDUS)

text:
               27.9.2008

               EN

               Official Journal of the European Union

               C 247/18

         Action brought on 25 July 2008 — Cadila Healthcare v OHIM — Novartis (ZYDUS)
   (Case T-288/08)
   (2008/C 247/35)
   Language in which the application was lodged: English
   Parties

      Applicant: Cadila Healthcare Ltd (Ahmedabad, India) (represented by: S. Bailey, A. Juaristi and F. Potin, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Novartis AG (Basel, Switzerland)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 May 2008 in case R 1092/2007-2; and

               —

               Order the defendant to pay the costs, including those incurred in the proceedings before the Board of Appeal.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘ZYDUS’ for goods in classes 3, 5 and 10 — application No 3 277 662

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited: Community trade mark registration No 2 356 964 of the mark ‘ZIMBUS’ for goods in class 5

      Decision of the Opposition Division: Uphold the opposition with respect to part of the contested goods

      Decision of the Board of Appeal: Partial dismissal of the appeal

      Pleas in law: The Board of Appeal erred in its decision that there was a likelihood of confusion between the earlier trade mark and the trade mark applied for, in breach of general principles of trade mark law and, in particular, Article 8(1)(b) of Council Regulation 40/94.


title: Case C-208/15: Request for a preliminary ruling from the Kúria (Hungary) lodged on 5 May 2015 — Stock ’94 Szolgáltató Zrt. v Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága (NAV)

text:
               20.7.2015

               EN

               Official Journal of the European Union

               C 236/27

         Request for a preliminary ruling from the Kúria (Hungary) lodged on 5 May 2015 — Stock ’94 Szolgáltató Zrt. v Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága (NAV)
   (Case C-208/15)
   (2015/C 236/37)
   Language of the case: Hungarian

      Referring court

   Kúria

      Parties to the main proceedings

      Applicant: Stock ’94 Szolgáltató Zrt.

      Defendant: Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága (NAV)

      Questions referred

               1.

               Must Article 1(2), Article 2(1)(a) and (c), Article 14(1), Article 24(1), Article 73, Article 78(b), and Article 135(1)(b) of Council Directive 2006/112/EC (1) of 28 November 2006 (‘the VAT Directive’) be interpreted as meaning that a supply of goods and a grant of a loan made in accordance with a contract concluded between an integrator and an integrated producer constitute distinct and independent transactions for the purposes of VAT liability, or as meaning that a single transaction is carried out, the tax base of which includes, in addition to the consideration for the goods supplied, the interest on the loan granted?

               2.

               If the latter interpretation is in accordance with the VAT Directive, may the VAT Directive be interpreted, as regards the single transaction which covers the supply of goods subject to VAT and the supply of services exempt from VAT, as meaning that the transaction constitutes an exception to the principle of the general application of VAT? If so, what criteria must be met?

               3.

               Does the fact that the integrator may, in accordance with the contract, supply further services to the integrated producer, at the latter’s request, or may purchase all of the agricultural goods produced, influence the answer to the foregoing questions and if so, to what extent?

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


title: Case T-200/05: Action brought on 12 May 2005 by Michael Cwik against the Commission of the European Communities

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/32

         Action brought on 12 May 2005 by Michael Cwik against the Commission of the European Communities
   (Case T-200/05)
   (2005/C 193/54)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 12 May 2005 by Michael Cwik, residing in Tervuren (Belgium), represented by Nicolas Lhoëst, lawyer, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               annul the decision of the Director General of DG ECFIN of 25 June 2004 confirming, without amendment, the applicant's Career Development Report (CDR) for the period from 1 January 2003 to 31 December 2003;

               2.

               annul, in so far as it is necessary, the Commission's decision of 24 January 2005 rejecting the applicant's claim (R/970/04);

               3.

               order the defendant to pay symbolic damages of EUR 1;

               4.

               order the defendant to pay all the costs.

         Pleas in law and main arguments
   The pleas and main arguments relied on by the applicant with regard to the new evaluation system for officials are similar to those relied on in Case T-96/04. In addition, the applicant submits that that new system leads to an abuse of power to the extent that the number of merit points granted is influenced by expected promotions. Finally, the applicant alleges that the disputed report is vitiated by manifest errors of assessment.


title: Case T-368/06: Action brought on 8 December 2006 — Rath v OHIM — Sanorell Pharma (Immunocell)

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/29

         Action brought on 8 December 2006 — Rath v OHIM — Sanorell Pharma (Immunocell)
   (Case T-368/06)
   (2007/C 56/58)
   Language in which the application was lodged: German
   Parties

      Applicant: Matthias Rath (Cape Town, South Africa) (represented by: S. Ziegler, C. Kleiner and F. Dehn, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Sanorell Pharma GmbH & Co.
   Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 October 2006;

               —

               Order OHIM to pay the costs of the proceedings.

         Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant.

      Community trade mark concerned: The word mark ‘Immunocell’ for goods and services in Classes 5, 16 and 41 (Registration No 1 065 903).

      Proprietor of the mark or sign cited in the opposition proceedings: Sanorell Pharma GmbH & Co.

      Mark or sign cited in opposition: The word mark ‘IMMUNORELL’ for goods in Class 5 (Community trade mark No 808 014), the opposition being brought only against the registration in Class 5.

      Decision of the Opposition Division: Opposition granted, partial rejection of the application.

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

      Pleas in law: The contested decision infringes Article 8(1)(b) of Regulation (EC) No 40/94 (1) since there is no likelihood of confusion between the opposing marks.

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


title: ORDER OF THE COURT OF FIRST INSTANCE of 15 January 1999 in Case T-243/97: Catherine Metdepenningen and Others v. Commission of the European Communities (Member of the temporary staff - Contract for a limited period - Possibility of its being extended - Action for annulment - Manifest inadmissibility)

text:
C 86/18              EN                 Official Journal of the European Communities                                27.3.1999
Commission's decision of 20 March 1997 refusing to take            Chamber), composed of: J.     D. Cooke, President, and R.
the measures requested by the applicant in order to ensure         García-Valdecasas and P.        Lindh, Judges; H. Jung,
collective and proportional representation in the                  Registrar, made an order       on 15 January 1999, the
membership of the Bureau of the local Staff Committee in           operative part of which is as follows:
Brussels Ð the Court of First Instance (Second Chamber),
composed of: A. Potocki, President, and C. W. Bellamy
and A. W. H. Meij, Judges; B. Pastor, Principal                    1. There is no need to adjudicate on the present action.
Administrator, for the Registrar, has given a judgment on
10 February 1999, in which it:
                                                                   2. The parties are to bear their own costs.
1. Orders the removal of the Syndicat des Fontionnaires            (1) OJ C 318, 26.10.1996.
    Interntionaux et EuropeÂens from the list of applicants.
2. Dismisses the action brought by Mr Hecq.
                                                                        ORDER OF THE COURT OF FIRST INSTANCE
3. Orders the parties to bear their own costs.                                          of 15 January 1999
                                                                   in Case T-243/97: Catherine Metdepenningen and Others
(1) OJ C 113, 11.4.1998.                                                 v. Commission of the European Communities (1)
                                                                   (Member of the temporary staff Ð Contract for a limited
                                                                   period Ð Possibility of its being extended Ð Action for
                                                                              annulment Ð Manifest inadmissibility)
                                                                                (1999/C 86/38)
     ORDER OF THE COURT OF FIRST INSTANCE                                         (Language of the case: French)
                     of 15 January 1999
in Case T-131/96: RWE Energie Aktiengesellschaft v.                In Case T-243/97: Catherine Metdepenningen, JeÂrôme
       Commission of the European Communities (1)                  Poussielgue and Jürgen Wettig, members of the temporary
                                                                   staff of the Commission of the European Communities,
             (Case not proceeding to judgment)                     residing in Brussels, represented by Nicolas LhoeÈst, of the
                                                                   Brussels Bar, with an address for service in Luxembourg at
                       (1999/C 86/37)                              the Office of Fiduciaire Myson SARL, 30 Rue de
                                                                   Cessange, v. Commission of the European Communities
                                                                   (Agents: Gianluigi Valsesia and Florence Duvieusart-
                                                                   Clotuche) Ð application, first, for annulment of the
               (Language of the case: German)                      Commission's decisions of 26 August 1996 expressly
                                                                   rejecting the requests of the applicants Metdepenningen
                                                                   and Poussielgue for an extension of their contracts as
In Case T-131/96: RWE Energie Aktiengesellschaft,                  members of the temporary staff and, second, for
established at Essen (Germany), represented by Gerhard             annulment of the Commission's decisions of 23 and
Wiedemann and Jens Fleischhauer, Rechtsanwälte,                    28 May 1997 expressly rejecting their complaints Ð the
Düsseldorf, with an address for service in Luxembourg at           Court of First Instance (Second Chamber), composed of:
the Chambers of Luc Frieden, 62 Avenue Guillaume, v.               A. Potocki, President, and C. W. Bellamy and A. W. H.
Commission of the European Communities (Agents:                    Meij, Judges; H. Jung, Registrar, made an order on
Giuliano Marenco and Klaus Wiedner), supported by                  15 January 1999, the operative part of which is as
French Republic (Agents: Kareen Rispal-Bellanger and               follows:
Jean-Marc Belorgey) Ð application, first, for a declaration
of failure to act on the part of the Commission, in that it
unlawfully failed to adopt a decision concerning the               1. The application is dismissed.
applicant's requests for negative clearance and exemption
in respect of an electricity supply agreement concluded
between the applicant and the City of Nordhorn, and,               2. The parties are ordered to bear their own costs.
secondly and in the alternative, for annulment of the
Commission's letter of 18 June 1996 informing the                  (1) OJ C 331, 1.11.1997.
applicant that it did not intend to consider its requests
pending the conclusion of national proceedings before the
German courts Ð the Court of First Instance (Fifth


