title: Case T-352/02: Action brought on 25 November 2002 by Creative Technology Limited against the Office for Harmonization in the Internal Market

text:
C 19/42               EN                     Official Journal of the European Communities                                         25.1.2003
Pleas in law and main arguments                                         The applicant finally invokes a violation of the principle
                                                                        of equal treatment. According to the applicant, an earlier
                                                                        modification of the annex was applicable irrespective of
                                                                        the date of importation without there being any objective
                                                                        differences justifying this different treatment.
The applicant is engaged in the sale and distribution of
professional camera models produced by its Japanese parent              (1 ) Council Regulation (EC) No 1696/2002 of 23 September 2002
company, Ikegami Tsushinki Co Ltd.                                           amending the Annex to Regulation (EC) No 2042/2000 imposing
                                                                             a definitive anti-dumping duty on imports of television camera
                                                                             systems originating in Japan (OJ L 259, p. 1).
                                                                        (2 ) Council Regulation (EC) No 2042/2000 of 26 September 2000
                                                                             imposing a definitive anti-dumping duty on imports of television
                                                                             camera systems originating in Japan (OJ L 244, p. 38).
The applicant seeks annulment of Article 2 of Council                   (3 ) Council Regulation (EC) No 384/96 of 22 December 1995 on
Regulation (EC) No 1696/2002 ( 1), amending the annex to                     protection against dumped imports from countries not members
Council Regulation (EC) No 2042/2000 (2) imposing a defini-                  of the European Community (OJ L 56, p. 1).
tive anti-dumping duty on imports of television camera                  (4 ) Uruguay Round of Multilateral Trade Negotiations (1986- 1994)
systems originating in Japan, to the extent that it limits the               — Annex 1 — Annex 1A — Agreement on Implementation of
application of the decision to imports of models from the date               Article VI of the General Agreement on Tariffs and Trade 1994
of receipt by the Commission of the request for exemption,                   (WTO-GATT 1994) (OJ L 336, p. 103).
namely 12 October 2001.
The applicant submits that professional camera models which
cannot be qualified as broadcast cameras were excluded from             Action brought on 25 November 2002 by Creative
the scope of the anti-dumping measures by the investigation             Technology Limited against the Office for Harmonization
which found dumping and injury to the Community Industry                                        in the Internal Market
for broadcast cameras. Regulation 1696/2002 recognizes that
the models in question, listed in the annex, cannot be qualified                                    (Case T-352/02)
as broadcast cameras. According to the applicant however, the
regulation limits the temporal application of the exclusion
from the anti-dumping measure for those models and indicates                                         (2003/C 19/79)
that anti-dumping duties are to be imposed on any imports of
those models prior to 12 October 2001. Therefore, the                                        (Language of the case: English)
applicant claims that the decision contained in article 2 of
Regulation No 1696/2002 constitutes a violation of Council
Regulation (EC) No 384/96 on protection against dumped
imports from countries not members of the European Com-                 An action against the Office for Harmonization in the Internal
munity ( 3), as amended, and the WTO anti-dumping code ( 4),            Market was brought before the Court of First Instance of the
according to which the imposition of anti-dumping duties is             European Communities on 25 November 2002 by Creative
only allowed on products included in the scope of an                    Technology Limited, Singapore, represented by Dr Michael
investigation and injury caused by those products.                      Edenborough, barrister, Mr Stephen Jones, solicitor, and Mr
                                                                        Paul Rawlinson, solicitor.
                                                                        A further party to the proceedings before the Board of Appeal
The applicant furthermore invokes the arbitrariness of the              was Mr José Vila Ortiz, Valencia, Spain. The applicant claims
contested decision and a manifest error of assessment. Accord-          that the Court should:
ing to the applicant, the contested decision presumes that
imports prior to the date of the request must have been                 —      order that the Community trade park application No 673
professional cameras which could be qualified as broadcast                     327 proceed to registration;
cameras, and therefore subject to anti-dumping duties. This
presumption is arbitrary since no basis is set forth for this           —      annul the decision of the Opposition Division No 154/
conclusion and the objective findings in Regulation 1696/                      2001;
2002 in fact support the opposite conclusion. The applicant
also indicates that there is no serious risk of circumvention of        —      annul the decision of the Fourth Board of Appeal No R
the anti-dumping duties if the decision were applicable regard-                265/2001-4;
less of the date of importation. Given that the regulation
confirms that the models are not broadcast cameras, there is            —      order that the opponent pays to the applicant the costs
no reason why the importer would declare the models as                         incurred bu the applicant in connection with this appeal
broadcast cameras which are subject to the anti-dumping                        and the appeal before the Board of Appeal and the
duties.                                                                        opposition before the Opposition Division.
 ---pagebreak--- 25.1.2003             EN                      Official Journal of the European Communities                                         C 19/43
Pleas in law and main arguments                                          European Communities on 3 December 2002 by Chum
                                                                         Limited, Toronto (Canada), represented by Michael Gilbert,
                                                                         Solicitor. A further party to the proceedings before the Board
Applicant for the Com-        Creative Technology Limited.
                                                                         of Appeal was Star TV AG, Schlieren (Switzerland).
munity trade mark:
The Community trade           the community trade mark appli-
mark concerned:               cation No 673327 for the word              The applicant claims that the Court should:
                              mark ‘PC WORKS’ for goods in
                              class 9 (apparatus for recording,
                                                                         —     set aside the Decision of the Second Board of Appeal of
                              transmitting and reproducing                     OHIM, dated 17th September, 2002 in Appeal No.
                              sound or images, loudspeakers, a.
                                                                               R1140/2000-2,
                              o.).
Proprietor of the right to    Mr José Vila Ortiz.                        —     order that the Community Trade Mark application No.
the trade mark or sign                                                         890145 be registered for the services in Class 38 and
asserted by way of oppo-                                                       Class 41,
sition in the opposition
proceedings:                                                             —     order that costs be awarded to the Applicant in this
                                                                               Appeal, in Appeal No. R1140/2000-2 and in Opposition
Trade mark or sign            the Spanish figurative mark ‘W                   No. 184525.
asserted by way of oppo-      WORK PRO’, registered under
sition in the opposition      No 1925320, in relation to goods
proceedings:                  in class 9 (sound electronical
                              equipments, loudspeakers, sound
                              reproducing apparatus, a. o.).             Pleas in law and main arguments
Decision of the Oppo-         Rejection of the Community trade
sition Division:              mark application.                          Applicant for the Com-        Chum Limited
                                                                         munity Trade-mark:
Decision of the Board of      Dismissal of the appeal brought
Appeal:                       by Creative Technology Limited.
                                                                         The Community trade-          Word mark ‘STAR TV’ — appli-
Grounds of claim:             the applicant submits that undue           mark concerned:               cation No 890145, relating to
                              weight was given to the common                                           goods in classes 38 and 41.
                              element ‘Work’ in both marks
                              and insufficient consideration was         Proprietor of the right to    Star TV AG
                              given to the fact that the goods in        the trade mark or sign
                              question are only bought after             asserted by way of oppo-
                              careful examination of the fea-            sition in the opposition
                              tures of the goods, thus reducing          proceedings:
                              the likelihood of confusion
                              amongst the relevant public.               Trade-mark or sign            Figurative trade-mark composed
                                                                         asserted by way of oppo-      of the words ‘STAR TV’ superpos-
                                                                         sition in the opposition      ing a big black and white star,
                                                                         procedings:                   accompanied by 3 smaller stars
                                                                                and a small moon (international
                                                                                registration No 638769, covering
                                                                                Austria, Germany, the Benelux,
                                                                                France and Italy), relating to goods
Action brought on 3 December 2002 by Chum Limited
                                                                                in classes 38 and 41.
against the Office for Harmonisation in the Internal
                             Market
                                                                         Decision of the Oppo-         Rejection of the Community Tra-
                                                                         sition Division:              de-mark.
                        (Case T-359/02)
                                                                         Decision of the Board of      Refusal of the Appeal.
                         (2003/C 19/80)                                  Appeal:
                  (Language of the case: English)                        Grounds of the claim:         Incorrect application of Article
                                                                                8(1)(b) of Regulation (EC) No 40/
                                                                                94.
An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the


title: Case C-152/00: Action brought on 19 April 2000 by the Commission of the European Communities against the French Republic

