title: JUDGMENT OF THE COURT (Fifth Chamber) of 27 June 1996 in Case C-107/94 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): P. H. Asscher v. Staatssecretaris van Financiën (Article 52 of the EC Treaty - Requirement of equal treatment - Income tax on non-residents)

text:
No C 336/2              EN                 Official Journal of the European Communities                                       9 . 11 . 96
On a proper construction of the combined nomenclature of              2 . Orders the Italian Republic to pay the costs.
the Common Customs Tariff, in the version annexed to
Commission Regulation (EEC) No 2505/92 of 14 July 1 992               (') OJ No C 229 of 2 . 9 . 1995 .
amending Annexes I and II to Council Regulation (EEC)                 ( 2 ) OJ No L 163 , 1989 , p . 32 .
No 2658/87 on the tariff and statistical nomenclature and             (■') OJ No L 203 , 1989 , p . 50 .
on the Common Customs Tariff, a basic module for the
assembly of a data-processing machine, consisting of a
housing essentially containing two disk drives, is to be
classified, pursuant to General Rule 3 (b) for the
interpretation of the combined nomenclature of the
Common Customs Tariff, under subheading 8471 93 59 as
a 'storage unit', on the basis of the drives it contains.                             JUDGMENT OF THE COURT
                                                                                ( Fifth Chamber )
(') OJ No C 159 , 24 . 6 . 1995 .
                                                                                of 27 June 1996
( 2 ) OJ No L 267, 1992 , p . 1 .
                                                                      in Case C-107/94 ( reference for a preliminary ruling
                                                                      from the Hoge Raad der Nederlanden ): P. H. Asscher v.
                                                                                Staatssecretaris van Financiën (')
                                                                       (Article 52 of the EC Treaty — Requirement of equal
                                                                                treatment — Income tax on non-residents)
                 JUDGMENT OF THE COURT                                                            ( 96/C 336/04 )
                         ( Fifth Chamber )
                         of 20 June 1996                                                (Language of the case: Dutch)
       in Case C-237/95 : Commission of the European
               Communities v. Italian Republic (')                     (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
 (Failure to fulfil obligations — Failure to transpose
           Directives 89/369/EEC and 89/429/EEC)
                           ( 96/C 336/03 )                            In Case C-107/94 : reference to the Court pursuant to
                                                                      Article 177 of the EC Treaty from the Hoge Raad der
                                                                      Nederlanden ( Supreme Court of the Netherlands ) for a
                  (Language of the case: Italian)                      preliminary ruling in the proceedings pending before that
                                                                      court between P. H. Asscher and Staatssecretaris van
 (Provisional translation; the definitive translation will be          Financien — on the interpretation of Article 48 of the EEC
           published in the European Court Reports)                   Treaty, now the EC Treaty — the Court ( Fifth Chamber ),
                                                                      composed of: D. A. O. Edward , President of the Chamber,
                                                                      J. -P. Puissochet, J. C. Moitinho de Almeida , C. Gulmann
In Case C-237/95 : Commission of the European
                                                                       and M. Wathelet ( Rapporteur ), Judges; P. Leger,
 Communities ( Agents : Maria Kontou-Durande and Laura
                                                                       Advocate-General ; H. A. Ruhl , Principal Administrator, for
Pignataro ) v. Italian Republic ( Agent : Professor Umberto            the Registrar, gave judgment on 27 June 1996 , the operative
 Leanza, assisted by Pier Giorgio Ferri ) — application for a          part of which is as follows :
declaration that, by failing to adopt or to communicate the
 laws , regulations and administrative provisions necessary to
comply with Council Directive 89/369/EEC of 8 June 1989                 1 . A national of a Member State pursuing an activity as a
 on the prevention of air pollution from new municipal                       self-employed person in another Member State, in which
 waste-incineration plants ( 2 ) and Council Directive                       he resides, may rely on Article 52 of the EC Treaty as
 89/429/EEC of 21 June 1989 on the reduction of air                          against his State of origin, on whose territory he pursues
 pollution from existing municipal waste-incineration                        another activity as a self-employed person, if, by virtue
 plants ( 3 ), the Italian Republic has failed to fulfil its                 of pursuing an economic activity in a Member State
 obligations pursuant to the EC Treaty — the Court ( Fifth                   other than his State of origin, he is, with regard to the
 Chamber ), composed of D. A. O. Edward ( Rapporteur ),                      latter, in a situation which may be regarded as
 President of the Chamber, J. -P. Puissochet, J. C. Moitinho                 equivalent to that of any other person relying as against
 de Almeida, C. Gulmann and P. Jann, Judges; M. B. Elmer,                    the host Member State on the rights and liberties
 Advocate-General ; R. Grass, Registrar, has given a                         guaranteed by the Treaty.
 judgment on 20 June 1996 , in which it :
                                                                       2 . Article 52 of the Treaty is to be interpreted as precluding
  1 . Declares that, by failing to adopt within the prescribed               a Member State from applying to a national of a
       period the laws, regulations and administrative                       Member State who pursues an activity as a
       provisions necessary to comply with Council Directive                 self-employed person within its territory and at the same
       89/369/EEC of 8 June 1989 on the prevention of air                    time pursues another actwity as a self-employed person
       pollution from new municipal waste-incineration                       in another Member State, in which he resides, a higher
       plants, the Italian Republic has failed to fulfil its                 rate of income tax than that applicable to residents
       obligations pursuant to Article 12 ( 1 ) of that                      pursuing the same activity where there is no objective
       Directive:                                                            difference between the situation of such taxpayers and
 ---pagebreak--- 9 . 11 . 96            EN                 Official Journal of the European Communities                                    No C 336/3
     that of taxpayers who are resident or treated as such to        — the financial years of the two companies coincide,
     justify that difference in treatment.
                                                                     — the subsidiary 's annual accounts for the financial year in
3 . Article 52 of the Treaty precludes a Member State from                 question were adopted by the general meeting before
     taking account, by means ofa higher rate of income tax,               completion of the audit of the parent company 's annual
     of the fact that, by virtue of the relevant provisions of             accounts for that year,
     Council Regulation (EEC) No 1408/71 of 14 June 1971
     on the application of social security schemes to                — the subsidiary 's annual accounts for the financial year in
     employed persons and their families moving within the                 question, as adopted by its general meeting, show that
     Community, concerning the determination of the                        on the subsidiary 's balance-sheet date — namely the last
     applicable legislation, the taxpayer is not obliged to pay            day of that financial year — the subsidiary appropriated
     contributions to its national social insurance scheme.                profits to the parent company, and
     The fact that, also by virtue of Regulation (EEC)
     No 1408/71 , the taxpayer is insured under the social           — the national court is satisfied that the subsidiary 's annual
     security scheme of the State in which he resides is                   accounts for the financial year in question give a true and
     irrelevant in that regard.                                            fair view of its assets and liabilities, financial position
                                                                           and profit or loss,
(>) OJ No C 132 , 14 . 5 . 1994 .
                                                                     it is not contrary to the rule laid down in Article 31 (1 ) (c)
                                                                     (aa) of the fourth Council Directive 78/660/EEC of 25 July
                                                                     1 978 based on Article 54 (3) (g) of the Treaty on the annual
                                                                     accounts of certain types of companies, as amended by the
                                                                     seventh Council Directive 83/349/EEC of 13 June 1983
               JUDGMENT OF THE COURT                                 based on Article 54 (3) (g) of the Treaty on consolidated
                        ( Fifth Chamber)                             accounts, for the national court to consider that the profits
                        of 27 June 1996                              in question must be entered in the parent company 's balance
                                                                     sheet for the financial year in respect of which they were
in Case C-234/94 (reference for a preliminary ruling from            appropriated by the subsidiary.
the Bundesgerichtshof): Waltraud Tomberger v. Gebriider
                  von der Wettern GmbH (')
                                                                     (') OJ No C 288 , 15 . 10 . 1994 .
(Directive 78/660/EEC — Annual accounts — Balance                    ( 2 ) OJ No L 222 , 1978 , p . 11 .
            sheet — Date at which profit is made)                    ( 3 ) OJ No L 193 , 1983 , p . 1 .
                          ( 96/C 336/05 )
                (Language of the case: German)
(Provisional translation; the definitive translation will be                         JUDGMENT OF THE COURT
          published in the European Court Reports)
                                                                                ( Fifth Chamber )
In Case C-234/94 : reference to the Court under Article 177                                   of 27 June 1996
of the EC Treaty from the Bundesgerichtshof ( Federal Court          in Case C-240/95 ( reference for a preliminary ruling from
of Justice ) for a preliminary ruling in the proceedings             the Cour d'Appel , Metz ( France )): Criminal proceedings
pending before that court between Waltraud Tomberger v.                                   against Remy Schmit ( 1 )
Gebriider von der Wettern GmbH — on the interpretation
of Articles 31 ( 1 ) and 59 of the fourth Council Directive          (Free movements of goods — Motor vehicles — National
78/660/EEC of 25 July 1978 based on Article 54 ( 3 ) ( g) of         system of model-year dates — Discrimination against
the Treaty on the annual accounts of certain types of                                         parallel imports)
companies ( 2 ), as amended by the seventh Council Directive                                    ( 96/C 336/06 )
83/349/EEC of 13 June 1983 based on Article 54 ( 3 ) ( g ) of
the Treaty on consolidated accounts ( 3 ), the Court ( Fifth                          (Language of the case: French)
Chamber ), composed of: D. A. O. Edward ( Rapporteur ),
President of the Chamber, J. -P. Puissochet, J. C. Moitinho
                                                                     (Provisional translation; the definitive translation will be
de Almeida, C. Gulmann and M. Wathelet, Judges; G.
                                                                                published in the European Court Reports)
Tesauro, Advocate-General ; H. von Holstein, Deputy
Registrar, has given a judgment on 27 June 1996 in which it
rules :                                                              In Case C-240/95 : reference to the Court under Article 177
                                                                     of the EC Treaty by the Cour d'Appel ( Cour of Appeal ),
Where:                                                               Metz ( France ), for a preliminary ruling in the criminal
                                                                     proceedings before that court against Remy Schmit on
— one company (the parent company) is the sole                       Article 30 of the EC Treaty — the Court ( Fifth Chamber ),
    shareholder in another company (the subsidiary), and             composed of D. A. O. Edward, President of the Chamber,
    controls it,                                                    J. -P. Puissochet, C. Gulmann, P. Jann and M. Wathelet
                                                                     ( Rapporteur ), Judges, Advocate-General : M. B. Elmer,
— under national law, the parent company and the                     Registrar : L. Hewlett, Administrator, gave a judgment on
    subsidiary form a group ,                                        27 June 1996 , the operative part of which is as follows :


