title: Case T-61/10: Action brought on 8 February 2010 — Victoria Sánchez v Parliament and Commission

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/58

         Action brought on 8 February 2010 — Victoria Sánchez v Parliament and Commission
   (Case T-61/10)
   2010/C 100/86
   Language of the case: Spanish

      Parties

      Applicant: Fernando Marcelino Victoria Sánchez (Sevilla, Spain) (represented by: N. Domínguez Varela, lawyer)

      Defendants: European Parliament and European Commission

      Form of order sought

               —

               A declaration that the failure of the European Parliament and of the Commission to respond to the application made by way of letters on 6 October 2009 is contrary to European Union law and an order for those institutions to remedy the situation.

      Pleas in law and main arguments

   On 28 August 2008 the applicant submitted a petition to the Committee on Petitions of the Parliament relating to an alleged corruption network in Spain in the field of social security and public health. On 3 May 2009 the President of that committee informed him that no further action would be taken as regards his petition.
   On 6 December 2009 the applicant sent a letter to the European Parliament and the European Commission, pursuant to Article 265 TFEU, calling upon them to act. In that letter he requested that:

               —

               the European Parliament annul the decision of 3 May 2009 of the President of the Committee on Petitions and investigate the circumstances in which that decision was adopted;

               —

               the European Commission also undertake an investigation into the administration of justice in Spain.

         Since he did not receive a response within the time-limit laid down to that end, the applicant brought this action for failure to act.
   In support of his claims, the applicant submits that his fundamental rights have been infringed, namely his right to submit a petition, his right to equality before the law and his right to not be discriminated against. He also submits that the conditions have been met for the defendant institutions to be found to have failed to act.


title: Case C-177/06: Action brought on  4 April 2006  — Commission of the European Communities v Kingdom of Spain

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/25

         Action brought on 4 April 2006 — Commission of the European Communities v Kingdom of Spain
   (Case C-177/06)
   (2006/C 143/47)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: F. Castillo de la Torre, Agent, acting as Agent(s))

      Defendant: Kingdom of Spain
   Form of order sought

               —

               a declaration that, by having failed to adopt within the period prescribed all the measures necessary to comply with Articles 2 and 3 of the Commission's decisions of 20 December 2001 on a State aid scheme implemented by Spain in 1993 for certain newly established firms in Álava, Vizcaya and Guipúzcoa, documents Nos C(2001) 4448 fin, (1) C(2001) 4475 fin (2) and C(2001) 4478 fin, (3) or, in any case, by having failed to communicate such provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under those decisions and under the EC Treaty;

               —

               an order that the Kingdom of Spain should pay the costs.

         Pleas in law and main arguments
   The period fixed in Article 4 of the decisions for the Kingdom of Spain to communicate the implementation measures expired on 1 March 2002 without the Commission's having received any communication in that regard.

      (1)  OJ L 77 of 24 March 2003, p. 1

      (2)  OJ L 40 of 14 February 2003, p. 11

      (3)  OJ L 17 of 22 January 2003, p. 20


title: Removal from the register of Joined Cases T-56/98 and T-56/98 R

text:
C 299/40               EN                   Official Journal of the European Communities                                  26.9.98
coal mining industry for the years 1994, 1995 and 1996;                       Removal from the register of Case T-49/98 (1)
the second and third Decisions concern the years 1997                                           (98/C 299/72)
and 1998. All of the contested Decisions contain operating
aids under Article 3 of the Code (1), closure aids under                               (Language of the case: Dutch)
Article 4 of the Code as well as aids to cover exceptional
charges under Article 5 of the Code.                                   By order of 15 July 1998 the President of the Second
                                                                       Chamber of the Court of First Instance of the European
                                                                       Communities has ordered the removal from the register of
The applicant claims to be gravely concerned by these                  Case T-49/98 ALZ NV v. Commission of the European
Decisions, as the British coal industry has over the last 10           Communities.
years undergone massive restructuring and rationalisation
and as the company was also trying to find a market for                (1) OJ C 137, 2.5.1998.
its coal overseas, in particular in Germany and Spain.
The pleas in law and main arguments are, with the
exception of an alleged infringement of the principle of
good administration, identical to those raised in Case                 Removal from the register of Joined Cases T-56/98 and
T-110/98 (2).                                                                                T-56/98 R (1)
                                                                                (98/C 299/73)
(1) Commission Decision No 3632/93/ECSC of 28 December
    1993, establishing Community rules for State aid to the coal                      (Language of the case: English)
    industry (OJ L 329, 30.12.1993, p. 12).
(2) See page 38 of this Official Journal.                              By order of 17 June 1998 the President of the First
                                                                       Chamber of the Court of First Instance of the European
                                                                       Communities has ordered the removal from the register of
                                                                       Cases T-56/98 and T-56/98 R VTech Electronics (UK) plc
                                                                       v. Commission of the European Communities.
                                                                       (1) OJ C 166, 30.5.1998.
    Partial removal from the register of Case T-185/96 (1)
                          (98/C 299/71)
                (Language of the case: French)
                                                                              Removal from the register of Case T-60/98 (1)
                                                                                (98/C 299/74)
By order of 10 July 1998 the President of the Third
Chamber of the Court of First Instance of the European                                (Language of the case: French)
Communities has ordered the removal of the name of the
applicant Max Labat Automobiles 17 from the list of                    By order of 2 July 1998 the President of the Second
names of the applicants in Case T-185/96 Max Labat                     Chamber of the Court of First Instance of the European
Automobiles 17 and Riviera Auto Service Ets Dalmasso v.                Communities has ordered the removal from the register of
Commission of the European Communities.                                Case T-60/98 Ecord Consortium for Russian Cooperation,
                                                                       composed of the following members: Danagro Adviser A/
                                                                       S, Plunkett Foundation and Irish Agri-Food Development
(1) OJ C 54, 22.2.1997.                                                Ltd v. Commission of the European Communities.
                                                                       (1) OJ C 209, 4.7.1998.


title: Case C-315/09: Action brought on 7 August 2009 — Commission of the European Communities v Kingdom of Belgium

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/13

         Action brought on 7 August 2009 — Commission of the European Communities v Kingdom of Belgium
   (Case C-315/09)
   2009/C 256/25
   Language of the case: French

      Parties

      Applicant: Commission of the European Communities (represented by: F. Erlbacher and L. de Schietere de Lophem, acting as Agents)

      Defendant: Kingdom of Belgium

      Form of order sought

               —

               Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/88/EC of 24 October 2006 on animal health requirements for aquaculture animals and products thereof, and on the prevention and control of certain diseases in aquatic animals, (1) as amended by Commission Directive 2008/53/EC of 30 April 2008 amending Annex IV to Council Directive 2006/88/EC as regards Spring viraemia of carp (SVC), (2) or, in any event, by failing to inform the Commission of those provisions, the Kingdom of Belgium has failed to fulfil its obligations under those directives;

               —

               order the Kingdom of Belgium to pay the costs.

      Pleas in law and main arguments

   The period for the transposition of Directive 2006/88/EC expired on 1 May 2008 and the period for transposition of Directive 2008/53/EC expired on 1 August 2008. However, at the time the present action was brought, the defendant had not yet adopted all the measures necessary to transpose the directive or, in any event, had not informed the Commission thereof.

      (1)  OJ 2006 L 328, p. 14.

      (2)  OJ 2008 L 117, p. 27.


title: Case C-162/14: Order of the President of the Court of 23 March 2015 — European Commission v Republic of Poland

text:
               29.6.2015

               EN

               Official Journal of the European Union

               C 213/21

         Order of the President of the Court of 23 March 2015 — European Commission v Republic of Poland
   (Case C-162/14) (1)

   (2015/C 213/34)
   Language of the case: Polish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 202, 30.6.2014.


title: Case C-38/05: Action brought on 1 February 2005 by the Commission of the European Communities against Ireland

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/14

         Action brought on 1 February 2005 by the Commission of the European Communities against Ireland
   (Case C-38/05)
   (2005/C 82/29)
   Language of procedure: English
   An action against Ireland was brought before the Court of Justice of the European Communities on 1 February 2005 by the Commission of the European Communities, represented by Mr Barry Doherty, acting as agent, with an address for service in Luxembourg.
   The Commission requests the Court

               —

               to declare that Ireland has breached its obligations under Articles 15 (4), 18 (1), 19i first and third indents of Council Regulation (EEC) 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (1), by failing to communicate the data required by those provisions for the years 1999 and 2000; and

               —

               to order Ireland to pay the costs of these proceedings.