text:
C 176/14                EN                     Official Journal of the European Communities                                    24.6.2000
— By having ceased, with effect from the 1995 bathing                         (b) Council Directive 97/76/EC of 16 December 1997 (2)
     season, measuring the ‘total coliform’ parameter, despite it                  amending Directive 77/99/EEC and Directive
     still being part of the applicable Community legislation                      72/462/EEC with regard to the rules applicable to
     concerning bathing water quality, the French authorities                      minced meat, meat preparations and certain other
     have infringed a clear obligation incumbent upon them                         products of animal origin;
     under Articles 3, 4, 5 and 6 of the directive. The technical
     arguments deployed by the said authorities to justify
     their choice cannot justify, by themselves, the unilateral               (c) Commission Directive 98/51/EC of 9 July 1998 (3)
     abandonment of a clear and incontestable obligation under                     laying down certain measures for implementing
     Community law. Article 7 of the directive offers Member                       Council Directive 95/69/EC laying down the con-
     States the possibility of taking stricter measures than those                 ditions and arrangements for approving and registering
     provided for; measuring additional parameters would thus                      certain establishments and intermediaries operating in
     be in conformity with the requirements of the directive.                      the animal feed sector;
     The same cannot be said for the replacement of a
     mandatory with a non-mandatory parameter or for the                      and by failing to communicate such provisions, it has
     abandonment of one of the mandatory parameters.                          failed to fulfil its obligations under those directives and
                                                                              under the Treaty.
     Finally, the Commission points out that the unilateral
     abandonment of a parameter also affects the results
     included in the annual report on the bathing waters of the           2. order the Italian Republic to pay the costs.
     European Union by removing one factor for comparison.
     That situation moreover is unhelpful and confuses the
     person in the street as well as the media which report on
     water quality on the basis of that source.                           Pleas in law and main arguments
(1) Council Directive 76/160/EEC of 8 December 1975 concerning            Article 189 of the EC Treaty (now Article 249 EC), under
    the quality of bathing water (OJ 1976 L 31, p. 1).                    which a directive is binding, as to the result to be achieved,
                                                                          upon the Member State to which it is addressed, entails an
                                                                          obligation on Member States to adhere to the time-limits for
                                                                          transposition laid down by a directive. Those time-limits
                                                                          expired without the Italian Republic’s having enacted the
                                                                          provisions necessary to comply with the directives cited by the
                                                                          Commission in its application.
Action brought on 18 April 2000 by the Commission of
  the European Communities against the Italian Republic                   (1) OJ 1997 L 184, p. 33.
                                                                          (2) OJ 1998 L 10, p. 25.
                                                                          (3) OJ 1998 L 208, p. 43.
                          (Case C-148/00)
                          (2000/C 176/24)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 18 April
2000 by the Commission of the European Communities,
represented by Stefania Dragone and Francesco P. Ruggeri
Laderchi, of its Legal Service, acting as Agents, with an address
for service in Luxembourg at the office of Carlos Gómez de la            Action brought on 19 April 2000 by the Commission of
Cruz, Wagner Centre, Kirchberg.                                            the European Communities against the French Republic
The applicant claims that the Court should:                                                        (Case C-152/00)
1. declare that, by failing to adopt the laws, regulations and
                                                                                (2000/C 176/25)
     administrative provisions necessary to comply with
     (a) Council Directive 97/41/EC of 25 June 1997 (1)                   An action against the French Republic was brought before the
          amending Directives 76/895/EEC, 86/362/EEC,                     Court of Justice of the European Communities on 19 April
          86/363/EEC and 90/642/EEC relating to the fixing of             2000 by the Commission of the European Communities,
          maximum levels for pesticide residues in and on,                represented by Léna Ström and Jean-Francis Pasuier, Legal
          respectively, fruit and vegetables, cereals, foodstuffs of      Advisers, acting as Agents, with an address for service in
          animal origin, and certain products of plant origin,            Luxembourg at the office of Carlos Gómez de la Cruz, of its
          including fruit and vegetables;                                 Legal Service, Wagner Centre, Kirchberg.
 ---pagebreak--- 24.6.2000              EN                    Official Journal of the European Communities                                       C 176/15
The Commission of the European Communities claims that                  Action brought on 25 April 2000 by the Commission of
the Court should:                                                       the European Communities against the Hellenic Republic
— Declare that, by failing to transpose fully and correctly
    Council Directive 86/609/EEC of 24 November 1986 on                                         (Case C-154/00)
    the approximation of laws, regulations and administrative
    provisions of the Member States regarding the protection
    of animals used for experimental and other scientific
    purposes (1), and in particular Articles 4, 7, 11, 12, 18 and                               (2000/C 176/26)
    22 thereof, the French Republic has failed to fulfil its
    obligations under that directive and under the Treaty
    establishing the European Community;
                                                                        An action against the Hellenic Republic was brought before
                                                                        the Court of Justice of the European Communities on 25 April
— Order the French Republic to pay the costs.                           2000 by the Commission of the European Communities,
                                                                        represented by Maria Patakia, of its Legal Service, with an
                                                                        address for service in Luxembourg at the office of Carlos
                                                                        Gómez de la Cruz, of its Legal Service, Wagner Centre,
Pleas in law and main arguments                                         Kirchberg.
— Failure to transpose Article 4 and incomplete transposition
    of Article 7(3) of the directive: the provisions and pro-
    cedures notified by the French authorities, taken as a              The Commission claims that the Court should:
    whole, cannot be regarded as correctly transposing Articles
    4 and 7(3). It is clear from the presentation given by the
    French authorities that the procedures employed by the              — declare that, by failing to lay down in the national law for
    Ministry of the Environment when reviewing an appli-                    the implementation of Directive 85/374/EEC (1) the lower
    cation for authorisation amount to nothing more than                    threshold of ECU 500 prescribed in Article 9(b) of
    administrative practice and cannot be regarded as consti-               that directive, the Hellenic Republic has only partially
    tuting proper performance of the obligations which, under               implemented Article 9(b) of Directive 85/374/EEC;
    Article 249 of the Treaty, fall upon the Member States to
    which the directive is addressed.
                                                                        — order the Hellenic Republic to pay the costs.
— Failure to transpose Article 11 of the directive: the
    Commission submits that Article 2(b) of Decree No 87-
    848 cannot be regarded as transposing Article 11 of the
    directive, in that the freeing of laboratory animals, within        Pleas in law and main arguments
    the meaning of the directive, is not governed by legally
    binding provisions.
— Incomplete transposition of Article 12(2) of the directive:           It is not open to a Member State to substitute its own
    no French provisions exist which call for the declaration           assessment with regard to the protection accorded to the
    or the authorisation required under Article 12(2) for               various interests by the Community legislature, and in particu-
    experiments which entail severe pain which is likely to be          lar it may not increase the strict liability of the producer
    prolonged.                                                          beyond the limits laid down by the directive.
— Failure to transpose Article 18(1) and (3) of the directive:
    there is nothing in the reply given by the French authorities       As the Commission also observes in its reasoned opinion, the
    to indicate that these provisions have been fully transposed.       lower threshold of ECU 500 which is prescribed in Article 9(b)
                                                                        of the directive is not optional or a ‘minimum protection
                                                                        clause’ but lays down a single and uniform system for all the
— Failure to transpose Article 22(1) of the directive: as regards       Member States, restricting the directive’s field of application to
    recognition of the validity of data generated by experiments        material damage which exceeds the abovementioned amount.
    carried out within the territory of another Member State,
    no definitive text has yet been sent to the Commission.
                                                                        (1) OJ L 210, 7.8.1985, p. 29.
(1) OJ 1986 L 358, p. 1.


title: Case C-2/01 P: Appeal brought on 5 January 2001 by the Bundesverband der Arzneimittel-Importeure e.V. against the judgment delivered on 26 October 2000 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-41/96 between Bayer AG, supported by the European Federation of Pharmaceutical Industries' Associations and the Commission of the European Communities, supported by the Bundesverband der Arzneimittel-Importeure e.V.

