title: Case T-326/00: Action brought on 23 October 2000 by Anthony Goldstein against the Commission of the European Communities

text:
6.1.2001              EN                     Official Journal of the European Communities                                            C 4/7
Action brought on 23 October 2000 by Anthony Gold-                      Action brought on 27 October 2000 by Rica Foods (Free
stein against the Commission of the European Communi-                   Zone) NV against the Commission of the European
                                ties                                                              Communities
                        (Case T-326/00)                                                          (Case T-332/00)
                                                                                (2001/C 4/11)
                          (2001/C 4/10)
                                                                                (Language of the case: Dutch)
                  (Language of the case: English)
                                                                        An action against the Commission of the European Communi-
An action against the Commission of the European Communi-               ties was brought before the Court of First Instance of the
ties was brought before the Court of First Instance of the              European Communities on 27 October 2000 by Rica Foods
European Communities on 23 October 2000 by Anthony                      (Free Zone) NV, established in Oranjestad (Aruba), represented
Goldstein, represented by Raymond St John Murphy of                     by G. van der Wal, of the Brussels Bar, with an address for
Merriman White Solicitors, London.                                      service in Luxembourg at the Chambers of A. May, 398 Route
                                                                        d’Esch.
The applicant claims that the Court should:
                                                                        The applicant claims that the Court should:
—     annul the decision of the Commission of 10 August 2000
      rejecting the complaint made by the applicant pursuant            —     annul Regulation (EC) No 2081/2000 (1);
      to Article 86 EC concerning the violation of Articles 81
      and 82 EC by the General Medical Council;                         —     declare that the Community is liable for the loss and
                                                                              damage suffered by the applicant as a result of the fact
                                                                              that, since 1 October 2000, imports of the products
—     order the Commission to pay the costs.
                                                                              referred to in Regulation No 2081/2000 have been
                                                                              prevented or restricted on account of that regulation, and
                                                                              order that the parties are to seek to reach agreement
Pleas in law and main arguments                                               concerning the extent of the loss and damage suffered by
                                                                              the applicant and that, in the absence of agreement in
                                                                              that regard, the proceedings are to be resumed within a
By Application lodged in Case T-175/00 (1), the applicant in                  time-limit to be fixed by the Court in order for the extent
the current case has challenged the inaction of the Commission                of the loss and damage to be determined; or, at any rate,
in relation to one complaint, focused on the alleged anti-                    order the Community to pay the damages provisionally
competitive practices on the part of the General Medical                      estimated and yet to be assessed, alternatively order the
Council (GMC), a statutory body which regulates the medical                   Community to pay such amount of damages as the Court
profession in the territory of the United Kingdom.                            shall deem fair and equitable, together with interest at the
                                                                              annual rate of 8 % from the date of the application to the
                                                                              date of payment in full;
By decision of 10 August 2000, the Commission formally
rejected the above mentioned complaint. The present Appli-              —     order the Commission to pay the costs.
cation attacks this decision.
On support of its conclusions, the applicant submits an                 Pleas in law and principal arguments
infringement of Article 86 (ex-Article 90) of the EC Treaty. It
is stated on this point that such a violation of the European
competition Law raises from, in the first place, by wrongly             The pleas in law and main arguments put forward by the
failing to examine the validity of national legislation, and, in        applicant are similar to those in Case T-94/00.
the second place, by wrongly assessing the analytical data on
which basis can be concluded that the essential elements of a
situation in which Article 86 EC applies are in fact present.           (1) Commission Regulation (EC) No 2081/2000 of 29 September
                                                                            2000 providing for the continued application of safeguard
                                                                            measures for imports from the overseas countries and territories
                                                                            of sugar sector products with EC/OCT cumulation of origin (OJ
(1) JO C 285 of 7.10.00, p. 11.                                             L 246 of 30 September 2000, p. 64).


title: Case T-31/99: Action brought on 27 January 1999 by ABB Asea Brown Boveri Ltd against the Commission of the European Communities

text:
C 121/16              EN                      Official Journal of the European Communities                                       1.5.1999
                                                        COURT OF FIRST INSTANCE
Action brought on 16 January 1999 by Miguel Vicente                      In stating the reasons on which his claim for damages is based,
Nuñez against the Commission of the European Com-                       the applicant maintains that, according to settled case-law,
                            munities                                     delay in the drawing-up of a staff report by the administration
                                                                         which is not attributable to the official concerned constitutes
                         (Case T-10/99)                                  an administrative fault liable to cause the person concerned to
                                                                         suffer non-material damage, by reason of the state of uncer-
                                                                         tainty and worry in which he finds himself as a result of the
                        (1999/C 121/37)
                                                                         irregularity or incompleteness of his personal life.
                   (Language of the case: French)
An action against the Commission of European Communities
was brought before the Court of First Instance of the European
Communities on 16 January 1999 by Miguel Vicente Nuñez,
residing at Krainem (Belgium), represented by Marc-Albert                Action brought on 27 January 1999 by ABB Asea Brown
Lucas, of the Liège Bar, with an address for service at the              Boveri Ltd against the Commission of the European
offices of Fiduciaire Myson SARL, 30 rue de Cessange.                                                 Communities
The applicant claims that the Court should:                                                          (Case T-31/99)
— annul the contested decisions,
                                                                                (1999/C 121/38)
— order the defendant to pay him BEF 50 000 by way of
    compensation for the material damage suffered by him, as
    provisionally quantified,                                                                (Language of the case: English)
— order the defendant to pay him BEF 50 000 by way of                    An action against the Commission of the European Communi-
    compensation for the non-material damage suffered by                 ties was brought before the Court of First Instance of the
    him,                                                                 European Communities on 27 January 1999 by ABB Asea
                                                                         Brown Boveri Ltd, Zürich (Switzerland), represented by Dr
— order the defendant to pay the costs.                                  Andreas Weitbrecht and Dr Sven B. Völcker, of the Bar of
                                                                         Berlin, with an address for service in Luxembourg at the
                                                                         Chambers of Maître Marc Loesch, Loesch & Wolter, 11 rue
Pleas in law and main arguments adduced in support:                      Goethe.
The name of the applicant, a grade A 6 official, did not appear
on the list of officials considered to be most deserving of              The applicant claims that the Court should:
promotion to grade A 5, or on the list of officials promoted to
grade A 5 in the 1998 procedure for promotion from one                   — annul Article 3 of the Commission’s Decision of 21 Octo-
career bracket to the next.                                                  ber 1998 (Case IV/35.691/E-4-3: pre-insulated pipes) in so
                                                                             far as it relates to the applicant,
In support of his application, he pleads:                                — substantially reduce the fine imposed on the applicant, and
— the absence, alternatively irregularity, of any consideration          — order the Commission to pay the costs of the proceedings,
    of the comparative merits and staff reports of the applicant             including those of the applicant.
    in relation to those of the other persons eligible for
    promotion, arising from the fact that his personnel file and
    his latest staff report were not available at the time               Pleas in law and main arguments adduced in support:
    when the contested decisions were adopted, as well as
    infringement of Article 45(1) of the Staff Regulations,
                                                                         The applicant pleads that the Commission’s decision is based
— the absence, alternatively inadequacy, of any statement                on the following errors:
    of reasons for the contested decisions, together with
    infringement of the second paragraph of Article 25 of the            1. I n f r i n g e m e n t o f e s s e n t i a l p r o c e d u r a l
    Staff Regulations,                                                       r e q u i r e m e n t s : The Commission, in conducting the
                                                                             procedure leading up to the Decision, infringed essential
— infringement of Article 45(1) of the Staff Regulations,                    procedural requirements. In particular:
    inasmuch as the contested decisions were adopted not on
    the basis of the respective merits of those eligible for                   — the Commission denied the applicant the right to be
    promotion but on the basis of a rule whereby an official                        heard,
    whose name is put forward for promotion for the second
    time by his Directorate must be proposed for promotion                     — the Commission relied on facts that had not been
    by his Directorate-general.                                                     established,
 ---pagebreak--- 1.5.1999                 EN                    Official Journal of the European Communities                                       C 121/17
      — the Commission’s reasoning was defective, and                           — is disproportionate to reductions granted in other
                                                                                cases.
      — the Commission relied on a case handler who has                   (1) OJ C 207, 18.7.1996, p. 4.
            displayed substantial bias against the applicant.             (2) Commission guidelines on the method of setting fines imposed
                                                                              pursuant to Article 15(2) of Regulation No 17 and Article 65(5)
                                                                              of the ECSC Treaty (OJ C 9, 14.1.1998, p. 3)..
2. I n f r i n g e m e n t o f t h e E C T r e a t y , i n c l u d i n g
    fundamental principles of Community
    l a w : The Commission, having induced the applicant
    to cooperate extensively pursuant to the newly issued
    Commission notice on the non-imposition or reduction of
    fines in cartel cases (the leniency notice) (1) retroactively
    applied the new fining guidelines (2) which generally lead            Action brought on 4 February 1999 by Elvira Méndez
    to fines higher than those assessed under the Commission’s                      Pinedo against the European Central Bank
    practice prevailing at the time when the applicant decided
    to cooperate. This conduct:                                                                     (Case T-33/99)
                                                                                (1999/C 121/39)
      — violates the principle of protection of legitimate
            expectations,
                                                                                (Language of the case: Spanish)
      — violates the fundamental principle of a fair adminis-             An action against the European Central Bank was brought
            trative procedure,                                            before the Court of First Instance on 4 February 1999 by Elvira
                                                                          Méndez Pinedo, represented by Antonio Méndez Garcı́a, of the
                                                                          Madrid Bar, with an address for services at Calle Bravo Murillo
      — violates the principle of good administrative practice            36, 2nd floor, 28015, Madrid, Spain.
            and consistent application of Community law.
                                                                          The applicant claims that the Court of First Instance should
                                                                          examine the legality of the selection procedure with which this
3. I n f r i n g e m e n t o f A r t i c l e 1 5 ( 2 ) o f R e g u -      action is concerned.
    l a t i o n N o 1 7 : In setting the fine at ECU 100 million
    (before application of the leniency notice) the Commission
    infringed Article 15(2) of Regulation No 17. In particular:           Pleas in law and main arguments adduced in support:
                                                                          The applicant complains that it was materially impossible for
      — the fine is disproportionate to fines assessed against            her to submit her application in a procedure for the selection
            co-defendants in this case,                                   of staff organised by the European Central Bank, the announce-
                                                                          ment for which appeared in the Official Journal of the European
                                                                          Communities of 26 May 1998 (C 159). Such impossibility
                                                                          derived from the fact that the time limit laid down in the
      — the Commission erred in assessing the duration of the             notice for the submission of applications was much shorter
            infringement committed by the applicant,                      than that normally set in the Official Journal distributed on
                                                                          Spanish territory.
      — the Commission improperly took into account aggra-                In support of her claims, the applicant puts forward the
            vating circumstances, and                                     following pleas:
                                                                          — Infringement of essential procedural requirements laid
      — the Commission improperly disregarded extenuating                      down in Article 29 of the staff Regulations of officials of
            factors.                                                           the European Communities and Annex III thereto.
                                                                          — Breach of the principle of equal treatment or non-
4. M i s a p p l i c a t i o n o f t h e l e n i e n c y n o t i c e :         discrimination, in that a time limit as short as that laid
    The Commission improperly applied its own leniency                         down for the submission of applications in the competition
    notice vis-à-vis the applicant. The applicant should have                  at issue favours candidates residing in Luxembourg and
    been accorded a reduction of at least 50 %. In particular,                 others who became aware of the selection procedure by
    the reduction of merely 30 % granted by the Commission:                    other means.
                                                                          — Breach of the principle of good management and sound
                                                                               administration in relation to Article 27 of the Staff
      — puts the applicant into the same category as other                     Regulations of officials of the European Communities.
            co-defendants in this case, whose cooperation was —
            by the Commission’s own admission — far less
            extensive,


