title: Case T-97/16: Judgment of the General Court of 4 May 2017 — Kasztantowicz v EUIPO — Gbb Group (GEOTEK) (EU trade mark — Revocation proceedings — EU word mark GEOTEK — Article 51(1)(a) of Regulation (EC) No 207/2009 — Rule 40(5) of Regulation (EC) No 2868/95 — Evidence of genuine use of the mark — Delay — Rule 61(2) and (3) and Rule 65(1) of Regulation No 2868/95 — Notification by fax of the time limit given to the proprietor — Absence of circumstances capable of challenging the transmission report submitted by EUIPO — Article 78 of Regulation (EC) No 207/2009 — Rule 57 of Regulation No 2868/95 — Request for examination of witnesses — Discretion of EUIPO)

text:
               19.6.2017

               EN

               Official Journal of the European Union

               C 195/23

         Judgment of the General Court of 4 May 2017 — Kasztantowicz v EUIPO — Gbb Group (GEOTEK)
   (Case T-97/16) (1)

   ((EU trade mark - Revocation proceedings - EU word mark GEOTEK - Article 51(1)(a) of Regulation (EC) No 207/2009 - Rule 40(5) of Regulation (EC) No 2868/95 - Evidence of genuine use of the mark - Delay - Rule 61(2) and (3) and Rule 65(1) of Regulation No 2868/95 - Notification by fax of the time limit given to the proprietor - Absence of circumstances capable of challenging the transmission report submitted by EUIPO - Article 78 of Regulation (EC) No 207/2009 - Rule 57 of Regulation No 2868/95 - Request for examination of witnesses - Discretion of EUIPO))
   (2017/C 195/32)
   Language of the case: German

      Parties

      Applicant: Martin Kasztantowicz (Berlin, Germany) (represented by: R. Ronneburger, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: D. Hanf and A. Söder, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO: Gbb Group Ltd (Letchworth, United Kingdom)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 14 December 2015 (Case R 3025/2014-5) concerning revocation proceedings between Gbb Group and Mr Kasztantowicz.

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders Mr Martin Kasztantowicz to pay the costs.

      (1)  OJ C 145, 25.4.2016.


title: Judgment of the Court (Second Chamber) of 7 October 2004 in Case C-312/02: Kingdom of Sweden v Commission of the European Communities (Action for annulment — EAGGF — Expenditure excluded from Community financing — Support for producers of certain arable crops — Common organisation of the market in beef and veal)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/10

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 7 October 2004
   in Case C-312/02: Kingdom of Sweden v Commission of the European Communities (1)

   (Action for annulment - EAGGF - Expenditure excluded from Community financing - Support for producers of certain arable crops - Common organisation of the market in beef and veal)
   (2004/C 300/20)
   Language of the case: Swedish
   In Case C-312/02: Action for annulment under Article 230 EC, lodged at the Court on 4 September 2002, Kingdom of Sweden (Agent: K. Renman) v Commission of the European Communities (Agent: K. Simonsson) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.N. Cunha Rodrigues (Rapporteur), R. Schintgen and F. Macken, Judges; F.G. Jacobs, Advocate General; R. Grass, for the Registrar, has given a judgment on 7 October 2004, in which it has ruled:

               1.

               Dismisses the action;

               2.

               Orders the Kingdom of Sweden to pay the costs.

      (1)  OJ C 261 of 26.10.2002.


title: Case C-622/11: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 5 December 2011 — Staatssecretaris van Financiën v Pactor Vastgoed BV

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/15

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 5 December 2011 — Staatssecretaris van Financiën v Pactor Vastgoed BV
   (Case C-622/11)
   2012/C 73/27
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellant: Staatssecretaris van Financiën

      Respondent: Pactor Vastgoed BV

      Question referred

   Does the Sixth Directive (1) allow, in the event that the VAT initially deducted in accordance with Article 20 of the Sixth Directive is adjusted in such a way that the amount of the deduction must be reimbursed in full or in part, that amount to be charged to a person other than the taxable person who applied the deduction in the past, in particular — as is the case when Article 12a of the Wet (op de omzetbelasting 1968) (Law on turnover tax 1968) is applied — to a person to whom a property has been supplied by that taxable person?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case C-346/15 P: Appeal brought on 9 July 2015 by Steinbeck GmbH against the judgment of the General Court (Fifth Chamber) delivered on 30 April 2015 in Joined Cases T-707/13 and T-709/13 Steinbeck GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               14.9.2015

               EN

               Official Journal of the European Union

               C 302/22

         Appeal brought on 9 July 2015 by Steinbeck GmbH against the judgment of the General Court (Fifth Chamber) delivered on 30 April 2015 in Joined Cases T-707/13 and T-709/13 Steinbeck GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

   (Case C-346/15 P)
   (2015/C 302/28)
   Language of the case: German

      Parties

      Appellant: Steinbeck GmbH (represented by: M. Heinrich and M. Fischer, lawyers)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Alfred Sternjakob GmbH & Co. KG

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside the judgment of the General Court delivered on 30 April 2015 in Joined Cases T-707/13 and T-709/13;

               —

               Order the defendant to pay the costs.

      Grounds of appeal and main arguments

   The appellant considers that the judgment under appeal is in breach of Article 7(1)(b) of Regulation No 207/2009 (1):

               1.

               The single ground stated by the General Court for holding that the mark ‘BE HAPPY’ lacked distinctive character was that it could be perceived as an advertising slogan. That is directly contradictory to the case-law of the Court of Justice of the European Union, according to which that alone is not sufficient to exclude distinctive character.

               2.

               The General Court failed further to set out any specific connection between the mark ‘BE HAPPY’ and the goods for which that mark was to be registered which did not require some interpretation by the relevant public. On the contrary an arbitrary link between the goods and the sign was made, which, even if it were correct, required an effort of interpretation from the relevant public.

               3.

               The General Court thereby erred in law in applying the criteria for the assessment of the distinctive character of the mark ‘BE HAPPY’.

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


title: Case T-6/06: Order of the Court of First Instance of 9 July 2007 — wheyco v Commission (State aid — Incentive element — Action for annulment — Act producing legal effects — Legal interest in bringing proceedings — Inadmissibility)

text:
               22.9.2007

               EN

               Official Journal of the European Union

               C 223/10

         Order of the Court of First Instance of 9 July 2007 — wheyco v Commission
   (Case T-6/06) (1)

   (State aid - Incentive element - Action for annulment - Act producing legal effects - Legal interest in bringing proceedings - Inadmissibility)
   (2007/C 223/13)
   Language of the case: German
   Parties

      Applicant: wheyco GmbH, formerly Mopro-Nord GmbH (Altentreptow, Germany) (represented by: L. Harings and C. Schmidt, lawyers)

      Defendant: Commission of the European Communities (represented by: K. Gross, T. Scharf and A. Stobiecka-Kuik, Agents)
   Re:
   Application for annulment in part of the Commission's decision of 6 September 2005 relating to State aid No N 363/2005 for the construction of a whey refining plant in Mecklenburg-Western Pomerania (Germany) (OJ 2005 C 262, p. 5)
   Operative part of the order
   The Court:

               1.

               Dismisses the action as inadmissible;

               2.

               Orders wheyco GmbH to pay the costs.