text:
C 79/14                EN                      Official Journal of the European Communities                                      10.3.2001
—     (In the event that the Court considers that the concept of          —     order the plaintiff to pay the costs of the proceedings,
      aid as contained in Article 4(c) of the ECSC Treaty is the                including those incurred by the Bundesverband der
      same as that in Article 87 EC:)                                           Arzneimittel-Importeure e.V. through its intervention,
                                                                                but excluding the costs of the intervention of the
      Non-existence of aid within the meaning of Article 87                     European Federation of Pharmaceutical Industries’ Associ-
      EC: it is characteristic of fiscal rules that they should be              ations, which the latter should bear itself.
      aimed at the achievement of general economic policy
      objectives. The Spanish fiscal rules in issue are designed
      to promote the internationalisation of undertakings. The
      deductibility for tax purposes does not, however, depend
      on the volume of exports; nor does it have any manifest
      effect on pricing. Its effect, like that of the other tax
      exemptions proposed, is limited to the actual amount of
      the sum assessed to tax. Nor can it simply be said that the         Pleas in law and main arguments
      taxable steelworks in Spain will be given an advantage
      over those in other countries, since it is necessary to take
      into account all factors which affect the actual taxation
      of those liable to tax. Even assuming that the measures             —     Failure to take full account of the facts as found by the
      applying in certain Member States are not analogous to                    Commission: The Court held that there was no agreement
      those under consideration in the present case, the actual                 because, as it found, Bayer did not carry out any
      tax burden on taxable steelworks in Spain may be said to                  monitoring of the final destination of the goods supplied
      be lower than that in other Member States.                                to the French and Spanish wholesalers. In fact, however,
                                                                                as is apparent from the documents submitted by the
                                                                                Commission, such controls did take place, even if in some
                                                                                cases only by way of spot checks.
                                                                          —     Erroneous assessment of the evidence owing to a disre-
Appeal brought on 5 January 2001 by the Bundesverband                           gard of the rules on the burden of proof: The Court of
der Arzneimittel-Importeure e.V. against the judgment                           First Instance wrongly perceived the burden of proof that
delivered on 26 October 2000 by the Fifth Chamber,                              an unlawful agreement came into being between Bayer
Extended Composition, of the Court of First Instance of                         and the wholesalers concerned in Spain and France as
the European Communities in Case T-41/96 between                                lying with the Commission. The wholesalers were aware
Bayer AG, supported by the European Federation of                               that Bayer’s intention was to impose quotas on quantities
Pharmaceutical Industries’ Associations and the Com-                            supplied with the aim of stopping exports. They were
mission of the European Communities, supported by the                           directly confronted with that demand for the imposition
     Bundesverband der Arzneimittel-Importeure e.V.                             of quotas. They then became involved in the imposition
                                                                                of quotas on supply quantities. There was no need for
                          (Case C-2/01 P)                                       any further proof by the Commission that that was done
                                                                                for the purpose of hindering exports. On a proper legal
                                                                                assessment, it follows from the undisputed facts that the
                          (2001/C 79/25)                                        evidence collected by the Commission is already prima
                                                                                facie sufficient to prove the existence of a corresponding
                                                                                agreement.
An appeal against the judgment delivered on 26 October 2000
by the Fifth Chamber, Extended Composition, of the Court of
First Instance of the European Communities in Case T-41/96 (1)
between Bayer AG, supported by the European Federation of
Pharmaceutical Industries’ Associations and the Commission                —     Misapplication of the concept of an agreement: For an
of the European Communities, supported by the Bundesver-                        appraisal of Article 81 EC, it is sufficient that the
band der Arzneimittel-Importeure e.V. was brought before the                    wholesalers became involved in the demands of Bayer
Court of Justice of the European Communities on 5 January                       that exports be restricted.
2001 by the Bundesverband der Arzneimittel-Importeure
e.V., represented by U. Zinsmeister and W.A. Rehmann,
Rechtsanwälte, with an address for service in Luxembourg.
                                                                                The mere fact that wholesalers initially refused to bend to
The appellant claims that the Court should:                                     Bayer’s policy and made attempts to circumvent it, does
                                                                                not, under the case-law of the Court of Justice, mean that
—     set aside the decision of the Court of First Instance of                  there was no concordance of wills. Rather, the latter can
      26 October 2000 in Case T-41/96 and dismiss the claim                     be inferred from the way in which the wholesalers
      by the plaintiff at first instance, or in the alternative refer           eventually behaved, which the Court established. The
      the matter back to the Court of First Instance;                           wholesalers accepted the quota measures.
 ---pagebreak--- 10.3.2001               EN                     Official Journal of the European Communities                                          C 79/15
      Finally, the Court of First Instance took no account of             Pleas in law and main arguments
      the fact that the dependence of wholesalers on the
      pharmaceutical manufacturers leads to a situation com-
      parable to cases of selective distribution systems. As in           —     Excessively restrictive interpretation of the concept of an
      those cases, where continuous business relations exist the                agreement to prohibit exports within the meaning of
      imposition of quotas is generally capable of hindering the                Article 85(1) of the Treaty, in that, in this case, the Court
      free movement of goods inside the European Communi-                       saw the requirements for an intended prohibition on
      ties and adversely affecting competition in the Member                    exports by the manufacturer as being fulfilled only if the
      States.                                                                   manufacturer subsequently monitored whether traders had
                                                                                exported products and reduced supplies as a sanction in
                                                                                that event (without taking account of the fact that, in this
                                                                                case, Bayer applied the sanction of reducing supplies in
(1) Not yet published in the Official Journal.                                  advance, as a preventive measure, when it appeared likely
                                                                                that exports would take place).
                                                                          —     Excessively restrictive interpretation of the concept of an
                                                                                agreement to prohibit exports within the meaning of
                                                                                Article 85(1) of the Treaty, in that, in this case, the Court
                                                                                saw the requirements for an intended prohibition on
                                                                                exports by the manufacturer as being fulfilled only if the
                                                                                manufacturer demanded a particular line of conduct from
                                                                                its dealers or attempted to force their consent to the
Appeal brought on 5 January 2001 by the Commission of                           implementation of its policy designed to reduce parallel
the European Communities against the judgment deliver-                          imports (without taking account of the fact that the
ed on 26 October 2000 by the Fifth Chamber, Extended                            dealers understood and could only understand Bayer’s supply
Composition, of the Court of First Instance of the Euro-                        behaviour as a demand for a certain line of conduct,
pean Communities in Case T-41/96 between Bayer AG,                              namely the placing of orders henceforward only in
supported by the European Federation of Pharmaceutical                          respect of national needs).
Industries’ Associations and the Commission of the Euro-
pean Communities, supported by the Bundesverband der
                 Arzneimittel-Importeure e.V.                             —     Distortion of evidence or failure to take it into account,
                                                                                in that — although the opposite is immediately obvious
                                                                                from the files — the Court held it unproven that the
                          (Case C-3/01 P)                                       wholesalers wished to pretend to Bayer that they were
                                                                                henceforth ordering only in respect of national needs.
                          (2001/C 79/26)
                                                                          —     Erroneous interpretation of the concept of an agreement
                                                                                within the meaning of Article 85(1) of the EC Treaty in
An appeal against the judgment delivered on 26 October 2000                     that the Court saw the requirements for a concurrence of
by the Fifth Chamber, Extended Composition, of the Court of                     wills as not being fulfilled because the declared will of the
First Instance of the European Communities in Case T-41/96 (1)                  wholesalers (ordering only for national needs) did not
between Bayer AG, supported by the European Federation of                       correspond with the real will of the wholesalers (ordering
Pharmaceutical Industries’ Associations and the Commission                      for export purposes also).
of the European Communities, supported by the Bundesver-
band der Arzneimittel-Importeure e.V. was brought before the
                                                                          —     Erroneous application of Article 85(1) of the Treaty, in
Court of Justice of the European Communities on 5 January
                                                                                that — despite the fact that Bayer’s supply policy designed
2001 by the Commission of the European Communities,
                                                                                to prevent parallel imports formed part of continuous
represented by K. Wiedner and W. Wils, acting as agents,
                                                                                business relations in the context of general agreements
assisted by H.-J. Freund, Rechtsanwalt, with an address for
                                                                                previously made, and despite clear parallels between the
service in Luxembourg.
                                                                                distribution of pharmaceutical products in France and
                                                                                Spain and selective distribution systems — the Court
The appellant claims that the Court should:                                     additionally required that a subjective element on the part
                                                                                of the dealers be established, having as its subject-matter
                                                                                a concurrence of wills in relation to the implementation
1.    set aside in its entirety the judgment of the Court of First              of the policy referred to.
      Instance of 26 October 2000 in Case T-41/96 (1) and
      dismiss the claim by Bayer for the annulment of Com-
      mission Decision 96/478/EC of 10 January 1996 relating
      to a proceeding under Article 85 of the EC Treaty (Case             (1) Not yet published in the Official Journal.
      IV/34.279/F3 — Adalat);
2.    order Bayer to pay the costs before the Court of Justice
      and the Court of First Instance.