title: Case F-28/05: Order of the Civil Service Tribunal of 17 September 2009 — Callewaert v Commission

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/82

         Order of the Civil Service Tribunal of 17 September 2009 — Callewaert v Commission
   (Case F-28/05) (1)

   2010/C 24/158

      Language of the case: French

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

      (1)  OJ C 193, 06.08.2005, p. 29 (case initially lodged before the Court of First Instance of the European Communities under number T-192/05 and transferred to the European Union Civil Service Court by order of 15.12.2005).


title: Case T-150/05: Order of the Court of First Instance of 22 June 2006 — Sahlstedt and Others v Commission (Council Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Commission Decision 2005/101/EC — List of sites of Community importance for the Boreal biogeographical region — Action for annulment — Inadmissibility)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/45

         Order of the Court of First Instance of 22 June 2006 — Sahlstedt and Others v Commission
   (Case T-150/05) (1)

   (Council Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Commission Decision 2005/101/EC - List of sites of Community importance for the Boreal biogeographical region - Action for annulment - Inadmissibility)
   (2006/C 224/96)
   Language of the case: Finnish
   Parties

      Applicants: Markku Sahlstedt (Karkkila, Finland), Juha Kankkunen (Laukaa, Finland), Mikko Tanner (Vihti, Finland), Toini Tanner (Helsinki, Finland), Liisa Tanner (Helsinki), Eeva Jokinen (Helsinki), Aili Oksanen (Helsinki), Olli Tanner (Lohja, Finland), Leena Tanner (Helsinki), Aila Puttonen (Ristiina, Finland), Risto Tanner (Espoo, Finland), Tom Järvinen (Espoo), Runo K. Kurko (Espoo), Maa- ja metsätaloustuottajain keskusliitto MTK ry (Helsinki) and MTK:n säätiö (Helsinki) (represented by: K. Marttinen, lawyer)

      Defendant: Commission of the European Communities (represented by: M. van Beek and M. Huttunen, acting as Agents)

      Intervener in support of the defendant: Republic of Finland (represented by: A. Guimaraes-Purokoski and J. Himmanen, Agents)
   Re:
   Action for annulment of Commission Decision 2005/101/EC of 13 January 2005 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Boreal biogeographical region (OJ 2005 L 40, p. 1)
   Operative part of the order

               1.

               The action is dismissed as inadmissible;

               2.

               The applicants shall bear their own costs and the costs incurred by the Commission;

               3.

               The Republic of Finland shall bear its own costs.

      (1)  OJ C 143, 11.6.2005.