      (1)  OJ C 74, 25.3.2006.


title: Case C-308/08: Judgment of the Court (Fourth Chamber) of 20 May 2010 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Conservation of natural habitats — Wild fauna and flora — Protection arrangements before a habitat is placed on the list of sites of Community importance — Article 12(4) — Project for upgrading a country road)

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/3

         Judgment of the Court (Fourth Chamber) of 20 May 2010 — European Commission v Kingdom of Spain
   (Case C-308/08) (1)

   (Failure of a Member State to fulfil obligations - Directive 92/43/EEC - Conservation of natural habitats - Wild fauna and flora - Protection arrangements before a habitat is placed on the list of sites of Community importance - Article 12(4) - Project for upgrading a country road)
   2010/C 179/04
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: S. Pardo Quintillán and D. Recchia, Agents

      Defendant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)

      Re:

   Failure of a Member State to fulfil its obligations — Infringement of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), interpreted by the judgments of the Court of Justice on 13 January 2005 in Case C-117/03 and on 14 September 2006 in Case C-244/05, and the obligations stemming from Article 12(4) of that directive — Project for improvement of the rural path from Villamanrique de la Condesa (Seville) to El Rocio (Huelva)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 223, 30.8.2008.


title: Case T-800/16: Action brought on 16 November 2016 — Mayekawa Europe v Commission

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/44

         Action brought on 16 November 2016 — Mayekawa Europe v Commission
   (Case T-800/16)
   (2017/C 022/60)
   Language of the case: English

      Parties

      Applicant: Mayekawa Europe NV/SA (Zaventem, Belgium) (represented by: H. Gilliams and J. Bocken, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission decision of 11 January 2016 on the excess profit exemption state aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by the Kingdom of Belgium (1);

               —

               in the alternative, annul Articles 2-4 of the Decision;

               —

               in any event, annul Articles 2-4 of that Decision in so far as these Articles (a) require recovery from entities other than the entities that have been issued an ‘excess profit ruling’ as defined in the Decision and (b) require the recovery of an amount equal to the beneficiary’s tax savings, without allowing Belgium to take into account an actual upwards adjustment by another tax administration; and

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a manifest error of assessment, excess of power and failure to provide adequate reasons in so far as the contested decision alleges the existence of an aid scheme.

               2.

               Second plea in law, alleging a violation of Article 107 TFUE and of the duty to state reasons and manifest error of assessment in so far as the contested decision asserts that the purported scheme as granting a selective advantage.

               3.

               Third plea in law, alleging a violation of Article 107 TFUE and manifest error of assessment in so far as the contested decision asserts that the purported scheme gives rise to an advantage.

               4.

               Fourth plea in law, alleging a violation of Article 107 TFUE, infringement of legitimate expectations and of the proportionality principle, manifest error of assessment, excess of power and failure to provide adequate reasons in so far as the contested decision orders Belgium to recover aid.

      (1)  Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (notified under document C(2015) 9837) (OJ L 260, 2016, p. 61)


title: Case C-223/01: Reference for a preliminary ruling by the Østre Landsret, by decision of that court of 23 May 2001 in the case of AstraZeneca A/S v Lægemiddelstyrelsen, intervener: Generics (UK) Ltd, and in the case of A/S GEA Farmaceutisk Fabrik v Lægemiddelstyrelsen, joined party: Sundhedsministeriet, interveners: Generics (UK) Ltd and AstraZeneca A/S

text:
C 227/12                EN                    Official Journal of the European Communities                                      11.8.2001
Reference for a preliminary ruling by the Østre Landsret,                Question 3
by decision of that court of 23 May 2001 in the case
of AstraZeneca A/S v Lægemiddelstyrelsen, intervener:                    If Questions 1(b) or 1(c) are answered in the affirmative, does
Generics (UK) Ltd, and in the case of A/S GEA Farmaceut-                 the first medicinal products directive contain a legal basis
isk Fabrik v Lægemiddelstyrelsen, joined party: Sund-                    for enabling the national authorities to dispense with the
hedsministeriet, interveners: Generics (UK) Ltd and Astra-               requirements in question so that an abridged application can
                            Zeneca A/S                                   nevertheless be examined as to its substance?
                          (Case C-223/01)                                (1) of 26 January 1965 on the approximation of provisions laid
                                                                             down by law, regulation or administrative action relating to
                                                                             proprietary medicinal products (OJ, English Special Edition,
                                                                             1965/1966, p. 20).
                          (2001/C 227/19)
Reference has been made to the Court of Justice of the
European Communities by decision of the Østre Landsret of
23 June 2001, received at the Court Registry on 5 June 2001,
for a preliminary ruling in the cases of AstraZeneca A/S and             Reference for a preliminary ruling by the First Civil
A/S GEA Farmaceutisk Fabrik v Lægemiddelstyrelsen, joined                Chamber of the Tribunale Civile di Genova by order of
party: Sundhedsministriet, intervener: Generics (UK) Ltd, on             that court of 24 May 2001 in the joined cases of Off-road
the following questions:                                                 Action Sas and Model Toys di Luca Luperini against
                                                                                Prefetto di Genova
                                                                                (Case C-225/01)
Question 1
                                                                                (2001/C 227/20)
In a case where an undertaking applies for marketing authoris-           Reference has been made to the Court of Justice of the
ation on the basis of an abridged application (simplified                European Communities by order of the First Civil Chamber of
procedure) under Article 4, third paragraph, point 8(a)(iii)             the Tribunale Civile, (Civil District Court), Genoa, of 24 May
of the first medicinal products directive (Council Directive             2001, received at the Court Registry on 6 June 2001, for a
65/65/EEC (1) as subsequently amended) and states that the               preliminary ruling in the joined cases of Off-road Action Sas
product for which marketing authorisation is sought is essen-            and Model Toys di Luca Luperini against the Prefetto di Genova
tially similar to a reference product which has been approved            on the following questions:
in the Community for the necessary period of time pursuant
to the directive, is it necessary and sufficient that the reference      —     In the light of the principles of the free movement of
product:                                                                       goods and of proportionality, does Community law
                                                                               preclude in all cases the application of national legislation
                                                                               under which the confiscation of goods is applied by way
(a)   at the time of the application has been marketed in the
                                                                               of secondary penalty for any infringement of administrat-
      Member State for which the application is made, or
                                                                               ive regulations governing the importation of such goods
                                                                               into Italian territory, for trade, use or exploitation; or is
(b) at the time of the application is still being marketed in                  that penalty compatible with Community law in certain
      the Member State for which the application is made, or                   circumstances, because of the seriousness of the offence
                                                                               or the importance of the legal good which the rule
(c)   is still being marketed at the time of the application and               infringed seeks to protect?
      at the time of notification of marketing authorisation in
      the Member State for which the application is made?                —     In the light of the principle of proportionality, does
                                                                               Community law preclude the application of national
                                                                               legislation which does not confer on the administrative
                                                                               authorities or the courts any discretion — having regard
                                                                               to the seriousness of the offence or the importance of the
Question 2                                                                     legal good which the rule infringed seeks to protect — in
                                                                               deciding whether or not to order the confiscation of
                                                                               goods, that being the secondary penalty prescribed for any
                                                                               infringement of the administrative regulations govern-
Does the term ‘marketed’ in Article 4, third paragraph,                        ing the manufacture, use, carriage, holding or alienation
point 8(a)(iii) mean that it is sufficient and necessary that there            of such goods within Italian territory?
be approval in the form of marketing authorisation for the
reference product in the Member State for which the appli-
cation is made?


title: Case T-408/04: Action brought on 4 October 2004 by Anke Kröppelin against the Council of the European Union

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/50

         Action brought on 4 October 2004 by Anke Kröppelin against the Council of the European Union
   (Case T-408/04)
   (2004/C 300/98)
   Language of the Case: French
   An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 4 October 2004 by Anke Kröppelin, resident in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the decision of the Council refusing the applicant entitlement to the expatriation allowance and resulting rights, from her entry into service on 1 November 2003;

               —

               order the Council to pay the costs.