title: Case C-217/17 P: Appeal brought on 25 April 2017 by Mast-Jägermeister SE against the judgment of the General Court (Eighth Chamber) of 9 February 2017 in Case T-16/16, Mast-Jägermeister SE v European Union Intellectual Property Office

text:
               11.9.2017

               EN

               Official Journal of the European Union

               C 300/12

         Appeal brought on 25 April 2017 by Mast-Jägermeister SE against the judgment of the General Court (Eighth Chamber) of 9 February 2017 in Case T-16/16, Mast-Jägermeister SE v European Union Intellectual Property Office

   (Case C-217/17 P)
   (2017/C 300/15)
   Language of the case: German

      Parties

      Appellant: Mast-Jägermeister SE (represented by: C. Drzymalla, Rechtsanwalt)

      Other party to the proceedings: European Union Intellectual Property Office

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside in its entirety the judgment of the General Court of 9 February 2017 in Case T-16/16, by which the action was dismissed and the present appellant ordered to pay the costs;

               —

               grant the first and third pleas in law made at first instance, should the appeal be declared well founded.

      Grounds of appeal and main arguments

   The appellant’s appeal is directed against the judgment of the General Court of 9 February 2017 in Case T-16/16, which concerns the requirements governing a representation of a design for the purposes of attribution of a date of filing, namely with regard to the applications for registration of designs No 002683615-0001 and No 002683615-0002 (beakers).
   The General Court judgment under appeal infringes the provisions of Article 46(2) and (3) of Regulation No 6/2002, in conjunction with Articles 36 and 38 of that regulation, insofar as, according to the General Court, it follows from the meaning and purpose of those provisions that applications for registration are not to be treated as applications for registration of Community designs if, in the Office’s view, there is uncertainty or ambiguity in respect of the subject matter of the design applied for. It must, however, be concluded from the significance of the date of filing for the design applicant that the representation of the design cannot be subject to stringent requirements and that Article 36(1)(c) merely requires the representation of the design to be physically suitable for reproduction in order for the date of filing to be attributed under Article 38 of Regulation No 6/2002.
   Nothing else — contrary to the General Court’s view — follows from Article 4(1)(e) of Regulation No 2245/2002, in conjunction with Article 10(1)(c) and 10(2) thereof. Insofar as it is stated therein that the reproduction of the design must be of a quality allowing all the details for which protection is sought to be distinguished clearly, that provision also means only the representation’s physical suitability for reproduction. This is so particularly in view of the fact that the applicant alone determines the subject matter of the application, that is to say, in respect of what it is applying for protection. Lastly, the final determination of the extent of protection for a design is a matter, in any event, solely and exclusively for a court dealing with infringement proceedings.
   Insofar as the registration of the design with a view to its reproduction might lead to legal uncertainty, registration may be denied, but not the attribution of a date of filing, which is of major importance for the applicant by reason of the provisions on the effect of a first filing giving rise to a right of priority under Article 4(A) of the Paris Convention for the Protection of Industrial Property.
   In this context, the General Court failed to have regard for the unequivocal wording of the differentiated provisions of Article 46(2) and Article 46(3). An application for registration is to be considered, under Article 46(2) of Regulation No 6/2002, not to be an application for registration of a Community design only if the deficiencies in the application relate to the requirements of Article 36(1) of that regulation. However, Article 36(1) requires, with regard to the representation of the design, only that it must be suitable for reproduction. Any further irregularities, in particular those arising from the application of Regulation No 2245/2002, could, under Article 46(3) of Regulation No 6/2002, lead only to a rejection of the application for registration, after prior attribution of a date of filing. This is evident from the reference in Article 46(3) to Article 45(2)(a), in conjunction with Article 36(5),of Regulation No 6/2002.


title: Case C-191/12: Judgment of the Court (Seventh Chamber) of 16 May 2013 (request for a preliminary ruling from the Kúria — Hungary) — Alakor Gabonatermelő és Forgalmazó Kft. v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága (Non-repayment of the entirety of value added tax unduly paid — National legislation precluding repayment of VAT because it has been passed on to a third party — Compensation in the form of aid covering a fraction of the non-deductible VAT — Unjust enrichment)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/32

         Judgment of the Court (Seventh Chamber) of 16 May 2013 (request for a preliminary ruling from the Kúria — Hungary) — Alakor Gabonatermelő és Forgalmazó Kft. v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága
   (Case C-191/12) (1)

   (Non-repayment of the entirety of value added tax unduly paid - National legislation precluding repayment of VAT because it has been passed on to a third party - Compensation in the form of aid covering a fraction of the non-deductible VAT - Unjust enrichment)
   2013/C 225/54
   Language of the case: Hungarian

      Referring court

   Kúria

      Parties to the main proceedings

      Applicant: Alakor Gabonatermelő és Forgalmazó Kft.