title: Case T-379/03: Action brought on 17 November 2003 by Peek & Cloppenburg KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 35/12                 EN                        Official Journal of the European Union                                          7.2.2004
Pleas in law and main arguments                                           The applicant claims that the Court should:
                                                                          —     annul the decision of the Fourth Board of Appeal of the
By the contested decision the Commission decided that                           Office for Harmonisation of 27 August 2003 in Case
Germany’s measure to promote the use of insulating materials                    R 105/2002-4;
produced from renewable raw materials is to be considered
compatible with the EC Treaty. The Commission reached this                —     order the Office to pay the costs.
decision on the basis that, although the measure constitutes
aid, it is, under Article 87(3)(c) EC, compatible with the EC
Treaty since the promoted insulating materials produced from
renewable raw materials clearly have advantages for the
environment over ‘traditional’ insulating materials.                      Pleas in law and main arguments
                                                                          Community trade mark          Word mark ‘Cloppenburg’ —
The applicant submits that the decision infringes essential               sought:                       Application No 1920685 in
procedural requirements. The Commission should have                                                     respect of Class 35 — retail trade
initiated the preliminary examination procedure in accordance                                           services.
with Article 88(2) EC and Article 4(4) of the regulation on
State aid procedure, since it encountered objectively serious             Decision         contested    Examiner’s refusal to register.
difficulties in assessing the measure.                                    before the Board of
                                                                          Appeal:
Furthermore, the decision infringes Article 87 EC. The Com-               Decision of the Board of      Dismissal    of   the   applicant’s
mission’s decision that the measure is compatible with the                Appeal:                       appeal.
common market under Article 87(3)(c) EC because of clear
advantages for the environment was based upon insufficient                Pleas in law:                 Infringement of Article 7(1)(c) of
findings of fact.                                                                                Regulation No 40/94 (1).
Finally the applicant claims that the decision unjustifiably              (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
disadvantages those insulating materials designated by the                    Community trade mark (OJ 1994 L 11, p. 1).
Commission as ‘traditional’, especially mineral-based insulating
materials, but also insulating materials produced from renew-
able raw materials which do not carry the quality mark
‘natureplus’. The decision thus infringes the principles of
proportionality and non-discrimination and therefore infringes
fundamental principles of Community law.
                                                                          Action brought on 18 November 2003 by Miles Hand-
                                                                          elsgesellschaft International mbH against the Office for
                                                                          Harmonisation in the Internal Market (Trade Marks and
                                                                                Designs)
Action brought on 17 November 2003 by Peek & Clop-                                                 (Case T-385/03)
penburg KG against the Office for Harmonisation in the
         Internal Market (Trade Marks and Designs)
                                                                                (2004/C 35/20)
                         (Case T-379/03)                                  (Language of the case to be determined pursuant to Article 131(2)
                                                                          of the Rules of Procedure — language in which the application was
                          (2004/C 35/19)                                                          submitted: German)
                   (Language of the case: German)
                                                                          An action against the Office for Harmonisation in the Internal
                                                                          Market (Trade Marks and Designs) was brought before the
                                                                          Court of First Instance of the European Communities on
An action against the Office for Harmonisation in the Internal            18 November 2003 by Miles Handelsgesellschaft International
Market (Trade Marks and Designs) was brought before the                   mbH, Norderstedt (Germany), represented by A. Deutsch,
Court of First Instance of the European Communities on                    lawyer. Biker Miles Motorrad Handels- und Vertriebsgesell-
17 November 2003 by Peek & Cloppenburg KG, Düsseldorf                     schaft mbH, Berlin, was also a party to the proceedings before
(Germany), represented by U. Hildebrandt, lawyer.                         the Board of Appeal.


title: Case C-317/10 P: Judgment of the Court (Fourth Chamber) of 16 June 2011 — Union Investment Privatfonds GmbH v UniCredito Italiano SpA, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeals — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Word marks UNIWEB and UniCredit Wealth Management — Opposition by the proprietor of the national word marks UNIFONDS and UNIRAK and of the national figurative mark UNIZINS — Assessment of the likelihood of confusion — Likelihood of association — Series or family of trade marks)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/9

         Judgment of the Court (Fourth Chamber) of 16 June 2011 — Union Investment Privatfonds GmbH v UniCredito Italiano SpA, Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-317/10 P) (1)

   (Appeals - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Word marks UNIWEB and UniCredit Wealth Management - Opposition by the proprietor of the national word marks UNIFONDS and UNIRAK and of the national figurative mark UNIZINS - Assessment of the likelihood of confusion - Likelihood of association - Series or family of trade marks)
   2011/C 232/15
   Language of the case: Italian

      Parties

      Appellant: Union Investment Privatfonds GmbH (represented by: J. Zindel and C. Schmid, Rechtsanwälte)

      Other parties to the proceedings: UniCredito Italiano SpA (represented by: G. Floridia, avvocato), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock, Agent)

      Re:

   Appeal brought against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Joined Cases T-303/06 and T-337/06 UniCredito Italiano v OHIM — Union Investment Privatfonds, by which that court dismissed the claims of Union Investment Privatfonds GmbH in the context of the action brought against two decisions of the Second Board of Appeal of OHIM of 5 September 2006 (Joined Cases R 196/2005-2 and R 211/2005-2) and of 25 September 2006 (Joined Cases R 456/2005-2 and R 502/2005-2), concerning opposition proceedings between Union Investment Privatfonds GmbH and UniCredito Italiano SpA

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the General Court of the European Union of 27 April 2010 in Joined Cases T-303/06 and T-337/06 UniCredito Italiano v OHIM — Union Investment Privatfonds (UNIWEB).

               2.

               Refers the case back to the General Court of the European Union.