         Pleas in law and main arguments
   Before entering into the Council's service, the applicant worked in the chancellery of the Land Mecklenburg-Western Pomerania in Brussels. In the present action she challenges the decision refusing to grant her the expatriation allowance.
   In support of her action, the applicant pleads breach of Article 4(1)(a) of Annex VII to the Staff Regulations in that the Council did not consider that she was in circumstances arising from work done for another State. The applicant also pleads breach of the principle of equal treatment and of non-discrimination.


title: Case T-213/10 P: Appeal brought on 10 May 2010 by P against the judgment of the Civil Service Tribunal delivered on 24 February 2010 in Case F-89/08 P v Parliament

text:
               17.7.2010

               EN

               Official Journal of the European Union

               C 195/22

         Appeal brought on 10 May 2010 by P against the judgment of the Civil Service Tribunal delivered on 24 February 2010 in Case F-89/08 P v Parliament
   (Case T-213/10 P)
   2010/C 195/36
   Language of the case: French

      Parties

      Appellant: P (Brussels, Belgium) (represented by E. Boigelot, lawyer)

      Other party to the proceedings: European Parliament

      Form of order sought by the appellant

               —

               declare the appeal admissible and well founded and, therefore

               —

               annul the judgment under appeal delivered on 24 February 2010 by the Third Chamber of the European Union Civil Service Tribunal in Case F-89/08, notified to the appellant on 1 March 2010, by which the Civil Service Tribunal dismissed as unfounded the appellant’s action seeking, inter alia, the annulment of the Parliament’s decision of 15 April 2008 to dismiss him and an order against the Parliament for damages and interest for the loss which he claims to have suffered;

               —

               uphold the claims which the appellant submitted to the European Union Civil Service Tribunal;

               —

               order the respondent to pay the costs at both instances.

      Pleas in law and main arguments

   By the present appeal, the appellant is seeking the annulment of the judgment of the Civil Service Tribunal of 24 February 2010, delivered in Case F-89/08 P v Parliament, which dismissed the action by which the appellant had sought, inter alia, the annulment of the decision of the European Parliament to terminate his temporary agent contract, and payment of damages and interest as compensation for the loss allegedly suffered.
   In support of his appeal, the appellant submits three pleas alleging:

               —

               an error of law and contradictory reasoning inasmuch as the Civil Service Tribunal considers that becoming aware of the grounds for a decision solely by consulting one’s personal file is adequate and does not lead to the annulment of the decision, despite the fact that the institution did not set out those grounds in the decision to dismiss or in the decision rejecting the complaint;

               —

               a misunderstanding by the Civil Service Tribunal (i) of the system of separation of powers and institutional equilibrium between the administration and the Courts, (ii) of the right to effective judicial protection, inasmuch as the Civil Service Tribunal assumed the role of the European Parliament by stating, in its place, the alleged reasons for the decision which was contested before the Tribunal;

               —

               a lack of adequate reasoning in the judgment under appeal, inasmuch as the Civil Service Tribunal did not comment on the fact that the documents on the file, leading to the decision which was contested before it, were contradictory, despite the fact that the appellant had raised those inconsistencies in his action at first instance.


title: Case T-71/09: Action brought on 20 February 2009 — Química Atlântica v Commission

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/36

         Action brought on 20 February 2009 — Química Atlântica v Commission
   (Case T-71/09)
   2009/C 113/74
   Language of the case: Portuguese

      Parties

      Applicant: Química Atlântica, Lda (Lisbon, Portugal) (represented by J. Teixeira Alves, lawyer)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               a declaration that the Commission was obliged to adopt measures for the harmonisation of the criteria for classifying and charging duty on dicalcium phosphate imported from Tunisia;

               —

               a declaration that that failure to act on the part of the Commission has engendered considerable differences in the duty payable on goods declared in Portugal compared to those declared in those Member States that, for reasons of geographical proximity, compete with traders declaring goods in Portugal;

               —

               an order that the Commission should adopt harmonising measures for the classification and charging of duty on dicalcium phosphate;

               —

               an order that the Commission should take into account the fact that phosphate is an inorganic product, obtained from the chemical reaction caused by the addition of an acid to minerals, so its classification is automatically excluded from the first 24 chapters of the Common Customs Tariff;

               —

               an order that the Commission should adopt measures to ensure that the classification adopted in the various Member States is harmonised in keeping with appropriate criteria of interpretation;

               —

               a declaration that the applicant is entitled to reimbursement of the customs duties it has paid over and above those that would be payable if the rate for Tariff Code 2835 52 90 were applied;

               —

               an order that the Commission should pay the costs of the proceedings and the unavoidable expenses borne by the applicant, in particular its lawyer’s fees and transport and accommodation expenses.

      Pleas in law and main arguments

   The applicant markets dicalcium phosphate, imported from Tunisia, which, until 1994, it declared to customs under the description hydrogen orthophosphate of calcium (dicalcium phosphate) under tariff code 2835 52 90 of the CN. The Portuguese customs authorities required dicalcium phosphate to be declared under code 2309 90 98 of the CN, as preparations of a kind used in animal feeding — Other, subject to high duty, whereas in France, the United Kingdom and Spain, which take up nearly all the dicalcium phosphate obtained in Tunisia and exported to the EU, the same product was classified under tariff heading 2835 52 90 and zero-rated.
   The applicant has requested the Commission to adopt measures to harmonise the tariff classification of dicalcium phosphate, but the Commission has never acted. Ever since 2005 it has put off and put off taking a decision on the harmonisation of dicalcium phosphate. In December 2008 the Commission adopted an express measure, of negative content, consisting, first, of the affirmation that the classification of dicalcium phosphate under tariff heading 2309 was constant and uniform in the various Member States and, secondly, of the consequential refusal to adopt measures to render that classification uniform. The Commission has in its possession authentic documents which prove that dicalcium phosphate imported from Tunisia, the chief supplier to the Community, is classified in France and Spain under tariff code 2835 25 90 and it had the means whereby to learn that at the very least in the United Kingdom also that classification had been adopted. The bare assertion that there are no problems in classifying dicalcium phosphate in the other Member States is a half-truth, for it does not say that dicalcium phosphate is not imported into those Member States from Tunisia. The Commission was required to ascertain whether the composition of dicalcium phosphate from Tunisia was not close to that of substitutes imported from other regions, which it has not done, despite its knowing of a binding tariff information in France. The Commission’s reply to the applicant’s complaints bestows legitimacy on divergent and, therefore, necessarily incorrect tariff classifications, is based on untrue premisses and in the end the Commission has adopted no measure to harmonise the classification criteria, maintaining the former situation of uncertainty.
   The Portuguese courts have upheld the decisions of the Portuguese customs authorities, without making a reference to the CJEC for a preliminary ruling as they were bound to do. In most of the Member States that import dicalcium phosphate from Tunisia the product is declared under tariff code 2835 52 90. This divergence in classification, with its effects on duty, has forced the applicant out of the Spanish market, on which dicalcium phosphate enjoyed duty-free status because of its being classified under tariff code 2835 52 90.


title: Case C-413/06 P: Appeal brought on 10 October 2006 by Bertelsmann AG, Sony Corporation of America against the judgment of the Court of First Instance (Third Chamber) delivered on 13 July 2006 in Case T-464/04: Independent Music Publishers and Labels Association (Impala, international association) v Commission of the European Communities.