      Defendant: Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

      Re:

   Request for a preliminary ruling — Kúria Budapest — Interpretation of European Union law relating to the common system of value added tax — Deduction of input VAT — Aid from State funds for an acquisition of goods, also financing the non deductible VAT on the acquisitions — National legislation precluding repayment of tax on the ground that it has been passed on to a third party

      Operative part of the judgment

   The principle of repayment of taxes levied in a Member State in infringement of the rules of EU law must be interpreted as meaning that it does not preclude that State from refusing to repay part of the value added tax, the deduction of which had been precluded by a national measure contrary to European Union law, on the ground that that part of the tax had been subsided by aid granted to the taxable person and financed by the European Union and by that State, provided that the economic burden relating to the refusal to deduct value added tax has been completely neutralised, which is for the national court to determine.

      (1)  OJ C 243, 11.8.2012.


title: JUDGMENT OF THE COURT (Third Chamber) of 10 December 1998 in Case C-279/97 (reference for a preliminary ruling from the Centrale Raad van Beroep): Bestuur van het Landelijk Instituut Sociale Verzekeringen v. C. J. M. Voeten and J. Beckers (Social security - Frontier workers - Invalidity - Medical examination)

text:
C 48/2               EN                   Official Journal of the European Communities                                    20.2.1999
Zuchtschweine Epe GbR, a partnership governed by                     Ruiz-Jarabo Colomer, Advocate-General; L. Hewlett,
German law, established in Neuenkirchen (Germany),                   Administrator, for the Registrar, has given a judgment on
represented by Gerd Rentzmann and Rudolf Brenken,                    10 December 1998, in which it has ruled:
Rechtsanwälte, Quakenbrück, with an address for service
in Luxembourg at the Chambers of Michel Molitor, Pierre
                                                                     1. In the case of a former frontier worker and recipient
Feltgen and AndreÂ Harpes, 14A Rue des Bains Ð appeal
                                                                          of invalidity benefits who lives in a Member State
against the judgment of the Court of First Instance of the
                                                                          other than that of the institution responsible for
European Communities (Fifth Chamber) of 15 April 1997
                                                                          payment, and whose place of residence is nearer to the
in Case T-390/94 Schröder and Others v. Commission
                                                                          institution of the competent Member State than to the
[1997] ECR II-501, seeking to have that judgment set
                                                                          institution of the State of residence, Article 51(1) of
aside, the other party to the proceedings being:
                                                                          Regulation (EEC) No 574/72 of the Council of
Commission of the European Communities (Agent:
                                                                          21 March 1972 fixing the procedure for implementing
Claudia Schmidt, assisted by Bertrand Wägenbaur) Ð the
                                                                          Regulation (EEC) No 1408/71 on the application of
Court (Fifth Chamber), composed of: P. Jann
                                                                          social security schemes to employed persons and their
(Rapporteur), President of the First Chamber, acting as
                                                                          families moving within the Community, as amended
President of the Fifth Chamber, C. Gulmann, D. A. O.
                                                                          and updated by Regulation (EEC) No 2001/83
Edward, L. Sevón and M. Wathelet, Judges; D.
                                                                          precludes the competent institution from carrying out
Ruiz-Jarabo Colomer, Advocate-General; R. Grass,
                                                                          the administrative checks and medical examination of
Registrar, has given a judgment on 10 December 1998, in
                                                                          that worker without requesting a prior examination by
which it:
                                                                          the institution of his place of residence. However, the
                                                                          provision does not preclude the worker from waiving
1. Dismisses the appeal.                                                  the right to undergo the prior examination by the
                                                                          institution of his place of residence, provided that his
2. Orders the appellants to pay the costs.                                waiver is freely made and unambiguous.
(1) OJ C 252, 16.8.1997.                                             2. In the case of a first assessment of invalidity benefit
                                                                          granted to a person who is resident in a Member State
                                                                          other than that of the competent institution, Article 40
                                                                          of the Regulation does not preclude the competent
                                                                          institution from determining the degree of invalidity
                                                                          on the basis of its own medical examination without
              JUDGMENT OF THE COURT                                       requesting a prior examination by the institution of
                      (Third Chamber)                                     the place of residence. However, the competent
                                                                          institution must take account of any documents,
                    of 10 December 1998                                   medical reports and administrative information from
in Case C-279/97 (reference for a preliminary ruling from                 the institution in the Member State in which the
the Centrale Raad van Beroep): Bestuur van het Landelijk                  worker resides.
Instituut Sociale Verzekeringen v. C. J. M. Voeten and
                          J. Beckers (1)                             (1) OJ C 271, 6.9.1997.
(Social security Ð Frontier workers Ð Invalidity Ð
                    Medical examination)
                        (1999/C 48/03)
                (Language of the case: Dutch)
                                                                                JUDGMENT OF THE COURT
                                                                                (Third Chamber)
  (Provisional translation; the definitive translation will be
         published in the European Court Reports)                                         of 10 December 1998
                                                                     in Case C-290/97 (reference for a preliminary ruling from
In Case C-279/97: reference to the Court under Article 177           the Bundesfinanzhof): Georg Bruner, trading as Georg
of the EC Treaty from the Centrale Raad van Beroep                             Bruner' v. Hauptzollamt Hamburg-Jonas (1)
(Netherlands) for a preliminary ruling in the proceedings
pending before that court between Bestuur van het                    (Export refunds Ð Nomenclature of agricultural products)
Landelijk Instituut Sociale Verzekeringen and C. J. M.                                       (1999/C 48/04)
Voeten, J. Beckers Ð on the interpretation of Articles 40
and 51 of Regulation (EEC) No 574/72 of the Council of
21 March 1972 fixing the procedure for implementing                                  (Language of the case: German)
Regulation (EEC) No 1408/71 on the application of social
security schemes to employed persons and their families
                                                                       (Provisional translation; the definitive translation will be
moving within the Community, as amended and updated
                                                                               published in the European Court Reports)
by Regulation (EEC) No 2001/83 (OJ L 230, 22.8.1984,
p. 86) Ð the Court (Third Chamber), composed of: J.-P.
Puissochet, President of the Chamber, J. C. Moitinho de              In Case C-290/97: reference to the Court under Article 177
Almeida (Rapporteur) and C. Gulmann, Judges; D.                      of the EC Treaty from the Bundesfinanzhof (Germany) for


title: Action brought on 24 April 1997 by Michael Collins against the Committee of the Regions of the European Union (Case T-132/97)