         Pleas in law and main arguments:
   Articles 15(4), 18(1) and 19i of Regulation 2847/93 require the Member States to transmit certain date by computer transmission within a specific deadline. It is essential that the Commission has this data available in order to manage and develop the common fisheries policy, in particular with regard to conservation, management and exploitation of living aquatic resources.
   Ireland did not communicate the data required by the aforementioned Articles for the years 1999 or 2000 and is therefore in breach of its obligations.

      (1)  OJ L 261, 20.10.1993, p. 1


title: Reference for a preliminary ruling by the Sø- og Handelsret by order of 18 March 1998 in the case of 3Com Corporation v Bluecom Danmark A/S and KISS Nordic A/S (Case C-80/98)

text:
30.5.98               EN                   Official Journal of the European Communities                                    C 166/7
Ð order such other or further relief as may be lawful or              Action brought on 24 March 1998 by the Commission of
     equitable; and                                                       the European Communities against the Kingdom of
                                                                                Belgium
                                                                                (Case C-79/98)
Ð order the Council to pay the Appellant's costs.
                                                                                (98/C 166/10)
Pleas in law and main arguments:                                      An action against the Kingdom of Belgium was brought
                                                                      before the Court of Justice of the European Communities
                                                                      on 24 March 1998 by the Commission of the European
The Appellant submits that the judgment of the Court of               Communities, represented by Götz zur Hausen, Legal
First Instance contains fundamental errors of law and                 Adviser, acting as Agent, with an address for service in
must be set aside.                                                    Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                      Wagner Centre, Kirchberg.
First, the Court of First Instance erred in finding that              The applicant claims that the Court should:
patent-protection in the exporter's domestic market alone
is irrelevant to the price comparability requirement
contained in Article 2(3) of Council Regulation (EEC)                 Ð Declare that, by failing to adopt the laws, regulations
No 2423/88 (4), hereinafter the Basic Regulation'. The                   or administrative provisions necessary to comply with
ordinary meaning of the word comparable' within                          Commission Directive 94/69/EC of 19 December 1994
Article 2(3), the overall scheme of the Basic Regulation                  adapting to technical progress for the twenty-first time
and of the process for establishing and comparing normal                  Council Directive 67/548/EEC on the approximation
value and export price, GATT law, U.S. law, and the aims                  of laws, regulations and administrative provisions
and objectives of anti-dumping law and of intellectual                    relating to the classification, packaging and labelling
property law all lead to the conclusion that patent-                      of dangerous substances (1), the Kingdom of Belgium
protection is a matter affecting price comparability within               has failed to fulfil its obligations under that directive;
the meaning of Article 2(3) and that normal value may                     and
not be established on the basis of actual domestic prices
when those prices (but not export prices) are the result of           Ð Order the Kingdom of Belgium to pay the costs.
patent-protected sales.
                                                                      Pleas in law and main arguments:
Second, the Court of First Instance erred in finding that a
failure by the Commission to grant any disclosure of its              The pleas in law and main arguments are analogous with
determinations prior to the imposition of provisional                 those submitted in Case C-66/98 (2); the time-limit
duties is a defect which can be remedied after the                    provided for in the directive expired on 1 September 1996.
imposition of provisional duties and does not, therefore,
affect the validity of the definitive collection of the               (1) OJ L 381 of 31.12.1994, p. 1.
provisional duties. The fundamental principles of                     (2) OJ C 137 of 2.5.1998, p. 12.
Community law Ð in particular the right to be heard Ð
and the practice of the Commission in other cases required
the Commission to disclose essential facts and
considerations to the Appellant prior to the adoption of
the Provisional Duty Regulation. The Commission's
failure to make timely disclosure of such matters to the
                                                                      Reference for a preliminary ruling by the Sù- og Handels-
Appellant amounted to a breach of this fundamental
                                                                      ret by order of 18 March 1998 in the case of 3Com
principle as well as to discrimination. This fundamental
                                                                      Corporation v Bluecom Danmark A/S and KISS Nordic
breach rendered the Provisional Duty Regulation invalid,
                                                                                A/S
and this defect in the Provisional Duty could not be and
was not remedied in the Definitive Duty Regulation.                                          (Case C-80/98)
                                                                                (98/C 166/11)
(1) OJ C 291 of 8.11.1991, p. 8.
(2) OJ C 291 of 8.11.1991, p. 9.
(3) Council Regulation (EEC) No 1391/91 of 27 May 1991                Reference has been made to the Court of Justice of the
    imposing a definitive anti-dumping duty on imports of             European Communities by order of 18 March 1998 from
    aspartame originating in Japan and the United States of           the Sù- og Handelsret (Maritime and Commercial Court),
    America (OJ L 134 of 29.5.1991, p. 1).                            which was received at the Court Registry on 25 March
(4) Council Regulation (EEC) No 2423/88 of 11 July 1988 on            1998, for a preliminary ruling in the case of 3Com
    protection against dumped or subsidized imports from
                                                                      Corporation v Bluecom Danmark A/S and KISS Nordic
    countries not members of the European Economic Community
    (OJ L 209 of 2.8.1988, p. 1).                                     A/S on the following question:
                                                                      Does it follow from Article 7(1) of First Council Directive
                                                                      89/104/EEC of 21 December 1988 to approximate the
 ---pagebreak--- C 166/8               EN                Official Journal of the European Communities                                     30.5.98
laws of the Member States relating to trade marks (1) (the                   continue to manufacture and market product X
Trade Mark Directive') that Member States are precluded                       in Member States other than Member State B?
from introducing or maintaining a legal position whereby
trade mark rights are exhausted where the trade mark is            2. To what extent is it relevant to the answer to
marketed outside the Community under that mark?                         Question 1 that:
(1) OJ L 40 of 11.2.1989, p. 1.                                         (i)    the marketing authorisation for medicinal
                                                                               product X ceased to have effect in Member State
                                                                               B as a result of voluntary surrender on the part
                                                                               of the person to whom it had been granted; and/
                                                                               or
                                                                        (ii)   the formulation of medicinal product Y was
Reference for a preliminary ruling by the Divisional                           developed and introduced in order to provide a
Court, Queen's Bench Division, by order of that court of                       benefit to public health which medicinal product
31 July 1997, in the case of The Queen against The                             X (manufactured according to a different
Licensing Authority Established by the Medicines Act                           formulation) does not provide; and/or
1968 (acting by the Medicines Control Agency), ex parte:
     1) Rhône-Poulenc Rorer Ltd 2) May & Baker Ltd.                     (iii) that benefit to public health would not be
                       (Case C-94/98)                                          achieved if product X and product Y are both on
                                                                               the market in Member State B at the same time;
                        (98/C 166/12)
                                                                               and/or
Reference has been made to the Court of Justice of the                  (iv) the differences between the formulations of
European Communities by an order of the Divisional                             medicinal product X and medicinal product Y
Court, Queen's Bench Division, of 31 July 1997, which                          are such that neither product may lawfully be
was received at the Court Registry on 1 April 1998, for a                      marketed under the marketing authorisation
preliminary ruling in the case of The Queen against The                        applicable to the other; and/or
Licensing Authority Established by the Medicines Act
1968 (acting by the Medicines Control Agency), ex parte:                (v)    the competent authority possesses the relevant
1) Rhône-Poulenc Rorer Ltd 2) May & Baker Ltd, on the                          data required under Directive 65/65/CEE in
following questions:                                                           relation to both product X and product Y; and/or
                                                                        (vi) the competent authority considers that the
1. In a case where medicinal product X is sought to be                         prohibition on imports of product X from
    imported from Member State A into Member State B,                          Member State A would have the effect of
    is it permissible for the person who proposes to place                     partitioning the market; and/or
    the imported product upon the market in Member
    State B to seek and obtain a marketing authorisation                (vii) the competent authority considers that there are
    from the competent authority in Member State B                             no grounds within Article 36 of the EC Treaty
    without complying with the requirements of Council                         which would justify a prohibition on imports
    Directive 65/65/EEC (1) (as amended) if:                                   and sales of product X?
    (i)   medicinal product X is the subject of a marketing        (1) Council Directive 65/65/EEC of 26 January 1965 on the
          authorisation granted in Member State A and was              approximation of provisions laid down by law, regulation or
          the subject of a marketing authorisation which               administrative action relating to proprietary medicinal
          has ceased to have effect in Member State B; and             products (OJ 22 of 9.2.1965, p. 369 (SE SER1 (65Ð66)
                                                                       p. 20)).
    (ii) medicinal product X has the same active
          ingrediens and therapeutic effect as medicinal
          product Y, but is not manufactured according to
          the same formulation as medicinal product Y; and
    (iii) medicinal product Y is the subject of a marketing        Appeal brought on 3 April 1998 by Edouard Dubois et
          authorisation granted in Member State B, but is          Fils SA against the judgment delivered on 29 January
          not the subject of a marketing authorisation             1998 by the Fifth Chamber of the Court of First Instance
          granted in Member State A; and                           of the European Communities in Case T-113/96 between
                                                                   Edouard Dubois et Fils SA, on the one hand, and Council
    (iv) the marketing authorisations referred to in (i) and       of the European Union and Commission of the European
          (iii) above were granted to different members of                            Communities, on the other
          the same group of companies and the                                              (Case C-95/98 P)
          manufacturers of medicinal products X and Y are
                                                                                (98/C 166/13)
          also members of that group of companies; and
    (v) companies within the same group as the holder of           An appeal against the judgment delivered on 29 January
          the marketing authorisation for product X                1998 by the Fifth Chamber of the Court of First Instance