title: JUDGMENT OF THE COURT (First Chamber) of 28 March 1996 in Case C-272/94 (reference for a preliminary ruling from the Tribunal Correctionnel, Arlon (Belgium)): criminal proceedings before that court against Michel Guiot and Climatec SA (Employer's contributions - Loyalty stamps - Bad-weather stamps - Freedom to provide services)

text:
22 . 6 . 96           EN                   Official Journal of the European Communities                                  No C 180/ 11
     obtaining a supply of services, which are necessary for                          JUDGMENT OF THE COURT
     the accomplishment of the Communities ' task, and the                                     ( Sixth Chamber )
     amount ofwhich exceeds the threshold laid down by the
     legislation in question.                                                                of 28 March 1996
                                                                      in Case C-299/94 ( reference for a preliminary ruling from
                                                                      the High Court of Ireland ): Anglo Irish Beef Processors
(M OJ No C 233 , 20 . 8 . 1994 .
                                                                      International and Others v. Minister for Agriculture, Food
                                                                                and Forestry (')
                                                                      (Differentiated export refunds — Force majeure —
                                                                      Additional security — Release of security — Resolution of
                                                                                the UN Security Council)
                                                                                ( 96/C 180/22 )
               JUDGMENT OF THE COURT
                        ( First Chamber)
                                                                                (Language of the case: English)
                      of 28 March 1996
in Case C-272/94 ( reference for a preliminary ruling from            In Case C-299/94 : reference to the Court under Article 177
the Tribunal Correctionnel, Arlon ( Belgium )): criminal              of the EC Treaty from the High Court of Ireland for a
proceedings before that court against Michel Guiot and                preliminary ruling in the proceedings pending before that
                         Climatec SA ( 1 )                            court between Anglo Irish Beef Processors International and
 (Employer's contributions — Loyalty stamps —                         Others and Minister for Agriculture , Food and Forestry —
    Bad-weather stamps — Freedom to provide services)                 on the interpretation and validity of Council Regulation
                          ( 96/C 180/21 )                              ( EEC ) No 2340/90 of 8 August 1990 preventing trade by the
                                                                      Community as regards Iraq and Kuwait ( OJ No L 213 ,
                                                                       1990, p . 1 ) and Commission Regulation ( EEC ) No 3665/87
                (Language of the case: French)                        of 27 November 1987 laying down common detailed rules
                                                                      for the application of the system of export refunds on
                                                                      agricultural products ( OJNo L 351 , 1987, p . 1 ), as amended
 (Provisional translation; the definitive translation will be          by Commission Regulation ( EEC ) No 354/90 of 9 February
          published in the European Court Reports)                     1990 ( OJ No L 38 , 1990, p . 34 ), the Court ( Sixth Chamber),
                                                                      composed of C. N. Kakouris, President of the Chamber, G.
                                                                       Hirsch, G. F. Mancini , F. A. Schockweiler and P. J. G.
 In Case C-272/94 : reference to the Court under Article 177           Kapteyn ( Rapporteur ), Judges ; A. La Pergola ,
 of the EC Treaty from the Tribunal Correctionnel ( Criminal           Advocate-General ; L. Hewlett, Administrator, for the
 Court ), Arlon, for a preliminary ruling in the criminal              Registrar, gave a judgment on 28 March 1 996 , the operative
 proceedings before that court against Michel Guiot and                part of which is as follows :
 Climatec SA, as employer liable at civil law — on the
 interpretation of Articles 59 and 60 of the EC Treaty — the
 Court ( First Chamber ), composed of D. A. O. Edward                   1 . Article 33 (5) of Commission Regulation (EEC)
 ( Rapporteur ), President of the Chamber, P. Jann and L.                   No 3665/87 of 27 November 1987 laying down
 Sevôn, Judges; G. Tesauro, Advocate-General; H. A. Riihl,                  common detailed rules for the application of the system
 Principal Administrator, for the Registrar, gave a judgment                of export refunds on agricultural products, as amended
 on 28 March 1996 , the operative part of which is as                       by Commission Regulation (EEC) No 354/90 of
 follows :
                                                                            9 February 1990, is to be interpreted as meaning that
                                                                            where, owing to force majeure , goods do not reach their
                                                                            intended country of destination but are exported to
 Articles 59 and 60 of the EC Treaty preclude a Member                      other non-member countries which qualify for a lower
 State from requiring an undertaking established in another                 export refund or none at all, the security forfeited is to be
 Member State and temporarily carrying out works in the                     equal to the difference between the amount ofthe refund
 first-mentioned Member State to pay employers                              paid in advance, and that of the refund actually due.
 contributions in respect of loyalty stamps and bad-weather
 stamps with respect to workers assigned to carry out those
 works, where that undertaking is already liable for
 comparable contributions, with respect to the same workers             2 . Consideration ofRegulation (EEC) No 3665/87 has not
 and for the same period of work, in the State where it is                  disclosed any factor capable of affecting its validity.
 established.
                                                                        (M OJ No C 386 , 31 . 12 . 1994 .
 (M OJ No C 316 , 12 . 11 . 1994 .


title: Case C-367/17: Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 13 June 2017 — S v EA and Others

text:
               4.9.2017

               EN

               Official Journal of the European Union

               C 293/17

         Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 13 June 2017 — S v EA and Others
   (Case C-367/17)
   (2017/C 293/21)
   Language of the case: German

      Referring court

   Bundespatentgericht

      Parties to the main proceedings

      Applicant: S

      Opponents: EA, EB, EC

      Questions referred

               1.

               Is the decision on an application lodged with the competent national authority (in this case, the Deutsches Patent- und Markenamt (German Patent and Trade Mark Office)) on 15 February 2007 for an amendment to the specification of a protected geographical indication to the effect that the slicing and packaging of the product (in this case, Schwarzwälder Schinken) may take place only in the production area to be taken on the basis of Regulation No 510/2006 (1), which was in force at the time of the application, or on the basis of Regulation No 1151/2012 (2), which is the legislation currently in force at the time of the decision?

               2.

               If the decision is to be taken on the basis of Regulation No 1151/2012 which is currently in force:

                           2.1

                                       (a)

                                       Does the fact that incorrect transportation of the product to other areas for the purposes of further processing (slicing and packaging) may have a harmful effect on its authentic flavour, authentic quality and durability represent, from the point of view of quality assurance of the product, a sufficient product-specific justification within the meaning of Article 7(1)(e) of Regulation No 1151/2012 such that slicing and packaging may take place only in the production area?

                                       (b)

                                       Do requirements for slicing and packaging set out in the specification which do not go beyond the applicable food hygiene standards represent, from the point of view of quality assurance of the product, a sufficient product-specific justification within the meaning of Article 7(1)(e) of Regulation No 1151/2012 such that slicing and packaging may take place only in the production area?

                           2.2

                                       (a)

                                       Can a sufficient product-specific justification within the meaning of Article 7(1)(e) of Regulation No 1151/2012 be seen in principle, for the rule laid down in the specification for a protected geographical indication that slicing and packaging may take place only in the production area, in the fact that the (producer) controls that are then possible in that regard in the production area (Article 7(1)(g), in conjunction with Article 36(3)(a) and Article 37, of Regulation No 1151/2012) offer a greater frequency of controls and generally a better guarantee than (abuse) controls for the purposes of Article 36(3)(b), in conjunction with Article 38, of Regulation No 1151/2012?

                                       (b)

                                       If subquestion (a) is answered in the negative:
                                       Is a different assessment justified if the product in question is also a product with strong supra-regional demand which is sliced and packaged to a large extent outside the production area, even if specific instances of improper use of the protected geographical indication for the purposes of Article 13 of Regulation No 1151/2012 have not been established to date?

                           2.3

                           Can a sufficient product-specific justification within the meaning of Article 7(1)(e) of Regulation No 1151/2012 be seen, for the rule laid down in a specification for a protected geographical indication that slicing and packaging may take place only in the production area, in the fact that otherwise the traceability of the further processed product cannot be guaranteed with certainty?
                           In this context, is it relevant that:

                                       (a)

                                       the traceability of food, in particular that of animal origin, must be guaranteed, in accordance with Article 18(1) of Regulation (EC) No 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (3), in conjunction with Commission Implementing Regulation (EU) No 931/2011 on the traceability requirements set by Regulation (EC) No 178/2002 of the European Parliament and of the Council for food of animal origin (4);

                                       (b)

                                       the traceability of the product must be guaranteed through the participation of the processors of the product in legally voluntary but de facto compulsory private safeguard systems?