text:
28 . 6 . 97               EN                 Official Journal of the European Communities                                No C 199/35
In its second plea, the applicant maintains that the                    The applicant claims that the Court should:
Commission misused its powers and manifestly erred in its
interpretation of the condition laid down by the second
indent of Article 4 ( 2 ) of Decision 3855/91 /ECSC. The                — annul the decision of the Committee of the Regions of
mere fact that the Commission based its entire assessment                   the European Union inasmuch as it failed to pay the
on that interpretation renders all its evaluations of the                   applicant the daily subsistence allowance provided for
                                                                            in Article 10 (2 ) of Annex VII to the Staff Regulation
separate arguments submitted by the applicant and by the
Italian authorities inconsistent with the provisions of the                 for the entire period of his probation plus one month ,
Aid Code .
                                                                        — order the defendant to pay to the applicant the daily
                                                                            subsistence allowance for the entire period of his
In its third plea, the applicant argues that the decision                   probation plus one month, together with default
infringes Community law and in particular the principle of                  interest of 8 % per annum from the date on which it
non-discrimination. The Commission treated comparable                       became payable, less the amount of Bfrs 101 880
situations dissimilarly and non-comparable situations                       which was paid by the defendant to the applicant as
similarly. Furthermore, the criteria which the Commission                   the daily subsistence allowance for the first 120 days
applied to the Italian steel undertakings were more                         of the applicant's probationary period, and
restrictive than those applied to undertakings in other
Member States . By not making use of the powers
                                                                        — order that the costs of the proceedings be borne by the
conferred on it by Article 95 of the ECSC Treaty to                         defendant.
approve measures for closures, the Commission also
discriminated against the applicant as compared with
companies in respect of which it adopted such an                        Pleas in law and main arguments adduced in support:
approach.
                                                                        The applicant states that, having successfully passed an
                                                                        internal competition in the Committee of the Regions, he
Lastly, the applicant maintains that the position adopted
                                                                        was appointed as a probationary official from 16 April
by the Commission in the contested decision is in open                  1996, and received a daily subsistence allowance under
contrast to that adopted in its decision of 12 December
                                                                        Article 10 of Annex VII to the Staff Regulations . Payment
1994, confirming that the aid measures notified by the
                                                                        of this allowance was limited to the first 120 days of his
Italian Republic were compatible with the common
                                                                        probationary period.
market. The Commission thereby breached the principles
of legal certainty and of the protection of legitimate
expectations, and acted in contradiction of a measure                   The applicant submits that in accordance with
which the Commission itself had previously adopted.                     Article 10 (2 ) ( b ) of Annex VII to the Staff Regulations, he
                                                                        is entitled, as a probationary official, to receive the daily
                                                                        subsistence allowance for the entire period of his
(') OJ 1997 L 102, 19 . 4 . 1997.
(2 ) See p. 30 of this Official Journal .                               probation, plus one month.
(') Commission Decision 3855/91 /ECSC of 27 November 1991
     establishing Community rules for aid to the steel industry ( OJ    The applicant contends on this point that the correct
     No L 362 , 21 . 12 . 1991 , p. 57 ).
                                                                        interpretation of Article 10 ( 2 ) of Annex VII is that any
                                                                        probationary official, whether entitled to the household
                                                                        allowance or not, is entitled to the payment of the daily
                                                                        subsistence allowance throughout the period of probation
                                                                        plus one month . He maintains that this interpretation has
                                                                        been confirmed by the decisions of the European Court of
                                                                        First Instance which has held that, for a probationary
Action brought on 24 April 1997 by Michael Collins                      official, the purpose of the daily subsistence allowance is
against the Committee of the Regions of the European                    to compensate that official for the inconvenience resulting
                                  Union                                 from the precarious nature of the employment
                           ( Case T-132/97                              relationship, precariousness that continues throughout the
                                                                        probationary period.
                             ( 97/C 199/83 )
                                                                        The applicant considers that the interpretation of the
                  (Language of the case: English)                       Court as to the purpose of the daily subsistence allowance
                                                                        makes no connection whatsoever between a probationary
                                                                        official 's entitlement to this allowance and the entitlement
                                                                        of the same official to receive the household allowance .
An action against the Committee of the Regions of the                   He contends therefore that the Committee, in breach of
European Union was brought before the Court of First
Instance of the European Communities on 24 April 1997                   his rights under the Staff Regulations, has restrictively and
                                                                        erroneously interpreted and applied Article 10 ( 2 ) of
by Michael Collins, represented by Vassilis Akritidis and               Annex VII .
Jonathan Branton, with an address for service in
Luxembourg at the Chambers of Arsene Kronshagen, 12,
Boulevard de la Foire .


title: Case T-178/11: Action brought on 18 March 2011 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional ‘bottle’ )

text:
               14.5.2011

               EN

               Official Journal of the European Union

               C 145/36

         Action brought on 18 March 2011 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional ‘bottle’)
   (Case T-178/11)
   2011/C 145/61
   Language in which the application was lodged: English

      Parties

      Applicant: Voss of Norway ASA (Oslo, Norway) (represented by: F. Jacobacci and B. La Tella, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Nordic Spirit AB (pubI) (Stockholm, Sweden)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2011 in case R 785/2010-1; and

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The three-dimensional mark representing a ‘bottle’, for goods in classes 32 and 33 — Community trade mark registration No 3156163

      Proprietor of the Community trade mark: The applicant

      Applicant for the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request on absolute grounds for refusal pursuant to Article 52(1)(a) in conjunction with Article 7 of Council Regulation (EC) No 207/2009, and that the proprietor of the Community trade mark acted in bad faith when filing the application pursuant to Article 52(1)(b) of Council Regulation (EC) No 207/2009.

      Decision of the Cancellation Division: Rejected the application for invalidity

      Decision of the Board of Appeal: Declared the Community trade mark registration invalid

      Pleas in law: Infringement of Articles 75, 99 and 7(1)(b) of Council Regulation No 207/2009, as well as infringement of Rule 37(b)(iv) of Commission Regulation (EC) No 2868/95, as the Board of Appeal erred (i) in its motivation by basing it on a new requirement for establishing validity of three-dimensional trademarks, on which the applicant did not had the opportunity to present its comments; (ii) in shifting the onus of proof in violation of fair trials principles; (iii) in misinterpreting and misapplying Article 7(1)(b) of the CTMR; and (iv) by seriously distorting the facts in order to arrive at the wrong conclusion.


title: Reference for a preliminary ruling by order of the Civil Division of the Tribunale Civile e Penale, Trento, of 15 February 1996 in the case of Grundig Italiana v. Ministero delle Finanze (Case C-68/96)

text:
No C 133/ 18          EN                  Official Journal of the European Communities                                      4 . 5 . 96
Reference for a preliminary ruling by order of the Civil             Action brought on 19 March 1996 by the Kingdon of the
Division of the Tribunale Civile e Penale, Trento, of                Netherlands against the Commission of the European
15 February 1996 in the case of Grundig Italiana v.                                             Communities
                   Ministero delle Finanze
                                                                                Case C-84/96 )
                       ( Case C-68/96 )                                                        ( 96/C 133/39 )
                         ( 96/C 133/37 )
Reference has been made to the Court of Justice of the               An action against the Commission of the European
                                                                     Communities was brought before the Court of Justice of the
European Communities by order of the Civil Division of the
Tribunale Civile e Penale ( Civil and Criminal District              European Communities on 19 March 1996 by the Kingdom
Court ), Trento, of 15 February 1996 , which was received at         of the Netherlands, represented by J. S. van den Oosterkamp
                                                                     and M. A. Fierstra , acting as Agents, with an address for
the Court Registry on 14 March 1996 , for a preliminary
                                                                     service in Luxembourg at the Netherlands Embassy, 5 Rue
ruling in the case of Grundig Italiana SpA against Ministero
                                                                     C. M. Spoo .
delle Finanze ( Ministry of Finance ) on the following
question :
                                                                     The applicant claims that the Court should :
Must Article 95 of the EC Treaty by interpreted as
prohibiting a Member State from introducing and collecting
a national consumption tax of the kind provided for by               — annul the debit note of 15 January 1996 and the
Article 4 of the Decree-Law of 30 December 1982,                         Commission decisions of 16 February 1996 concerning
converted into law by Law No 53 of 28 February 1983 , and                the completion of projects ERDF No 80.07.03.002
                                                                         ( Veendam-Musselkanaal ) and ERDF No 84.07.03.004
further governed by the Decree of the Ministry of Finance of
23 March 1983 , in so far as different taxable amounts are               (Weg Veendam ), which were co-financed prior to 1989
                                                                         by the European Regional Development Fund;
determined for domestic products and for those imported
from other Member States and different procedures are laid
down for collection of the tax on the same products ?                — order the defendant to pay the costs .
                                                                     Pleas in law and main arguments
                                                                     The pleas in law and mains arguments adduced in support
Reference for a preliminary ruling by the Netherlands Raad           are the same as those in Case C-308/95(M .
van State, by judgment of that court of 12 March 1996 in the
case of Mayor and Aldermen of Haarlemmerliede and
                                                                     (') OJ No C 299 , 11 . 11 . 1995 , p . 13 .
Spaarnwoude and Others v. Gedeputeerde Staten of
                       Noord-Holland
                       ( Case C-81 /96 )
                         ( 96/C 133/38 )
Reference has been made to the Court of Justice of the
European Communites by judgment of the Netherlands                   References for preliminary rulings from the Tribunale di
Raad van State ( State Council ) of 12 March 1996, which             Genova — Prima Sezione Civile — by orders of that court of
was received at the Court Registry on 18 March 1996 , for            1 February and 7 March , 1996 in the cases of ( 1 ) Palmera
a preliminary ruling in the case of Mayor and Aldermen               SpA, ( 2 ) Cesare Rognoli & Figlio Srl and ( 3 ) Igino Mazzola
of Haarlemmerliede and Spaarnwoude and Others v.                                  v. Ministero delle Finanze dello Stato
Gedeputeerde Staten ( Provincial Executive ) of Noord
Holland on the following question :                                             ( Cases C-86/96, C-87/96 and C-88/96 )
                                                                                96/C 133/40 )
Does Council Directive 85/337/EEC of 27 June 1985 on the
assessment of the effects of certain public and private
projects on the environment ( 1 ) permit consent to be granted       Reference has been made to the Court of Justice of the
for a project mentioned in Annex I to the Directive where , in       European Communities by orders of the Tribunale di
the course of the preparation of the consent, no                     Genova — Prima Sezione Civile — ( District Court, Genoa,
environmental impact assessment within the meaning of the            First Civil Section ) of 1 February and 7 March 1996,
Directive was conducted in a case in which the consent               received at the Court Registry on 21 March 19 96 , for a
relates to a project for which consent had been granted              preliminary ruling in the cases of ( 1 ) Palmera SpA, ( 2 )
before 3 July 1988 , no use was made of that consent and             Cesare Rognoli & Figlio Sri and ( 3 ) Igino Mazzola v .
no environmental impact assessment satisfying the                    Ministero delle Finanze dello Stato on the questions
requirements of the Directive was conducted in the course of         identical to those in Joined Cases C-47/95 and others ( J ).
the preparation of that consent ?
                                                                     (') OJ No C 119 , 13 . 5 . 1995 , p . 5 .
(') OJ No L 175 , 1985 , p . 40 .