title: Case C-177/08: Order of the President of the Court of 4 August 2008 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Khoshnaw Abdullah v Federal Republic of Germany

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/22

         Order of the President of the Court of 4 August 2008 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Khoshnaw Abdullah v Federal Republic of Germany
   (Case C-177/08) (1)

   (2008/C 313/39)

      Language of the case: German

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

      (1)  OJ C 197, 2.8.2008.


title: Case T-421/09: Judgment of the General Court of 20 September 2012 — DEI v Commission (Competition — Abuse of dominant position — Greek markets for the supply of lignite and wholesale electricity — Decision establishing the specific measures to correct the anti-competitive effects of an infringement of Article 86(1) EC, in conjunction with Article 82 EC, identified in an earlier decision — Article 86(3) EC — Annulment of the earlier decision)

text:
               10.11.2012

               EN

               Official Journal of the European Union

               C 343/13

         Judgment of the General Court of 20 September 2012 — DEI v Commission
   (Case T-421/09) (1)

   (Competition - Abuse of dominant position - Greek markets for the supply of lignite and wholesale electricity - Decision establishing the specific measures to correct the anti-competitive effects of an infringement of Article 86(1) EC, in conjunction with Article 82 EC, identified in an earlier decision - Article 86(3) EC - Annulment of the earlier decision)
   2012/C 343/19
   Language of the case: Greek

      Parties

      Applicant: Dimosia Epicheirisi Ilektrismou AE (DEI) (Athens, Greece) (represented by: P. Anestis, lawyer)

      Defendant: European Commission (represented by: T. Christoforou and A. Antoniadis, Agents, and by A. Oikonomou, lawyer)

      Intervener in support of the applicant: Hellenic Republic (represented by: P. Mylonopoulos and K. Boskovits, Agents, and by M. Marinos, lawyer)

      Re:

   Application for annulment of Commission Decision C(2009) 6244 final of 4 August 2009 establishing the specific measures to correct the anti-competitive effects of the infringement identified in the Commission Decision of 5 March 2008 on the granting or maintaining in force by the Hellenic Republic of rights in favour of DEI for the extraction of lignite.

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision C(2009) 6244 final of 4 August 2009 establishing the specific measures to correct the anti-competitive effects of the infringement identified in the Commission Decision of 5 March 2008 on the granting or maintaining in force by the Hellenic Republic of rights in favour of Dimosia Epicheirisi Ilektrismou AE (DEI) for the extraction of lignite;

               2.

               Orders the European Commission to pay the costs incurred by DEI, in addition to bearing its own;

               3.

               Orders the Hellenic Republic to bear its own costs.

      (1)  OJ C 11, 16.1.2010.


title: Case C-430/17: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 17 July 2017 — Walbusch Walter Busch GmbH & Co. KG v Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/9

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 17 July 2017 — Walbusch Walter Busch GmbH & Co. KG v Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV
   (Case C-430/17)
   (2017/C 347/09)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Appellant on a point of law: Walbusch Walter Busch GmbH & Co. KG

      Respondent in the appeal on a point of law: Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV

      Questions referred

               1.

               For the purposes of applying Article 8(4) of Directive 2011/83/EU, (1) does the answer to the question whether a means of distance communication (in this instance, an advertising leaflet containing a mail order coupon) allows limited space or time to display information depend on whether

                           (a)

                           (in the abstract) the means of distance communication allows only limited space or time by its very nature
                           or

                           (b)

                           (in the particular case) it offers limited space or time in the design selected for it by the trader?

               2.

               Is it compatible with Article 8(4) and Article 6(1)(h) of Directive 2011/83/EU for information on the right of withdrawal to be restricted to an indication of the existence of a right of withdrawal, in the case, as provided for in Article 8(4) of Directive 2011/83/EU, where there is limited scope for displaying that information?

               3.

               Do Article 8(4) and Article 6(1)(h) of Directive 2011/83/EU make it a mandatory requirement in all cases, including in the case where there is limited scope for displaying information, for the model withdrawal form set out in Annex I(B) to Directive 2011/83/EU to be attached to the means of distance communication before a distance contract is concluded?

      (1)  Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ 2011 L 304, p. 64.


title: Case C-502/16 P: Appeal brought on 22 September 2016 by Monster Energy Company against the judgment of the General Court (Sixth Chamber) delivered on 14 July 2016 in Case T-567/15: Monster Energy v EUIPO — MAD CATZ INTERACTIVE (REPRESENTATION OF A BLACK SQUARE WITH FOUR WHITE LINES)

text:
               10.4.2017

               EN

               Official Journal of the European Union

               C 112/14

         Appeal brought on 22 September 2016 by Monster Energy Company against the judgment of the General Court (Sixth Chamber) delivered on 14 July 2016 in Case T-567/15: Monster Energy v EUIPO — MAD CATZ INTERACTIVE (REPRESENTATION OF A BLACK SQUARE WITH FOUR WHITE LINES)
   (Case C-502/16 P)
   (2017/C 112/21)
   Language of the case: English

      Parties

      Appellant: Monster Energy Company (represented by: P. Brownlow, Solicitor)

      Other party to the proceedings: European Union Intellectual Property Office (EUIPO)
   By order of 16 February 2017 the Court of Justice (Ninth Chamber) held that the appeal was inadmissible.


title: Case C-396/17: Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 3 July 2017 — Martin Leitner v Landespolizeidirektion Tirol

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/6

         Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 3 July 2017 — Martin Leitner v Landespolizeidirektion Tirol
   (Case C-396/17)
   (2017/C 347/06)
   Language of the case: German

      Referring court

   Bundesverwaltungsgericht

      Parties to the main proceedings

      Applicant: Martin Leitner

      Defendant: Landespolizeidirektion Tirol

      Questions referred

               1.1.

               Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78/EC, (1) in conjunction with Article 21 of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding national legislation that, for the purpose of eliminating discrimination against currently employed civil servants, establishes a transitional rule under which reclassification from the previous biennial system to a new biennial system, on the basis of a ‘transition amount’, which, while calculated in money, nevertheless corresponds to a certain grading that can be specifically allocated, that in and of itself is non-discriminatory for newly hired civil servants, such that age discrimination against currently employed civil servants still continues?

               1.2.

               Is EU law, in particular Article 17 of Directive 2000/78/EC and Article 47 of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding national legislation that, in accordance with the interpretation of the Court of Justice of Articles 9 and 16 of Directive 2000/78 in its judgment of 11 November 2014 in Schmitzer (C-530/13, EU:C:2014:2359), prevents currently employed civil servants from having their remuneration status determined, in reliance on Article 2 of Directive 2000/78, as at the time prior to transition to the new system by declaring that the corresponding legal bases are no longer applicable retroactively to the date on which its historical original law entered into force and, in particular, that previous service periods completed before the age of 18 may not be accredited?

               1.3.

               If the answer to Question 1.2. is in the affirmative:
               Does the judgment of the Court of Justice of 22 November 2005 in Mangold (C-144/04, EU:C:2005:709) and in other cases specifying that EU law takes precedence over national legislation mandate that provisions applicable to currently employed civil servants at the time prior to transition, which had been retroactively repealed, must continue to be applied so that those civil servants can be retroactively classified in the old system in a non-discriminatory manner and are thus reclassified in the new remuneration system in a non-discriminatory manner?

               1.4.

               Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78, in conjunction with Articles 21 and 47 of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding national legislation that eliminates existing age discrimination (with respect to the accreditation of previous service periods completed before the age of 18) in a merely declaratory manner by specifying that the periods actually completed under conditions of discrimination are retroactively to be considered no longer discriminatory even though discrimination in fact still continues?

      (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303, p. 16.


title: Case C-568/10: Order of the President of the Court of 22 November 2011 — European Commission v Austrian Republic

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/22

         Order of the President of the Court of 22 November 2011 — European Commission v Austrian Republic
   (Case C-568/10) (1)

   2012/C 49/38
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 55, 19.2.2011.


title: Case T-144/12: Judgment of the General Court of 9 April 2014  — Comsa v OHIM — COMSA (COMSA) (Community trade mark — Opposition proceedings — Application for Community word mark COMSA — Earlier company name Comsa, SA — Relative ground for refusal — Lack of use in the course of trade of a sign of more than mere local significance — Similarity of the services — Article 8(4) of Regulation (EC) No 207/2009)

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/36

         Judgment of the General Court of 9 April 2014 — Comsa v OHIM — COMSA (COMSA)
   (Case T-144/12) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark COMSA - Earlier company name Comsa, SA - Relative ground for refusal - Lack of use in the course of trade of a sign of more than mere local significance - Similarity of the services - Article 8(4) of Regulation (EC) No 207/2009))
   2014/C 175/47
   Language of the case: Spanish

      Parties

      Applicant: Comsa, SA (Barcelona, Spain) (represented initially by M. Aznar Alonso, and subsequently by A. Gómez López, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Constructora de obras municipales, SA (COMSA) (Madrid, Spain)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 10 January 2012 (Joined cases R 518/2011-2 and R 795/2011-2) relating to opposition proceedings between Comsa, SA and Constructora de obras municipales, SA (COMSA).

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 10 January 2012 (Joined cases R 518/2011-2 and R 795/2011-2) relating to opposition proceedings between Comsa, SA and Constructora de obras municipales, SA (COMSA), in so far as it annulled the decision of the Opposition Division with respect to the services in Class 42 and authorised registration of the mark applied for in relation to those same services;

               2.

               Dismisses the action as to the remainder.

               3.

               Orders Comsa to bear its own costs and to pay three quarters of the costs incurred by OHIM. Orders OHIM to bear one quarter of its costs.

      (1)  OJ C 194, 30.6.2012.


title: Case F-32/16: Action brought on 23 June 2016 — ZZ v ECDC

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/47

         Action brought on 23 June 2016 — ZZ v ECDC
   (Case F-32/16)
   (2016/C 296/60)
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: V. Kolias, lawyer)

      Defendant: European Centre for Disease Prevention and Control (ECDC)

      Subject-matter and description of the proceedings

   Annulment of the decision of 21 September 2015 closing the applicant’s appraisal report for the reporting period 2011.

      Form of order sought

               —

               Annul the decision of the appeal assessor of 21 September 2015 finalising the applicant’s appraisal report for reporting period 2011, and insofar as necessary annul the decision of the authority empowered to conclude contracts of employment of 20 April 2016 rejecting the applicant’s complaint of 20 December 2015;

               —

               order ECDC to bear its own costs, and pay those of the applicant, for these proceedings.


title: Case C-186/07: Order of the Court (Eighth Chamber) of 16 April 2008 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Canarias (Spain)) — Club Náutico de Gran Canaria v Comunidad Autónoma de Canarias (Reference for a preliminary ruling — Sixth VAT Directive — Exemptions — Services connected with the practice of sport or physical education — Application to the Canary Islands — Purely internal situation — Referral — Manifest inadmissibility of the reference for a preliminary ruling)

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/16

         Order of the Court (Eighth Chamber) of 16 April 2008 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Canarias (Spain)) — Club Náutico de Gran Canaria v Comunidad Autónoma de Canarias
   (Case C-186/07) (1)

   (Reference for a preliminary ruling - Sixth VAT Directive - Exemptions - Services connected with the practice of sport or physical education - Application to the Canary Islands - Purely internal situation - Referral - Manifest inadmissibility of the reference for a preliminary ruling)
   (2008/C 209/21)
   Language of the case: Spanish
   Referring court
   Tribunal Superior de Justicia de Canarias (Spain)
   Parties

      Applicant: Club Náutico de Gran Canaria

      Defendant: Comunidad Autónoma de Canarias
   Re:
   Reference for a preliminary ruling — Tribunal Superior de Justicia de Canarias (High Court of Justice of the Canary Islands) — Interpretation of the judgment of the Court in Case C-124/96 which found that national legislation placing restrictions on exemption from VAT of certain services closely connected with the practice of sport or physical education is incompatible with Article 13A(1)(m) 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 (OJ 1977 L 145, p. 1) — Application to the Canary Islands
   Operative part of the order
   The reference for a preliminary ruling made by the Tribunal Superior de Justicia de Canarias, by decision of 26 November 2006, is inadmissible.

      (1)  OJ C 129, 9.6.2007.


title: Case C-630/13 P: Judgment of the Court (Grand Chamber) of 21 April 2015 — Issam Anbouba v Council of the European Union (Appeal — Common foreign and security policy — Restrictive measures against the Syrian Arab Republic — Measures directed against persons and entities benefiting from the regime — Proof that inclusion on the lists is well founded — Set of indicia)

text:
               22.6.2015

               EN

               Official Journal of the European Union

               C 205/6

         Judgment of the Court (Grand Chamber) of 21 April 2015 — Issam Anbouba v Council of the European Union
   (Case C-630/13 P) (1)

   ((Appeal - Common foreign and security policy - Restrictive measures against the Syrian Arab Republic - Measures directed against persons and entities benefiting from the regime - Proof that inclusion on the lists is well founded - Set of indicia))
   (2015/C 205/08)
   Language of the case: French

      Parties

      Appellant: Issam Anbouba (represented by: M.-A. Bastin, J.-M. Salva and S. Orlandi, avocats)

      Other party to the proceedings: Council of the European Union (represented by: A. Vitro, R. Liudvinaviciute and M.-M. Joséphidès, acting as Agents)

      Intervener in support of the defendant: European Commission (represented by: S. Pardo Quintillán and F. Castillo de la Torre, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mr Issam Anbouba to bear his own costs and to pay those incurred by the Council of the European Union;

