title: Case T-125/12: Judgment of the General Court of 24 September 2015 — Viasat Broadcasting UK v Commission (State aid — Public-service broadcasting — Decision declaring aid compatible with the internal market — Aid implemented by the Danish authorities in favour of the Danish public-service broadcaster TV2/Danmark — Public funding granted to offset the costs involved in the performance of public-service obligations — Compatibility of aid — Judgment in Altmark)

text:
               23.11.2015

               EN

               Official Journal of the European Union

               C 389/26

         Judgment of the General Court of 24 September 2015 — Viasat Broadcasting UK v Commission
   (Case T-125/12) (1)

   ((State aid - Public-service broadcasting - Decision declaring aid compatible with the internal market - Aid implemented by the Danish authorities in favour of the Danish public-service broadcaster TV2/Danmark - Public funding granted to offset the costs involved in the performance of public-service obligations - Compatibility of aid - Judgment in Altmark))
   (2015/C 389/26)
   Language of the case: English

      Parties

      Applicant: Viasat Broadcasting UK Ltd (West Drayton, United Kingdom) (represented by: S. Kalsmose-Hjelmborg and M. Honoré, lawyers)

      Defendant: European Commission (represented by: L. Flynn and B. Stromsky, acting as Agents)

      Interveners in support of the defendant: Kingdom of Denmark (represented initially by C. Vang and V. Pasternak Jørgensen, acting as Agents, and subsequently by V. Pasternak Jørgensen and K. Lundgaard Hansen, lawyer, and finally by C. Thorning, acting as Agent, and by K. Lundgaard Hansen and R. Holgaard, lawyer); and TV2/Danmark A/S (Odense, Denmark) (represented by: O. Koktvedgaard, lawyer)

      Re:

   Application for annulment in part of Commission Decision 2011/839/EU of 20 April 2011 on the measures implemented by Denmark (C 2/03) for TV2/Danmark (OJ 2011 L 340, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Declares that it is unnecessary to adjudicate on the action, in so far as it seeks the annulment of Commission Decision 2011/839/EU of 20 April 2011 on the measures implemented by Denmark (C 2/03) for TV2/Danmark, in that the Commission found that the advertising revenue from 1995 and 1996 paid to TV2/Danmark A/S by the TV2 Fund amounted to State aid;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders Viasat Broadcasting UK Ltd to bear its own costs and to pay those incurred by the European Commission;

               4.

               Orders the Kingdom of Denmark to bear its own costs;

               5.

               Orders TV2/Danmark to bear its own costs.

      (1)  OJ C 138, 12.5.2012.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 14 May 1997 in Joined Cases T-70/92 and T-71/92: Florimex BV and Vereniging van Groothandelaren in Bloemkwekerijprodukten v. Commission of the European Communities (Competition - Decision rejecting a complaint sent to the complainants' lawyer's postoffice box - Calculation of time-limit for bringing an action - Compatibility with Article 2 of Regulation No 26 of a fee charged to external suppliers on floricultural products supplied to wholesalers established on the premises of a cooperative society of auctioneers - Statement of reasons)