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/25

         Appeal brought on 10 October 2006 by Bertelsmann AG, Sony Corporation of America against the judgment of the Court of First Instance (Third Chamber) delivered on 13 July 2006 in Case T-464/04: Independent Music Publishers and Labels Association (Impala, international association) v Commission of the European Communities.
   (Case C-413/06 P)
   (2006/C 326/51)
   Language of the case: English
   Parties

      Appellants: Bertelsmann AG, Sony Corporation of America (represented by: P. Chappatte, J. Boyce, Solicitors, N. Levy, Barrister, R. Snelders, avocat, T. Graf, Rechtsanwalt)

      Other parties to the proceedings: Commission of the European Communities, Independent Music Publishers and Labels Association (Impala, association internationale), Sony BMG Music Entertainment BV
   Form of order sought
   The applicant claims that the Court should:

               —

               annul the judgment of the Court of First Instance of 13 July 2006 in Case T-464/04;

               —

               reject Impala's application for annulment of the Commission's decision or, alternatively, refer the case back for reconsideration to the Court of First Instance; and

               —

               order Impala to pay the costs of the present proceedings.

         Pleas in law and main arguments
   The appellants make seven pleas on appeal:
   First, that the Court of First Instance erred in law by using the Commission's statement of objections as a benchmark for its substantive assessment of the decision.
   Second, that the Court of First Instance erred in law by requiring the Commission to conduct a new market investigation following the notifying parties' response to the statement of objections.
   Third, that the Court of First Instance erred in law by applying an erroneous and excessively high standard of proof for merger clearance decisions.
   Fourth, that the Court if First Instance exceeded the scope of judicial review by substituting its own assessment for that of the Commission and, in doing so, itself committed manifest errors and fundamentally misconstrued the evidence.
   Fifth, that the Court of First Instance erred in law by misapplying the criteria developed in Airtours for the assessment of the feasibility of tacit collusion.
   Sixth, that the Court of First Instance erred in law by applying an erroneous and excessive standard of reasoning for merger clearance decisions.
   Seventh, that the Court of First Instance erred in law by relying on evidence that was not disclosed to the applicants and that was not before the Commission at the time it adopted its decision.


title: Case C-361/14 P: Judgment of the Court (Grand Chamber) of 14 June 2016 — European Commission v Peter McBride and Others (Appeal — Resource conservation measures and restructuring of the fisheries sector — Requests for increased safety tonnage — Annulment by the European Union judicature of the decision initially rejecting those requests — Article 266 TFEU — Repeal of the legal basis on which that initial decision was founded — Competence and legal basis to adopt new decisions — Annulment by the General Court of new decisions rejecting the requests — Principle of legal certainty)

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/5

         Judgment of the Court (Grand Chamber) of 14 June 2016 — European Commission v Peter McBride and Others
   (Case C-361/14 P) (1)

   ((Appeal - Resource conservation measures and restructuring of the fisheries sector - Requests for increased safety tonnage - Annulment by the European Union judicature of the decision initially rejecting those requests - Article 266 TFEU - Repeal of the legal basis on which that initial decision was founded - Competence and legal basis to adopt new decisions - Annulment by the General Court of new decisions rejecting the requests - Principle of legal certainty))
   (2016/C 305/07)
   Language of the case: English

      Parties

      Appellant: European Commission (represented by: A. Bouquet and A. Szmytkowska, acting as Agents, and by B. Doherty, Barrister-at-Law)

      Other parties to the proceedings: Peter McBride, Hugh McBride, Mullglen Ltd, Cathal Boyle, Thomas Flaherty, Ocean Trawlers Ltd, Patrick Fitzpatrick, Eamon McHugh, Eugene Hannigan, Larry Murphy, Brendan Gill (represented by: N. Travers, Senior Counsel, D. Barry, Solicitor, and E. Barrington, Senior Counsel)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 339, 29.9.2014.


title: Case C-258/01: Action brought on 3 July 2001 by Commission of the European Communities against Portuguese Republic

text:
C 245/12                EN                  Official Journal of the European Communities                                      1.9.2001
Action brought on 3 July 2001 by the Commission of                     Action brought on 3 July 2001 by Commission of the
the European Communities against the Council of the                        European Communities against Portuguese Republic
                         European Union
                                                                                (Case C-258/01)
                         (Case C-257/01)
                                                                                (2001/C 245/22)
                         (2001/C 245/21)
                                                                       An action against the Portuguese Republic was brought before
                                                                       the Court of Justice on 3 July 2001 by the Commission of the
                                                                       European Communities, represented by Bernard Mongin and
An action against the Council of the European Union was
                                                                       Francisco Miguel França, acting as Agents, with an address for
brought before the Court of Justice of the European Communi-
                                                                       service in Luxembourg at the office of Luis Escobar Guerrero,
ties on 3 July 2001 by the Commission of the European
                                                                       also of its Legal Service, Wagner Centre, Kirchberg.
Communities, represented by Ms Dominique Maidani and
Ms Carmel O’Reilly, acting as agents, with an address for
service in Luxembourg.                                                 The applicant claims that the Court of Justice should:
                                                                       —     Declare that, by failing to transpose Article 6(1) and (4)
The Applicant requests that the Court should:                                of Directive 94/57/EC (1) on common rules and standards
                                                                             for ship inspection and survey organisations and for the
                                                                             relevant activities of maritime administrations and in
1.    Annul Council Regulation (EC) No 789/2001 of 24 April
                                                                             particular by not establishing a working relationship
      2001 reserving to the Council implementing powers
                                                                             regulated by a formalised written and non-discriminatory
      with regard to certain detailed provisions and practical
                                                                             agreement or equivalent legal arrangements with the
      procedures for examining visa applications (1).
                                                                             classification societies and by not providing the Com-
                                                                             mission with precise information on that working
2.    Annul Council Regulation (EC) No 790/2001 of 24 April                  relationship, the Portuguese Republic has failed to fulfil
      2001 reserving to the Council implementing powers                      its obligations under Article 6(1) and (4) of Directive
      with regard to certain detailed provisions and practical               94/57/EC;
      procedures for examining carrying out border checks and
      surveillance (2).                                                —     Order the Portuguese Republic to pay the costs.
3.    Order the defendant to pay the costs.
                                                                       Contentions and principal arguments
                                                                       Directive 94/57/EC was transposed into Portuguese law by
Pleas in law and main arguments                                        Decree-Law No 115/96 of 6 August 1996.
The Commission submits that the Council has, contrary to               According to the information received by the Commission
Article 202 of the Treaty and to Article 1 of Decision                 through the committee established by Article 7 of Direc-
1999/468/CE (3), improperly and irregularly reserved                   tive 94/57/EC, the Portuguese Republic delegates certain
implementing powers to itself and that, in any event, the              responsibilities to a number of classification societies (Ame-
Council has neither adequately nor properly motivated the              rican Bureau of Shipping, Det Norske Veritas, Germanischer
said reservation of implementing powers to itself. The Com-            Lloyd, Lloyd’s Register of Shipping, Nippon Kaiiji Kyokai). The
mission is, furthermore, of the view that the procedure set up         Commission considers that the formalised written and non-
respectively by Article 2 of Regulation (CE) 789/2001 and by           discriminatory agreements or equivalent legal arrangements
Article 2 of Regulation (CE ) 790/2001 whereby, in essence, the        (Article 6(2) of Directive 94/57/EC), which determine the tasks
Member States themselves amend certain factual information             and specific functions to be undertaken by the organisations
respectively contained in the Common Consular Instructions             and which should have been concluded or adopted and
on Visas for the Diplomatic Missions and Consular Posts, in            forwarded to the Commission immediately after the said
Executive Committee decisions SCH/Com-ex (98) 56,                      delegation of responsibilities, have not yet been entered into,
SCH/Com-ex (99) 14 and SCH/Com-ex (94) 15, and in the                  a fact which, moreover, the Portuguese authorities admit.
Common Manual is irregular and contrary to Article 202 of              Furthermore, Article 6(4) of Directive 94/57/EC provides that
the Treaty.                                                            each Member State is to provide the Commission with precise
                                                                       information on the working relationship established with the
                                                                       classification societies. However, the Portuguese authorities
(1) OJ L 116, 26.4.2001, p. 2.                                         have not yet sent that information to the Commission, which
(2) OJ L 116, 26.4.2001, p. 5.                                         is under an obligation then to pass it to the other Member
(3) Council Decision of 28 June 1999 laying down the procedures        States.
    for the exercise of implementing powers conferred on the
    Commission, OJ L 184, 17.7.1999, p. 23.
                                                                       (1) OJ L 319 of 12.12.1994, p. 20.