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 45, 15.2.2014.


title: Case C-527/15: Request for a preliminary ruling from the Rechtbank Midden-Nederland (Netherlands) lodged on 5 October 2015 — Stichting Brein v Jack Frederik Wullems, currently trading under the name Filmspeler

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/6

         Request for a preliminary ruling from the Rechtbank Midden-Nederland (Netherlands) lodged on 5 October 2015 — Stichting Brein v Jack Frederik Wullems, currently trading under the name Filmspeler
   (Case C-527/15)
   (2016/C 027/08)
   Language of the case: Dutch

      Referring court

   Rechtbank Midden-Nederland

      Parties to the main proceedings

      Applicant: Stichting Brein

      Defendant: Jack Frederik Wullems, currently trading under the name Filmspeler

      Questions referred

               1)

               Must Article 3(1) of the Copyright Directive (1) be interpreted as meaning that there is ‘a communication to the public’ within the meaning of that provision, when someone sells a product (mediaplayer) in which he has installed add-ons containing hyperlinks to websites on which copyright-protected works, such as films, series and live broadcasts are made directly accessible, without the authorisation of the right holders?

               2)

               Does it make any difference

                           —

                           whether the copyright-protected works as a whole have not previously been published on the internet or have only been published through subscriptions with the authorisation of the right holder?

                           —

                           whether the add-ons containing hyperlinks to websites on which copyright-protected works are made directly accessible without the authorisation of the right holders are freely available and can also be installed in the mediaplayer by the users themselves?

                           —

                           whether the websites and thus the copyright-protected works made accessible thereon — without the authorisation of the right holders — can also be accessed by the public without the mediaplayer?

               3)

               Should Article 5 of the Copyright Directive (Directive 2001/29/EC) be interpreted as meaning that there is no ‘lawful use’ within the meaning of Article 5(1)(b) of that Directive if a temporary reproduction is made by an end user during the streaming of a copyright-protected work from a third-party website where that copyright-protected work is offered without the authorisation of the right holder(s)?

               4)

               If the answer to question 1) is in the negative, is the making of a temporary reproduction by an end user during the streaming of a copyright-protected work from a website where that copyright-protected work is offered without the authorisation of the right holder(s) then contrary to the ‘three-step test’ referred to in Article 5(5) of the Copyright Directive (Directive 2001/29/EC)?

      (1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).


title: Case T-378/06: Action brought on 14 December 2006 — IMI and Others v Commission

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/30

         Action brought on 14 December 2006 — IMI and Others v Commission
   (Case T-378/06)
   (2007/C 20/46)
   Language of the case: English
   Parties

      Applicants: IMI plc (Birmingham, United Kingdom), IMI Kynoch Ltd (Birmingham, United Kingdom), Yorkshire Fittings Limited (Leeds, United Kingdom), VSH Italia Srl (Bregnano, Italy), Aquatis France SAS (La Chapelle St. Mesmin, France), and Simplex Armaturen + Fittings GmbH & Co. KG (Ravensburg, Germany) (represented by: M. Struys and D. Arts, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Articles 2(b)1. and 2(b)2. of the decision of the Commission of 20 September 2006 as amended by the decision of the Commission of 29 September 2006 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings — C(2006) 4180 final);

               —

               alternatively reduce the fines imposed on the applicants; and

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicants seek the partial annulment of Commission Decision C(2006) 4180 final of 20 September 2006 in Case COMP/F-1/38.121 — Fittings, by which the Commission found that the applicants, together with other undertakings, had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by fixing prices, agreeing on price lists, agreeing on discounts and rebates, agreeing on implementation mechanisms for introducing price increases, allocating national markets, allocating customers and exchanging other commercial information.
   In support of their application, the applicants submit that the Commission has violated the principles of proportionality and of non-discrimination as the fine imposed on the applicants in the contested decision is excessive in terms of the size of the applicants as well as of the relevant market when compared to the Commission's approach in its previous decisions. By including sales of press fittings in the size of the relevant market for the purpose of assessing the gravity of the infringement, the Commission has committed a manifest error of assessment.
   The applicants further submit that the Commission committed a manifest error of assessment by considering that the applicants did not provide the evidence of the link between the UK and pan-European arrangements. The Commission provided an inadequate statement of reasons in that regard. Furthermore, by refusing to grant the applicants a reduction in their fines for their cooperation outside the Leniency Notice (1) for providing evidence of a link between the UK and the pan-European cartel, while granting the company FRA.BO a reduction in its fine on the same basis for providing evidence of post-inspection continuation, the Commission breached the principle of equal treatment.
   Moreover, the applicants contend that the Commission breached Article 253 EC as the contested decision does not provide any statement of reasons for imposing an additional amount of EUR 2.04 million on the applicants Aquatis France and Simplex Amaturen + Fittings.
   Finally, the applicants allege that, by imposing a separate fine upon Aquatis France and Simplex Amaturen + Fittings in addition to the fine already imposed on each of their predecessors and current parent companies, the Commission breached the principle ‘non bis in idem’ according to which no one can be condemned twice for the same offence.

      (1)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3)


title: Case T-590/15: Action brought on 12 October 2015 — Onix Asigurări SA v EIOPA

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/34

         Action brought on 12 October 2015 — Onix Asigurări SA v EIOPA
   (Case T-590/15)
   (2015/C 414/45)
   Language of the case: Romanian

      Parties

      Applicant: Onix Asigurări SA (Bucharest, Romania) (represented by: M. Vladu, lawyer)

      Defendant: European Insurance and Occupational Pensions Authority (EIOPA)

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that the defendant has failed to act for the purposes of taking a decision regarding the misapplication by the Istituto per la Vigilanza sulle Assicurazioni (Italian supervisory authority for the insurance sector) of the provisions of Article 40(6) of Council Directive 92/49/EEC;

               —

               in the alternative, annul decision BOA 2015 001of the Board of Appeal of 3 August 2015 and decision EIOPA-14-267 of the President of 6 June 2014, confirmed in the position statement EIOPA-14-653 of 24 November 2014;

               —

               declare the defendant liable for the damage caused to the applicant by the defendant’s failure to take a decision, in accordance with the first indent and by taking the decisions referred to in the second indent.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of Article 17 of Regulation (EU) No 1094/2010 of the European Parliament and of the Council

                           —

                           There is no decision lawfully adopted by the defendant concerning the validity and appropriateness of opening an investigation;

                           —

                           Decision EIOPA-14-267 of the President of 6 June 2014 was adopted without the conditions laid down in Article 39(1)(2) and (3) of the regulation being fulfilled;

                           —

                           The reasons for decision EIOPA-14-267 of the President of 6 June 2014 are not connected to the appropriateness of starting an investigation, being in reality concerned with the procedural means available to the applicant against the decision of the Italian national authority.

               2.

               Second plea in law, alleging infringement of a substantial procedural requirement in relation to decision BOA 2015 001 of the Board of Appeal of 3 August 2015 and decision EIOPA-14-267 of the President of 6 June 2014

                           —

                           The decision of the Board of Appeal was taken without analysing the legality and the validity of decision EIOPA-14-267 of the President of 6 June 2014 and the Board of Appeal gave a decision without analysing all of the matters submitted to it;

                           —

                           The decision EIOPA-14-267 of the President of 6 June 2014 was issued without the conditions laid down in Article 39(1)(2) and (3) of the regulation being fulfilled and without giving reasons, at least as far as concerns the essential aspects of that analysis.

               3.