title: Order of the Court of First Instance of 13 May 2003 in Case T-97/01 DEP, Christos Gogos v Commission of the European Communities (Taxation of recoverable costs)

text:
C 213/34               EN                          Official Journal of the European Union                                             6.9.2003
Judges; J. Plingers, Administrator, for the Registrar, has given a         inland waterway (OJ, English Special Edition 1968 (I), p. 302),
judgment on 3 April 2003, in which it:                                     concerning the revised version of the Trans-Atlantic Confer-
                                                                           ence Agreement (TACA), the Court of First Instance (Third
                                                                           Chamber), composed of: K. Lenaerts, President, J. Azizi and
1.    Dismisses the application;                                           M. Jaeger, Judges; H. Jung, Registrar, has made an order on
                                                                           4 June 2003, the operative part of which is as follows:
2.    Orders the applicant to bear its own costs and to pay those
      incurred by the Commission and SEB;
                                                                           1.    There is no need to adjudicate on the action.
3.    Orders De’Longhi to bear its own costs;
                                                                           2.    The parties shall bear their own costs.
4.    Orders the French Republic to bear its own costs.
                                                                           (1 ) OJ C 6 of 8.1.2000.
( 1) OJ C 169 of 13.7.2002.
       ORDER OF THE COURT OF FIRST INSTANCE                                       ORDER OF THE COURT OF FIRST INSTANCE
                          of 4 June 2003                                                             of 13 May 2003
in Case T-224/99: The European Council of Transport                        in Case T-97/01 DEP, Christos Gogos v Commission of
Users ASBL and Others v Commission of the European                                           the European Communities (1)
                         Communities (1)
                                                                                (Taxation of recoverable costs)
(Actions for annulment — Action become devoid of purpose
                     — No need to adjudicate)
                                                                                (2003/C 213/67)
                         (2003/C 213/66)
                                                                                (Language of the case: Greek)
                   (Language of the case: English)
                                                                           In Case T-97/01 DEP, Christos Gogos, an official of the
In Case T-224/99, The European Council of Transport Users                  Commission of the European Communities, represented by
ASBL, established in Brussels, The Freight Transport Associ-               C. Tagaras, lawyer, v Commission of the European Communi-
ation, established in Tunbridge Wells (United Kingdom),                    ties (Agents: H. Tserepa-Lacombe and J. Currall) — application
Association des Utilisateurs de Transport de Fret (AUTF),                  for taxation of costs to be paid by the defendant to the
established in Paris, and Industrieförbundet, established in               applicant following the order of the Court of First Instance of
Stockholm, represented by M. Clough QC, with an address for                21 October 2002 in Case T-97/01 Gogos v Commission (not
service in Luxembourg, v Commission of the European                        published in the Reports of Cases) — the Court of First
Communities (Agent: R. Lyal), supported by Atlantic Container              Instance (Second Chamber), composed of: N.J. Forwood,
Line AB, established in Göteborg (Sweden), Hapag-Lloyd AG,                 President, J. Pirrung and A.W.H. Meij, Judges; H. Jung, Registrar,
established in Hamburg (Germany), Mediterranean Shipping                   made an order on 13 May 2003 the operative part of which is
Company SA, established in Geneva (Switzerland), A.P. Møller-              as follows:
Mærsk Line, established in Copenhagen, Nippon Yusen Kaisha,
established in Tokyo (Japan), Orient Overseas Container Line
(UK) Ltd, established in London and P & O Nedlloyd Container               The total amount of costs recoverable by the applicant in Case T-97/
Line Ltd, established in London, represented by J. Pheasant and            01 is fixed at EUR 11 000
M. Levitt, Solicitors, with an address for service in Luxembourg:
Application for annulment of the decision of the Commission,
communicated to the applicants by letter of 6 August 1999,                 (1 ) OJ C 186 of 30.6.01.
not to raise serious doubts, within the meaning of Article 12
of Council Regulation (EEC) No 1017/68 of 19 July 1968
applying rules of competition to transport by rail, road and


title: Case C-239/10: Reference for a preliminary ruling from the Cour de cassation (Luxembourg) lodged on 12 May 2010 — Xuan-Mai Tran v Landsbanki Luxembourg SA (in liquidation)

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/24

         Reference for a preliminary ruling from the Cour de cassation (Luxembourg) lodged on 12 May 2010 — Xuan-Mai Tran v Landsbanki Luxembourg SA (in liquidation)
   (Case C-239/10)
   ()
   2010/C 209/32
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Applicant: Xuan-Mai Tran

      Defendant: Landsbanki Luxembourg SA (in liquidation)

      Questions referred

               1.

               Are Articles 1, 2 and 3 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (1) to be interpreted as applying to a termination of activities as a result of a declaration that the employer is insolvent or a judicial decision ordering the dissolution and winding-up, on grounds of insolvency, of the credit institution which is the employer on the basis of Article 61(l)(a) and (b) of the amended Law of 5 April 1993 relating to the financial sector, in respect of which termination the national legislation provides for the termination of employment contracts with immediate effect

               2.

               If the answer to the first question is in the affirmative, are Articles 1, 2 and 3 of Directive 98/59/EC to be interpreted as meaning that the administrator or liquidator is to be deemed to be in the same position as an employer who is contemplating collective redundancies and who is capable of carrying out, to that end, the acts referred to in Articles 2 and 3 of Directive 98/53/EC and of effecting such redundancies (judgment in Case C-323/08, paragraphs 39, 40 and 41)? (2)

      (1)  OJ 1998 L 225, p. 16.

      (2)  Judgment of 10 December 2009 in Case C-323/08 Rodríguez Mayor and Others


title: Case C-103/09: Judgment of the Court (Third Chamber) of 22 December 2010 (reference for a preliminary ruling from the Court of Appeal (United Kingdom)) — The Commissioners for Her Majesty's Revenue and Customs v Weald Leasing Limited (Sixth VAT Directive — Concept of ‘abusive practice’ — Leasing transactions effected by a group of undertakings to spread the payment of non-deductible VAT)

text:
               19.2.2011

               EN

               Official Journal of the European Union

               C 55/6

         Judgment of the Court (Third Chamber) of 22 December 2010 (reference for a preliminary ruling from the Court of Appeal (United Kingdom)) — The Commissioners for Her Majesty's Revenue and Customs v Weald Leasing Limited
   (Case C-103/09) (1)

   (Sixth VAT Directive - Concept of ‘abusive practice’ - Leasing transactions effected by a group of undertakings to spread the payment of non-deductible VAT)
   2011/C 55/08
   Language of the case: English

      Referring court

   Court of Appeal

      Parties to the main proceedings

      Appellants: The Commissioners for Her Majesty's Revenue and Customs

      Respondent: Weald Leasing Limited

      Re:

   Reference for a preliminary ruling — Court of Appeal, London — Interpretation of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Concept of transactions constituting an abusive practice — Leases and Sub-leases by a group of undertakings making mostly exempt supplies in order to defer their VAT liability

      Operative part of the judgment

               1.