title: Case T-52/13: Action brought on 4 February 2013 — Efag Trade Mark Company v OHIM (FICKEN)

text:
               6.4.2013

               EN

               Official Journal of the European Union

               C 101/21

         Action brought on 4 February 2013 — Efag Trade Mark Company v OHIM (FICKEN)
   (Case T-52/13)
   2013/C 101/46
   Language of the case: German

      Parties

      Applicant: Efag Trade Mark Company GmbH & Co. KG (Schemmerhofen, Germany) (represented by M. Wekwerth, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 October 2012 in Case R 493/2012-1;

               —

               Order the defendant to pay the costs including those incurred in the appeal proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: the word mark ‘FICKEN’ for goods and services in Classes 25, 32, 33 and 43 — Community trade mark application No 9 274 366

      Decision of the Examiner: the application was rejected

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: Infringement of Article 7(1)(f) and Article 7(2) of Regulation No 207/2009


title: Case T-729/15: Action brought on 17 December 2015 — MSD Animal Health Innovation and Intervet international v EMA

text:
               15.2.2016

               EN

               Official Journal of the European Union

               C 59/41

         Action brought on 17 December 2015 — MSD Animal Health Innovation and Intervet international v EMA
   (Case T-729/15)
   (2016/C 059/48)
   Language of the case: English

      Parties

      Applicants: MSD Animal Health Innovation GmbH (Schwabenheim, Germany) and Intervet international BV (Boxmeer, Netherlands) (represented by: J. Stratford, QC, C. Thomas, Barrister, P. Bogaert, lawyer, B. Kelly and H. Billson, Solicitors)

      Defendant: European Medicines Agency (EMA)

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the decision of EMA of 25 November 2015, communicated to the applicants the 3 December 2015, to grant a third party access to the information about a veterinary medicinal product, pursuant to Regulation (EC) No 1049/2001 (OJ 2001 L 145, p. 43), in so far as the decision concerns commercially confidential information the release of which will infringe the applicants' rights and in so far as the decision is prohibited by EU law;

               —

               order the EMA to pay all costs in these proceedings.

      Pleas in law and main arguments

   In support of the action, the applicants rely on five pleas in law.

               1.

               First plea in law, alleging that the documents at issue is protected by Article 4(2) and/or Article 4(3) of Regulation (EC) No 1049/2001 pursuant to a general presumption of confidentiality.

               2.

               Second plea in law, alleging that the documents at issue in their entirety constitute commercially confidential information that is protected by Article 4(2) of said Regulation.

               3.

               Third plea in law, alleging that the release of the documents would undermine the EMA's decision making process.

               4.

               Fourth plea in law, alleging that the EMA failed to carry out a balancing exercise as required by law.

               5.

               Fifth plea in law, alleging that the outcome of a proper balancing exercise, as required by law, would have been a decision not to release any part of the documents or at least a decision to accede to the redactions proposed by the applicants.


title: Case T-575/08: Action brought on 22 December 2008 — 4care v OHIM — Laboratorios Diafarm (Acumed)

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/43

         Action brought on 22 December 2008 — 4care v OHIM — Laboratorios Diafarm (Acumed)
   (Case T-575/08)
   (2009/C 55/76)
   Language in which the application was lodged: German
   Parties

      Applicant: 4care AG (Kiel, Germany) (represented by: S. Redeker, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Laboratorios Diafarm, SA (Barbera del Valles, Spain)
   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 October 2008 in Case R 16636/2007-2 and reject the opposition entered by Laboratorios Diafarm, SA;

               —

               order the defendant and Laboratorios Diafarm, SA to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant.

      Community trade mark concerned: Figurative mark ‘Acumed’ for goods in Classes 3, 5 and 9 (application for registration No 4493136).

      Proprietor of the mark or sign cited in the opposition proceedings: Laboratorios Diafarm, SA.

      Mark or sign cited in opposition: Spanish word mark ‘AQUAMED ACTIVE’ (trade mark No 2506452) for goods in Class 5 and Community word mark ‘AQUAMED ACTIVE’ (No 2882272) for goods in Class 5.

      Decision of the Opposition Division: Opposition allowed.

      Decision of the Board of Appeal: Appeal dismissed.

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

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


title: Case C-19/05: Judgment of the Court (Third Chamber) of 18 October 2007 — Commission of the European Communities v Kingdom of Denmark (Failure of a Member State to fulfil obligations — Communities' own resources — Customs duties legally owed not recovered following an error by the national customs authorities — Financial liability of the Member States)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/4

         Judgment of the Court (Third Chamber) of 18 October 2007 — Commission of the European Communities v Kingdom of Denmark
   (Case C-19/05) (1)

   (Failure of a Member State to fulfil obligations - Communities' own resources - Customs duties legally owed not recovered following an error by the national customs authorities - Financial liability of the Member States)
   (2007/C 315/05)
   Language of the case: Danish
   Parties

      Applicant: Commission of the European Communities (represented by: N.B. Rasmussen, G. Wilms and H.-P. Hartvig, Agents)

      Defendant: Kingdom of Denmark (represented by: J. Molde, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Article 10 EC and Articles 2 and 8 of Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the European Communities' own resources (OJ 1994 L 293, p. 9) — Financial responsibility of the Member States for own resources — Failure to make available to the Commission an amount of DKK 18 687 475 that the customs authorities wrongly omitted to recover as customs duties from an undertaking.
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to make available to the Commission of the European Communities an amount of DKK 18 687 475 in own resources, together with default interest thereon calculated as from 27 July 2000, the Kingdom of Denmark has failed to fulfil its obligations under Community law and, in particular, under Articles 2 and 8 of Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the European Communities' own resources;

               2.

               Orders the Kingdom of Denmark to pay the costs.

      (1)  OJ C 93, 16.4.2005.


title: Case T-168/15: Action brought on 1 April 2015 — Hellenic Republic v Commission

text:
               27.7.2015

               EN

               Official Journal of the European Union

               C 245/29

         Action brought on 1 April 2015 — Hellenic Republic v Commission
   (Case T-168/15)
   (2015/C 245/35)
   Language of the case: Greek

      Parties

      Applicant: Hellenic Republic (represented by: G. Kanellopoulos, E. Leftheriotou and A.-E. Vasilopoulou)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the Commission implementing decision of 26 January 2015, notified under reference number C(2015) 252 final, ‘concerning the reduction of the interim payments relating to Greece’s rural development programme for the 2007-13 programming period and to the expenditure in respect of the period from 1 January 2014 to 31 March 2014 and from 1 April 2014 to 30 June 2014, CCI 2007 GR 06 RPO 001’, by the amounts of EUR 2 75  118,75 and EUR 2 9 40  050 respectively.

      Pleas in law and main arguments

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

               1.

               By the first plea, it is submitted that, in adopting the contested decision, Article 16(4) of Commission Regulation No 883/2996 of 21 June 2006 (1) was misinterpreted and misapplied, the rules governing the Commission’s competence ratione temporis were infringed and the essential requirements of the procedure laid down by that provision were infringed.

               2.

               By the second plea, it is submitted that, in adopting the decision, Article 41(1) of Regulation No 1306/2013 (2) was misinterpreted and misapplied.

               3.