               Third plea in law, alleging the existence of material damage and damage to image suffered by the applicant (decline in turnover and profit, damage to reputation) caused directly and intentionally by the defendant by its failure to take a decision and by adopting the abovementioned decisions which are null and void.


title: Case T-375/08 P: Order of the Court of First Instance of 9 September 2009 — Nijs v Court of Auditors (Appeal — Public service — Officials — Decision of the Court of Auditors to renew the mandate of its Secretary General — Decision not to promote the appellant in the 2004 promotion year — Appeal partly inadmissible and partly manifestly unfounded)

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/65

         Order of the Court of First Instance of 9 September 2009 — Nijs v Court of Auditors
   (Case T-375/08 P) (1)

   (Appeal - Public service - Officials - Decision of the Court of Auditors to renew the mandate of its Secretary General - Decision not to promote the appellant in the 2004 promotion year - Appeal partly inadmissible and partly manifestly unfounded)
   2009/C 267/117
   Language of the case: French

      Parties

      Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by: F. Rollinger and A. Hertzog, lawyers)

      Other party to the proceedings: Court of Auditors (represented by: T. Kennedy, J.-M Stenier and G. Corstens, Agents)

      Re:

   Appeal against the order of the Civil Service Tribunal of the European Union (Second Chamber) in Case F-108/07 Nijs v Court of Auditors [2008] ECR I-0000 seeking the anuulment of that order.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Bart Nijs is to bear his own costs and to pay those incurred by the Court of Auditors of the European Communities in the present proceedings.

      (1)  OJ C 301, of 22.11.2008.


title: Case F-55/14: Judgment of the Civil Service Tribunal (First Chamber) of 25 June 2015 — EE v Commission (Civil Service — Contractual staff — Non-renewal of fixed-term contract — Claims for annulment — Renewal procedure — Article 41(2)(a) of the Charter of Fundamental Rights of the European Union — Right to be heard — Disregard — Claims for compensation — Non-material harm)

text:
               3.8.2015

               EN

               Official Journal of the European Union

               C 254/24

         Judgment of the Civil Service Tribunal (First Chamber) of 25 June 2015 — EE v Commission
   (Case F-55/14) (1)

   ((Civil Service - Contractual staff - Non-renewal of fixed-term contract - Claims for annulment - Renewal procedure - Article 41(2)(a) of the Charter of Fundamental Rights of the European Union - Right to be heard - Disregard - Claims for compensation - Non-material harm))
   (2015/C 254/26)
   Language of the case: French

      Parties

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

      Defendant: European Commission (represented by: J. Currall and T.S. Bohr, acting as Agents)

      Re:

   Application for annulment of the decision not to renew the applicant’s contract, which should have been of indefinite duration.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of the European Commission not to renew the contract of EE as a member of the contractual staff, communicated orally on 14 October 2013, confirmed by the note of 31 October 2013 and explained in the note of 13 December 2013;

               2.

               Orders the European Commission to pay EE the sum of EUR 10  000;

               3.

               Orders the European Commission to bear its own costs and to pay the costs incurred by EE.

      (1)  OJ C 421, 24.11.2014, p. 59.


title: Case T-93/08: Action brought on 22 February 2008 — Republic of Cyprus v Commission

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/29

         Action brought on 22 February 2008 — Republic of Cyprus v Commission
   (Case T-93/08)
   (2008/C 142/52)
   Language of the case: Greek
   Parties

      Applicant: Republic of Cyprus (represented by: P. Kliridis)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the procurement notice under reference EuropeAid/125671/C/SER/CY for the conclusion of a contract entitled ‘Technical Assistance οn Crop Husbandry and Irrigation’, which was published, only in English, on the webpage http://ec.europa.eu/europaid/tender/data/ on or around 14 December 2007, and annul points 5 and 28.2 of the notice;

               —

               order the Commission of the European Communities to pay the costs.

         Pleas in law and main arguments
   The applicant submits that the notice is unlawful for the following reasons:

               —

               first, because, in issuing the notice, the Commission exceeded and/or infringed its legal basis, to be specific Council Regulation (EC) No 389/2006 of 27 February 2006 establishing an instrument of financial support for encouraging the economic development of the Turkish Cypriot community and amending Council Regulation (EC) No 2667/2000 on the European Agency for Reconstruction (1);

               —

               second, because the notice is contrary to and/or incompatible with Article 299 EC, as amended by Article 19 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (2) (‘the 2003 Act of Accession’) and Protocol No 10, on Cyprus, to the 2003 Act of Accession (3);

               —

               third, because the notice is contrary to or incompatible with both obligations flowing from rules of mandatory international law and United Nations Security Council Resolutions 541(1983) and 550(1984);

               —

               fourth, because the notice is contrary to and/or incompatible with the principle of sincere cooperation between the institutions of the European Union and the Member States, as laid down under Article 10 EC; and

               —

               fifth, because the notice was not published in the Official Journal.

      (1)  OJ 2006 L 65, p. 5.

      (2)  OJ 2003 L 236, p. 33.

      (3)  OJ 2003 L 236, p. 955.


title: Case T-574/12: Action brought on 18 December 2012 — PAN Europe en Stichting Natuur en Milieu v Commission

text:
               23.2.2013

               EN

               Official Journal of the European Union

               C 55/22

         Action brought on 18 December 2012 — PAN Europe en Stichting Natuur en Milieu v Commission
   (Case T-574/12)
   2013/C 55/40
   Language of the case: Dutch

      Parties

      Applicants: Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) and Stichting Natuur en Milieu (Utrecht, Netherlands) (represented by: F. Martens, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the General Court should:

               —

               annul the defendant’s decision of 16 October 2012 whereby the claims of the applicants for review of Commission Regulation (EC) No 149/2008 of 29 January 2008 amending Regulation (EC) No 396/2005 of the European Parliament and of the Council by establishing Annexes II, III and IV setting maximum residue levels for products covered by Annex I thereto (OJ 2008 L 58, p. 1) were declared admissible but unfounded;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of their action, the applicants rely on a single plea in law, alleging infringement of Articles 11, 168, 169 and 191 TFEU, Articles 7, 35 and 38 of the Charter of Fundamental Rights of the European Union, Articles 1, 14(2), 22, 23, 24 and 25 of Regulation (EC) No 396/2005, (1) Articles 5 and 7 of Regulation (EC) No 178/2002 (2) and of Articles 4 and 10 of Directive No 91/414/EEC. (3)

               —

               The applicants dispute that the maximum residue levels (MRLs) were set at the lowest achievable level consistent with good agricultural practice.

               —

               The applicants claim that the dossiers were not assessed in a thorough manner. The defendant takes the view in particular that Articles 22 to 25 of Regulation (EC) 396/2005 make no provision whatsoever for a procedure for an entire assessment of a complete dossier in the process for the initial setting of temporary MRLs.

               —

               Furthermore, the cumulative exposure of consumers was not taken into account.

               —

               Lastly, a large number of temporary MRLs exceeds health limits.

      (1)  Regulation (EC) No 396/2005 of the European Parliament and of the Council of 23 February 2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin and amending Council Directive 91/414/EEC (OJ 2005 L 70, p. 1).

      (2)  Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 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 (OJ 2002 L 31, p. 1).

      (3)  Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).


title: Case C-500/13: Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 16 September 2013 — Gmina Międzyzdroje v Minister Finansów

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/23

         Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 16 September 2013 — Gmina Międzyzdroje v Minister Finansów
   (Case C-500/13)
   2013/C 367/39
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Appellant: Gmina Międzyzdroje

      Respondent: Minister Finansów

      Question referred

   Must Articles 167, 187 and 189 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) and the principle of tax neutrality be interpreted as permitting provisions of national law such as Article 91(7) and (7a) of the Polish Law of 11 March 2004 on the tax on goods and services (Dz. U. No 177 of 2011, item 1054, as amended), which provide that, in the event of a change in the purpose of capital goods from use in activities not conferring entitlement to deduct input tax to use in activities which do confer such entitlement, the adjustment of deductions may not be effected on a one-off basis but must be spread over the subsequent five years, and, in the case of immovable property, over ten years, following the year in which the capital goods were surrendered for use?

      (1)  OJ 2006 L 347, p. 1.


title: Case T-789/16: Action brought on 8 November 2016 — InvoiceAuction B2B v EUIPO (INVOICE AUCTION)

text:
               16.1.2017

               EN

               Official Journal of the European Union

               C 14/50

         Action brought on 8 November 2016 — InvoiceAuction B2B v EUIPO (INVOICE AUCTION)
   (Case T-789/16)
   (2017/C 014/60)
   Language of the case: German

      Parties

      Applicant: InvoiceAuction B2B GmbH (Frankfurt am Main, Germany) (represented by: C. Jonas, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: European Union figurative mark containing the word elements ‘INVOICE AUCTION’ — Application for registration No 13 821 095

      Contested decision: Decision of the First Board of Appeal of EUIPO of 3 August 2016 in Case R 2201/2015-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs of the proceedings.