text:
No C 199/22             EN                    Official Journal of the European Communities                                  28 . 6 . 97
                                                        COURT OF FIRST INSTANCE
   JUDGMENT OF THE COURT OF FIRST INSTANCE                               Communities (Agents : initially, Franscisco Enrique
                           of 6 May 1997                                 Gonzalez Diaz and Guy Charrier, and subsequently
                                                                         Giuliano Marenco and Guy Charrier ) — action for
in Case T-169/95 : Agustin Quijano v. Commission of the                  damages based on the alleged failure of the Commission
                    European Communities (')                             to act, in so far as its failure to take a decision on a
(Officials — Sick leave — Medical certificate — Medical                  complaint submitted by the applicant has caused the latter
examination — Conclusions at variance with the medical                   damage — the Court of First Instance ( Second Chamber,
                                certificate)                             Extended Composition ), composed of: C. W. Bellamy,
                                                                         President, C. P. Briët and A. Kalogeropoulos, Judges; A.
                            ( 97/C 199/61 )                              Mair, Administrator, for the Registrar, has given a
                                                                         judgment on 6 May 1997, in which it:
                 (Language of the case: French)
                                                                         1 . dismisses the claims for compensation as inadmissible;
In Case T-169/95 : Agustin Quijano, an official of the
Commission of the European Communities, represented
by Jean-Noel Louis, Thierry Demaseure and Ariane                         2 . orders the applicant to pay the costs, including those
Tornel, of the Brussels Bar, with an address for service in                   relating to the proceedings concerning the claim for a
Luxembourg at the offices of Fiduciaire Myson Sari , 30                       declaration of failure to act.
Rue de Cessange, against Commission of the European
 Communities ( Agents: Ana Maria Alves Vieira and                        (') OJ No C 333 , 9 . 12 . 1995 .
Alberto Dal Ferro ) — application for the annulment of a
 decision of 21 September 1994, by which the Commission
treated as unauthorized the applicant's absence from
 8 August to 23 August 1994 and imputed 10 days against
 his annual leave entitlement — the Court of First Instance
 ( Second Chamber ), composed of: C. W. Bellamy,                            JUDGMENT OF THE COURT OF FIRST INSTANCE
 President, A. Kalogeropoulos and R. M. Moura Ramos,
Judges; A. Mair, Administrator, for the Registrar, has                                             of 14 May 1997
 given a judgment on 6 May 1997, the operative part of                   in Joined Cases T-70/92 and T-71/92 : Florimex BV and
 which is as follows :                                                   Vereniging van Groothandelaren in Bloemkwekerijproduk
                                                                              ten v. Commission of the European Communities ( 1 )
 1 . The decision of 21 September 1994, by which the                      (Competition — Decision rejecting a complaint sent to the
       Commission treated as unauthorized the applicant 's                complainants ' lawyer's postoffice box — Calculation of
       absence from 8 August to 23 August 1 994 and                       time-limit for bringing an action — Compatibility with
       imputed 10 days against his annual leave entitlement,              Article 2 of Regulation No 26 of a fee charged to external
       is annulled.
                                                                          suppliers on floricultural products supplied to wholesalers
                                                                          established on the premises of a cooperative society of
 2 . The Commission is ordered to pay the costs.                                      auctioneers — Statement of reasons)
  (') OJ No C 299 , 11 . 11 . 1995 .
                                                                                ( 97/C 199/63 )
                                                                                (Language of the case: Dutch)
                                                                          In Joined Cases T-70/92 and T-71 /92 : Florimex BV and
                                                                          Vereniging van Groothandelaren in Bloemkwekerijproduk
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               ten, established in Aalsmeer ( Netherlands ), represented
                            of 6 May 1997                                 initially by D. J. Gijlstra, of the Amsterdam Bar, then by
                                                                          J. A. M. P. Keijser, of the Nijmegen Bar, with an address
  in Case T-195/95 : Guérin Automobiles v. Commission of
                                                                          for service in Luxembourg care of Stanbrook and Hooper,
                  the European Communities ( 1 )                          at the Chambers of A. Kronshagen, 12 Boulevard de la
     (Competition — Action for damages — Inadmissibility)                 Foire, against Commission of the European Communities
                                                                          ( Agent: B. J. Drijber ), supported by Cooperatieve Vereni
                              ( 97/C 199/62 )                             ging De Verenigde Bloemenveilingen Aalsmeer ( VBA ) BA,
                                                                          established in Aalsmeer, represented by G. van der Wal, a
                  (Language of the case: French)                          lawyer with right of audience before the Hoge Raad der
                                                                          Nederlanden, with an address for service in Luxembourg
  In Case T- 195/95 : Guérin Automobiles, with its registered             at the Chambers of A. May, 31 Grand Rue — application
  office at Alençon ( France ), represented by Jean-Claude                for the annulment of the Commission Decision ( IV/32.751
  Fourgoux, of the Paris Bar, with an address for service in              — Florimex/Aalsmeer II and IV/32.990 — VGB/Aalsmeer )
  Luxembourg at the Chambers of Pierrot Schiltz, 4 Rue                    notified to the applicants by letter SG(92)D/8782 of 2 July