               By the third plea, it is submitted that the Commission misinterpreted and misapplied Article 26(5) and Article 27(3) and (4) of Regulation No 1290/2005 (3) and Article 36(5) and Article 41(3) of Regulation No 1306/2013, and that the ne bis in idem principle, the principle of the protection of legitimate expectations and the Hellenic Republic’s right to be heard and rights of defence were infringed.

               4.

               By the fourth plea, it is submitted that, in adopting the contested decision, the Commission misinterpreted and misapplied Article 27(4) of Regulation No 1290/2005 and Article 41(3) of Regulation No 1306/2013, and infringed the principle of proportionality.

               5.

               Finally, by the fifth plea, it is submitted that, in adopting the contested decision, Article 27(4) of Regulation No 1290/2005 and Article 41(3) of Regulation No 1306/2013 were misinterpreted and misapplied and the concept of force majeure and exceptional circumstances was misconstrued.

      (1)  Commission Regulation (EC) No 883/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the keeping of accounts by the paying agencies, declarations of expenditure and revenue and the conditions for reimbursing expenditure under the EAGF and the EAFRD (OJ 2006 L 171, p. 1).

      (2)  Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 (OJ 2013 L 347, p. 549).

      (3)  Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1).


title: Case T-429/03: Action brought on 21 December 2003 by Gregorio Valero Jordana against the Commission of the European Communities

text:
C 59/28                EN                        Official Journal of the European Union                                          6.3.2004
The applicant claims that the Court should:                              approval of this sum, which the applicant duly did. On
                                                                         20 October 2003, however, the Commission proceeded to
                                                                         pay to the applicant the sum of EUR 257 598,91 which, as it
—     Direct the defendant to honour the settlement agreement            claimed in subsequent correspondence, represented the final
      reached with the applicant and to pay it a total final sum         amount due under the agreement.
      in respect of the Grant Agreement of EUR 40 919,65.
—     Annul the Commission’s Decision of 20 October 2003                 In support of its application the applicant first submits that a
      to pay only EUR 257 598,91, despite the existence of the           binding settlement agreement was reached in May 2003
      settlement agreement.                                              between the parties, providing that the amount payable would
                                                                         be EUR 298 518,65. It therefore asks the Court to enforce that
                                                                         agreement. In the alternative, if the Court should conclude that
—     In the alternative to the first and second pleas above,            no settlement agreement was reached, the applicant claims
      should the Court find that no settlement agreement exists,         that the Commission was bound to pay the original amount
      to order the defendant to pay the applicant the final              claimed, i.e. EUR 305 305,30, since it failed to express its
      amount specified in its Final Report, less amounts already         concerns within sixty days of receipt of the application of
      paid, totalling EUR 47 706,39.                                     payment. The applicant further argues that, in any case, the
                                                                         Commission’s decision to pay the applicant only
                                                                         EUR 257 598,91 should be annulled for failure to state reasons
—     In the further alternative to the first and second pleas           and for non-respect of the applicant’s right to be heard by the
      above, should the Court find that no settlement agreement          Commission before the final decision was adopted.
      exists, annul the Commission’s Decision of 20 October
      2003 to pay only EUR 257 598,91 despite the applicant’s
      contractual claim in the Final Report for
      EUR 305 305,30.
—     Order the defendant to pay interest on any amounts that
      the Court finds remain due or have been paid late in
      accordance with the pleas above.
                                                                         Action brought on 21 December 2003 by Gregorio
                                                                         Valero Jordana against the Commission of the European
—     Order the defendant to pay the costs of these proceedings.                                   Communities
                                                                                (Case T-429/03)
Pleas in law and main arguments                                                                   (2004/C 59/45)
                                                                                (Language of the case: French)
The Applicant is an international nonprofit making association
active in the field of new car safety. On 22 August 2001, the
applicant submitted to the Commission an application for a
grant of 25 % funding of a project concerned with the safety             An action against the Commission of the European Communi-
assessment of certain types of vehicles, most notably four               ties was brought before the Court of First Instance of the
wheel drive vehicles. Thereafter, on 12 October 2001 the                 European Communities on 21 December 2003 by Gregorio
applicant and the Commission concluded a Grant Agreement                 Valero Jordana, residing in Uccle (Belgium), represented by
the terms of which provided that the applicant would present             Nicolas Lhoëst, lawyer, with an address for service in Luxem-
to the Commission a final statement of all eligible costs, that          bourg.
on the basis of an examination of the final settlement the
Commission would pay the balance of the grant to the
applicant and that all sums under the agreement were to be               The applicant claims that the Court should:
paid within sixty days unless the Commission, within that
period, informed the applicant that the request was not                  —    Annul the decision of the appointing authority dated
admissible . On 10 December 2002 the applicant submitted                      19 December 2003 confirming the applicant’s initial
an application for payment of the outstanding balance, of the                 classification in Grade A 7;
grant, which it claimed was EUR 305 305,30. On 31 March
2003, i.e. more than sixty days after receipt of the application,
the Commission, not having paid the sum requested, raised                —    In so far as necessary, annul the decision of the appointing
certain queries with the applicant. These led to further                      authority of 9 September 2003 rejecting the applicant’s
submissions of documents by the applicant and a meeting                       complaint;
between the parties representatives. On 2 May 2003 the
Commission informed the applicant that final payment would               —    Order the defendant to pay all the costs of the proceed-
be EUR 298 518,65 and asked the applicant to mark its                         ings.
 ---pagebreak--- 6.3.2004               EN                             Official Journal of the European Union                                          C 59/29
Pleas in law and main arguments                                               Article 82 EC in refusing to conclude a cross-border roaming
                                                                              (GSM) agreement with the applicant. The applicant later
                                                                              converted that complaint into a complaint under Article 86
Following the judgment of the Court of First Instance in Case                 (EC, in conjunction with Articles 82 EC, 49 EC and 12
T-17/95 (1), the Commission adopted an amendment of the                       EC, against Spain alleging that Telefonica was acting under
rules relating to the criteria applicable to appointment in grade             instructions from the Spanish Government which claims
and classification in scale on recruitment, which entitled                    sovereignty over Gibraltar.
officials to seek a review of their classification on entering the
service. By the contested decision, the Commission confirmed
the applicant’s classification in Grade A 7 on the date of his
recruitment and, accordingly, rejected a request for reclassifi-              In support of its application, the applicant invokes a series of
cation submitted by the applicant.                                            alleged manifest errors of assessment of the contested decision.
                                                                              According to the applicant, the Commission erred in consider-
                                                                              ing that Telefonica is not a public undertaking or that it enjoys
In support of his action, the applicant relies on a failure to                special rights within the meaning of article 86 EC. The
state reasons in the contested decision, a manifest error of                  applicant further alleges that Telefonica is in a dominant
assessment and alleged discrimination between the applicant,                  position and that there is an appreciable effect on trade and
whose request for reclassification was rejected, and other                    on competition of the refusal to conclude an agreement with
officials who, with less professional experience than the                     the applicant. In the context of the same plea the applicant
applicant, were none the less reclassified in the higher grade of             argues that the Commission’s assessment that consumers in
the career bracket.                                                           Gibraltar have access to mobile telecommunications services
                                                                              in Spain is manifestly unsound and that there is no suitable
                                                                              alternative to the Commission’s intervention.
(1) Judgment of the Court of First Instance of the European Communi-
    ties of 5 October 1995, published in OJ C 315, 25.11.95, p. 14.
                                                                              The applicant further puts forward a number of procedural
                                                                              and administrative grounds for annulment referring, in this
                                                                              context, to inadequate reasoning and a violation of the
                                                                              applicant’s legitimate expectations which allegedly arose as a
                                                                              result of a letter sent on 7 June 2000 by three members of the
Action brought on 24 December 2003 by Gibtelecom                              Commission to Spain and the United Kingdom, requesting the
Limited against the Commission of the European Com-                           two countries, among other things, to find a solution to the
                              munities                                        complaint about roaming. The applicant further submits, in
                                                                              the context of the same plea, that the Commission has failed
                         (Case T-433/03)                                      to act impartially and that it has breached the principle
                                                                              requiring it to act within a reasonable period.
                          (2004/C 59/46)
                   (Language of the case: English)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 24 December 2003 by Gibtelecom                        Action brought on 24 December 2003 by Gibtelecom
Limited, Gibraltar, represented by Mr M. Llamas, Barrister and                Limited against the Commission of the European Com-
Mr B. O’Connor Solicitor.                                                                                munities
The applicant claims that the Court should:
                                                                                (Case T-434/03)
—      Annul the Commission’s decision of 17 October 2003
       rejecting the complaint brought by Gibtelecom under
                                                                                (2004/C 59/47)
       Article 86 EC in conjunction with Article 82 EC;
—      order the Commission to pay Gibtelecom’s costs.                                            (Language of the case: English)
Pleas in law and main arguments
                                                                              An action against the Commission of the European Communi-
By the contested decision the Commission rejected a complaint                 ties was brought before the Court of First Instance of the
filed by the applicant on 14 May 1996 alleging that the                       European Communities on 24 December 2003 by Gibtelecom
Spanish telecommunications operator, Telefonica SA, had                       Limited, Gibraltar, represented by Mr M. Llamas Barrister and
committed a series of abuses of dominant position contrary to                 Mr B. O’Connor Solicitor.