               The tax advantage accruing from an undertaking’s recourse to asset leasing transactions, such as those at issue in the main proceedings, instead of the outright purchase of those assets, does not constitute a tax advantage the grant of which would be contrary to the purpose of the relevant provisions of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, and of the national legislation transposing it, provided that the contractual terms of those transactions, particularly those concerned with setting the level of rentals, correspond to arm’s length terms and that the involvement of an intermediate third party company in those transactions is not such as to preclude the application of those provisions, a matter which it is for the national court to determine. The fact that the undertaking does not engage in leasing transactions in the context of its normal commercial operations is irrelevant in that regard.

               2.

               If certain contractual terms of the leasing transactions at issue in the main proceedings, and/or the intervention of an intermediate third party company in those transactions, constituted an abusive practice, those transactions must be redefined so as to re-establish the situation that would have prevailed in the absence of the elements of those contractual terms which were abusive and/or in the absence of the intervention of that company.

      (1)  OJ C 129, 06.06.2009.


title: Case C-358/09 P: Order of the Court of 1 July 2010 — DSV Road NV v European Commission (Appeal — Customs Code — Import of diskettes originating in Thailand — Post-clearance recovery of import duties — Application for remission of import duties)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/16

      Order of the Court of 1 July 2010 — DSV Road NV v European Commission
      (Case C-358/09 P) (1)

      (Appeal - Customs Code - Import of diskettes originating in Thailand - Post-clearance recovery of import duties - Application for remission of import duties)
      (2010/C 288/25)
      Language of the case: Dutch

         Parties

         Appellant: DSV Road NV (represented by: A. Poelmans and G. Preckler, advocaten)

         Other party to the proceedings: European Commission (represented by: L. Bouyon, Agent)

         Re:

      Appeal against the judgment of 8 July 2009 of the Court of First Instance (Fourth Chamber) in Case T-219/07 DSV Road v Commission dismissing an application for annulment of the Commission’s Decision of 24 April 2007 informing the Belgian authorities that they might proceed with post-clearance recovery of import duties on diskettes originating in Thailand and that there were no grounds for granting remission of those duties (File reference: REC 05/02)

         Operative part of the order

                  1.

                  The appeal is dismissed;

                  2.

                  DSV Road NV shall pay the costs.

         (1)  OJ C 297, of 05.12.2009.


title: JUDGMENT OF THE COURT of 4 October 1995 in Case C-291/92 (reference for a preliminary ruling from the Bundesfinanzhof): Finanzamt Uelzen v. Dieter Armbrecht (VAT - Taxable transactions)

text:
 11 . 11 . 95            EN                 Official Journal of the European Communities                                    No C 299/5
                JUDGMENT OF THE COURT                                                 JUDGMENT OF THE COURT
                        of 4 October 1995                                                        ( Fifth Chamber )
in Case C-291 /92 ( reference for a preliminary ruling                                         of 5 October 1995
from the Bundesfinanzhof): Finanzamt Uelzen v. Dieter
                           Armbrecht ( 1 )                             in Case C-321 /93 ( reference for a preliminary ruling from
                                                                       the Sozialgericht Niirnberg ): Jose Imbernon Martinez v.
                  ( VAT — Taxable transactions)                                           Bundesanstalt fiir Arbeit ( 1 )
                           ( 95/C 299/06 )                             (Social security — Family allowances — Residence on the
                                                                                national territory)
                                                                                ( 95 /C 299/07 )
                 (Language of the case: German)
                                                                                (Language of the case: German)
(Provisional translation; the definitive translation will be           (Provisional translation : the definitive translation will be
           published in the European Court Reports)                             published in the European Court Reports)
                                                                       In Case C-321 /93 : reference to the Court under Article 177
In Case C-291 /92 : reference to the Court under Article 177           of the EEC Treaty by the Sozialgericht Nurnberg ( Germany )
of the EEC Treaty from the Bundesfinanzhof ( Federal                   for a preliminary ruling in the proceedings pending before
Finance Court ) for a preliminary ruling in the proceedings            that    court    between Jose         Imbernon     Martinez and
pending before that court between Finanzamt Uelzen and                 Bundesanstalt fiir Arbeit — on the interpretation of
Dieter Armbrecht — on the interpretation of Articles 5 ( 1 ),          Article 73 of Council Regulation ( EEC ) No 1408/71 of
17 ( 2 ) and 20 ( 2 ) of the Sixth Council Directive                   14 June 1971 on the application of social security schemes
( 77/388/EEC ) of 17 May 1977 on the harmonization of the              to employed persons, to self-employed persons and to
laws of the Member States relating to turnover taxes —                 members of their families moving within the Community, as
Common system of value added tax: uniform basis of                     amended by Council Regulation ( EEC ) No 3427/89 of
assessment ( OJ 1977 L 145 , p. 1 ) — the Court, composed of           30 October ' 1989 ( OJ 1989 L 331 , p. 1 ) — the Court (Fifth
G. C. Rodriguez Iglesias, President, F. A. Schockweiler,               Chamber ), composed of C. Gulmann , President of the
P. J. G. Kapteyn, C. Gulmann and P. Jann ( Presidents of               Chamber, J. C. Moitinho de Almeida ( Rapporteur ), D. A. O.
Chambers ), G. F. Mancini, J. C. Moitinho de Almeida , J. L.           Edward , J. -. P. Puissochet and L. Sevon , Judges ;
Murray ( Rapporteur ), D. A. O. Edward , G. Hirsch and                 Advocate-General : M. B. Elmer; Registrar : H. von Holstein ,
H. Ragnemalm , Judges; F. G. Jacobs , Advocate-General ;               Deputy Registrar, gave a judgment on 5 October 1995 , the
L. Hewlett, Administrator, for the Registrar, gave a                   operative part of which is as follows :
judgment on 4 October 1 995 , the operative part of which is
as follows :                                                           1 . Article 73 of Council Regulation (EEC) No 1408/71 of
                                                                            14 June 1971 on the application of social security
                                                                           schemes to employed persons , to self-employed persons
1 . where a taxable person sells property part of which he                 and to members of their families moving within the
     had chosen to reserve for his private use, he does not act             Community, as amended by Council Regulation (EEC)
      with respect to the sale of that part as a taxable person             No 3427/89 of 30 October 1 989, is to be interpreted as
      within the meaning of Article 2 ( 1 ) of the Sixth Council           meaning that where under the tax legislation of a
      Directive (77/388/EEC) of 17 May 1977 on the                          Member State to which that State 's social legislation
      harmonization of the laws of the Member States relating               refers entitlement to and the amount of benefits for
      to turnover taxes — Common system of value added                     dependent children is linked to their residence in the
      tax: uniform basis of assessment;                                     national territory that condition must be regarded as
                                                                           fulfilled if they reside in the territory ofanother Member
                                                                           State ;
2 . where a taxable person sells property part of which he
      had chosen at the time ofacquisition not to assign to his        2 . Article 73 of Regulation (EEC) No 1408/71 is to be
      business, only the part of the property assigned to his               interpreted as meaning that where under the tax
      business is to he taken into account for the application of           legislation ofa Member State to which that State 's social
      Article 17 (2) of the said Directive;                                 legislation refers entitlement to and the amount of
                                                                            benefits for dependent children is linked to residence in
                                                                            the national territory of the worker 's spouse that
3 . the adjustment of the input-tax deduction under                         condition must be regarded as fulfilled where the spouse
      Article 20 (2) of the said Directive must be limited to the           resides in the territory of another Member State. For the
      part of the property assigned to the business.                       purposes of determining entitlement to and the amount
                                                                            of the benefit all the relevant tax legislation must be
                                                                            applied as if the spouse resided in the Member State
(') OJ No C 212 , 18 . 8 . 1992 .                                          providing the benefits .
                                                                       (') O ) N « C 222 , 18 . 8 . 1993 .