  Beatrix de Bourbon, against Commission of the European                   1992, rejecting the applications which they had each made
 ---pagebreak--- 28 . 6 . 97           EN                  Official Journal of the European Communities                                No C 199/23
under Article 3 (2 ) of Council Regulation No 17 of                  Drijber), supported by Cooperatieve Vereniging De Ver
6 February 1962, First Regulation implementing                       enigde Bloemenveilingen Aalsmeer (VBA ) BA, established
Articles 85 and 86 of the Treaty ( OJ, English Special               in Aalsmeer, represented by G. van der Wal, a lawyer with
Edition 1959-62, p. 87 ) — the Court of First Instance               right of audience before the Hoge Raad der Nederlanden,
( Second Chamber, Extended Composition ), composed                   with an address for service in Luxembourg at the
of: B. Vesterdorf, President, C. W. Bellamy and                      Chambers of A. May, 31 Grand Rue — application for
A. Kalogeropoulos, Judges; J. Palacio Gonzalez,                      the annulment of the decision allegedly contained in the
Administrator, for the Registrar, has given a judgment on            Commission's letter of 20 December 1993 relating to
14 May 1997, in which it:                                            Cases IV/32.751 — Florimex/Aalsmeer II, IV/32.990 —
                                                                     VGB/Aalsmeer, IV/33.190 — Inkoop Service and M. Ver
                                                                     haar BV/Aalsmeer, IV/32.835 — Cultra and IV/33.624 —
1 . annuls the Commission decision notified to the                   Bloemveilingen Aalsmeer III — the Court of First Instance
     applicants by letter SG(92)D/8782 of 2 July 1992;               ( Second Chamber, Extended Composition ), composed
                                                                     of: B. Vesterdorf, President, C. W. Bellamy and
                                                                     A. Kalogeropoulos, Judges; J. Palacio Gonzalez,
2.   orders the Commission to bear its own costs and to              Administrator, for the Registrar, has given a judgment on
     pay the applicants ' costs;                                     14 May 1997, in which it:
                                                                     1.   annuls the Commission 's decision contained in its
3 . orders the intervener to bear its own costs and to pay                letter of 20 December 1993 concerning Cases IV/
     the costs incurred by the applicants as a result of its              32.751 — Florimex/Aalsmeer II, IV/32.990 — VGB/
     intervention .
                                                                          Aalsmeer, IV/33.190 — Inkoop Service and M. Ver
                                                                          haar BV/Aalsmeer, IV/32.835 — Cultra and IV/33.624
(') OJ No C 278 , 27. 10 . 1992 .                                         — Bloemenveilingen Aalsmeer III to the extent to
                                                                          which it rejects the applicants ' complaints that the
                                                                          intervener's type I, II and III trade agreements infringe
                                                                          Article 85 (1 ) of the Treaty;
                                                                     2 . dismisses the remainder of the application;
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                     3 . orders the parties to bear their own costs.
                       of 14 May 1997
in Case T-77/94: Vereniging van Groothandelaren in                   O OJ No C 103 , 11 . 4 . 1994 .
Bloemkwekerijprodukten and Others v. Commission of
                the European Communities ( ] )
(Competition — Closure of procedure on a complaint in
the absence of a response by the complainants within the
time-limit notified to them — Compatibility with                          ORDER OF THE COURT OF FIRST INSTANCE
Article 85 (1 ) of the EC Treaty of a fee levied on suppliers
who have concluded agreements relating to the delivery of                      ( Fourth Chamber, Extended Composition)
floricultural products to undertakings established on the                                   of 14 March 1997
premises of a cooperative auction society — Compatibility
with Article 85 (1 ) of the EC Treaty of an exclusive                in Case T-25/96: Arbeitsgemeinschaft Deutscher Luftfahrt
purchase obligation accepted by certain wholesalers                  Unternehmen and Others v. Commission of the European
reselling such products to retailers in a specific trading                                    Communities ( ] )
area forming part of the same premises — Discrimination              (Action for annulment — Contested decision withdrawn
— Effect on trade between Member States — Assessment
                                                                     in the course of proceedings — No need to give a
by reference to a body of rules taken as a whole — Lack                                            decision)
                     of appreciable effect)
                                                                                ( 97/C 199/65 )
                          ( 97/C 199/64 )
                                                                                (Language of the case: German)
                (Language of the case: Dutch)
                                                                     In Case T-25/96 : Arbeitsgemeinschaft Deutscher Luftfahrt
                                                                     Unternehmen, established in Bonn, composed of the
In Case T-77/94 : Vereniging van Groothandelaren in                  following: — Aero Lloyd Flugreisen GmbH & Co Luftver
Bloemkwekerijprodukten, Florimex BV, Inkoop Service                  kehrs-KG, having its registered office in Oberursel
Aalsmeer BV and M. Verhaar BV, established in Aalsmeer               ( Germany ), — Air Berlin GmbH & Co Luftverkehrs-KG,
( Netherlands ), represented by J. A. M. P. Keijser, of the          having its registered office in Berlin ( Germany), — Condor
Nijmegen Bar, with an address for service in Luxembourg              Flugdienst GmbH, having its registered office in Kelster
care of Stanbrook and Hooper, at the Chambers of A.                  bach ( Germany ), — Germania Fluggesellschaft mbH,
Kronshagen , 12 Boulevard de la Foire, against                       having its registered office in Berlin ( Germany), — Hapag
Commission of the European Communities ( Agent: B. J.                Lloyd Fluggesellschaft mbH, having its registered office in