title: Case C-222/15: Request for a preliminary ruling from the Pécsi Törvényszék (Hungary) lodged on 15 May 2015 — Hőszig Kft. v Alstom Power Thermal Services

text:
               27.7.2015

               EN

               Official Journal of the European Union

               C 245/9

         Request for a preliminary ruling from the Pécsi Törvényszék (Hungary) lodged on 15 May 2015 — Hőszig Kft. v Alstom Power Thermal Services
   (Case C-222/15)
   (2015/C 245/12)
   Language of the case: Hungarian

      Referring court

   Pécsi Törvényszék

      Parties to the main proceedings

      Applicant: Hőszig Kft.

      Defendant: Alstom Power Thermal Services

      Questions referred

               I.

               With regard to Regulation (EC) No 593/2008 (1) of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (‘Regulation No 593/2008’):

                           1.

                           May a court or tribunal of a Member State interpret the expression ‘it appears from the circumstances’ used in Article 10(2) of Regulation No 593/2008 as meaning that the examination of ‘the circumstances which must be taken into consideration’ in order to determine whether it is reasonable to find that a party did not consent, under the law of the State in which the party has his habitual residence, must cover the circumstances of the conclusion of the contract, the subject-matter of the contract and the performance of the contract?

                                       1.1

                                       Must the effect referred to in Article 10(2) resulting from the situation described in the preceding paragraph 1 be interpreted as meaning that when, as a result of the reference made [to the law of the country of habitual residence] by a party, it appears from the circumstances that consent to the law applicable pursuant to paragraph 1 was not a reasonable effect of that party’s conduct, the court must determine the existence and validity of the contractual clause pursuant to the law of the country of habitual residence of the party who made the reference?

                           2.

                           May the court of that Member State interpret Article 10(2) of Regulation No 593/2008 as meaning that the court has a discretion — having regard to all the circumstances of the case — if, in the light of the circumstances to be taken into consideration, consent to the law applicable under Article 10(1) was not a reasonable effect of the party’s conduct?

                           3.

                           If a party — under Article 10(2) of Regulation No 593/2008 — refers to the law of the country in which he has his habitual residence in order to establish that he did not consent, must the court of a Member State take into account the law of the country of habitual residence of that party in the sense that, by virtue of the law of that country, because of the ‘circumstances’ mentioned, the consent of that party to the law chosen in the contract was not reasonable conduct?

                                       3.1

                                       In that case, is an interpretation by a court of a Member State contrary to EU law if, according to that interpretation, the examination of the ‘circumstances’ in order to determine whether it is reasonable to find that a party did not consent covers the circumstances of the conclusion of the contract, the subject-matter of the contract and the performance of the contract?

               II.

               With regard to Council Regulation (EC) No 44/2001 (2) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters:

                           1.

                           Is the interpretation of a court of a Member State contrary to Article 23(1) of Regulation No 44/2001 if, according to it, a specific court must be designated or — having regard to the content of recital 14 in the preamble to that Regulation — is it sufficient if the wish or intention of the parties can be deduced unequivocally from the wording?

                                       1.1

                                       Is the interpretation of a court of a Member State consistent with Article 23(1) of Regulation No 44/2001 if, according to it, a clause conferring jurisdiction, included in the standard contract terms of one of the parties, under which the parties stipulate that disputes arising from or connected with the validity, performance or termination of the order which cannot be settled amicably between the parties are to be subject to the exclusive and final jurisdiction of the courts of a city of a specific Member State — specifically, the courts of Paris — is sufficiently precise, given that the wish or intention of the parties in relation to the designated Member State can be deduced unequivocally from its wording — having regard to the content of recital 14 in the preamble to the Regulation?

      (1)  OJ 2008 L 177, p. 6.

      (2)  OJ 2001 L 12, p. 1.


title: Case T-18/00: Action brought on 20 January 2000 by Serena Angioli and Others v Commission of the European Communities