title: Case T-355/03: Action brought on 16 October 2003 by Andreas Mausolf against Europol

text:
C 21/36                  EN                        Official Journal of the European Union                                       24.1.2004
The applicant also pleads infringement of Article 253 EC.                  Action brought on 31 October 2003 by MEDICI GRIMM
According to the applicant, the Commission has not                                KG against the Council of the European Union
adequately set out the reasons why the transitional rule in
Article 2 of the contested decision must be restricted to
undertakings in respect of which the tax authority had taken a
                                                                                (Case T-364/03)
decision as at 11 July 2001.
(1) 2003/515/EC: Commission Decision of 17 February 2003 on the                                     (2004/C 21/77)
    State aid implemented by the Netherlands for international
    financing activities (OJ 2003 L 180, p. 52).
                                                                                (Language of the case: English)
                                                                           An action against The Council of the European Union was
Action brought on 16 October 2003 by Andreas Mausolf                       brought before the Court of First Instance of the European
                           against Europol                                 Communities on 31 October 2003 by MEDICI GRIMM KG,
                                                                           Rodgau Hainhausen, Germany, represented by Dr Robert
                                                                           MacLean, Solicitor with an address for service in Luxembourg.
                           (Case T-355/03)
                            (2004/C 21/76)                                 The applicant claims that the Court should:
                     (Language of the case: Dutch)
                                                                           —     order that, pursuant to the second paragraph of
                                                                                Article 288 of the EC Treaty, the Council of Ministers of
                                                                                the European Union is liable for the damage caused to
                                                                                the Applicant and order the Council to pay damages to
An action against Europol was brought before the Court of                        the Applicant for the sum of 89 286 EUR in interest and
First Instance of the European Communities on 16 October                         the sum of 81 079 EUR in legal costs of the administrative
2003 by Andreas Mausolf, resident in Leiden (Netherlands),                       procedure, or whatever sums the Court decides appro-
represented by M.F. Baltussen and P. de Casparis.                                priate;
The applicant claims that the Court should:                                —     order the Council to pay the legal costs and expenses of
                                                                                the procedure.
1)     annul the implicit rejection by Europol of the applicant’s
       complaint challenging the decision of 2 January 2003
       and also to annul the decision of 2 January 2003;
2)     order Europol to pay compensation to Andreas Mausolf,               Pleas in law and main arguments
       including in any event the costs of these proceedings.
                                                                           The applicant is a company dealing in leather handbags. In
Pleas in law and main arguments                                            the course of its business it regularly imported handbags
                                                                           manufactured by a company based in the People’s Republic of
                                                                           China. Council Regulation EC 1567/971 (1) imposed a defini-
The applicant contests the decision not to award him an extra              tive anti-dumping duty on imports of leather handbags
step with effect from 1 July 2002.                                         originating in that country. That Regulation was later amended
                                                                           by Council Regulation (EC) No 2380/98 of 3 November
                                                                           1998 (2) which imposed a specific anti-dumping duty rate of
The applicant submits that the contested decision contains an              0 % on the handbags imported by the applicant.
inadequate statement of reasons and thereby conflicts with the
general principle that decisions must state the reasons on
which they are based.
                                                                           However, this provision was not given retroactive effect and
                                                                           consequently duties paid by the applicant until then were not
                                                                           refunded.


title: Case T-718/15: Action brought on 9 December 2015 — PTC Therapeutics International v EMA

text:
               15.2.2016

               EN

               Official Journal of the European Union

               C 59/37

         Action brought on 9 December 2015 — PTC Therapeutics International v EMA
   (Case T-718/15)
   (2016/C 059/42)
   Language of the case: English

      Parties

      Applicant: PTC Therapeutics International Ltd (Dublin, Ireland) (represented by: M. Demetriou, QC, C. Thomas, Barrister, G. Castle, B. Kelly and H. Billson, Solicitors)

      Defendant: European Medicines Agency (EMA)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Medicines Agency EMA/722323/2015 of 25 November 2015 to grant a third party access to the information about a medicinal product, pursuant to Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), in so far as the decision concerns commercially confidential information the release of which will infringe the applicant’s rights and in so far as the decision is prohibited by EU law;

               —

               remit the contested decision back to the EMA for further consideration regarding redaction of confidential passages in consultation with the applicant; and,

               —

               order the EMA to pay all costs in these proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the document at issue is protected by Article 4(2) and/or Article 4(3) of Regulation (EC) No 1049/2001.

               2.

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

               3.

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

               4.

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

               5.

               Fifth plea in law, alleging that the outcome of a proper balancing exercise, as required by law, would have been a decision not to release any part of the document.


title: Case T-916/16: Action brought on 28 December 2016 — Winkler v Commission

text:
               13.2.2017

               EN

               Official Journal of the European Union

               C 46/28

         Action brought on 28 December 2016 — Winkler v Commission
   (Case T-916/16)
   (2017/C 046/33)
   Language of the case: German

      Parties

      Applicant: Bernd Winkler (Grange, Ireland) (represented by: A. Kässens, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the defendant’s decision of 30 September 2016 on his complaint and order the defendant to adopt a decision on the calculation of capital value at the time of the registration of the applicant’s claim on 14 September 2011;

               —

               in the alternative, order the defendant to pay compensation amounting to EUR 19 920,39, payable to the applicant’s pension account.

      Pleas in law and main arguments

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

               1.

               First plea in law: infringement of the principle that action must be taken within a reasonable period, infringement of the principles of legal certainty and of a fair trial, and infringement of the obligations regarding information and consultation
               The applicant submits that, by processing his claim in a slow manner, the defendant infringed all of the principles governing the proper conduct of an administrative procedure. The applicant was also not given the opportunity to set out his views orally before the measure adversely affecting him was adopted.

               2.

               Second plea in law: infringement of the principles of equal treatment, non-discrimination and proportionality
               With regard to the second plea in law, the applicant states that similar claims of other colleagues, who were not older than him, were processed much more quickly, with no objective reason being provided to justify that difference in treatment.

               3.

               Third plea in law: breach of the protection of legitimate expectations
               The applicant concludes by contesting the deduction of interest from his calculated capital value for the period between the lodging of his claim and the final transfer of the lump sum, about which the applicant had not previously been informed.