title: Case T-58/10: Order of the General Court of 11 January 2012 — Phoenix-Reisen and DRV v Commission (Action for annulment — State aid — German system of allowances paid to employees of insolvent undertakings and the financing thereof — Decision finding no State aid — Inadmissibility)

text:
               25.2.2012

               EN

               Official Journal of the European Union

               C 58/9

         Order of the General Court of 11 January 2012 — Phoenix-Reisen and DRV v Commission
   (Case T-58/10) (1)

   (Action for annulment - State aid - German system of allowances paid to employees of insolvent undertakings and the financing thereof - Decision finding no State aid - Inadmissibility)
   2012/C 58/17
   Language of the case: German

      Parties

      Applicants: Phoenix-Reisen GmbH (Bonn, Germany); and Deutscher Reiseverband eV (DRV) (Berlin, Germany) (represented by R. Gerharz, lawyer)

      Defendant: European Commission (represented by L. Flynn and B. Martenczuk, agents)

      Intervener in support of the defendant: Federal Republic of Germany (represented by T. Henze, J. Möller and B. Klein, agents)

      Re:

   Action for annulment of Commission Decision C(2009) 8707 final of 19 November 2009 declaring that the system of allowances paid to employees of insolvent undertakings and the financing thereof under German legislation does not constitute State aid (State aid NN 55/2009) (OJ 2009 C 323, p. 5).

      Operative part of the order

               1.

               The action is dismissed as being inadmissible.

               2.

               Phoenix-Reisen GmbH and Deutscher Reiseverband eV (DRV) shall bear their own costs and pay the costs incurred by the European Commission.

               3.

               The Federal Republic of Germany shall bear its own costs.