                           2.4

                           If any of Questions 1 to 3 is answered in the affirmative:
                           Can or must it be laid down in a specification for a protected geographical indication — as a less onerous measure compared to the compulsory shifting back of slicing and packaging to the production area — that the processors of the product established outside the production area must be subject in that regard to a control carried out by the authorities and bodies competent under the specification for the controls in the production area (Article 7(1)(g) of Regulation No 1151/2012)?

               3.

               If the decision is to be taken on the basis of Regulation No 510/2006 (see Question 1), the referring court asks that the questions set out in 2. above be answered on the basis of Regulation No 510/2006, in particular Article 4(2)(e) of that regulation in conjunction with Article 8 and recital 8 of Commission Regulation (EC) No 1898/2006 laying down detailed rules of implementation of Council Regulation (EC) No 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (5).

      (1)  Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12).

      (2)  Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1).

      (3)  OJ 2002 L 31, p. 1.

      (4)  OJ 2011 L 242, p. 2.

      (5)  OJ 2006 L 369, p. 1.


title: Case F-141/14: Action brought on 24 December 2014  — ZZ v Commission

text:
               16.3.2015

               EN

               Official Journal of the European Union

               C 89/46

         Action brought on 24 December 2014 — ZZ v Commission
   (Case F-141/14)
   (2015/C 089/56)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: L. Levi and A. Tymen, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision rejecting the claim for damages brought by the applicant, who was the victim of a serious accident due to an administrative fault committed by the Commission, responsible for his medical file, and the claim for damages for the material and non-material damage allegedly suffered.

      Form of order sought

               —

               Order the defendant to pay compensation for the applicant’s material and non-material damage;

               —

               in so far as it is necessary, annul the decision of 24 February 2014 rejecting his claim for damages of 15 November 2013;

               —

               in so far as it is necessary, annul the decision of 23 September 2014 rejecting his claim of 23 May 2014, supplemented by his note of 17 June 2014;

               —

               order the defendant to pay all the costs.


C 247/28              EN                  Official Journal of the European Communities                                26.8.2000
       Removal from the register of Case C-405/99 (1)                     Removal from the register of Case C-417/98 P (1)
                         (2000/C 247/43)                                                     (2000/C 247/47)
By order of 4 April 2000 the President of the Court of Justice       By order of 10 May 2000 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-405/99: Commission of the European            the register of Case C-417/98 P: Commission of the European
Communities v Kingdom of Belgium.                                    Communities v Primex Produkte Import-Export GmbH & Co.
                                                                     KG, Gebr. Kruse GmbH Kai Interporc Im- und Export GmbH.
(1) OJ C 20 of 22.1.2000.
                                                                     (1) OJ C 1 of 4.1.1999.
       Removal from the register of Case C-426/99 (1)
                                                                            Removal from the register of Case C-156/99 (1)
                         (2000/C 247/44)
                                                                                (2000/C 247/48)
By order of 6 April 2000 the President of the Court of Justice
of the European Communities has ordered the removal from             By order of 10 May 2000 the President of the Court of Justice
the register of Case C-426/99 (reference for a preliminary           of the European Communities has ordered the removal from
ruling from the Oberlandesgericht, Düsseldorf): Connaught            the register of Case C-156/99: Commission of the European
Laboratories Inc. v SmithKline Beecham Pharma GmbH and               Communities v French Republic.
SmithKline Beecham Biologicals Manufacturing SA.
                                                                     (1) OJ C 226 of 7.8.1999.
(1) OJ C 34 of 5.2.2000.
       Removal from the register of Case C-355/99 (1)                       Removal from the register of Case C-168/99 (1)
                         (2000/C 247/45)                                                     (2000/C 247/49)
By order of 7 April 2000 the President of the Court of Justice       By order of 11 May 2000 the President of the First Chamber
of the European Communities has ordered the removal from             of the Court of Justice of the European Communities has
the register of Case C-355/99: Commission of the European            ordered the removal from the register of Case C-168/99:
Communities v Ireland.                                               Commission of the European Communities v Kingdom of
                                                                     Spain.
(1) OJ C 352 of 4.12.1999.
                                                                     (1) OJ C 204 of 17.7.1999.
       Removal from the register of Case C-412/99 (1)
                         (2000/C 247/46)                                    Removal from the register of Case C-229/99 (1)
By order of 18 April 2000 the President of the Court of Justice                              (2000/C 247/50)
of the European Communities has ordered the removal from
the register of Case C-412/99: Commission of the European            By order of 15 May 2000 the President of the First Chamber
Communities v Republic of Austria.                                   of the Court of Justice of the European Communities has
                                                                     ordered the removal from the register of Case C-229/99:
(1) OJ C 79 of 18.3.2000.                                            Commission of the European Communities v French Republic.
                                                                     (1) OJ C 226 of 7.8.1999.


title: Case C-30/02: Reference for a preliminary ruling by the Tribunal Tributario de 1a Instancia de Lisboa, — 3° JUIZO — 2a Secção by order of 27 December 2001 in the case of Recheio Cash & Carry SA against Fazenda Pública and Registo Nacional de Pessoas Colectivas

text:
20.4.2002              EN                   Official Journal of the European Communities                                          C 97/3
Reference for a preliminary ruling by the Bundesverwal-                1a Instancia de Lisboa, — 3o JUIZO — 2a Secção (Fiscal Court
tungsgericht by order of 8 November 2001 in the case of                of First Instance, Lisbon, 3rd Division, 2nd Chamber) of
     Katharina Rinke against Ärtztekammer Hamburg                     27 December 2001, received at the Court Registry on 4 Febru-
                                                                       ary 2002, for a preliminary ruling in the case of Recheio Cash
                                                                       & Carry SA against Fazenda Pública and Registo Nacional de
                          (Case C-25/02)
                                                                       Pessoas Colectivas on the following questions:
                          (2002/C 97/05)                               1.    Is it contrary to Community law for a Member State to
                                                                             fix a limitation period, for actions for repayment of taxes
                                                                             levied in breach of Community law, of 90 days reckoned
                                                                             from the expiry of the period for voluntary payment, so
Reference has been made to the Court of Justice of the                       that the exercise of the right to reimbursement is made
European Communities by order of the Bundesverwaltungsge-                    excessively difficult?
richt (Federal Administrative Court) of 8 November 2001,
received at the Court Registry on 31 January 2002, for a               2.    If so, what is the minimum period that may be considered
preliminary ruling in the case of Katharina Rinke against                    compatible with the rule that exercise of that right must
Ärtztekammer Hamburg (the Hamburg Chamber of Phys-                          not be made excessively difficult?
icians) on the following questions:
                                                                       3.    What are the criteria to be used to fix that period?
1.    Does the requirement laid down in Directives
      86/457/EEC (1) and 93/16/EEC (2), to the effect that
      certain components of the specific training in general
      medical practice — completion of which confers the right
      to use the title ‘general medical practitioner’ — must be
      undertaken full-time, constitute indirect discrimination
      on grounds of sex within the meaning of Directive                Reference for a preliminary ruling by the Tribunale
      76/207/EEC (3)?                                                  Amministrativo Regionale del Veneto — Sezione Terza
                                                                       by orders of 16 January 2002 in the case of Adriano Di
2.    If the answer to Question 1 is yes:                              Lenardo srl (C-37/02) and Dilexport srl (C-38/02) against
                                                                       Ministero del Commercio con l’Estero — Direzione
      (a)   How is the incompatibility of Directive 76/207/EEC         Generale per la Politica Commerciale e la Gestione del
            on the one hand with Directives 86/457/EEC and                           Regime degli Scambi — Divisione II
            93/16/EEC on the other to be resolved?
                                                                                (Case C-37/02 and C-38/02)
      (b) Does the prohibition of indirect discrimination on
            grounds of sex constitute a basic unwritten right
            under Community law that overrides any conflicting                                   (2002/C 97/07)
            rule in secondary legislation?
                                                                       Reference has been made to the Court of Justice of the
(1) OJ L 267, 19.9.1986, p. 26.
                                                                       European Communities by orders of the Tribunale Amminis-
(2) OJ L 165, 7.7.1993, p. 1.
(3) OJ L 39, 14.2.1976, p. 40.                                         trativo Regionale del Veneto — Sezione Terza (Regional
                                                                       Administrative Court of the Veneto — Third Chamber) of
                                                                       16 January 2002, received at the Court Registry on
                                                                       13 February 2002, for a preliminary ruling in the case of
                                                                       Adriano Di Lenardo srl (C-37/02) and Dilexport srl (C-38/02)
                                                                       against Ministero del Commercio con l’Estero (Ministry of
                                                                       Foreign Trade) — Direzione Generale per la Politica Commer-
                                                                       ciale e la Gestione del Regime degli Scambi — Divisione II on
Reference for a preliminary ruling by the Tribunal Tribu-              the following questions:
tario de 1a Instancia de Lisboa, — 3o JUIZO — 2a Secção
by order of 27 December 2001 in the case of Recheio                    (1) Are Articles 1, 3, 4, 5 and 31 of Regulation (EC)
Cash & Carry SA against Fazenda Pública and Registo                         No 896/2001 (1) incompatible, in primis, with the Treaty,
                 Nacional de Pessoas Colectivas                              in particular Article 7 (formerly Article 4) thereof, and
                                                                             with the other provisions and principles enshrined in that
                                                                             Treaty with regard to the principle of the division of
                          (Case C-30/02)                                     functions and powers between the Community institu-
                                                                             tions (in particular between the Council and the Commis-
                          (2002/C 97/06)                                     sion)?
                                                                       (2) Are those same Articles of Regulation 896/2001 contrary
                                                                             to the principle that laws should not have retrospective
Reference has been made to the Court of Justice of the                       effect and to the related principles of the protection of
European Communities by order of the Tribunal Tributario de                  legitimate expectations and legal certainty?