title: Information

text:
C 31/16               EN                        Official Journal of the European Union                                                    8.2.2003
                                                     COURT OF FIRST INSTANCE
                          Information                                   K. Lenaerts and J. Azizi, Judges; J. Plingers, Administrator, for
                                                                        the Registrar, has given a judgment on 14 November 2002, in
                        (2003/C 31/22)                                  which it:
                                                                        1.     Orders that Cases T-94/00, T-110/00 and T-159/00 be
At its meeting on 9 January 2003, the Court of First Instance                  joined for the purposes of the judgment;
decided as follows:
                                                                        2.     Dismisses the applications;
The decisions adopted on 4 July 2002 (OJ 2002 C 202, p. 19)
                                                                        3.     Orders each of the applicants to bear its own costs and pay
on the designation of the Presidents of Chamber and the
                                                                               those incurred by the Commission, including those incurred by
composition of the Chambers for the period between 1 Octo-
                                                                               it in the proceedings for interim relief, in the case it has brought;
ber 2002 and 30 September 2003 shall remain in force, after
the entry into force of the Treaty of Nice, for the period for
                                                                        4.     Orders the interveners to bear their own costs.
which they were adopted.
                                                                        (1 ) OJ C 176 of 24.6.00 and C 259 of 9.9.00.
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                    of 14 November 2002
                                                                             JUDGMENT OF THE COURT OF FIRST INSTANCE
in Joined Cases T-94/00, T-110/00 and T-159/00: Rica
Foods (Free Zone) NV and Others v Commission of the                                             of 14 November 2002
                  European Communities ( 1)
                                                                        in Joined Cases T-332/00 and T-350/00: Rica Foods (Free
(Association arrangements for the overseas countries and                Zone) NV and Free Trade Foods NV v Commission of the
territories — Regulation (EC) No 465/2000 — Imports of                                        European Communities ( 1)
sugar and mixtures of sugar and cocoa — EC/OCT cumu-
lation of origin — Safeguard measure — Application for                  (Association arrangements for the overseas countries and
annulment — Action for damages — Article 109 of the                     territories — Regulation (EC) No 2081/2000 — Imports of
OCT Decision — Principle of proportionality — Misuse of                 sugar and mixtures of sugar and cocoa — EC/OCT cumu-
                             powers)                                    lation of origin — Safeguard measure — Application for
                                                                        annulment — Action for damages — Article 109 of the
                        (2003/C 31/23)                                  OCT Decision — Principle of proportionality — Misuse of
                                                                                powers)
                  (Language of the case: Dutch)
                                                                                (2003/C 31/24)
In Joined Cases T-94/00, T-110/00 and T-159/00: Rica Foods
                                                                                (Language of the case: Dutch)
(Free Zone) NV, established in Oranjestad (Aruba), represented
by G. van der Wal, lawyer, with an address for service in
Luxembourg, Free Trade Foods NV, established in Curaçao
(Netherlands Antilles), Suproco NV, established in Curaçao,             In Joined Cases T-332/00 and T-350/00: Rica Foods (Free
represented by M. Slotboom and J. Coumans, avocats, with an             Zone) NV, established in Oranjestad (Aruba), represented by
address for service in Luxembourg, supported by Kingdom of              G. van der Wal, lawyer, with an address for service in
the Netherlands (Agents: J. van Bakel and H. G. Sevenster),             Luxembourg, supported by Kingdom of the Netherlands
against Commission of the European Communities (Agent:                  (Agents: J. van Bakel, H. Sevenster and H. van der Oosterkamp),
T. van Rijn), supported by Kingdom of Spain (Agent: N. Díaz             and Free Trade Foods NV, established in Curaçao (Antilles
Abad) and, in Cases T-94/00 and T-110/00, by French                     néerlandaises), represented by M. Slotboom, N. Helder and
Republic (Agents: G. de Bergues and L. Berheim) — application           J. Coumans, lawers, with an address for service in Luxembourg
first, for annulment of Commission Regulation (EC) No 465/              against Commission of the European Communities (Agent:
2000 of 29 February 2000 introducing safeguard measures                 T. van Rijn), supported by Kingdom of Spain (Agents: N. Díaz
for imports from the overseas countries and territories of sugar        Abad and López-Monís Gallego) — application first for
sector products with EC/OCT cumulation of origin (OJ 2000               annulment of Commission Regulation (EC) No 2081/2000 of
L 56, p. 39), and secondly for damages — the Court of First             29 September 2000 providing for the continued application
Instance (Third Chamber), composed of M. Jaeger, President,             of safeguard measures for imports from the overseas countries


title: Case T-28/03: Action brought by Alsen AG against the Commission of the European Communities on 31 January 2003

text:
C 124/22              EN                         Official Journal of the European Union                                          24.5.2003
Action brought by Alsen AG against the Commission of                     event should guarantee costs be imposed upon the applicant
      the European Communities on 31 January 2003                        that were necessary for it to pay in pursuing its rights.
                         (Case T-28/03)                                  (1 ) Decision 94/815/EC of 30 November 1994 in Cases IV/33.126
                                                                              and 33.122 (Cement).
                                                                         (2 ) Judgment of 15 March 2000 in Joined Cases T-25/95 and Others
                        (2003/C 124/39)                                       [2000] ECR II-491.
                  (Language of the case: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               Action brought on 13 February 2003 by Knauf Westdeut-
European Communities on 31 January 2003 by Alsen AG,                     sche Gipswerke KG against the Commission of the
Hamburg (Germany), represented by K. Moosecker and                                            European Communities
F. Weimer, lawyers.
                                                                                (Case T-52/03)
The applicant claims that the Court should:
                                                                                (2003/C 124/40)
—     order the Commission to pay to the applicant the sum of
      EUR 139 002,21 together with interest at an overall rate                              (Language of the case: German)
      of 5,75 % for the period from 15 April 2000 until
      payment has been made in full;
—     order the Commission to pay the costs.                             An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 13 February 2003 by Knauf
                                                                         Westdeutsche Gipswerke KG, Iphofen (Germany), represented
                                                                         by M. Klusmann and F. Wiemer, lawyers.
Pleas in law and main arguments
                                                                         The applicant claims that the Court should:
The applicant seeks an order that the Commission pay the
costs of a guarantee. According to the applicant, those costs            —      annul Commission Decision C(2002)4570 final of
arose because the Commission imposed a fine on the applicant,                   27 November 2002 in so far as it concerns the applicant;
by decision (1), for an alleged infringement of Article 81 EC.
By judgment of 15 March 2000 ( 2) that decision was annulled             —      in the alternative, reduce appropriately the fine imposed
by the Court of First Instance in so far as it concerned the                    on the applicant in the contested decision;
applicant. During the procedure before the Court the applicant
had to lodge securities in the form of two bank guarantees for           —      order the defendant to pay the costs.
the fine during the period April/May 1995 to May 2000,
for which the issuing banks’ charged commission of the
abovementioned amount.
                                                                         Pleas in law and main arguments
The applicant claims that under Article 233 EC it has a right
to require the Commission to repay the costs of the guarantees.          In the contested decision the Commission found that the
The Commission is obliged to adopt the measures that follow              applicant and three other undertakings had infringed
from the judgment of 15 March 2000 and those measures                    Article 81(1) by participating in a body of agreements and
include the payment of the guarantee costs of the successful             concerted practices in the plasterboard sector. A fine of EUR
party. The Court of First Instance itself stated in the judgment         85,8 million was imposed on the applicant.
that the refund of the cost of guarantees is one of the measures
which the Commission must take under Article 233 EC.
                                                                         The applicant contests that decision and claims that it infringes
                                                                         the applicant’s rights of defence and the principle of the right
Furthermore, the applicant claims that the Commission’s                  to due process of law. It submits, inter alia, that in essence the
obligation to refund the guarantee costs also follows from               decision is based on evidence against it which has never been
Article 288(2) EC in conjunction with Article 235 EC. In no              made available to the applicant despite its requests to that


title: Case C-75/15: Judgment of the Court (Second Chamber) of 21 January 2016 (request for a preliminary ruling from the Markkinaoikeus — Finland) — Viiniverla Oy v Sosiaali- ja terveysalan lupa- ja valvontavirasto (Reference for a preliminary ruling — Protection of geographical indications of spirit drinks — Regulation (EC) No 110/2008 — Article 16(b) — Evocation — Cider spirits produced in Finland and placed on the market as ‘Verlados’ — Protected geographical indication ‘Calvados’)

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/16

         Judgment of the Court (Second Chamber) of 21 January 2016 (request for a preliminary ruling from the Markkinaoikeus — Finland) — Viiniverla Oy v Sosiaali- ja terveysalan lupa- ja valvontavirasto
   (Case C-75/15) (1)

   ((Reference for a preliminary ruling - Protection of geographical indications of spirit drinks - Regulation (EC) No 110/2008 - Article 16(b) - Evocation - Cider spirits produced in Finland and placed on the market as ‘Verlados’ - Protected geographical indication ‘Calvados’))
   (2016/C 098/20)
   Language of the case: Finnish

      Referring court

   Markkinaoikeus

      Parties to the main proceedings

      Applicant: Viiniverla Oy

      Defendant: Sosiaali- ja terveysalan lupa- ja valvontavirasto

      Operative part of the judgment

               1.