               3.

               Orders that the costs be reserved.

      (1)  OJ C 146, 11.9.2010.


title: Appeal brought on 19 September 1997 by Christos Apostolidis and others, 64 other officials and former officials of the Commission employed in the European Institute for Transuranic Elements, Karlsruhe, against the judgment delivered on 10 July 1997 by the Third Chamber of the Court of First Instance of the European Communities in Case T-81/96 between Christos Apostolidis and Others and the Commission of the European Communities, supported by the Council of the European Union (Case C-327/97 P)

text:
22 . 11 . 97           EN                   Official Journal of the European Communities                                       C 357/ 13
Appeal brought on 19 September 1997 by Christos                             regulation fixing a specific weighting for Berlin and
Apostolidis and others, 64 other officials and former                       another for Karlsruhe . By considering that the
officials of the Commission employed in the European                        Commission was not required to draw up new pay
Institute for Transuranic Elements, Karlsruhe, against the                  slips applying the weighting for the country of
judgment delivered on 10 July 1997 by the Third                             employment, calculated by reference to the cost of
Chamber of the Court of First Instance of the European                      living in the capital in the absence of a specific
Communities        in    Case    T-81 /96   between     Christos            weighting for the applicants' place of employment, the
Apostolidis and Others and the Commission of the                            Court infringed Article 176 of the Treaty.
European Communities, supported by the Council of the
                         European Union                                — Infringement of Article 63 et seq. of the Staff
                       ( Case C-327/97 P                                    Regulations : pursuant to the provisions of the Staff
                          ( 97/C 357/23 )                                   Regulations as made clear by the Court of Justice in
                                                                            its judgment in Case C-301 /90 (') in the absence of a
                                                                            specific weighting for Karlsruhe, officials' pay slips
An appeal against the judgment delivered on 10 July 1997                    must be calculated on the basis of the weighting
by the Third Chamber of the Court of First Instance of the                  applicable in the capital , in this case Berlin .
European Communities in Case T-81 /96 between Christos                      Accordingly, it appears that, since the Commission
Apostolidis and Others and the Commission of the                            decided, in its discretion, not to bring an action
European Communities was brought before the Court of                        against the Council, it was obliged to apply to
Justice of the European Communities on 19 September                         officials' remuneration the weighting for the country
1997 by Christos Apostolidis and others, 64 other officials                 of employment calculated by reference to the cost of
and former officials of the Commission employed in the                      living in its capital , Berlin .
European Institute of Transuranic Elements, Karlsruhe,
represented by Jean-Noel Louis, Thierry Demaseure and                  (') Case C-301 /90 Commission v. Council [ 1992 ] ECR , p . 1-221 .
Ariane Tornel, of the Brussels Bar, with an address for
service in Luxembourg at the offices of Fiduciare Myson
Sari, 30 Rue de Cessange .
The appellant claims that the Court should :
                                                                       Reference for a preliminary ruling by the Bundesfinanzhof
— order that the judgment of the Court of First Instance               by order of that court of 12 August 1997 in the case of
     (Third Chamber ) of 10 July 1997 in Case T-81 /96                          Glob-Sped AG against Hauptzollamt Lorrach
     Apostolidis and Others v. Commission dismissing the                                        ( Case C-328/97 )
     application made by the applicants is set aside,
                                                                                ( 97/C 357/24 )
and grant the form of order sought at first instance,
namely:                                                                Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Bundesfinanzhof
— order that the decision rejecting the applicants ' request           ( Federal Finance Court) of 12 August 1997, received at
     for the drawing-up of their pay slips for January 1992            the Court Registry on 22 September 1997, for a
     is annulled,                                                      preliminary ruling in the case of Glob-Sped AG against
                                                                       Hauptzollamt Lorrach ( Principal Customs Office Lorrach )
— the Commission is to pay to each applicant, as                       on the following questions :
     compensation for the non-material damage suffered,
     the sum of Bfrs 50 000,                                           1 . Are the comments of the Court of Justice in
                                                                            paragraph 15 of its judgment of 15 May 1997 in Case
— order the Commission to pay all the costs, including                      C-405/95 Bioforce v. Oberfinanzdirektion Miinchen to
     the costs incurred at first instance .                                 be interpreted as meaning that, in order for a
                                                                            preparation to be regarded as a product possessing the
Pleas in law and main arguments adduced in support:                         characteristic properties of a medicament for the
                                                                            purposes of heading 3004 of the combined
                                                                            nomenclature, it does not have to possess any
— Infringement of Article 215 ( 2 ) of the EC Treaty and
                                                                            objective qualities making it suitable for therapeutic or
     Article 44 ( 1 ) of the Rules of Procedure of the Court
     of First Instance — manifest error of assessment of the                prophylactic uses, but that just the overall presentation
                                                                            of the preparation ( information on its use, and its
     interests of the applicants in pursuing the action.
                                                                            packaging, dispensation and marketing), that is to say
                                                                            its subjective purpose, is sufficient for such a
— Infringement of Article 176 of the EC Treaty and of                       classification ?
     the case-law relied upon for its application, erroneous
     interpretation of the judgment of the Court of First
     Instance in Case T-64/92 : the Court of First Instance            2 . If Question 1 is answered in the negative :
     committed an error in law by considering that the
     judgment in Case T-64/92 imposed two inseparable                       Is   the   combined      nomenclature   for   1993     to    be
     obligations, namely that the Council should adopt a                    interpreted as meaning that vitamin pills such as