title: Case T-180/04: Action brought on 25 May 2004 by Przedsiebiorstwo Polmos Bialystock against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/21

         Action brought on 25 May 2004 by Przedsiebiorstwo Polmos Bialystock against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-180/04)
   (2004/C 217/38)
   Language of the case: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 25 May 2004 by Przedsiebiorstwo Polmos Bialystock, Bialystock, Poland, represented by Ms C. Bercial Arias, lawyer.
   V & S Vin & Sprit AB was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the Decision of the First Board of Appeal of March 16, 2004 in case R 430/2003-1 confirming the Opposition's Division Decision No. 1200/2003 upholding opposition No. B 432 635

               —

               order the Office to pay costs, including those incurred in the opposition proceedings and before the Boards of Appeal

         Pleas in law and main arguments:

               Applicant for Community trade mark:

               the applicant

               Community trade mark sought:

               Figurative mark ‘ABSOLWENT B GRADUATE VODKA WÓDKA’ for goods in class 33 (beer etc.)

               Proprietor of mark or sign cited in the opposition proceedings:

               V & S Vin & Sprit AB

               Mark or sign cited in opposition:

               Word national mark ‘ABSOLUT’

               Decision of the Opposition Division:

               Registration refused

               Decision of the Board of Appeal:

               Appeal rejected

               Pleas in law:

               Inapplicability of Articles 8(1)(b) and 8(2)(c) of Regulation 40/94. In this context, the applicant submits that the signs in question are dissimilar.


title: Case T-435/12: Action brought on 24 September 2012 — Bacardi v OHIM — Granette & Starorežná Distilleries (42 BELOW)

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/24

         Action brought on 24 September 2012 — Bacardi v OHIM — Granette & Starorežná Distilleries (42 BELOW)
   (Case T-435/12)
   2012/C 379/42
   Language in which the application was lodged: English

      Parties

      Applicant: Bacardi Co. Ltd (Vaduz, Liechtenstein) (represented by: M. Reinisch, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Granette & Starorežná Distilleries a.s. (Ústí nad Labem, Czech Republic)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 July 2012 in case R 2100/2011-2;

               —

               Reject the opposition against the registration of the word-device mark ‘42 BELOW’ No 8391856 for goods in class 33;

               —

               Transmit the judgment of the General Court of the European Union to OHIM; and

               —

               Order OHIM and the other party to the proceedings before the Board of Appeal to pay all costs and expenses.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘42 BELOW’, for goods in class 33 — Community trade mark application No 8391856

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

      Mark or sign cited in opposition: Czech trade mark registration No 263350 for the figurative mark ‘VODKA 42’, for among others goods and services in class 33; Unregistered trade mark ‘VODKA 42’ used in Czech Republic and Slovakia

      Decision of the Opposition Division: Rejected the opposition in its entirety

      Decision of the Board of Appeal: Upheld the appeal and refused the CTM application for all the goods

      Pleas in law:

               —

               Infringement of Rule 50(2)(g) of Commission Regulation No 2868/95; and

               —

               Infringement of Article 8(4) of Council Regulation No 207/2009.


title: Reference for a preliminary ruling by the Pretura Circondariale di Roma - Sezione Distaccata di Tivoli by order of that court of 15 and 22 November 1995 in criminal proceedings against Tersilio Onorati and Palma Marulli (Cases C-377/95 and C-378/95)

text:
No C 31 / 12               EN               Official Journal of the European Communities                                    3 . 2 . 96
      ( b ) Article 3 ( 1 ) of Law No 363/76 ( as last replaced by     similar reduction is provided for second-hand cars with the
            Article 2 ( 7 ) of Law No 2187/ 1994 ) which governs       latest technology this has created discrimination to the
            payment of the flat-rate added special duty without        detriment of imported second-hand cars with the latest
            any reduction for used cars; and                           technology in relation to equivalent Greek cars, since the
                                                                       residual portion of the reduced tax is incorporated in the
      ( c ) Article 1 of Law No 1858/1989 , as subsequently            latters' value, whereas the special consumption tax is
            amended by Laws No 1882/1990 ( Articles 37 ( 2 )           charged on the importation of the former without the
            and 42 ( 1 )) and No 2093/ 1992 ( Article 10 ) which       reduction provided for anti-pollutant cars .
            now applies with Article 2 ( 1 ) of Law
            No 2187/1 994, by which tax advantages ( reduction         The practical difficulties invoked by the Hellenic Republic
            of the special consumption tax ) are granted only to       cannot justify such an infringement of the first paragraph of
            new anti-pollutant cars and not to imported                Article 95 of the Treaty, as is clear from the consistent
            second-hand anti-pollutant cars,                           case-law of the Court of Justice .
      the Hellenic Republic is in breach of its obligations
      pursuant to Article 95 of the EC Treaty;
2 . order the Hellenic Republic to pay the costs .
                                                                       Reference for a preliminary ruling by the Pretura
Pleas in law and main arguments adduced in support:                    Circondariale di Roma — Sezione Distaccata di Tivoli by
                                                                       order of that court of 15 and 22 November 1995 in criminal
A. Special consumption tax                                               proceedings against Tersilio Onorati and Palma Marulli
                                                                                ( Cases C-377/95 and C-378/95 )
This tax is levied on cars manufactured in Greece when they
                                                                                ( 96/C 31 /23 )
first circulate as new cars and also on imported cars on
importation either new or second-hand . Accordingly the tax
is not levied on second-hand Greek cars .                              Reference has been made to the Court of Justice of the
                                                                       European Communities by orders of the Pretura
                                                                       Circondariali di Roma — Sezione Distaccata di Tivoli
The tax is levied on imported second-hand cars on the basis
of their presumed value , which is calculated by means of a            ( Rome District Magistrate's Court, Tivoli Division ) of 15
reduction from the price of equivalent new cars of 5 % for             and 22 November 1995 , which were received at the Court
each year of use , up to a maximum of 20% . In the                     Registry on 4 December 1995 , for a preliminary ruling in
Commission 's view, since                                              criminal proceedings against Tersilio Onorati and Palma
                                                                       Marulli
( a ) the actual reduced value of the cars exceeds 5 % per
        annum ;
                                                                       The questions referred by the Pretura Circondariale di
                                                                       Roma — Sezione Distaccata di Tivoli to the Court of Justice
                                                                       for a preliminary ruling are identical with those in Case
( b ) that reduction is not linear, but greater in the first years     C-58/95 ( M.
        and less subsequently;
                                                                       (>) OJ No C 119 , 13 . 5 . 1995 , p . 6 .
( c ) there is no provision for a reduction greater than
        20% ,
those rules result in higher taxation of imported cars,
because the residual ( incorporated ) portion of the tax in the
value of second-hand cars manufactured in Greece is less
than the amount of the tax levied on imported second-hand              Appeal brought on 27 November 1995 by the French
cars .
                                                                       Republic against the judgment delivered on 18 September
                                                                       1995 by the First Chamber ( enlarged composition ) of the
                                                                       Court of First Instance of the European Communities in
Accordingly this amounts to a breach of the first paragraph            Case T-548/93 ( ] ) between Ladbroke Racing Ltd and the
of Article 95 of the Treaty .                                          Commission of the European Communities, supported by
                                                                                the French Republic
B.      Flat-rate added special duty                                                         ( Case C-379/95 P)
                                                                                96/C 31 /24
The method of calculating this duty is the same as that used
in calculating the special consumption tax. Consequently
                                                                       An appeal against the judgment delivered on 18 September
the same comments as above apply by analogy.
                                                                        1995 by the First Chamber ( enlarged composition ) of the
                                                                       Court of First Instance of the European Communities in
C. Special consumption tax on anti-pollutant cars                      Case T-548/93 between Ladbroke Racing Ltd and the
                                                                        Commission of the European Communities was brought
By successive laws the Hellenic Republic has reduced in                 before the Court of Justice of the European Communities on
recent years the special consumption tax levied on new cars            27 November 1995 by the French Republic, represented by
with the latest technology ( anti-pollutant cars ). Since no           Jean-Marc Belorgey, Catherine de Salins and Jean-Francois


title: Case C-330/08: Judgment of the Court (Seventh Chamber) of 11 December 2008 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2004/35/EC — Environmental liability — Prevention and remedying of environmental damage — Failure to transpose within the period prescribed)