               Article 16(b) of Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 must be interpreted as meaning that, in order to assess whether there is an ‘evocation’ within the meaning of that provision, the national court is required to refer to the perception of the average consumer who is reasonably well informed and reasonably observant and circumspect, that concept being understood as covering European consumers and not only consumers of the Member State in which the product giving rise to the evocation of the protected geographical indication is manufactured.

               2.

               Article 16(b) of Regulation No 110/2008 must be interpreted as meaning that, in order to assess whether the name ‘Verlados’ constitutes an ‘evocation’ within the meaning of that provision of the protected geographical indication ‘Calvados’ with respect to similar products, the referring court must take into consideration the phonetic and visual relationship between those names and any evidence that may show that such a relationship is not fortuitous, so as to ascertain whether, when the average European consumer, reasonably well informed and reasonably observant and circumspect, is confronted with the name of a product, the image triggered in his mind is that of the product whose geographical indication is protected.

               3.

               Article 16(b) of Regulation No 110/2008 must be interpreted as meaning that the use of a name classified as an ‘evocation’ within the meaning of that provision of a geographical indication referred to in Annex III to that regulation may not be authorised, even in the absence of any likelihood of confusion.

      (1)  OJ C 138, 27.4.2015.


title: Case C-365/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Tholos Anonimi Tekniki Touristiki Emboriki Pliroforiki Biomekaniki Eteria (Tholos AE) against the Ministry of the Environment, Planning and Public Works supported by the interveners (1) Sindesmos Teknikon Etaireion Anoteron Taxeon and (2) Thessaliki Anonimi Tekniki Etairia, ‘Thessaliki ATE’

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/8

         Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Tholos Anonimi Tekniki Touristiki Emboriki Pliroforiki Biomekaniki Eteria (Tholos AE) against the Ministry of the Environment, Planning and Public Works supported by the interveners (1) Sindesmos Teknikon Etaireion Anoteron Taxeon and (2) Thessaliki Anonimi Tekniki Etairia, ‘Thessaliki ATE’
   (Case C-365/04)
   (2004/C 284/16)
   Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias (Council of State, 4th Section, Greece) of 30 July 2004, received at the Court Registry on 20 August 2004, for a preliminary ruling in the case of Tholos Anonimi Tekniki Touristiki Emboriki Pliroforiki Biomekaniki Eteria (Tholos AE) against the Ministry of the Environment, Planning and Public Works and against the interveners (1) Sindesmos Teknikon Etaireion Anoteron Taxeon and (2) Thessaliki Anonimi Tekniki Etairia, ‘Thessaliki ATE’, on the following questions:

               (1)

               Must Article 30(4) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) be interpreted as meaning that, in the case of a tendering procedure such as that described in the grounds hereof (offers not accompanied by a justificatory report, indicating the specific discount percentages applied to each group of prices and verification as to whether discounts are at a normal level), the contracting authority is required to give a specific content to the document in which it requests a bidder to provide explanations concerning an offer which has been adjudged abnormally low in regard to a threshold determined by application of a mathematical method having characteristics analogous to those of the mathematical method described in the grounds of this order?

               (2)

               If the reply to the first question is affirmative, is it sufficient, in order to satisfy the requirements of the abovementioned provision of Directive 93/37/EEC, for the document to mention the specific discount offered by the tenderer for one or more groups of prices adjudged by the contracting authority to be problematic or must the latter also indicate the reasons why it regards such discount as problematic by providing a reasoned appraisal concerning the maximum cost for carrying out the relevant works?


title: Case T-156/06: Action brought on  5 June 2006  — Regione Siciliana v Commission of the European Communities

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/39

         Action brought on 5 June 2006 — Regione Siciliana v Commission of the European Communities
   (Case T-156/06)
   (2006/C 178/70)
   Language of the case: Italian
   Parties

      Applicant: Regione Siciliana (represented by: P. Gentili, Avvocato dello Stato)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the contested decision;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The present action is brought against Commission Decision C(2006)1171 of 23 March 2006 concerning a reduction in assistance from the European Social Fund (ESF) granted by Decision C(95) 2194 of 28 September 1995, subsequently amended by Decision C(2000) 2862 of 26 January 2001, for an operational programme in the Region of Sicily forming part of the Community support framework for structural assistance under Objective 1 in Italy for the period 1994 to 1999. This matter is also the subject of a challenge in Case T-154/06 Italy v Commission. (1)

   The pleas in law and main arguments are similar to those relied on in that case.

      (1)  Not yet published in the OJ.


title: Case F-70/10: Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — Hidalgo v Parliament

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/57

         Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — Hidalgo v Parliament
   (Case F-70/10) (1)

   2011/C 252/129
   Language of the case: French
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 288, 23.10.2010, p. 75.


title: Case C-362/06 P: Judgment of the Court (Second Chamber) of 23 April 2009 — Markku Sahlstedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain Keskusliitto MTK ry, MTK:n säätiö v Commission of the European Communities, Republic of Finland, Kingdom of Spain (Appeals — Conservation of natural habitats — List, adopted by a Commission decision, of sites of Community importance for the Boreal biogeographical region — Admissibility of an action for annulment brought by natural or legal persons against that decision)

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/2

         Judgment of the Court (Second Chamber) of 23 April 2009 — Markku Sahlstedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain Keskusliitto MTK ry, MTK:n säätiö v Commission of the European Communities, Republic of Finland, Kingdom of Spain
   (Case C-362/06 P) (1)

   (Appeals - Conservation of natural habitats - List, adopted by a Commission decision, of sites of Community importance for the Boreal biogeographical region - Admissibility of an action for annulment brought by natural or legal persons against that decision)
   2009/C 141/02
   Language of the case: Finnish

      Parties

      Appellants: Markku Sahlstedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain Keskusliitto MTK ry, MTK:n säätiö (represented by: K. Marttinen, asianajaja)

      Other parties to the proceedings: Commission of the European Communities (represented by: M. Huttunen and M. van Beek, acting as Agents) Republic of Finland

      Intervener in support of the Commission of the European Communities: Kingdom of Spain (represented by: F. Díez Moreno)

      Re:

   Appeal against the order of the Court of First Instance of the European Communities (First Chamber) of 22 June 2006 in Case T-150/05 Sahlstedt and Others v Commission of the European Communities dismissing as inadmissible an application for annulment of Commission Decision 2005/101/EC of 13 January 2005 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Boreal biogeographical region (OJ 2005 L 40, p. 1) — Concept of ‘direct concern’ within the meaning of Article 230 EC

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mr Sahlstedt and Others to pay the costs;

               3.

               Orders the Kingdom of Spain and the Republic of Finland to bear their own costs.

      (1)  OJ C 261, 28.10.2006.


C 135/10              EN                  Official Journal of the European Communities                                          13.5.2000
— in the affirmative, maintain the effects of the annulled                for a compulsory beef-labelling system’ within the pre-
    regulation in force until the Parliament and the Council              scribed period.
    adopt a new measure in accordance with Article 152 EC;
                                                                     (1) OJ 1999 L 334, p. 1.
                                                                     (2) Council Regulation (EC) No 820/97 of 21 April 1997 establishing
— order the Council to pay the costs.                                    a system for the identification and registration of bovine animals
                                                                         and regarding the labelling of beef and beef products (OJ 1997
                                                                         L 117, p. 1).
Pleas in law and main arguments
— Lack of power on the part of the Council: Regulation               Removal from the register of Joined Cases C-400/97, C-
    No 2772/99 is based on Article 19 of Regulation (EC)                                  401/97 and C-402/97 (1)
    No 820/97(2), whereby, in accordance with the third
    indent of Article 202 EC, the Council reserved the right                                  (2000/C 135/18)
    to exercise implementing powers directly. In adopting
    Regulation No 2772/99, however, the Council altered the          By order of 16 February 2000 the President of the Court of
    temporal application of Regulation (EC) No 820/97 and            Justice of the European Communities has ordered the removal
    thus acted outside its implementing power, which contains        from the register of Joined Cases C-400/97, C-401/97 and C-
    neither the power to extend the application of the volun-        402/97 (reference for a preliminary ruling from the Tribunal
    tary labelling system beyond 31 December 1999 nor the            Superior de Justicia del Paı́s Vasco): Administración del Estado
    power to postpone the introduction of the compulsory             v Juntas Generales de Guipuzcoa and Others.
    beef-labelling system.
                                                                     (1) OJ C 41 of 7.2.1998.
— Infringement of the prerogatives of the European Parlia-
    ment: By the contested regulation, the Council effectively
    altered the substance of Regulation (EC) No 820/97. By
    adopting it on the basis of Article 19 of Regulation (EC)
    No 820/97 rather than doing so in accordance with Article               Removal from the register of Case C-152/99 (1)
    152 EC, the Council excluded the participation of the
                                                                                (2000/C 135/19)
    European Parliament in the codecision and thus infringed
    the Parliament’s prerogatives.                                   By order of 21 February 2000 the President of the Court of
                                                                     Justice of the European Communities has ordered the removal
— Infringement of Regulation (EC) No 829/97: The Council             from the register of Case C-152/99: Commission of the
    failed to comply with the obligations imposed by Article         European Communities v Ireland.
    19 of Regulation (EC) No 820/97 itself by not adopting
    the implementation measures consisting of ‘general rules         (1) OJ C 188 of 3.7.1998.