      Plea in law

               —

               Infringement of Article 7(1)(c) of Regulation No 207/2009;

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009.


title: Case C-471/11: Judgment of the Court (Sixth Chamber) of 6 September 2012 (reference for a preliminary ruling from the Augstākās Tiesas Senāts — Latvia) — Cido Grupa SIA v Valsts ieņēmumu dienests (Accession of new Member States — Transitional measures — Agricultural products — Sugar — Regulation (EC) No 60/2004 — Basis of assessment and rate applicable for the charge on surplus stocks)

text:
               27.10.2012

               EN

               Official Journal of the European Union

               C 331/11

      Judgment of the Court (Sixth Chamber) of 6 September 2012 (reference for a preliminary ruling from the Augstākās Tiesas Senāts — Latvia) — Cido Grupa SIA v Valsts ieņēmumu dienests
      (Case C-471/11) (1)

      (Accession of new Member States - Transitional measures - Agricultural products - Sugar - Regulation (EC) No 60/2004 - Basis of assessment and rate applicable for the charge on surplus stocks)
      (2012/C 331/16)
      Language of the case: Latvian

         Referring court

      Augstākās Tiesas Senāts

         Parties to the main proceedings

         Applicant: Cido Grupa SIA

         Defendant: Valsts ieņēmumu dienests

         Re:

      Reference for a preliminary ruling — Augstākās tiesas Senāts — Interpretation of Article 4(1) and 6(3) of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the European Union (OJ 2004 L 9, p. 8) — Calculation of tax on surplus sugar stocks held by operators — Notions of ‘quantity in question’ and ‘product concerned’ in the case of sugar syrup

         Operative part of the judgment

      The third subparagraph of Article 6(3) of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, as amended by Commission Regulation (EC) No 1667/2005 of 13 October 2005, must be interpreted as meaning that the basis of assessment for the charge payable on a surplus stock of sugar syrup (CN code 2106 90 59) is the quantity of white sugar (CN code 1701 99 10) actually contained in that product and the rate of that charge is the rate of the import charge applicable to white sugar, increased by EUR 1,21/100 kg.

         (1)  OJ C 331, 12.11.2011.


title: Case C-131/12: Judgment of the Court (Grand Chamber) of 13 May 2014 (request for a preliminary ruling from the Audiencia Nacional — Spain) — Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González (Personal data — Protection of individuals with regard to the processing of such data — Directive 95/46/EC — Articles 2, 4, 12 and 14 — Material and territorial scope — Internet search engines — Processing of data contained on websites — Searching for, indexing and storage of such data — Responsibility of the operator of the search engine — Establishment on the territory of a Member State — Extent of that operator’s obligations and of the data subject’s rights — Charter of Fundamental Rights of the European Union — Articles 7 and 8)

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/4

         Judgment of the Court (Grand Chamber) of 13 May 2014 (request for a preliminary ruling from the Audiencia Nacional — Spain) — Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González
   (Case C-131/12) (1)

   ((Personal data - Protection of individuals with regard to the processing of such data - Directive 95/46/EC - Articles 2, 4, 12 and 14 - Material and territorial scope - Internet search engines - Processing of data contained on websites - Searching for, indexing and storage of such data - Responsibility of the operator of the search engine - Establishment on the territory of a Member State - Extent of that operator’s obligations and of the data subject’s rights - Charter of Fundamental Rights of the European Union - Articles 7 and 8))
   2014/C 212/04
   Language of the case: Spanish

      Referring court

   Audiencia Nacional

      Parties to the main proceedings

      Applicants: Google Spain SL, Google Inc.

      Defendants: Agencia Española de Protección de Datos (AEPD), Mario Costeja González

      Re:

   Request for a preliminary ruling — Audiencia Nacional (Spain) — Interpretation of Article 2(b) and (d), Article 4(1)(a) and (c), Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) and Article 8 of the Charter of Fundamental Rights of the European Union (OJ 2000 C 364, p. 1) — Concept of establishment on the territory of a Member State — Relevant criteria — Concept of ‘use of equipment situated on the territory of a Member State’ — Temporary storage of the information indexed by search engines — Rights to removal and blocking of data

      Operative part of the judgment

               1.

               Article 2(b) and (d) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the ‘controller’ in respect of that processing, within the meaning of Article 2(d).

               2.

               Article 4(1)(a) of Directive 95/46 is to be interpreted as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State.

               3.

               Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

               4.

               Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.

      (1)  OJ C 165, 9.6.2012.


title: Case T-4/07: Action brought on 5 January 2007 — Sanofi-Aventis v OHIM — AstraZeneca (EXANTIN)

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/44

         Action brought on 5 January 2007 — Sanofi-Aventis v OHIM — AstraZeneca (EXANTIN)
   (Case T-4/07)
   (2007/C 42/77)
   Language in which the application was lodged: English
   Parties

      Applicant: Sanofi-Aventis SA (Paris, France) (represented by: R. Gilbey, lawyer)

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

      Other party to the proceedings before the Board of Appeal: AstraZeneca AB (Södertälje, Sweden)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal dated 10 October 2006, case R 1302/2005-1, and uphold the appellant's contention that there exists a likelihood of confusion between the marks in conflict;

               —

               order the Office for Harmonisation in the Internal Market to bear the costs of the appellant in the present instance.

         Pleas in law and main arguments

      Applicant for the Community trade mark: AstraZeneca AB

      Community trade mark concerned: The word mark ‘EXANTIN’ for goods in class 5 — application No 2 694 115

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited: The international and national word marks ‘ELOXATIN’ and ‘ELOXATINE’ for goods in class 5

      Decision of the Opposition Division: Rejection of the opposition

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: The Board of Appeal failed to identify the relevant public in its entirety, and erroneously established a hierarchy of attentiveness between the sections of the relevant public that it identified.
   Furthermore, the Board of Appeal failed to apply the appropriate criteria in comparing the goods and failed to compare the signs globally. Consequently the Board of Appeal erroneously held that there was no likelihood of confusion.


title: Case C-377/11: Reference for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña (Spain) lodged on 18 July 2011 — International Bingo Technology, S.A. v Tribunal Económico Administrativo Regional de Cataluña (TEARC)

text:
               1.10.2011

               EN

               Official Journal of the European Union

               C 290/2

         Reference for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña (Spain) lodged on 18 July 2011 — International Bingo Technology, S.A. v Tribunal Económico Administrativo Regional de Cataluña (TEARC)
   (Case C-377/11)
   2011/C 290/03
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de Cataluña

      Parties to the main proceedings

      Applicant: International Bingo Technology, S.A.

      Defendant: Tribunal Económico Administrativo Regional de Cataluña (TEARC)

      Questions referred

               1.

               For the purposes of constituting the chargeable event giving rise to the tax, does the fact that bingo players pay the portion of the card price corresponding to the winnings amount to genuine consumption of goods and services?

               2.

               For the purposes of the rules governing the denominator used in the calculation of the percentage of the deductible proportion, is Article 11A(1)(a), in conjunction with Articles 17(5) and 19(1), of the Sixth Directive (1) to be interpreted as requiring such a degree of harmonisation that it precludes the adoption in the Member States of different solutions in legislation or case-law with regard to the inclusion in the taxable amount for VAT of the portion of the card price allocated to the payment of winnings?

               3.

               For the purposes of constituting the denominator used in the calculation of the percentage of the deductible proportion, is Article 11A(1)(a), in conjunction with Articles 17(5) and 19(1), of the Sixth Directive to be interpreted as precluding national case-law which, in the case of the game of bingo, includes in the taxable amount for VAT the amount corresponding to winnings that is paid by players through the purchase of cards?