title: Order of the President of the Court of First Instance of 10 November 2004 in Case T-316/04: R Wam SpA v Commission of the European Communities (State aid — Loans at reduced rates intended to enable an undertaking to become established in certain non-member countries — Obligation to recover — Application for interim measures — Suspension of operation — Urgency — None)

text:
               5.2.2005

               EN

               Official Journal of the European Union

               C 31/22

      ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

   of 10 November 2004
   in Case T-316/04: R Wam SpA v Commission of the European Communities
   (State aid - Loans at reduced rates intended to enable an undertaking to become established in certain non-member countries - Obligation to recover - Application for interim measures - Suspension of operation - Urgency - None)
   (2005/C 31/44)
   Language of the case: Italian
   In Case T-316/04 R: Wam SpA, established in Cavezzo di Modena (Italy), represented by E. Giliani, lawyer, against the Commission of the European Communities (Agents: V. Di Bucci and E. Righini, with an address for service in Luxembourg) – application for suspension of the operation of Commission Decision C(2004) 1812 final of 19 May 2004 on State aid C-4/2003 (ex NN 102/2002) – the President of the Court of First Instance made an order on 10 November 2004, the operative part of which is as follows:

               1.

               The application for interim relief is dismissed.

               2.

               The costs are reserved.


title: Case C-28/08 P: Appeal brought on 24 January 2008 by Commission of the European Communities against the judgment of the Court of First Instance (Third Chamber) delivered on 8 November 2007 in Case T-194/04: Commission of the European Communities v The Bavarian Lager Co. Ltd, European Data Protection Supervisor (EDPS)

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/21

         Appeal brought on 24 January 2008 by Commission of the European Communities against the judgment of the Court of First Instance (Third Chamber) delivered on 8 November 2007 in Case T-194/04: Commission of the European Communities v The Bavarian Lager Co. Ltd, European Data Protection Supervisor (EDPS)
   (Case C-28/08 P)
   (2008/C 79/36)
   Language of the case: English
   Parties

      Appellant: Commission of the European Communities (represented by: C. Docksey and P. Aalto, Agents)

      Other parties to the proceedings: The Bavarian Lager Co. Ltd, European Data Protection Supervisor
   Form of order sought
   The appellant claims that the Court should:

               —

               to quash the contested judgment in full;

               —

               to give final judgment in the matters that are the subject of this appeal; and

               —

               to order the Applicant in Case T-194/04 to pay the costs of the Commission arising from that case and from the present appeal, or, in the event of a ruling against the Commission upon appeal, to order that the Commission should pay half the costs of the Applicant in Case T-194/04 arising from that case.

         Pleas in law and main arguments
   This appeal concerns the interpretation of the exceptions relating to the protection of privacy and data protection and investigations set forth respectively in Articles 4(1)(b) and 4(2), 2nd indent of Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (1).
   The Court of First Instance the Court held that Article 8(b) of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (2) may not be applied in the case of personal data in documents held by an institution falling under Regulation 1049/2001. However no provision of either Regulation 45/2001 or Regulation 1049/2001 requires or permits this provision to be disabled in order to permit a norm under Regulation 1049/2001 to have effect. The CFI has therefore erred in law in interpreting Article 4(1)(b) of Regulation 1049/2001 so as require a provision of Community law to be set aside.
   Second, the Court held that, notwithstanding the specific reference in Article 4(1)(b) to Community legislation on data protection, personal data in documents shall be disclosed to the public under Regulation 1049/2001 except in cases where there is a clear risk of undermining the protection of the right of privacy and integrity of the individual.
   By limiting the scope of the exception under Article 4(1)(b) to such cases, the Court has adopted a restrictive interpretation of the exception in Article 4(1)(b) which deprives the additional requirement in the second part of that exception (‘in particular in accordance with Community legislation on data protection’) of its effet utile. The Court has erred in law in limiting the said exception to exclude Community legislation on data protection from its scope in cases where access is requested to personal data contained in a document.
   Third, the Court adopted an interpretation of the exception relating to the protection of ‘investigations’ which casts doubt on the ability of the Commission to carry out its functions effectively by relying on information received on a confidential basis from third parties in order for them to assist the Commission in conducting its inquiries.
   The CFI has erred in law by interpreting the exception relating to investigations in Article 4(2), third indent, of Regulation 1049/2001 to the effect that the Commission may not provide assurances of confidentiality made in the course of its investigations of an alleged violation of Community law, nor respect such assurances in the future.
   Finally, the Commission has appealed on costs.