      (1)  OJ C 113, 1.5.2010.


title: Case T-226/01: Action brought on 25 September 2001 by CAS Succhi di Frutta SpA against the Commission of the European Communities

text:
24.11.2001            EN                       Official Journal of the European Communities                                     C 331/29
     —     If the Commission were to apply such reasoning                 Pleas in law and main arguments
           generally to all fiscal legislation, it would arrive at
           the absurd conclusion that any change in the fiscal
           burden constitutes State aid.                                  The applicant has brought the present action against the
                                                                          Commission in order to seek compensation for the damage
     —     If the Commission carried its reasoning to its final           allegedly suffered as a result of the decisions adopted in the
           logical conclusion, the result would be that any               context of the tender procedure opened in relation to the
           variation within the regulatory framework in which             supply of fruit juice and fruit jams intended for the people of
           undertakings operate would constitute State aid.               Armenia and Azerbaijan under Commission Regulation (EC)
                                                                          No 228/96 of 7 February 1996 on the supply of fruit juice
                                                                          and fruit jams intended for the people of Armenia and
(c)  The applicant refutes the charge that the measures at                Azerbaijan (OJ 1996 L 30, p. 18), in particular decision
     issue are selective and specific in nature, since, first, the        C(96)1916 of 22 July 1996 and decision C(96)2208 of
     legislation is general in nature, not favouring a particular         6 September 1996.
     undertaking or sector over another and, secondly, the
     authority competent to apply it does not enjoy any
     discretion but can instead merely ascertain on a case-by-            Those decisions allowed for the substitution of the fruit
     case basis whether the conditions laid down for triggering           provided for in the tender, with no legal basis nor a supraven-
     the fiscal advantages are met.                                       ing request for it.
                                                                          Both decisions were challenged by the applicant (Joined Cases
                                                                          T-191/96 and T-106/97) (1) before the Court of First Instance
                                                                          which, by judgment of 14 October 1999, annulled the decision
                                                                          of 6 September 1996, declaring the action brought in Case
                                                                          T-106/97 inadmissible on the ground that it was out of time.
Action brought on 25 September 2001 by CAS Succhi di
Frutta SpA against the Commission of the European                         The pleas in law and main arguments are similar to those put
                         Communities                                      forward in the abovementioned cases.
                        (Case T-226/01)                                   (1) [1999] ECR II-3181.
                        (2001/C 331/47)
                   (Language of the case: Italian)
                                                                          Action brought on 25 September 2001 by Territorio
                                                                          Histórico de Alava — Excma. Diputación de Alava, and
An action against the Commission of the European Communi-
                                                                          the Comunidad autónoma del Paı́s Vasco — Gobierno
ties was brought before the Court of First Instance of the
                                                                          Vasco against Commission of the European Communities
European Communities on 25 September 2001 by CAS Succhi
di Frutta SpA, represented by Gian Michele Roberti and
Francesco Sciaudone, lawyers.                                                                     (Case T-227/01)
                                                                                (2001/C 331/48)
The applicant claims that the Court should:
                                                                                (Language of the case: Spanish)
—    find that the Commission has incurred non-contractual
     liability by adopting the decisions of 22 July and of
     6 September 1996,
                                                                          An action against the Commission of the European Communi-
—    declare that the applicant suffered damage as a result of            ties was brought before the Court of First Instance of the
     those decisions amounting to ITL 2 682 049 410,                      European Communities on 25 September 2001 by the Territo-
                                                                          rio Histórico de Alava — Excma. Diputación de Alava, and the
                                                                          Comunidad autónoma del Paı́s Vasco — Gobierno Vasco,
—    order the Commission to pay the costs.                               Alava (Spain), represented by Ramón Falcón, lawyer.