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/11

         Judgment of the Court (Seventh Chamber) of 11 December 2008 — Commission of the European Communities v French Republic
   (Case C-330/08) (1)

   (Failure of a Member State to fulfil obligations - Directive 2004/35/EC - Environmental liability - Prevention and remedying of environmental damage - Failure to transpose within the period prescribed)
   (2009/C 32/18)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: G. Rozet and U. Wölker, acting as Agents)

      Defendants: French Republic (represented by: G. de Bergues and A. Adam, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt the provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, the French Republic has failed to fulfil its obligations under Article 19(1) of that directive;

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 272, 25.10.2008.


title: Case T-135/01: Judgment of the Court of First Instance of  14 December 2005  — Fedon & Figli and Others v Council and Commission (Non-contractual liability of the Community — Incompatibility of the Community regime governing the import of bananas with the rules of the World Trade Organisation (WTO) — Imposition by the United States of America of retaliatory measures in the form of increased customs duty levied on imports from the Community, pursuant to a WTO authorisation — Decision of the WTO Dispute Settlement Body — Legal effects — Community liability in the absence of unlawful conduct on the part of its institutions — Causal link — Unusual and special damage)

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/25

         Judgment of the Court of First Instance of 14 December 2005 — Fedon & Figli and Others v Council and Commission
   (Case T-135/01) (1)

   (Non-contractual liability of the Community - Incompatibility of the Community regime governing the import of bananas with the rules of the World Trade Organisation (WTO) - Imposition by the United States of America of retaliatory measures in the form of increased customs duty levied on imports from the Community, pursuant to a WTO authorisation - Decision of the WTO Dispute Settlement Body - Legal effects - Community liability in the absence of unlawful conduct on the part of its institutions - Causal link - Unusual and special damage)
   (2006/C 48/47)
   Language of the case: Italian
   Parties

      Applicants: Giorgio Fedon & Figli SpA (Vallesella di Cadore, Italy), Fedon Srl (Pieve d'Alpago, Italy) and Fedon America, Inc. (Wilmington, Delaware, United States) (represented by: I. Van Bael, A. Cevese and F. Di Gianni, lawyers)

      Defendants: Council of the European Union (represented by: S. Marquardt and F. Ruggeri Laderchi, Agents) and Commission of the European Communities (initially represented by: P. Kuijper, E. Righini, V. Di Bucci and B. Jansen and then by: P. Kuijper, E. Righini and V. Di Bucci, Agents)
   Application for
   compensation in respect of the damage allegedly caused by the levying by the United States of America of increased customs duty on the applicants' imports of spectacle cases, as authorised by the Dispute Settlement Body of the World Trade Organisation (WTO), following a finding that the Community regime governing the import of bananas was incompatible with the agreements and understandings annexed to the Agreement establishing the WTO
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicants to bear their own costs and to pay those of the Council and the Commission.

      (1)  OJ C 275, 29.9.2001.


title: Case T-802/16: Action brought on 08 November 2016 — Endoceutics v EUIPO — Merck (FEMIBION)

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/45

         Action brought on 08 November 2016 — Endoceutics v EUIPO — Merck (FEMIBION)
   (Case T-802/16)
   (2017/C 022/61)
   Language in which the application was lodged: English

      Parties

      Applicant: Endoceutics, Inc. (Quebec, Canada) (represented by: M. Wahlin, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Merck KGaA (Darmstadt, Germany)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: EU word mark ‘FEMIBION’ — EU trade mark No 898 924

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the First Board of Appeal of EUIPO of 14 July 2016 in Case R 1608/2015-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision in part and revoke the EUTM for ‘pharmaceutical preparations for immune system support, for menopause, for menstruation, for treatment and management of pregnancy, for the prevention, treatment and management of stress, for the prevention, treatment and management of stress ill-balanced or deficient nutrition’;

               —

               order the EUTM proprietor to pay the Applicant’s costs on the appeal and with regard to the proceedings at the EUIPO.

      Plea in law

               —

               Infringement of Article 51(1)(a) of Regulation No 207/2009.


title: Case T-504/12: Action brought on 19 November 2012 — Murnauer Markenvertrieb v OHIM (NOTFALL CREME)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/63

         Action brought on 19 November 2012 — Murnauer Markenvertrieb v OHIM (NOTFALL CREME)
   (Case T-504/12)
   2013/C 26/124
   Language of the case: German

      Parties

      Applicant: Murnauer Markenvertrieb GmbH (Trebur, Germany) (represented by F. Traub and H. Daniel, lawyers)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 September 2012 in Case R 271/2012-4;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: the figurative mark, including the word element ‘NOTFALL CREME’ for goods in Classes 3 and 5 — Community trade mark application No 10 107 134

      Decision of the Examiner: the application was rejected

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: Infringement of Article 7(1)(b) and (c) and Article 83 of Regulation No 207/2009


title: Case C-233/13 P: Appeal brought on 29 April 2013 by Principessa (in liquidation) against the order of the General Court (Fourth Chamber) of 20 February 2013 in Joined Cases T-278/00 to T-280/00, T-282/00 to T-286/00 and T-288/00 to T-295/00 Albergo Quattro Fontane and Others v Commission

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/19

         Appeal brought on 29 April 2013 by Principessa (in liquidation) against the order of the General Court (Fourth Chamber) of 20 February 2013 in Joined Cases T-278/00 to T-280/00, T-282/00 to T-286/00 and T-288/00 to T-295/00 Albergo Quattro Fontane and Others v Commission
   (Case C-233/13 P)
   2013/C 207/31
   Language of the case: Italian

      Parties

      Appellant: Principessa (in liquidation) (represented by: A. Bianchini and F. Busetto, avvocati)

      Other parties to the proceedings: European Commission, Comitato ‘Venezia vuole vivere’

      Form of order sought

               —

               Set aside the order of the General Court under appeal

               —

               Uphold the forms of order sought at first instance and, accordingly,

                           —

                           annul, in so far as is reasonable and in so far as it concerns the appellant, European Commission Decision No 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995;

                           —

                           in the alternative, annul that decision in so far as it imposes an obligation to recover the relief granted and in so far as it requires interest to be added to the amount of relief to be recovered for the periods taken into consideration in the judgment;

               —

               order the Commission to pay the costs incurred both at first instance and on appeal.

      Grounds of appeal and main arguments

   In support of the appeal, the appellant raises nine grounds of appeal:

                  First ground: the General Court erred in not taking into consideration the fact that the measures in question did not confer any advantage upon their beneficiaries given their compensatory nature.

                  Second ground: the Court erred in not excluding, or at least assessing, the likelihood that the measures in question would affect competition and intra-Community trade.

                  Third ground: the Court erred in holding that the derogations in Article 87(2)(b) EC (now Article 107(2)(b) TFEU) and Article 87(3)(b) EC (now Article 107(3)(b) TFEU) were inapplicable.

                  Fourth ground: the Court erred in holding that the derogation in Article 87(3)(c) EC (now Article 107(3)(c) TFEU) was inapplicable.

                  Fifth ground: the Court erred in holding that the derogations in Article 87(3)(d) and (e) EC (now Article 107(3)(d) and (e) TFEU) were inapplicable.

                  Sixth ground: the Court erred in holding that the derogation in Article 86(2) EC (now Article 106(2) TFEU) was inapplicable.

                  Seventh ground: the Court erred in not recognising the existence of the aid, thus infringing Article 88(3) EC (now Article 108(3) TFEU) and Article 15 of Regulation No 659/1999. (1)

                  Eighth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the recovery order.