      (1)  OJ L 145, p. 43.

      (2)  OJ L 8, p. 1.


title: Case T-263/09: Order of the Court of First Instance of 12 November 2009 — Mannatech v OHIM (BOUNCEBACK)

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/39

         Order of the Court of First Instance of 12 November 2009 — Mannatech v OHIM (BOUNCEBACK)
   (Case T-263/09) (1)

   2010/C 11/75

      Language of the case: English

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

      (1)  OJ C 205, 29.8.2009.


title: Case T-398/05 R: Order of the President of the Court of First Instance of  4 April 2006  — Tesoka v EUROFOUND (Proceedings for interim relief — No need to adjudicate)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/40

         Order of the President of the Court of First Instance of 4 April 2006 — Tesoka v EUROFOUND
   (Case T-398/05 R)
   (Proceedings for interim relief - No need to adjudicate)
   (2006/C 131/76)
   Language of the case: French
   Parties

      Applicant: Sabrina Tesoka (Overijse, Belgium) (represented by: J.-L. Fagnart, lawyer)

      Defendant: European Foundation for the Improvement of Living and Working Conditions (EUROFOUND) (represented by: C. Callanan, lawyer)
   Re:
   Application for interim measures, essentially seeking that EUROFOUND be ordered, first, to make an interim payment to the applicant and, second, to return to the applicant the documents necessary to enable her to obtain unemployment benefits in her country of residence.
   Operative part of the order

               1.

               There is no need to adjudicate on the application for interim measures.

               2.

               In the interlocutory proceedings, the defendant shall bear her own costs and pay half the costs incurred by the applicant.


title: Case C-335/09 P: Appeal brought on 24 August 2009 by the Republic of Poland against the judgment delivered on 10 June 2009 by the Court of First Instance (First Chamber, Extended Composition) in Case T-257/04 Poland v Commission

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/21

         Appeal brought on 24 August 2009 by the Republic of Poland against the judgment delivered on 10 June 2009 by the Court of First Instance (First Chamber, Extended Composition) in Case T-257/04 Poland v Commission
   (Case C-335/09 P)
   2009/C 282/39
   Language of the case: Polish

      Parties

      Appellant: Republic of Poland (represented by: M. Dowgielewicz, Agent)

      Other party to the proceedings: Commission of the European Communities

      Form of order sought

               —

               set aside in its entirety the judgment delivered on 10 June 2009 by the Court of First Instance of the European Communities in Case T-257/04 Republic of Poland v Commission of the European Communities;

               —

               declare invalid Article 3, Article 4(3) and the eighth indent of Article 4(5) of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, (1) as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004 (2) and by Commission Regulation (EC) No 735/2004 of 20 April 2004; (3)

               —

               order the Commission of the European Communities to pay the costs of the proceedings before the Court of First Instance and the Court of Justice;

               —

               have the appeal heard by the Grand Chamber of the Court.

      Pleas in law and main arguments

   First, in so far the judgment under appeal states that, in relation to Regulation No 1972/2003, the action was brought after the period for doing so had expired and therefore had to be dismissed as inadmissible (paragraphs 32 to 63 of the judgment under appeal):

               —

               it is contended that the Court of First Instance misconstrued Regulation No 1 of the Council determining the languages to be used by the European Economic Community (4) and the Treaty of Accession in finding that the period for bringing an action for a declaration that Regulation No 1972/2003 was invalid began to run from the date of publication of that regulation in the official languages of the Community of Fifteen, and thus before publication in the official languages of the enlarged Community had been completed;

               —

               it is contended that the Court of First Instance misconstrued the fourth paragraph of Article 230 EC in finding that the Republic of Poland could effectively have brought an action seeking a declaration that Regulation No 1972/2003 was invalid before it acceded to the European Union by acting pursuant to that provision as a legal person;