title: Judgment of the Court of First Instance of 22 May 2003 in Case T-249/01: Marc Boixader Rivas against European Parliament (Officials — Competitions — Notice — Conditions for admission — Licenciatura degree or equivalent — Degree in technical engineering — Knowledge of a second official language — Evidence — Action for annulment — Decision of the selection board — Objection of illegality of the notice of competition

text:
19.7.2003               EN                          Official Journal of the European Union                                           C 171/23
 of the European Communities (Agents: C. Berardis-Kayser and                     JUDGMENT OF THE COURT OF FIRST INSTANCE
B. Wägenbaur) — application for annulment of the decision
of 17 April 2000 of the selection board for Open Competition                                          of 10 April 2003
COM/A/12/98 not to include the applicant on the list of
successful candidates in that competition — the Court of First
Instance (Fifth Chamber), composed of R. García-Valdecasas,                 in Case T-186/01, Nicole Robert v European Parliament (1)
President, P. Lindh and J.D. Cooke, Judges; D. Christensen,
Administrator, for the Registrar; has given a judgment on                        (Officials — Actions — Deadlines — Inadmissibility)
20 May 2003 in which it:
                                                                                (2003/C 171/35)
1.     Dismisses the application;
2.     Orders the parties to bear their own costs.                                              (Language of the case: French)
( 1) OJ C 186, 30. 6. 2001.
                                                                            In Case T-186/01: Nicole Robert, an official of the European
                                                                            Parliament, resident in Strassen (Luxembourg), represented by
                                                                            A. Lorang, lawyer, with an address for service in Luxembourg,
                                                                            against European Parliament (Agents: H. von Hertzen and
                                                                            D. Moore) — application for annulment of the decision of the
                                                                            Parliament not to promote the applicant to Grade B 1 in the
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                promotion year 1999 — the Court of First Instance (Fifth
                                                                            Chamber), composed of R. García-Valdecasas, President, and
                            of 8 May 2003                                   P. Lindh and J.D. Cooke, Judges; J. Plingers, Administrator, for
                                                                            the Registrar, has given a judgment on 10 April 2003, in
in Case T-82/01: VOF Josanne and Others v Commission                        which it:
                of the European Communities ( 1)
                                                                            1.     Dismisses the application as inadmissible;
(Inland waterway transport — Community fleet capacity —
Conditions for putting new vessels into service (‘old-for-new’              2.     Orders each of the parties to bear its own costs.
                        rule) — Exemption)
                                                                            (1 ) OJ C 317 of 10.11.01.
                           (2003/C 171/34)
                    (Language of the case: Dutch)
In Case T-82/01, VOF Josanne, established in Papendrecht
(Netherlands), Pieter van Wijnen, resident in Papendrecht,                       JUDGMENT OF THE COURT OF FIRST INSTANCE
Adrianus Jacobus van Wijnen, resident in Papendrecht, Anigje
Veen, resident in Meerkerk (Netherlands), represented by J. van                                       of 22 May 2003
Dam and Y. Ooykaas, lawyers, v Commission of the European
Communities (Agents: H. van Vliet and W. Wils): Application
for the annulment of Commission Decision SG (2001) D/                       in Case T-249/01: Marc Boixader Rivas against European
286100 of 9 February 2001 refusing the applicants’ request                                              Parliament (1)
for the exemption of the vessel Josanne from the scope of
Council Regulation (EC) No 718/1999 of 29 March 1999 on a                   (Officials — Competitions — Notice — Conditions for
Community-fleet capacity policy to promote inland waterway                  admission — Licenciatura degree or equivalent — Degree in
transport (OJ 1999 L 90, p. 1), the Court of First Instance                 technical engineering — Knowledge of a second official
(Third Chamber), composed of: K. Lenaerts, President, J. Azizi              language — Evidence — Action for annulment — Decision
and M. Jaeger, Judges; J. Plingers, Registrar, has given a                  of the selection board — Objection of illegality of the notice
judgment on 8 May 2003, in which it has ruled:                                                         of competition
1.     Dismisses the application;                                                                     (2003/C 171/36)
2.     Orders the applicants to bear their own costs and pay those of
       the Commission.                                                                         (Language of the case: Spanish)
( 1) OJ C 186 of 30.6.2001.
                                                                            In Case T-249/01: Marc Boixader Rivas, technical engineer, of
                                                                            Spanish nationality, residing in Madrid, represented by