title: Case C-423/00: Action brought on 16 November 2000 by the Commission of the European Communities against the Kingdom of Belgium

text:
27.1.2001               EN                   Official Journal of the European Communities                                      C 28/19
Action brought on 16 November 2000 by the Com-                          Question 1
mission of the European Communities against the
                       Kingdom of Belgium
                                                                        Does Paragraph 9 of the LMG constitute an appropriate
                                                                        transposition of Article 2(1)(b) of Council Directive
                           (Case C-423/00)                              79/112/EEC (1) of 18 December 1978?
                            (2001/C 28/35)
                                                                        Question 2
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on              Does Article 2(1)(b) of Directive 79/112/EEC make exhaustive
16 November 2000 by the Commission of the European                      provision concerning unlawful labelling, or does that provision
Communities, represented by Götz zur Hausen, Legal Adviser,             provide for a minimum level of regulation which may be
acting as Agent, with an address for service in Luxembourg at           supplemented by national provisions?
the office of Carlos Gómez de la Cruz, of its Legal Service,
Wagner Centre, Kirchberg.
                                                                        Question 3
The applicant claims that the Court should:
1.    Declare that, by failing to adopt all the laws, regulations       Is Article 2(1)(b) of Directive 79/112/EEC to be construed to
      and/or administrative provisions necessary to comply              mean that a restriction on labelling (such as that in Paragraph
      with Council Directive 96/82/EC of 9 December 1996                9(1) of the LMG in regard to health-related information) is
      on the control of major-accident hazards involving                only permissible where a prohibition appears to be an
      dangerous substances (1), and in any event by failing to          unavoidable necessity in order to prevent consumers from
      inform the Commission of such provisions, the Kingdom             being misled?
      of Belgium has failed to fulfil its obligations under that
      Directive;
                                                                        Question 4
2.    Order the Kingdom of Belgium to pay the costs.
                                                                        Can Paragraph 9(1) of the LMG be interpreted so as to comply
Pleas in law and main arguments                                         with the directive and the restriction on labelling mentioned
                                                                        therein be deemed to be in conformity with Article 2(1)(b) of
                                                                        Directive 79/112/EEC? This would be possible inasmuch as an
The pleas in law and main arguments are similar to those put            intention to mislead is not required by Article 2(1)[(b)] as a
forward in Case C-407/00 (2); the time-limit for transposition          whole but is a second criterion of the unlawfulness of a label.
expired on 3 February 1999.
                                                                        (1) OJ 1979 L 33, p. 1.
(1) OJ 1997 L 10, p. 13.
(2) See p. 13 of this Official Journal.
                                                                        Action brought on 20 November 2000 by the Com-
Reference for a preliminary ruling by the Unabhängiger
                                                                        mission of the European Communities against the United
Verwaltungssenat Wien by order of 15 November 2000                                                  Kingdom
in the case of Paul Dieter Haug against Magistrat der Stadt
                                  Wien
                                                                                (Case C-427/00)
                           (Case C-426/00)
                                                                                (2001/C 28/37)
                            (2001/C 28/36)
                                                                        An action against the United Kingdom was brought before the
Reference has been made to the Court of Justice of the                  Court of Justice of the European Communities on 20 Novem-
European Communities by order of 15 November 2000 of the                ber 2000 by the Commission of the European Communities,
Unabhängiger Verwaltungssenat Wien (Independent Adminis-                represented by Mr Richard Wainwright, Principal Legal
trative Chamber, Vienna), which was received at the Court               Adviser, acting as agent, with an address for service at the
Registry on 20 November, for a preliminary ruling in the case           office of Mr Carlos Gómez de la Cruz, a member of the
of Paul Dieter Haug against Magistrat der Stadt Wien (Vienna            Legal Service of the Commission, Wagner Centre, Kirchberg,
municipal authorities) on the following questions:                      Luxembourg.


title: Case T-598/15: Order of the General Court of 25 November 2016 — Stichting Accolade v Commission (State aid — Sale of land at prices allegedly below market price — Complaint made by a third party to the Commission — Decision declaring that the contested measure does not constitute aid — Procedure governing the preliminary examination stage under Article 108(2) TFEU and under Article 10(1), Article 13(1) and Article 4(2) of Regulation (EC) No 659/1999 concerning allegedly unlawful individual aid — Action for annulment brought by a third party — Admissibility — Locus standi — Action designed to safeguard procedural rights — Action challenging the merits of the contested measure — No substantial effect on the competitive position — Inadmissibility)

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/34

         Order of the General Court of 25 November 2016 — Stichting Accolade v Commission
   (Case T-598/15) (1)

   ((State aid - Sale of land at prices allegedly below market price - Complaint made by a third party to the Commission - Decision declaring that the contested measure does not constitute aid - Procedure governing the preliminary examination stage under Article 108(2) TFEU and under Article 10(1), Article 13(1) and Article 4(2) of Regulation (EC) No 659/1999 concerning allegedly unlawful individual aid - Action for annulment brought by a third party - Admissibility - Locus standi - Action designed to safeguard procedural rights - Action challenging the merits of the contested measure - No substantial effect on the competitive position - Inadmissibility))
   (2017/C 022/46)
   Language of the case: Dutch

      Parties

      Applicant: Stichting Accolade (Drachten, the Netherlands) (represented by: H. de Boer and J. Abma, lawyers)

      Defendant: European Commission (represented by: P.-J. Loewenthal and S. Noë, acting as agents)

      Re:

   Application pursuant to Article 263 TFEU seeking annulment of Commission Decision C(2015) 4411 final of 30 June 2015 on State aid SA.34676 (2015/NN) — The Netherlands (alleged sale of land below market price by the municipality of Harlingen), by which the Commission decided that the sale of that land to Ludinga Vastgoed BV did not constitute State aid within the meaning of Article 107(1) TFEU.

      Operative part of the order

               1.

               The action is dismissed as being inadmissible.

               2.

               Stichting Accolade shall pay the costs.

      (1)  OJ C 406, 7.12.2015.


title: Case T-230/14: Order of the General Court of 9 June 2015 — Deutsche Edelstahlwerke v Commission (State aid — Measures adopted by Germany in favour of electricity generated from renewable energy sources and of energy-intensive undertakings — Decision to open the procedure under Article 108(2) TFEU — Adoption of the final decision after the action was brought — No need to adjudicate)

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/57

         Order of the General Court of 9 June 2015 — Deutsche Edelstahlwerke v Commission
   (Case T-230/14) (1)

   ((State aid - Measures adopted by Germany in favour of electricity generated from renewable energy sources and of energy-intensive undertakings - Decision to open the procedure under Article 108(2) TFEU - Adoption of the final decision after the action was brought - No need to adjudicate))
   (2015/C 294/69)
   Language of the case: German

      Parties

      Applicant: Deutsche Edelstahlwerke GmbH (Witten, Germany) (represented by: S. Altenschmidt and H. Janssen, lawyers)

      Defendant: European Commission (represented by: T. Maxian Rusche and R. Sauer, acting as Agents, and by A. Luke and C. Maurer, lawyers)

      Re:

   Application to annul in part Commission decision C (2013) 4424 final of 18 December 2013 to open the procedure under Article 108(2) TFEU regarding measures implemented by the Federal Republic of Germany in favour of renewable electricity and of energy-intensive users (State aid SA.33995 (2013/C) (ex 2013/NN)).