                  Ninth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the addition of interest.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).


title: Case T-100/07: Action brought on 4 April 2007 — UPS Europe and UPS Deutschland v Commission

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/16

         Action brought on 4 April 2007 — UPS Europe and UPS Deutschland v Commission
   (Case T-100/07)
   (2007/C 129/29)
   Language of the case: English
   Parties

      Applicants: UPS Europe NV/SA (Brussels, Belgium) and UPS Deutschland Inc. & Co. OHG (Neuss, Germany) (represented by: T. Ottervanger and E. Henny, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought
   In light of their submissions, the applicants respectfully request the Court:

               —

               to declare in accordance with Article 232 EC that the Commission has failed to act by not having delivered a decision on the applicants' complaint lodged with the Commission on 22 April 2004;

               —

               to order the Commission to pay the costs incurred by the applicants in the proceedings;

               —

               to take such further action as the Court may deem appropriate.

         Pleas in law and main arguments
   By means of their application, the applicants initiate an action under Article 232 EC, claiming that the Commission failed to take a definitive decision on their complaint initially filed on 22 April 2004, followed by an invitation to act, lodged on 27 November 2006, with regard to an alleged abuse of dominance by Deutsche Post under Article 82 EC.
   The applicants sustain that they have a legitimate interest to bring such a complaint in accordance with the requirement of Article 7(2) of Council Regulation 1/2003 (1) and are directly and individually concerned by the Commission's failure to act. In fact, the applicants claim to be affected by the excessive pricing of Deutsche Post in the downstream market, both as a consumer as well as a competitor.
   The applicants further submit that in accordance with the Commission Notice on the handling of complaints under Article 81 and 82 EC (2), the Commission is required, upon receipt of a complaint that Article 82 EC has been infringed, either to initiate a procedure against the subject of the complaint or to adopt a definitive decision rejecting the complaint, after having given the complainant the opportunity to comment. However, the applicants claim that although they have submitted their comments on the preliminary rejection of the complaint within the given time-limit, the Commission did not take any definitive decision, in breach of Community law.
   Finally, the applicants contend that, considering the circumstances of the case, the period of approximately three years that has lapsed during which they have repeatedly urged the Commission to take action is sufficiently long to enable it to take a definitive decision. In particular, the period of 18 months that has lapsed since the applicants submitted their final observations, is according to the applicants more than reasonable to enable the Commission to close the third stage of investigation.

      (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 L 1, 4.1.2003, p. 1-25).

      (2)  OJ C 101, 27.4.2004, p. 65-77.


title: Case T-99/04: Judgment of the Court of First Instance of 8 July 2008 — AC-Treuhand v Commission (Competition — Agreements, decisions and concerted practices — Organic peroxides — Fines — Article 81 EC — Rights of the defence — Right to a fair hearing — Meaning of perpetrator of an infringement — Principle of nullum crimen, nulla poena sine lege — Principle of legal certainty — Legitimate expectations)

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/42

         Judgment of the Court of First Instance of 8 July 2008 — AC-Treuhand v Commission
   (Case T-99/04) (1)

   (Competition - Agreements, decisions and concerted practices - Organic peroxides - Fines - Article 81 EC - Rights of the defence - Right to a fair hearing - Meaning of perpetrator of an infringement - Principle of nullum crimen, nulla poena sine lege - Principle of legal certainty - Legitimate expectations)
   (2008/C 209/72)
   Language of the case: German
   Parties

      Applicant: AC-Treuhand AG (Zurich, Switzerland) (represented by: M. Karl, C. Steinle and J. Drolshammer, lawyers)

      Defendant: Commission of the European Communities (represented by: A. Bouquet, Agent, and A. Böhlke, lawyer)
   Re:
   Annulment of Commission decision 2005/349/EC of 10 December 2003 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 — Organic peroxides) (OJ 2005 L 110, p. 44)
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders AC-Treuhand AG to pay the costs.

      (1)  OJ C 118, 30.4.2004.


title: Order of the Court of First Instance of 26 November 2003 in Case T-96/02: Hugh Mc Bryan v Commission of the European Communities (Officials — Pensions — Transfer of national pension rights — Calculation of the annual contributions to be taken into account — Salary used as reference — Action manifestly devoid of any legal basis)

text:
C 71/28                 EN                          Official Journal of the European Union                                        20.3.2004
of these sums — the Court of First Instance (First Chamber),                1.   dismisses the action as being manifestly devoid of any legal
composed of: B. Vesterdorf, President, P. Mengozzi and                           basis;
E. Martins Ribeiro, Judges; H. Jung, Registrar, has made an
order on 4 December 2003, the operative part of which is as                 2.   orders the parties to bear their own costs.
follows:
                                                                            (1) OJ C 144 of 15.6.2002.
1.    There is no need to adjudicate on the application.
2.    Each party shall bear its own costs.
(1) OJ C 200 of 14.7.2001.
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 26 November 2003
                                                                            in Case T-96/02: Hugh Mc Bryan v Commission of the
                                                                                European Communities (1)
      ORDER OF THE COURT OF FIRST INSTANCE                                  (Officials — Pensions — Transfer of national pension rights
                                                                            — Calculation of the annual contributions to be taken into
                                                                            account — Salary used as reference — Action manifestly
                      of 26 November 2003                                                       devoid of any legal basis)
in Case T-95/02: Michael Hohenbichler v Commission of                                                 (2004/C 71/53)
                 the European Communities (1)
                                                                                (Language of the case: French)
(Officials — Pensions — Transfer of national pension rights
— Calculation of the annual contributions to be taken into
account — Annual salary used as reference — Action
              manifestly devoid of any legal basis)                         In Case T-96/02: Hugh Mc Bryan, an official of the Commission
                                                                            of the European Communities, residing in Brussels (Belgium),
                                                                            represented by J.–N. Louis, lawyer, with an address for
                          (2004/C 71/52)                                    service in Luxembourg, against Commission of the European
                                                                            Communities (Agents: J. Currall and H. Tserepa-Lacombe) —
                                                                            application for annulment of the Commission’s decision of
                                                                            14 May 2001 calculating the annual contributions to be
                    (Language of the case: French)                          credited for the purpose of transfer to the Community scheme,
                                                                            under Article 11(2) of Annex VIII to the Staff Regulations, of
                                                                            national pension rights acquired by the applicant before his
                                                                            entering the service — the Court of First Instance (Third
                                                                            Chamber), composed of: J. Azizi, President, M. Jaeger and
In case T-95/02: Michael Hohenbichler, an official of the                   F. Dehousse, Judges; H. Jung, Registrar, has made an order on
Commission of the European Communities, residing in Brus-                   26 November 2003, in which it:
sels (Belgium), represented by J.–N. Louis, lawyer, with an
address for service in Luxembourg, against Commission of the
European Communities (Agents: J. Currall and H. Tserepa-                    1.   dismisses the action as being manifestly devoid of any legal
Lacombe) — application for annulment of the Commission’s                         basis;
decision of 21 May 2001 calculating the annual contributions
to be credited for the purpose of transfer to the Community                 2.   orders the parties to bear their own costs.
scheme, under Article 11(2) of Annex VIII to the Staff
Regulations, of national pension rights acquired by the appli-
cant before his entering the service — the Court of First                   (1) OJ C 131 of 1.6.2002.
Instance (Third Chamber), composed of: J. Azizi, President,
M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, has made
an order on 26 November 2003, in which it:


title: Joined Cases C-317/04 and C-318/04: Judgement of the Court (Grand Chamber) of  30 May 2006  — European Parliament v Council of the European Union (Protection of individuals with regard to the processing of personal data — Air transport — Decision 2004/496/EC — Agreement between the European Community and the United States of America — Passenger Name Records of air passengers transferred to the United States Bureau of Customs and Border Protection — Directive 95/46/EC — Article 25 — Third countries — Decision 2004/535/EC — Adequate level of protection)

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/1

         Judgement of the Court (Grand Chamber) of 30 May 2006 — European Parliament v Council of the European Union
   (Joined Cases C-317/04 and C-318/04) (1)