title: Case T-277/03: Action brought on 23 July 2003 by Dionisia Elefteriadi against the Commission of the European Communities

text:
C 264/30               EN                       Official Journal of the European Union                                          1.11.2003
Action brought on 4 August 2003 by Focus Magazin                        Mark or sign cited in         The German mark ‘FOCUS’
Verlag GmbH against the Office for Harmonisation in the                 opposition:                   (No 395 46 204) in respect of
         Internal Market (Trade Marks and Designs)                                                    goods and services in Classes 9,
                                                                                16, 35, 36, 37, 38, 41 and 42
                         (Case T-274/03)
                                                                        Decision of the Oppo-         Rejection of the opposition
                                                                        sition Division:
                         (2003/C 264/52)
                                                                        Decision of the Board of      Dismissal of the applicant’s appeal
                                                                        Appeal:
(Language of the case to be determined pursuant to Article 131(2)
of the Rules of Procedure — language in which the application was       Pleas in law:                 —     Submission in the oppo-
                        submitted: German)                                                                  sition     proceedings       of
                                                                                adequate evidence of the
                                                                                applicant’s earlier right;
                                                                                —     Infringement of the appli-
An action against the Office for Harmonisation in the Internal                                              cant’s right to a hearing;
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on                                                —     Infringement of the appli-
4 August 2003 by Focus Magazin Verlag GmbH, Munich                                                          cant’s right of due process;
(Germany), represented by U. Gürtler, lawyer. France Telecom
S.A., Paris, was also a party to the proceedings before the                                           —     Infringement of Article 42 of
Board of Appeal.                                                                                Regulation (EC) No 40/94 (1)
                                                                                and Rule 20(3) of Regulation
                                                                                (EC) No 2868/95 (2).
The applicant claims that the Court should:
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
—     annul Decision No 1956/2001 of the Opposition Div-                    Community trade mark (OJ 1994 L 11, p. 1).
      ision of the defendant of 2 August 2001 in opposition             (2) Commission Regulation (EC) No 2868/95 of 13 December
      proceedings B 260576;                                                 1995 implementing Council Regulation (EC) No 40/94 on the
                                                                            Community trade mark (OJ 1995 L 303, p. 1).
—     annul the decision of the Fourth Board of Appeal of the
      defendant of 30 April 2003 in appeal proceedings R 849/
      2001-4;
—     instruct the defendant to make a determination on the
      merits in opposition proceedings B 260576, taking
      account of the legal view of the matter formed by the
      adjudicating court;
—     order the defendant to pay the costs of the proceedings.          Action brought on 23 July 2003 by Dionisia Elefteriadi
                                                                          against the Commission of the European Communities
                                                                                (Case T-277/03)
Pleas in law and main arguments
                                                                                (2003/C 264/53)
Applicant for Com-            France Telecom S.A.
munity trade mark:
                                                                                (Language of the case: Greek)
Community trade mark          Word mark ‘Focus One’ in respect
sought:                       of goods and services in Classes 9,
                              35, 38 and 42 — application
                              No 984 484
                                                                        An action against the Commission of the European Communi-
Proprietor of mark or         The applicant                             ties was brought before the Court of First Instance of the
sign cited in the oppo-                                                 European Communities on 23 July 2003 by Dionisia Elefteria-
sition proceedings:                                                     di, residing in Athens, represented by Timotheos Sigalas.
 ---pagebreak--- 1.11.2003             EN                          Official Journal of the European Union                                           C 264/31
The applicant claims that the Court should:                               Action brought on 8 August 2003 by Van Mannekus &
                                                                              Co. B.V. against the Council of the European Union
—     Annul or vary Commission Decision E(2003)738 Final                                           (Case T-278/03)
      of 25 March 2003 concerning recovery of amounts
      unduly paid to Dionisia Vlakhaki, formerly an auxiliary
                                                                                (2003/C 264/54)
      agent, so as to remove from it Article 1(b) thereof and
      not to require her to pay to the defendant any of the
      amounts mentioned therein in addition to the principal                                 (Language of the case: German)
      sum claimed by the defendant and, specifically, not to
      require payment of interest on late payment together
      with additional amounts calculated up to 23 July 2003
      in the amount of two thousand eight hundred and forty-              An action against the Council of the European Union was
      seven euros and 32 cents (EUR 2 847,32) which is broken             brought before the Court of First Instance of the European
      down in accordance with Article 1 of the contested                  Communities on 8 August 2003 by Van Mannekus & Co. B.V.,
      decision into one thousand three hundred and forty-four             Schiedam (Netherlands), represented by H. Bleier, lawyer.
      cents (EUR 1 344,04) for the period until 10 April 2001,
      one thousand and twenty-three euros and eighty-eight
      cents (EUR 1 023,88) for the period from 11 April 2001              The applicant claims that the Court should:
      until 31 December 2002 and four hundred and seventy-
      nine euros and 40 cents (EUR 479,40) for the period                 —     annul Council Regulation (EC) No 985/2003 of 5 June
      from 1 January 2003 to 23 July 2003 (204 days at                          2003 amending the antidumping duty measures imposed
      EUR 2,35 per day = EUR 479,40).                                           by Council Regulation (EC) No 1334/1999 on imports of
                                                                                magnesium oxide originating in the People’s Republic of
                                                                                China (1);
—     In the alternative, annul or vary contested Decision
      E(2003)738 Final of 25 March 2003.                                  —     order the Council of the European Union to pay all the
                                                                                costs.
—     Order the defendant to pay the applicant’s costs.
                                                                          Pleas in law and main arguments
                                                                          By the contested regulation the Council altered the nature of
                                                                          the antidumping duties on imports of magnesium oxide
                                                                          originating in the People’s Republic of China on the basis of a
                                                                          partial interim review. The applicant participated in the review
Pleas in law and main arguments
                                                                          procedure which preceded the contested regulation as an
                                                                          importer. It claims that the regulation infringes substantive
                                                                          Community law in that Council Regulation (EC) No 384/96 (2)
                                                                          was misapplied to a significant degree.
By the contested decision the applicant was required to repay
to the defendant EUR 13 182,18 by way of principal sum in                 The applicant argues that it was a misuse of discretion to
respect of amounts unduly paid to her after the expiry of her             initiate a partial interim review ex officio at all. The grounds
contract with the Commission, together with interest in respect           set out in the Commission’s notice do not in any event justify
of late payment. The action is directed against the part of the           a review. The Commission claimed that the fact that there was
contested decision concerning payment of interest in respect              no differentiation between sales made to related parties and
of late payment. The applicant maintains that she was wrongly             sales made to unrelated parties and between direct and indirect
required to pay interest since her inability to repay the principal       sales could ‘lead to difficulties in applying the legal provisions’.
sum due is attributable to her severe financial problems and              That is not true however. There could be no more difficulty in
her family’s health problems which constitute grounds of force            applying the legal provision.
majeure. Furthermore, she also alleges that she was not invited
to put forward her views before the contested decision was
adopted. Finally, she maintains that, in any event, she cannot            Further the statement of reasons given in the contested
be required to pay interest in respect of the period up to                regulation is different from that which had been set out in the
10 April 2001 because the Commission had tacitly waived its               notice relating to the initiation of the partial interim review.
claim to interest in respect of that period.                              That means that there was either a lack of formal reasons or a
                                                                          lack of sufficient grounds for altering the type of duty
                                                                          substantively. It was a misuse of discretion to differentiate in
                                                                          the contested regulation between trade with related parties and
                                                                          trade with unrelated parties and between direct and indirect
                                                                          sales in the Community.