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the present action.

               2.

               There is no longer any need to adjudicate on the application for intervention submitted by the EFTA Surveillance Authority.

               3.

               Deutsche Edelstahlwerke GmbH shall bear its own costs and those incurred by the European Commission.

               4.

               The EFTA Surveillance Authority shall bear its own costs.

      (1)  OJ C 223, 14.7.2014.


title: Case C-299/17: Request for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 23 May 2017 — VG Media Gesellschaft zur Verwertung der Urheber- und Leistungsschutzrechte von Medienunternehmen mbH v Google Inc.

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/21

         Request for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 23 May 2017 — VG Media Gesellschaft zur Verwertung der Urheber- und Leistungsschutzrechte von Medienunternehmen mbH v Google Inc.
   (Case C-299/17)
   (2017/C 309/27)
   Language of the case: German

      Referring court

   Landgericht Berlin

      Parties to the main proceedings

      Applicant: VG Media Gesellschaft zur Verwertung der Urheber- und Leistungsschutzrechte von Medienunternehmen mbH

      Defendant: Google Inc.

      Questions referred

               1.

               Does a national rule which prohibits only commercial operators of search engines and commercial service providers which edit content, but not other users, including commercial users, from making press products or parts thereof (excluding individual words and very short text excerpts) available to the public constitute, under Article 1(2) and (5) of Directive 98/34/EC (as amended by Directive 98/48/EC), (1) a rule which is not specifically aimed at the services defined in that point,
               and, if that is not the case,

               2.

               does a national rule which prohibits only commercial operators of search engines and commercial service providers which edit content, but not other users, including commercial users, from making press products or parts thereof (excluding individual words and very short text excerpts) available to the public constitute a technical regulation within the meaning of Article 1(11) of Directive 98/34/EC (as amended by Directive 98/48/EC), namely a compulsory rule on the provision of a service?

      (1)  Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations, OJ 1998 L 217, p. 18.


title: Case C-334/05 P: Appeal brought on  15 September 2005  (fax  9 September 2005 ) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on  15 June 2005  by the Third Chamber of the Court of First Instance of the European Communities in Case T-7/04 between Shaker di L. Laudato & C. Sas and the Office for Harmonisation in the Internal Market, the other party to the proceedings being Limiñana y Botella, SL

text:
               26.11.2005

               EN

               Official Journal of the European Union

               C 296/13

         Appeal brought on 15 September 2005 (fax 9 September 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 15 June 2005 by the Third Chamber of the Court of First Instance of the European Communities in Case T-7/04 between Shaker di L. Laudato & C. Sas and the Office for Harmonisation in the Internal Market, the other party to the proceedings being Limiñana y Botella, SL
   (Case C-334/05 P)
   (2005/C 296/25)
   Language of the case: Italian
   An appeal against the judgment of the Third Chamber of the Court of First Instance of the European Communities of 15 June 2005 in Case T-7/04 between Shaker di L. Laudato & C. Sas and the Office for Harmonisation in the Internal Market was brought before the Court of Justice of the European Communities on 15 September 2005 by the Office for Harmonisation in the Internal Market, represented by O. Montalto and M. Capostagno, acting as Agents, the other party to the proceedings being Limiñana y Botella, SL.
   The applicant claims that the Court should:

               1.

               set aside the judgment under appeal;

               2.

               order the Shaker to pay the costs.

         Pleas in law and main arguments
   The applicant considers that the judgment of the Court of First Instance under appeal in this case is vitiated by misinterpretation and misapplication of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.
   It is settled principle that the assessment of likelihood of confusion between trade marks under Article 8(1)(b) of the regulation on the Community trade mark is based on two distinct elements: first, an analytical comparison between both the signs and the goods, and then a concise evaluation of the results obtained in order to determine whether the average consumer of the goods in question might believe that those goods come from the same undertaking or from economically-linked undertakings. In particular, as regards the comparison between the signs, the analysis directed at establishing whether the signs are similar must take into consideration the visual, phonetic and conceptual aspects to arrive at a global assessment based on the general impression given by the marks themselves, taking particular account of their distinctive and dominant components.
   The applicant claims that the Court of First Instance failed to give effect to the principle cited above and, in particular, it dismissed the possibility of confusion, basing its assessment exclusively on the visual perception of the contested mark, without taking any account of the further elements which may not be ignored in the overall assessment the likelihood of confusion.
   The applicant also submits that the judgment under appeal is vitiated by manifest inconsistency and illogicality.


title: Case T-393/10: Action brought on 14 September 2010 — Westfälische Drahtindustrie and Others v Commission

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/49

         Action brought on 14 September 2010 — Westfälische Drahtindustrie and Others v Commission
   (Case T-393/10)
   ()
   2010/C 301/78
   Language of the case: German

      Parties

      Applicants: Westfälische Drahtindustrie GmbH (Hamm, Germany), Westfälische Drahtindustrie Verwaltungsgesellschaft mbH & Co. KG (Hamm), Pampus Industriebeteiligungen GmbH & Co. KG (Iserlohn, Germany) (represented by: C. Stadler, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul Article 1(8)(a) and (b) of the Commission’s decision in so far as the first and second applicants are thereby found liable for infringement of Article 101 TFEU or Article 53 of the EEA Agreement before 12 May 1997;

               —

               annul Article 2 of the decision in so far as it imposes a fine of EUR 15 485 000 on the first, second and third applicants, jointly and severally, a fine of EUR 30 115 000 on the first and second applicants, jointly and severally, and a fine of EUR 10 450 000 on the first applicant;

               —

               in the alternative, reduce the fine imposed on the applicants under Article 2 of the decision to an appropriate amount;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   The applicants contest Commission Decision C(2010) 4387 final of 30 June 2010 in Case COMP/38.344 — Prestressing steel. The contested decision imposed fines on the applicants and other undertakings for infringement of Article 101 TFEU and Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a continuing agreement and/or concerted action in the prestressing steel sector in the internal market and the EEA.
   In support of their action, the applicants have submitted eight pleas in law.
   By their first plea in law, the applicants allege infringement of Article 25(1)(b) of Regulation (EC) No 1/2003 (1) as the assumption that the applicants participated in a single and continuing infringement is wrong.
   In connection with the second plea in law the applicants allege, in the alternative, infringement of Article 23(3) of Regulation No 1/2003 in view of the failure to observe essential principles applicable to the calculation of fines with respect to the defendant’s determination of the duration of the infringement to include the cartel’s crisis period.
   By their third plea in law, the applicants submit that the defendant infringed Article 23(3) of Regulation No 1/2003 in that, by using the information provided in the application for reduction of the fine against the applicants, the defendant infringed the principle of the protection of legitimate expectations and the principle that the administration is bound by its own acts.
   In connection with the fourth plea in law, the applicants allege infringement of Article 23(3) of Regulation No 1/2003 in view of the defendant’s many errors of assessment when assessing the gravity of the infringement.
   By their fifth plea in law, the applicants complain of infringement of Article 23 of Regulation No 1/2003 and breach of the obligation to state reasons under the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union. They submit in that respect that the defendant arbitrarily departed from the calculation method laid down in the contested decision when determining the fine.
   By their sixth plea in law, the applicants submit that the defendant infringed Article 23 of Regulation No 1/2003 by disregarding the limits of its discretionary power and infringing the principle of proportionality when calculating the fine.
   In connection with the seventh plea in law, the applicants allege infringement of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, since the defendant failed to give reasons for essential aspects of the contested decision.
   Lastly, by their eighth plea in law the applicants complain that the defendant infringed the applicants’ right to be heard in accordance with Article 27 of Regulation No 1/2003 and Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, as it did not give the applicants a hearing in respect of certain essential aspects.