 ---pagebreak--- C 171/24                 EN                         Official Journal of the European Union                                      19.7.2003
D. Lopez Garrido, lawyer, with an address for service in                         JUDGMENT OF THE COURT OF FIRST INSTANCE
Luxembourg, against European Parliament (Agents: M. Gòmez
Leal and J.F. De Wachter) — application for annulment, first,                                          of 7 May 2003
of the decision of 27 June 2001 of the selection board for
Competition PE/90/A not to admit the applicant to that                      in Case T-327/01: Luciano Lavagnoli against Commission
competition and, second, of the notice relating to that                                     of the European Communities ( 1)
competition — the Court of First Instance (Second Chamber),
composed of N.J. Forwood, President, J. Pirrung and
A.W.H. Meij, Judges; B. Pastor, Deputy Registrar; has given a               (Officials — Delay in drawing up staff report — Action for
                                                                                damages)
judgment on 22 May 2003 in which it:
                                                                                (2003/C 171/38)
1.     Dismisses the application;
2.     Orders the parties to bear their own costs.                                               (Language of the case: French)
( 1) OJ C 3, 5. 1. 2002.                                                    In Case T-327/01: Luciano Lavagnoli, official of the Com-
                                                                            mission of the European Communities, residing in Berchem
                                                                            (Luxembourg), represented by G. Bounéou and F. Frabetti,
                                                                            lawyers, with an address for service in Luxembourg, against
                                                                            Commission of the European Communities (Agents: J. Currall
                                                                            and L. Lozano Palacios) — application for payment of damages
                                                                            in compensation for non-material damage caused by the delay
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                in drawing up a definitive staff report for the period 1 July
                                                                            1997 to 30 June 1999 — the Court of First Instance
                            of 7 May 2003                                   (single judge: Mr Pirrung); J. Palacio González, Principal
                                                                            Administrator, for the Registrar; has given a judgment on
                                                                            7 May 2003 in which it:
in Case T-278/01: Eric den Hamer against Commission of
                   the European Communities (1)
                                                                            1.     Orders the Commission to pay the applicant the sum of
                                                                                EUR 2 000;
(Officials — Staff report — Action for annulment — Action
                             for damages)                                   2.     Dismisses the remainder of the application;
                           (2003/C 171/37)                                  3.     Orders the Commission to pay the costs.
                     (Language of the case: French)                         (1 ) OJ C 56, 2. 3. 2002.
In Case T-278/01: Eric den Hamer, official of the Commission
of the European Communities, residing in Malines (Belgium),
represented by N. Lhoëst, lawyer, with an address for service
in Luxembourg, against Commission of the European Com-                           JUDGMENT OF THE COURT OF FIRST INSTANCE
munities (Agents: C. Berardis-Kayser and A. Dal Ferro) —
application, first, for annulment of the decision adopting the                                        of 20 May 2003
staff report of the applicant for the period 1995-1997 and,
second, for payment of damages in compensation for damage                   in Case T-179/02: Jan Pflugradt against European Central
caused inter alia by the delay in drawing up that report — the                                             Bank (1)
Court of First Instance (single judge: Mr Pirrung); D. Christens-
en, Administrator, for the Registrar; has given a judgment on               (Staff of the European Central Bank — Performance
7 May 2003 in which it:                                                                    appraisal — Action for annulment)
1.     Orders the Commission to pay the applicant the sum of                                          (2003/C 171/39)
       EUR 3 000;
                                                                                (Language of the case: German)
2.     Dismisses the remainder of the application;
3.     Orders the Commission to pay the costs.
                                                                            In Case T-179/02: Jan Pflugradt, residing in Frankfurt am Main
                                                                            (Germany), represented by N. Pflüger, with an address for
( 1) OJ C 3, 5. 1. 2002.                                                    service in Luxembourg, against European Central Bank
                                                                            (Agents: V. Saintot, T. Gilliams and B. Wägenbaur) — appli-
                                                                            cation for annulment of the appraisal of the applicant’s


title: Case T-731/16: Order of the General Court of 16 March 2017 — Perifereia Stereas Elladas v Commission