text:
C 79/40               EN                      Official Journal of the European Communities                                        18.3.2000
    identifies the sudden, violent or abnormal event extraneous          31 January 1997 removing him from his post and ordered the
    to the applicant’s body, namely infection with the HIV               EIB to pay arrears of his remuneration which he should have
    virus in 1995. The committee’s views on the evidence of              received since his dismissal. The EIB appealed that judgment
    the precise cause of the infection are beyond its com-               of the Court of First Instance before the Court of Justice but it
    petence since that is a legal issue.                                 did not consider it relevant to make an application for interim
                                                                         measures, as it could have done, seeking a stay of execution of
(b) Error of law as to the criteria applied to the accident. The         the judgment in question.
    medical committee and the administration took the view
    that the concept of an accident within the meaning of
    Article 73 of the Staff Regulations and Article 2 of the             The EIB did not however uphold any request for a stay of
    Rules required that the event should not be the result of a          execution of the judgment submitted to it by the applicant; it
    freely assumed risk or be unforeseeable, in other words,             moreover made it very clear in its appeal that it did not
    that there should not be any fault or intention associated           consider itself at all required to enforce the judgment of the
    therewith, even though the wording of Article 2 of the               Court of First Instance. The EIB therefore arrogated to itself a
    Rules defining the term accident contains no such con-               power which the law does not provide for, namely, that of
    ditions; they are, rather, included in Articles 4 and 7 on           deciding the appropriateness of complying with a judgment of
    the circumstances in which cover is excluded.                        the court without however taking account of other interests,
                                                                         in particular the harm suffered by the applicant.
(c) Manifest error of appraisal, in that all the conditions for an
    accident provided for in Article 2 of the Rules were met.
                                                                         The applicant argues that failure to comply with the judgment
                                                                         of the Court of First Instance constitutes, on the part of the
                                                                         EIB, a serious failure to fulfil its oblations and misuse of powers
                                                                         and that that conduct by the EIB is causing him extremely
                                                                         serious and irreversible non-material damage inasmuch as it is
                                                                         such as to cast doubts on his professional ability and standing.
Action brought on 18 January 2000 by Michel Hautem
            against the European Investment Bank
                         (Case T-11/00)
                         (2000/C 79/83)
                                                                         Action brought on 20 January 2000 by Serena Angioli
                                                                         and Others v Commission of the European Communities
                   (Language of the case: French)
                                                                                (Case T-18/00)
An action against the European Investment Bank was brought
before the Court of First Instance of the European Communities                                     (2000/C 79/84)
on 18 January 2000 by Michel Hautem, residing in Schouweil-
er (Grand Duchy of Luxembourg) represented by Michel Karp
and Joëlle Choucroun, of the Luxembourg Bar, 84 Grand-Rue.
                                                                                (Language of the case: French)
The applicant claims that the Court should:
                                                                         An action against the Commission of the European Communi-
— order the Bank to pay him by way of reparation for                     ties was brought before the Court of First Instance of the
    non-material damage caused by its failure to comply                  European Communities on 20 January 2000 by Serena Angi-
    with the judgment of the Court of First Instance of                  oli, Claudia Delloye-Lemoine, Ann Perks, Geneviève Courtay
    28 September 1999 or, in the alternative, its refusal to             and Claude Gaspart, resident in Brussels, represented by Eric
    comply with it, the sum of EUR 20 000 or any other                   Boigelot, of the Brussels Bar, with an address for service in
    greater amount which this Court might deem equitable;                Luxembourg at the Chambers of Louis Schiltz, 2 Rue du Fort
                                                                         Rheinsheim.
— order the Bank to pay the costs.
                                                                         The applicants claim that the Court should:
Pleas in law and main arguments
                                                                         — annul the decisions of Roger Fry, head of unit at DG IX,
                                                                              addressed to Ms Courtay 23 March, Ms Delloye on 18 May
The applicant points out that, in its judgment of 28 September                and the other applicants on 31 May 1999 terminating
1999 in Case T-140/97, the Court of First Instance annulled                   their contracts on 30 June 1999 and annulling the renewal
the decision of the European Investment Bank (EIB) of                         date of each applicant’s contract, namely 30 June 1999;
 ---pagebreak--- 18.3.2000              EN                     Official Journal of the European Communities                                        C 79/41
— annul under the last paragraph of Article 8 of the con-                — order the defendant to pay, by way of making good his
    ditions applicable to other servants (CAOS), so far as                    material and non-material damage, damages in an amount
    necessary, the legal classification of the applicants’ con-               to be set by the Court;
    tracts since in reality each of them constitutes a renewal of
    a contract for an indefinite period under Article 2(a) CAOS;         — order the defendant to pay the costs.
— annul the express decision refusing the applications
    brought by the applicants; and
                                                                         Pleas in law and main arguments
— order the defendant to pay the costs.
                                                                         The applicant claims, first of all, that the contested decision is
                                                                         vitiated by a total absence of reasons, which is contrary to the
Pleas in law and main argument                                           second paragraph of Article 25 of the Staff Regulations.
The pleas in law and main arguments are similar to those                 The applicant claims, moreover, that the principle patere legem
advanced by the applicants in Case T-137/99 (1).                         quam ipse fecisti was infringed inasmuch as the contested
                                                                         decision does not comply with the rules which the Director of
                                                                         Cedefop had imposed on himself in his decision of 12 Nov-
(1) OJ C 246 of 28.8.1999, p. 38.                                        ember 1992, on provisions and criteria for the promotion of
                                                                         members of staff at the Centre.
Action brought on 24 January 2000 by David Crabbe
against European Centre for the Development of
                Vocational Training (Cedefop)                            Action brought on 27 January 2000 by A against Com-
                                                                                mission of the European Communities
                          (Case T-21/00)
                                                                                (Case T-23/00)
                          (2000/C 79/85)
                                                                                (2000/C 79/86)
                   (Language of the case: French)
An action against European Centre for the Development of                                    (Language of the case: French)
Vocational Training (Cedefop) was brought before the Court
of First Instance of the European Communities on 24 January
                                                                         An action against the Commission of the European Communi-
2000 by David Crabbe, residing in Perea-Thessaloniki, rep-
                                                                         ties was brought before the Court of First Instance of the
resented by Marc-Albert Lucas, of the Liege Bar, with an
                                                                         European Communities on 27 January 2000 by A, residing in
address for service in Luxembourg at the Chambers of Thewes
                                                                         Saint-Hubert (Belgium), represented by Lucas Vogel, of the
& Reuter, 33 Rue des Capucins.
                                                                         Brussels Bar, with an address for service in Luxembourg at the
                                                                         Chambers of Christian Kremer, 6 Rue Heinrich Heine.
The applicant claims that the Court should:
                                                                         The applicant claims that the Court should:
— annul the decision of the Director of Cedefop not to
    promote him to grade A 5 or LA 5 in the 1998 promotion
    procedure, as evidenced by his memorandum of 12 May                  — annul the express decision of 4 November 1999 (notified
    1999 publishing the list of promoted officials;                           on 28 October 1999) rejecting the complaint lodged by the
                                                                              applicant on 22 July 1999 with the appointing authority
— annul the decision of the Director of Cedefop impliedly                     challenging it’s decision of 23 April 1999 ordering against
    rejecting his administrative compliant of 14 June 1999                    the applicant the disciplinary measure of removal from
    against the earlier decision, deemed to have been taken on                post, without reduction or withdrawal of entitlement to
    14 October 1999 by operation of the second indent of                      retirement pension;
    Article 90(2) of the Staff Regulations in the absence of a
    reply to that complaint four months after it was lodged;             — order the defendant to pay the costs.


title: Case T-248/10: Judgment of the General Court of 16 October 2013 — Italy v Commission (Languages — Notice of open competition for the recruitment of administrators — Choice of second language from three languages — Regulation No 1/58 — Article 1d(1), Article 27, first paragraph, and Article 28(f) of the Staff Regulations — Article 1(1)(f) of Annex III to the Staff Regulations — Obligation to state reasons — Principle of non-discrimination)

text:
               30.11.2013

               EN

               Official Journal of the European Union

               C 352/11

         Judgment of the General Court of 16 October 2013 — Italy v Commission
   (Case T-248/10) (1)

   (Languages - Notice of open competition for the recruitment of administrators - Choice of second language from three languages - Regulation No 1/58 - Article 1d(1), Article 27, first paragraph, and Article 28(f) of the Staff Regulations - Article 1(1)(f) of Annex III to the Staff Regulations - Obligation to state reasons - Principle of non-discrimination)
   2013/C 352/19
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: G. Palmieri, acting as Agent, assisted by P. Gentili, avvocato dello Stato)

      Defendant: European Commission (represented initially by J. Currall, J. Baquero Cruz and B. Eggers, subsequently by J. Currall and G. Gattinara, acting as Agents)

      Re:

   Action for annulment of the notice of open competition EPSO/AD/177/10 — Administrators (AD 5), in the fields of European Public Administration, Law, Economics, Audit, and Information and Communication Technology (ICT) (OJ 2010 C 64A, p. 1)

      Operative part of the judgment

   The Court:

               1.

               Annuls the notice of open competition EPSO/AD/177/10 — Administrators (AD 5), in the fields of European Public Administration, Law, Economics, Audit, and Information and Communication Technology (ICT);

               2.

               Orders the European Commission to pay, in addition to its own costs, those incurred by the Italian Republic.

      (1)  OJ C 209, 31.7.2010.


title: Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 106, 30.4.2004

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/54

         (2004/C 118/118)
   Last publication of the Court of Justice in the
         Official Journal of the European Union

         OJ C 106, 30.4.2004

   Past publications

      OJ C 94, 17.4.2004

      OJ C 85, 3.4.2004

      OJ C 71, 20.3.2004

      OJ C 59, 6.3.2004

      OJ C 47, 21.2.2004

      OJ C 35, 7.2.2004

   These texts are available on:

               EUR-Lex:http://europa.eu.int/eur-lex

               CELEX:http://europa.eu.int/celex