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


title: Case C-386/10 P: Appeal brought on 30 July 2010 by Chalkor AE Epexergasias Metallon against the judgment of the General Court (Eighth Chamber) delivered on 19 May 2010 in Case T-21/05: Chalkor AE Epexergasias Metallon v European Commission

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/21

      Appeal brought on 30 July 2010 by Chalkor AE Epexergasias Metallon against the judgment of the General Court (Eighth Chamber) delivered on 19 May 2010 in Case T-21/05: Chalkor AE Epexergasias Metallon v European Commission
      (Case C-386/10 P)
      ()
      (2010/C 288/35)
      Language of the case: English

         Parties

         Appellant: Chalkor AE Epexergasias Metallon (represented by: I. Forrester QC)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court should:

                  —

                  Set aside or annul in whole or in part the Judgment of the General Court insofar as it rejects Halcor's claim for annulment of Article 1 of the Decision;

                  —

                  Annul or substantially reduce the fine imposed on Halcor or take such other action as justice may require; and

                  —

                  Award Halcor the costs, including its costs in the proceedings before the General Court.

         Pleas in law and main arguments

      The appellant submits that the contested judgment should be set aside on the following grounds:

                  (a)

                  The General Court erred in applying a limited standard of judicial review. The Court did not consider the basic question of whether the fine imposed on Halcor was appropriate, fair and proportionate in relation to the gravity and duration of the unlawful conduct;

                  (b)

                  The General Court infringed the principle of equal treatment. Although the Court correctly held that the Commission had infringed the principle of equal treatment by treating Halcor and the other companies in an identical manner, without such treatment being objectively justified, it failed to respect that principle thereafter;

                  (c)

                  The General Court's adaptation of the fine imposed on Halcor was irrational and arbitrary; and

                  (d)

                  The contested judgment contains no reasoning adequate to explain the fine imposed on Halcor.


title: Joined Cases C-387/15 and C-388/15: Judgment of the Court (Seventh Chamber) of 21 July 2016 (requests for a preliminary ruling from the Raad van State — Belgium) — Hilde Orleans, Rudi Van Buel, Marina Apers (C-387/15) and Denis Malcorps, Myriam Rijssens, Guido Van De Walle (C-388/15) v Vlaams Gewest (Reference for a preliminary ruling — Environment — Directive 92/43/EEC — Conservation of natural habitats — Special areas of conservation — Natura 2000 site ‘Scheldt and Durme estuary from the Dutch border to Ghent’ — Development of a port area — Assessment of the implications of a plan or project for a protected site — Occurrence of adverse effects — Prior but not yet completed development of an area of an equivalent type to the part destroyed — Completion subsequent to the assessment — Article 6(3) and (4))

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/8

         Judgment of the Court (Seventh Chamber) of 21 July 2016 (requests for a preliminary ruling from the Raad van State — Belgium) — Hilde Orleans, Rudi Van Buel, Marina Apers (C-387/15) and Denis Malcorps, Myriam Rijssens, Guido Van De Walle (C-388/15) v Vlaams Gewest
   (Joined Cases C-387/15 and C-388/15) (1)

   ((Reference for a preliminary ruling - Environment - Directive 92/43/EEC - Conservation of natural habitats - Special areas of conservation - Natura 2000 site ‘Scheldt and Durme estuary from the Dutch border to Ghent’ - Development of a port area - Assessment of the implications of a plan or project for a protected site - Occurrence of adverse effects - Prior but not yet completed development of an area of an equivalent type to the part destroyed - Completion subsequent to the assessment - Article 6(3) and (4)))
   (2016/C 343/11)
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicants: Hilde Orleans, Rudi Van Buel, Marina Apers (C-387/15) and Denis Malcorps, Myriam Rijssens, Guido Van De Walle (C-388/15)

      Defendant: Vlaams Gewest

      Intervening party: Gemeentelijk Havenbedrijf Antwerpen

      Operative part of the judgment

   Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that measures, contained in a plan or project not directly connected with or necessary to the management of a site of Community importance, providing, prior to the occurrence of adverse effects on a natural habitat type present thereon, for the future creation of an area of that type, but the completion of which will take place subsequently to the assessment of the significance of any adverse effects on the integrity of that site, may not be taken into consideration in that assessment. Such measures can be categorised as ‘compensatory measures’, within the meaning of Article 6(4), only if the conditions laid down therein are satisfied.

      (1)  OJ C 354, 26.10.2015.


title: Case T-146/11: Action brought on 14 March 2011 — Yoro v Council of the European Union

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/25

         Action brought on 14 March 2011 — Yoro v Council of the European Union
   (Case T-146/11)
   2011/C 130/50
   Language of the case: French

      Parties

      Applicant: Claude Yoro (Abidjan, Côte d’Ivoire) (represented by: G. Collard, lawyer)

      Defendant: Council of the European Union

      Forms of order sought

   The applicant claims that the Court should:

               —

               declare that, concerning the applicant, Mr Claude YORO, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, have no factual basis,

               —

               consequently,

                           —

                           annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

                           —

                           in the alterntive, order that the name of Mr Claude YORO be removed from the lists annexed to the aforementioned Regulation and the aforementioned Decision.

      Pleas in law and main arguments

   The pleas in law and principal arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-137/11 Guiai Bi Poin v Council.


title: Case F-119/14: Action brought on 24 October 2014  — ZZ v Commission

text:
               12.1.2015

               EN

               Official Journal of the European Union

               C 7/56

         Action brought on 24 October 2014 — ZZ v Commission
   (Case F-119/14)
   (2015/C 007/71)
   Language of the case: French

      Parties

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

      Defendant: Commission

      Subject-matter and description of the proceedings

   Annulment of the Commission’s decision closing the procedure for the appointment of the applicant as an official, the latter being entered on a competition reserve list, having informed him that the DG concerned had agreed to his employment and having found that his professional experience was not sufficient.

      Form of order sought

               —

               Annul the decision of 17 December 2013 by which the Directorate-General for Human Resources (‘DG HR’) of the European Commission, in its capacity as appointing authority, refused to employ the applicant as an official at the General Directorate for Justice and Home Affairs (‘DG JUST’);

               —

               annul the decision of the appointing authority of 14 July 2004 rejecting the complaint brought by the applicant against the decision of the appointing authority of 17 December 2013;

               —

               order the defendant to pay the sum of EUR 26  132,85, together with interest for late payment, in addition to the payment of the contributions to the pension scheme as from September 2013;

               —

               order the Commission to pay one euro in respect of non-material damage;

               —

               order the Commission to pay all the costs.


title: Case C-518/03: Action brought on 9 December 2003 by the Commission of the European Communities against the Kingdom of Sweden