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


title: Judgment of the Court of First Instance of 12 December 2000 in Case T-223/99: Luc Dejaiffe v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Members of the temporary staff — Early termination of a fixed-term contract of employment of a member of the temporary staff — Interests of the service — Manifest error of assessment — Misuse of powers — Non-contractual liability of the Community)

text:
7.4.2001                 EN                     Official Journal of the European Communities                                            C 108/17
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 13 December 2000                                                       of 12 December 2000
in Joined Cases T-110/99 and T-260/99: F v European                        in Case T-223/99: Luc Dejaiffe v Office for Harmonisation
                             Parliament (1)                                in the Internal Market (Trade Marks and Designs)
                                                                                (OHIM) (1)
(Officials — Absences — Production of medical certificates
— Failure by the person concerned to attend for medical
check-ups — Sick leave deducted from annual leave                          (Members of the temporary staff — Early termination of a
entitlement — Action for annulment — Applications for                      fixed-term contract of employment of a member of the
                             compensation)                                 temporary staff — Interests of the service — Manifest error
                                                                           of assessment — Misuse of powers — Non-contractual
                                                                                liability of the Community)
                           (2001/C 108/28)
                                                                                (2001/C 108/29)
                     (Language of the case: French)
                                                                                (Language of the case: French)
In Joined Cases T-110/99 and T-260/99: F, an official of the
European Parliament, residing at Bertrange (Luxembourg),
represented by L. Mosar, S. Kersch and P. Goergen, of the                  In Case T-223/99: Luc Dejaiffe, an official of the Commission
Luxembourg Bar, with an address for service in Luxembourg                  of the European Communities, residing at Nivelles (Belgium),
at the Chambers of Mr Mosar, 8 Rue Notre-Dame, v European                  represented by G. Vandersanden, of the Brussels Bar, with an
Parliament (Agent: M. Moore) — application, first, for annul-              address for service in Luxembourg at the offices of Fiduciaire
ment of three decisions of the Parliament deducting from the               Myson SARL, 30 Rue de Cessange, v Office for harmonisation
applicant’s annual leave entitlement absences on account of                in the Internal Market (Trade Marks and Designs) (OHIM)
sickness regarded as irregular and, second, for compensation               (Agents: O. Montaldo and J.P. Miranda de Sousa) — application
for the non-material damage allegedly resulting from those                 for annulment of the decision of the Office for Harmonisation
decisions and from the conduct of the Parliament — the Court               in the Internal Market (Trade Marks and Designs) of 21 Decem-
of First Instance (Second Chamber), composed of: J. Pirrung,               ber 1998 terminating the applicant’s contract as a member of
President, and A. Potocki and A.W.H. Meij, Judges; G. Herzig,              the temporary staff, for compensation for the damage suffered
Administrator, for the Registrar, has given a judgment on                  and for an order requiring the Office to re-establish the
13 December 2000, in which it:                                             applicant in his career — the Court of First Instance (Third
                                                                           Chamber), composed of: K. Lenaerts, President, and J. Azizi
1.    Dismisses as inadmissible the application for annulment in           and M. Jaeger, Judges; J. Palacio González, Administrator, for
      Case T-110/99, inasmuch as it is directed against the decision       the Registrar, has given a judgment on 12 December 2000, in
      of 28 January 1999;                                                  which it:
2.    Annuls the decisions of 16 September 1998 and 22 April               1.    Annuls the decision of the President of the Office for Harmonis-
      1999;                                                                      ation in the Internal Market (Trade Marks and Designs) of
                                                                                21 December 1998 terminating the applicant’s contract as a
                                                                                member of the temporary staff;
3.    Dismisses the applications for compensation;
                                                                           2.    Orders the Office for Harmonisation in the Internal Market
4.    Orders the Commission to bear its own costs and to pay one                 (Trade Marks and Designs) to pay to the applicant a sum
      half of the costs of the applicant;                                        corresponding, in respect of the period from 16 February 1999
                                                                                to 30 November 1999 inclusive, to the difference between the
                                                                                monthly salary which he would have received from the Office
5.    Orders the applicant to bear one half of her own costs.                    and that paid following his reinstatement in the Commission,
                                                                                less the termination compensation paid by the Office to the
                                                                                applicant pursuant to Article 47(1) of the Conditions of
                                                                                employment of other servants of the European Communities;
(1) OJ C 226 of 7.8.1999; OJ C 366 of 18.12.1999.
                                                                           3.    Orders the Office for Harmonisation in the Internal Market
                                                                                (Trade Marks and Designs) to pay to the applicant the token
                                                                                sum of 1 euro by way of compensation for the non-material
                                                                                damage suffered by him;
 ---pagebreak--- C 108/18               EN                      Official Journal of the European Communities                                    7.4.2001
4.    Dismisses the remainder of the application;                             JUDGMENT OF THE COURT OF FIRST INSTANCE
5.    Orders the Office for Harmonisation in the Internal Market                                 of 26 October 2000
      (Trade Marks and Designs) to pay the costs.
                                                                          in Case T-360/99: Community Concepts AG v Office for
                                                                          Harmonisation in the Internal Market (trade marks and
(1) OJ C 6 of 8.1.2000.                                                                          designs) (OHIM) (1)
                                                                          (Community trade mark — ‘Investorworld’ — Absolute
                                                                                ground for refusal — Lack of distinctive character)
                                                                                (2001/C 108/31)
                                                                                (Language of the case: German)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                          In Case T-360/99: Community Concepts AG, formerly Touch-
                                                                          down Gesellschaft für erfolgsorientiertes Marketing mbH,
                       of 26 October 2000                                 established in Munich, Germany, represented by F. Bahr and
                                                                          F. Cordt-Terzi, of the Munich Bar, with an address for service
                                                                          in Luxembourg at the Chambers of N. Decker, 16 Avenue
in Case T-345/99: Harbinger Corporation v Office for                      Marie-Thérèse, against Office for Harmonisation in the Internal
Harmonisation in the Internal Market (Trade Marks and                     Market (trade marks and designs) (OHIM) (Agents: A. von
                       Designs) (OHIM) (1)                                Mühlendahl, D. Schennen, and E. Joly) — application for
                                                                          annulment of the decision of the third Board of Appeal of the
(Community trade mark — The term TRUSTEDLINK —                            Office for Harmonisation in the Internal Market (trade marks
Absolute ground for refusal — Article 7(1)(b) of Regulation               and designs) of 15 October 1999 (Case R 204/1999-3) refusing
                          (EC) No 40/94)                                  registration of the word ‘Investorworld’ as a Community trade
                                                                          mark — the Court of First Instance (Fourth Chamber),
                                                                          composed of: V. Tiili, President, R.M. Moura Ramos and
                         (2001/C 108/30)                                  P. Mengozzi, Judges; G. Herzig, Administrator, for the Regis-
                                                                          trar, has given a judgment on 26 October 2000 in which it:
                   (Language of the case: English)                        1.    Dismisses the application;
                                                                          2.    Orders the applicant to pay the costs.
In Case T-345/99: Harbinger Corporation, established in
Atlanta, Georgia, United States of America, represented by
                                                                          (1) OJ C 102 of 8.4.00.
R. Collin, M.-C. Mitchell and É. Logeais, of the Paris Bar, with
an address for service in Luxembourg at the Chambers of
Decker and Braun, 16 Avenue Marie-Thérèse, against Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) (OHIM) (Agents: J. Miranda de Sousa and A. Di Carlo
) — application for annulment of the decision of 17 September
1999 of the Third Board of Appeal of the Office for
Harmonisation in the Internal Market (Trade Marks and                           ORDER OF THE COURT OF FIRST INSTANCE
Designs) (Case R 163/1998-3) refusing the registration of the
term TRUSTEDLINK as a Community trade mark — the Court                                         of 28 November 2000
of First Instance (Fourth Chamber), composed of: V. Tiili,
President, R.M. Moura Ramos and P. Mengozzi, Judges;                      in Case T-172/99: Francesca Pentericci v Commission of
G. Herzig, Administrator, for the Registrar, has given a                                  the European Communities (1)
judgment on 26 October 2000, in which it:
                                                                          (Competition — Non-admission to the tests — Conditions
1.    Dismisses the application;                                          of admission — Professional experience — Candidate’s file
                                                                                — Action manifestly unfounded in law)
2.    Orders the applicant to pay the costs.
                                                                                (2001/C 108/32)
(1) OJ C 63 of 4.3.2000.                                                                     (Language of the case: Italian)
                                                                          In Case T-172/99: Francesca Pentericci, residing at Jesi (Italy),
                                                                          represented by M. Pentericci, of the Ancona Bar, with an