   (Protection of individuals with regard to the processing of personal data - Air transport - Decision 2004/496/EC - Agreement between the European Community and the United States of America - Passenger Name Records of air passengers transferred to the United States Bureau of Customs and Border Protection - Directive 95/46/EC - Article 25 - Third countries - Decision 2004/535/EC - Adequate level of protection)
   (2006/C 178/02)
   Language of the case: French
   Parties

      Applicant: European Parliament (represented by: R. Passos, N. Lorenz, H. Duintjer Tebbens and A. Caiola, Agents)

      Intervener in support of the applicant: European Data Protection Supervisor (EDPS) (represented by: H. Hijmans and V. Perez Asinari, Agents)

      Defendant (in Case C-317/04): Council of the European Union (represented by: M.C. Giorgi Fort and M. Bishop, Agents)

      Defendant (in Case C-318/04): Commission of the European Communities (represented by: P.J. Kuijper, A. van Solinge, C Docksey and F. Benyon, Agents)

      Interveners in support of the defendant (in Case C-317/04): Commission of the European Communities (represented by: P.J. Kuijper, A. van Solinge and C. Docksey, Agents); United Kingdom of Great Britain and Northern Ireland (represented by: M. Bethell, C. White and T. Harris, Agents, and by T. Ward, Barrister)

      Intervener in support of the defendant (in Case C-318/04): United Kingdom of Great Britain and Northern Ireland (represented by: M. Bethell, C. White and T. Harris, Agents, and by T. Ward, Barrister)
   Re:
   Action for annulment: annulment of Council Decision 2004/496/EC of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection (OJ L 183, 2004, p. 83) (C-317/04)
   Action for annulment: annulment of Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection (OJ L 235, 2004, p. 11) (C-318/04)
   Operative part of the judgement
   The Court:

               1.

               Annuls Council Decision 2004/496/EC of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, and Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection;

               2.

               Preserves the effect of Decision 2004/535 until 30 September 2006, but not beyond the date upon which that Agreement comes to an end;

               3.

               Orders the Council of the European Union to pay the costs in Case C-317/04;

               4.

               Orders the Commission of the European Communities to pay the costs in Case C-318/04;

               5.

               Orders the Commission of the European Communities to bear its own costs in Case C-317/04;

               6.

               Orders the United Kingdom of Great Britain and Northern Ireland and the European Data Protection Supervisor to bear their own costs.

      (1)  OJ C 228, 11.9.2004.


title: Case T-442/11: Order of the General Court of 24 October 2012 — Evropaïki Dynamiki v Commission (Action for annulment — Act not subject to review — Act which is confirmatory, in part, and informative, in part — Inadmissibility — Action for damages — Failure to identify the alleged conduct or to define the alleged damage — Inadmissibility — Action for damages — Absence of proof of damage — Action manifestly lacking any foundation in law)

text:
               22.12.2012

               EN

               Official Journal of the European Union

               C 399/22

         Order of the General Court of 24 October 2012 — Evropaïki Dynamiki v Commission
   (Case T-442/11) (1)

   (Action for annulment - Act not subject to review - Act which is confirmatory, in part, and informative, in part - Inadmissibility - Action for damages - Failure to identify the alleged conduct or to define the alleged damage - Inadmissibility - Action for damages - Absence of proof of damage - Action manifestly lacking any foundation in law)
   2012/C 399/41
   Language of the case: English

      Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

      Defendant: European Commission (represented by: S. Delaude and D. Calciu, acting as Agents, assisted by P. Wytinck, lawyer)

      Re:

   Application, first, for the annulment of a letter of the Commission of 27 May 2011, second, for an order for the Commission to pay damages and, third, for an order for the Commission to publish a communiqué.

      Operative part of the order

   The General Court:

               1.

               Dismisses the action;

               2.

               Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay its own costs and those incurred by the European Commission.

      (1)  OJ C 290, 1.10.2011.


title: Case C-438/07: Judgment of the Court (Third Chamber) of 6 October 2009 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Environment — Directive 91/271/EEC — Treatment of urban waste water — Failure to require more stringent treatment of nitrogen in all treatment plants of urban waste water from agglomerations of more than 10000 population equivalent)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/4

         Judgment of the Court (Third Chamber) of 6 October 2009 — Commission of the European Communities v Kingdom of Sweden
   (Case C-438/07) (1)

   (Failure of a Member State to fulfil obligations - Environment - Directive 91/271/EEC - Treatment of urban waste water - Failure to require more stringent treatment of nitrogen in all treatment plants of urban waste water from agglomerations of more than 10 000 population equivalent)
   2009/C 282/06
   Language of the case: Swedish

      Parties

      Applicant: Commission of the European Communities (represented by: I. Koskinen, L. Parpala, M. Patakia and S. Pardo Quintillán, Agents)

      Defendant: Kingdom of Sweden (represented by: A. Falk, Agent)

      Intervener in support of the defendant: Republic of Finland (represented by: J. Heliskoski and A. Guimaraes-Purokoski, Agents)

      Re:
   Failure of a Member State to fulfil obligations — Breach of Article 5(2), (3) and (5) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40), as amended by Commission Directive 98/15/EC of 27 February 1998 (OJ 1998 L 67, p. 29) — Failure to ensure, at the latest by 31 December 1998, that all discharges from treatment plants of urban waste water from agglomerations of more than 10 000 population equivalent released into sensitive areas or their catchment areas fulfil the relevant requirements of Annex I to Council Directive 91/271/EEC.

      Operative part of the judgment

   The Court:

               1.

               Declares that, by not ensuring, by 31 December 1998 at the latest, that discharges from the treatment plants of urban waste water from agglomerations of more than 10 000 population equivalent listed in Annexes 2 and 3 to its defence, as amended by its rejoinder, which enter directly into sensitive areas or their catchment areas fulfil the relevant requirements of Annex I to Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment, as amended by Commission Directive 98/15/EC of 27 February 1998, the Kingdom of Sweden has failed to fulfil its obligations under Article 5(2), (3) and (5) of that directive;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Commission of the European Communities, the Kingdom of Sweden and the Republic of Finland to bear their own costs.

      (1)  OJ C 283, 24.11.2007.


title: Case T-103/10 P(R): Appeal brought on 5 March 2010 by the European Parliament against the order of 18 December 2009 of the President of the Civil Service Tribunal in Case F-92/09 R U v Parliament

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/70

         Appeal brought on 5 March 2010 by the European Parliament against the order of 18 December 2009 of the President of the Civil Service Tribunal in Case F-92/09 R U v Parliament
   (Case T-103/10 P(R))
   2010/C 113/103
   Language of the case: French

      Parties

      Appellant: European Parliament (represented by S. Seyr and K. Zejdovà, Agents)

      Other party to the proceedings: U

      Form of order sought by the appellant

               —

               the setting aside of the order under appeal of the President of the Civil Service Tribunal;

               —

               final adjudication on the application for interim relief and its dismissal as unfounded;

               —

               the reservation of the costs.

      Pleas in law and main arguments

   By the present action, the applicant seeks the setting aside of the order of 18 December 2009 of the President of the Civil Service Tribunal (CST) in Case F-92/09 R U v Parliament suspending the operation of the dismissal decision of 6 July 2009 pending the Tribunal's decision disposing of the proceedings.
   In support of its appeal, the appellant relies on three grounds of appealing alleging:

               —

               failure properly to state the reasons for the decision, because the reasoning set out in the order under appeal does not, on several points, enable the grounds justifying the decision reached by the President of the Civil Service Tribunal to be ascertained;

               —

               infringement of the European Parliament's rights of the defence, because the order for interim relief goes beyond the compass of a simple evaluation under Article 102(2) of the Rules of Procedure of the Civil Service Tribunal that applications for interim measures must state, in particular, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie the case for the interim measures applied for. By going into the details of the merits of the case, particularly by adjudicating on the details of the conduct of the improvement procedure, the order infringes the European Parliament's rights of the defence, depriving it of the possibility of taking a position and defending itself on those aspects;

               —

               failure to observe the rules in respect of the burden of proof and the taking of evidence, because as regards the requirement for urgency, all the relevant evidence which could have affected the applicant's financial situation was not taken into account, disregarding the principle of equality of the parties before the court.