               —

               infringement of the principles of a community based on the rule of law and of effective judicial protection by reason of the fact that the Republic of Poland was deprived of the right to have a judicial examination of the legality of Regulation No 1972/2003, even though that regulation was addressed to the Republic of Poland as a Member State;

               —

               infringement of the principles of solidarity and of good faith by reason of the fact that the Republic of Poland was deprived of the right to have a judicial examination of the legality of a measure which unlawfully altered the conditions governing the accession of the Republic of Poland to the European Union and interfered with the balance of rights and obligations resulting from membership of the Community;

               —

               infringement of procedure in the proceedings before the Court of First Instance by reason of the failure to examine the arguments put forward by the Republic of Poland concerning infringement of the principles of solidarity and good faith, and lack of sufficient reasoning for the judgment under appeal.

         Second, in so far as the judgment under appeal rejected the application for a declaration that Regulation No 735/2004 was invalid to the extent to which that regulation made seven categories of goods from the Republic of Poland subject to the measure referred to in Article 4(3) of Regulation No 1972/2003 (paragraphs 80 to 136 of the judgment under appeal):

               —

               breach of Article 41 of the Act of Accession and infringement of the principle of proportionality by reason of the finding that the level of payments provided for in Article 4(3) of Regulation No 1972/2003 was appropriate and necessary in order to achieve the objectives of the transitional measure in issue, even though payment in the amount of the difference in customs rates would have been sufficient to prevent speculation and to neutralise speculative profits, that payment in the aforementioned amount could not have brought about realisation of the protective objectives in view of the date on which it entered into force (11 days prior to the date of accession), and despite the lack of any connection between the level of the payment determined and its ostensible purpose;

               —

               infringement of the principle of non-discrimination by reason of the finding that the level of the payment provided for in Article 4(3) of Regulation No 1972/2003 was determined on the basis of objective criteria of differentiation.

         Third, in so far as the judgment under appeal rejected the application for a declaration that Regulation No 735/2004 was invalid in so far as it added seven categories of goods from the Republic of Poland to the list of products in the eighth indent of Article 4(5) of Regulation No 1972/2003 (paragraphs 137 to 160 of the judgment under appeal):

               —

               breach of Article 41 of the Act of Accession and infringement of the principle of proportionality by reason of the finding that payment of the charges provided for in Article 4(3) of Regulation No 1972/2003 in respect of products for which, prior to accession, the import rates in force in the Republic of Poland were higher than, or equal to, the import rates in force within the Community, was indispensable for the purpose of attaining the objectives of the measures provided for in that regulation.

         Fourth, in so far as the judgment under appeal rejected the application for a declaration that Regulation No 735/2004 was invalid in so far as it added seven categories of goods from the Republic of Poland to the measure provided for in Article 3 of Regulation No 1972/2003 (paragraphs 161 to 249 of the judgment under appeal):

               —

               breach of Community law, that is to say, misinterpretation of Article 3 of Regulation No 1972/2003, misinterpretation of Article 41 of the Act of Accession, and infringement of the principle of the hierarchy of legal norms by reason of the finding that Article 3 of Regulation No 1972/2003 was necessary in order to safeguard the effectiveness of Article 4 of that regulation and could have been adopted pursuant to Article 41 of the Act of Accession as a derogation from the provisions of that Act;

               —

               breach of Article 253 EC by reason of the finding that the reasons given for the disputed transitional measure were adequate;

               —

               infringement of the principle of the free movement of goods by reason of the finding that the transitional measures adopted pursuant to Article 41 of the Act of Accession are not subject to appraisal in regard to their compliance with Article 25 EC;

               —

               infringement of the principle of non-discrimination by reason of the recognition, as being objectively justified, of the difference in treatment between traders from the Republic of Poland and traders from the States of the Community of Fifteen through the application of a suspensive regime to products taken over on the date of accession, while were, prior to accession, in free circulation within the Republic of Poland, an import duty imposed erga omnes, and the release from that duty of those products which, prior to accession, were in free circulation within the Community of Fifteen and in respect of which no export refunds had been applied for;

               —

               infringement of the principle of legitimate expectations by reason of the finding that the Community did not create a situation which could have given rise to legitimate expectations on the part of Polish traders.

      (1)  OJ L 293 of 11.11.2003, p. 3.

      (2)  OJ L 39 of 11.02.2004, p. 13.

      (3)  OJ L 114 of 21.04.2004, p. 13.

      (4)  OJ English Special Edition 1952-1958, p. 59.