text:
21.2.2004               EN                         Official Journal of the European Union                                             C 47/19
Furthermore, there exists no provision of Spanish law which                Pleas in law and main arguments
demands that account should be taken of compliance by a
foreign private security firm, or by its staff, with the guarantees
and requirements imposed in another Member State. As a
result, those are measures which have the effect of discouraging           Under Article 23.3 of the contracts, the applicant before the
foreign undertakings that wish to carry on activities in Spain.            Court of First Instance, Società IAMA Consulting, is required
                                                                           to reimburse the Commission for any sums overpaid.
(1) Council Directive 89/48/EEC of 21 December 1988 on a general
    system for the recognition of higher-education diplomas awarded
                                                                           Part of the Community contribution is attributable to
    on completion of professional education and training of at least       the expenses incurred by IAMA Consulting before 1 Novem-
    three years’ duration (OJ 1989 L 19, p. 16).                           ber 1997 (and not re-invoiced to IAMA International) in
(2) Council Directive 92/51/EEC of 18 June 1992 on a second general        a total amount of LIT 913 874 209, of which
    system for the recognition of professional education and training      LIT 576 432 631 related to the REGIS Project and
    to supplement Directive 89/48/EC (OJ 1992 L 209, p. 25).               LIT 337 441 578 to the REFIAG Project.
                                                                           The remainder derives from the amendments to expenditure,
                                                                           made during the audit, amounting to a total of
                                                                           LIT 185 531 657, of which LIT 60 603 671 related to the
                                                                           REGIS Project and LIT 124 927 986 to the REFIAG Project.
Counterclaim submitted in the defence lodged on 17 July
2001 by the Commission in Case T-85/01 Società IAMA
Consulting v Commission of the European Communities,
pending before the Court of First Instance and referred to
the Court of Justice on 2 December 2003 by order of
        25 November 2003, as a matter of jurisdiction                      Action brought on 9 December 2003 by the Commission
                                                                           of the European Communities against the Kingdom of
                                                                                Sweden
                           (Case C-517/03)
                                                                                (Case C-518/03)
                            (2004/C 47/30)
                                                                                (2004/C 47/31)
On 2 December 2003 the Court of First Instance, by order of
25 November 2003, referred to the Court of Justice a                       An action against the Kingdom of Sweden was brought
counterclaim submitted by the Commission of the European                   before the Court of Justice of the European Communities on
Communities, represented by Eugenio de March and Alberto                   9 December 2003 by the Commission of the European
Dal Ferro, acting as Agents, in its defence in Case T-85/01                Communities, represented by K. Banks and K. Simonsson,
Società IAMA Consulting v Commission of the European                       Agents, with an address for service in Luxembourg.
Communities.
                                                                           The Commission claims that the Court should:
The Commission claims that the Court should:
                                                                           1.    declare that, by failing to adopt, or to communicate to
                                                                                the Commission, the laws, regulations and administrative
—     Uphold its counterclaim and order Società IAMA Con-                        provisions necessary to implement Directive 98/44/EC (1)
      sulting to repay the sum of LIT 1 099 405 866                              of the European Parliament and the Council of 6 July
      (EUR 567 796) plus interest, in accordance with                            1998 on the legal protection of biotechnological inven-
      Article 94 of Regulation No 341/93;                                        tions, Sweden has failed to fulfil its obligations under that
                                                                                directive; and
—     In any event order Società IAMA Consulting to pay the
      costs                                                                2.    order Sweden to pay the costs of the case.
 ---pagebreak--- C 47/20                 EN                      Official Journal of the European Union                                          21.2.2004
Pleas in law and main arguments                                         Reference for a preliminary ruling by the High Court
                                                                        of Justice (England & Wales), Queen’s Bench Division
                                                                        (Administrative Court) by order of that court dated
The period within which the directive was to be implemented             10 December 2003, in the case of The Queen on the
expired on 30 July 2000.                                                application of 1) Unitymark Ltd, 2) North Sea Fishermen’s
                                                                        Organisation against Department for Environment, Food
                                                                                and Rural Affairs
(1) OJ 1998 L 213, p. 13.
                                                                                (Case C-535/03)
                                                                                (2004/C 47/33)
Reference for a preliminary ruling by the Oberlandesge-
richt München by order of that Court of 24 June 2003 in
the case of SA Scania Finance France against Rockinger                  Reference has been made to the Court of Justice of the
   Spezialfabrik für Anhängerkupplungen GmbH & Co.                      European Communities by an order of the High Court of
                                                                        Justice (England & Wales), Queen’s Bench Division (Adminis-
                                                                        trative Court) dated 10 December 2003, which was received
                         (Case C-522/03)                                at the Court Registry on 19 December 2003, for a preliminary
                                                                        ruling in the case of The Queen on the application of
                                                                        1) Unitymark Ltd, 2) North Sea Fishermen’s Organisation
                          (2004/C 47/32)                                against Department for Environment, Food and Rural Affairs,
                                                                        on the following questions:
Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht                  Are:
München of 24 June 2003, received at the Court Registry on
6 November 2003, for a preliminary ruling in the case of SA
                                                                        (1) paragraph 4(b), and the part of paragraph 6(a) which
Scania Finance France against Rockinger Spezialfabrik für
                                                                              refers to paragraph 4(b), of Annex XVII of Council
Anhängerkupplungen GmbH & Co. on the following ques-
                                                                              Regulation 2341/2002 of 20 December 2002 (1); and/or
tions:
1.    Is point 2 of Article 27 of the Brussels Convention of            (2) paragraph 4(b), and the part of paragraph 6(a) which
      27 September 1968, as amended by the Fourth Conven-                     refers to paragraph 4(b), of Annex XVII of Council
      tion on Accession of 29 November 1996, in conjunction                   Regulation 2341/2002 of 20 December 2002 as
      with the first paragraph of Article IV of the Protocol to               amended by Regulation 671/2003 of 10 April 2003 (2);
      the Brussels Convention of 27 September 1968, as                        and/or
      amended by the Fourth Convention on Accession of
      29 November 1996, to be interpreted as meaning that
      judicial documents may be served on a defendant, who at           (3) Article 1 of Commission Decision 2003/185 of 14 March
      the time of service of the document instituting proceed-                2003 (3) insofar as the Commission refuses to extend,
      ings is domiciled in a Contracting State other than the                 under paragraph 6(b) of Annex XVII of Council Regu-
      State of the court, only in accordance with the conven-                 lation 2341/2002, the number of days available to vessels
      tions concluded between the Contracting States?                         carrying the gear in the class referred to in paragraph 4(b)
                                                                              of that Annex, by two days,
2.    If not, is Article 12 EC to be interpreted as precluding a
      national rule under which service of a judicial document
      on a defendant who, at the time of the service, is                unlawful in their application to open gear beam trawlers
      domiciled in another Member State is deemed constituted           because they are:
      by a domestic service whereby the bailiff of the court
      lodges the document instituting proceedings with the
      public prosecution service, which forwards the docu-              (a)   contrary to Articles 33 (ex 39) and 34 (ex 40) EC,
      ments for transfer by contractual or diplomatic means,
      and, by registered letter with notice of delivery, notifies
      the foreign party of the service which has been effected?         (b) contrary to Articles 28 (ex 30) and 29 (ex 34) EC,
                                                                        (c)   disproportionate,


title: Case T-131/05: Action brought on 21 March 2005 by Carlos Andrés and Others against the European Central Bank

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/32

         Action brought on 21 March 2005 by Carlos Andrés and Others against the European Central Bank
   (Case T-131/05)
   (2005/C 132/58)
   Language of the case: French
   An action against the European Central Bank was brought before the Court of First Instance of the European Communities on 21 March 2005 by Carlos Andrés, residing in Frankfurt am Main, and eight others, represented by Georges Vandersanden and Laure Levi, lawyers.
   The applicants claim that the Court should:

               —

               annul the applicants' salary statements for July 2004;

               —

               order the defendant to pay damages to compensate for the harm suffered by the applicants, consisting of the award of EUR 5 000 per applicant on account of a loss of purchasing power since 1 July 2001, of arrears of pay corresponding to an increase in the applicants' salary of 1,86 % for the period from 1 July 2001 to 30 June 2002, 0,92 % for the period from 1 July 2002 to 30 June 2003 and 2,09 % for the period from 1 July 2003 to 30 June 2004, and of the application of interest to the amount of the applicants' arrears of salary from their respective due date until the date of actual payment. That rate of interest should be calculated on the basis of the rate set by the European Central Bank for the main refinancing operations, applicable during the period concerned, plus two points.

               —

               order the defendant to pay all the costs.

         Pleas in law and main arguments
   The subject-matter of this case is the salary increase contained in the applicants' salary statements for July 2004, which they claim was established in disregard of the obligation to consult the staff of the European Central Bank (ECB), and of the methods of calculation relating to general salary adjustments, as organised by an agreement concluded between the management and the staff (‘the Memorandum of Understanding’). It is also disputed that the increase in question, applied following the judgment of the Court of First Instance of 20 November 2003 in Case T-63/02 Cerafogli and Poloni v ECB [2003] ECR-SC I-A-291 and II-1405, did not have retroactive effects for the years 2001, 2002 and 2003.
   In support of their claims, the applicants plead:

               —

               infringement both of Article 45 and 46 of the Conditions of Employment and of the Memorandum of Understanding, and breach of the principle of good administration;

               —

               breach of the duty to state reasons, as well as, in this instance, a manifest error of assessment. It is argued in this regard that the tables drawn up by the Bank to justify the proposed percentage salary increase in question are the result of an incorrect application of the methods of calculation;

               —

               breach of the principle of the protection of legitimate expectations.