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/63

         Order of the General Court of 16 March 2017 — Perifereia Stereas Elladas v Commission
   (Case T-731/16) (1)

   (2017/C 144/98)
   Language of the case: Greek
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 462, 12.12.2016.


title: Case T-556/15: Action brought on 25 September 2015 — Portugal v Commission

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/64

         Action brought on 25 September 2015 — Portugal v Commission
   (Case T-556/15)
   (2015/C 398/78)
   Language of the case: Portuguese

      Parties

      Applicant: Portuguese Republic (represented by: L. Fernandes, M. Figueiredo, P. Estêvão and J. Almeida, acting as Agents)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               1.

               annul Commission Decision C(2015)4076 (1), in so far as, under the reason ‘Weaknesses in the LPIS’, it excludes from financing the sum of EUR 13 7 3 89  156,95 relating to expenditure declared by the Portuguese Republic under the measure Other Direct Area Aid, in the financial years 2010, 2011 and 2012;

               2.

               order the European Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on the following pleas in law based on the following defects:

               A —

               With regard to 2009 and 2010
               Infringement of the principle of proportionality and of Article 5 TEU, in that, since the calculations and the assumptions are exactly the same as those which had already been accepted by the Commission in previous enquiries, the Commission’s refusal to accept, in a properly reasoned manner, the calculation submitted by the Portuguese authorities, together with the application of a flat-rate correction, despite having found a number of improvements when the Action Plan in the IACS was implemented, constitutes a clear infringement of the principle of sincere cooperation.

               B —

               With regard to 2011:

                           1.

                           Infringement of the principle of sincere cooperation, in that the Commission, in relation to the defects in the functioning of the LPIS/GIS for 2011, undervalued all the work carried out by the Portuguese authorities, in particular, the measures which they adopted, such as the Action Plan, validated by the certification body and implemented with specific reference to 2011, with the consent and knowledge of the Commission.

                           2.

                           Infringement of the principle of audi alteram partem, in that the notification under Article 11 of Regulation (EC) No 885/06 (2) relating to 2011, states that the subject matter of the enquiry concerns the irregularities found in the LPIS, but the decision is based on the unlawful consolidation of entitlements, a subject which is not mentioned in the letter, as is required under Article 11, and as such, the Portuguese authorities did not have the opportunity to express their views.

                           3.

                           Infringement of Article 11 of Regulation (EC) No 885/06, in that the decision is not properly reasoned, because its grounds/reasoning are inaccurate, and as such, it infringes Article 11(1) of Regulation No 885/06.

               C —

               Increase/Flat-rate correction rates — For 2009 to 2011
               Infringement of Article 31(2) of Regulation No 1290/2005 (3) and of the principle of proportionality, and the punitive nature of AGRI/61 495/2002- REV1, in that the measures adopted (see decisions) are not appropriate or necessary for the aim pursued and go beyond what is necessary to achieve that purpose, since the Portuguese authorities make the calculation in accordance with the Commission’s guidelines and after the Commission decides to apply a flat-rate correction.

      (1)  Decision of 22 June 2015 excluding from financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) (OJ 2015 L 182, p. 39).

      (2)  Commission Regulation (EC) No 885/06 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD (OJ 2006 L 171, p. 90).

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


title: Case T-482/13: Action brought on 9 September 2013 — MedSkin Solutions Dr. Suwelack v OHIM — Cryo-Save (CryoSafe)

text:
               26.10.2013

               EN

               Official Journal of the European Union

               C 313/33

         Action brought on 9 September 2013 — MedSkin Solutions Dr. Suwelack v OHIM — Cryo-Save (CryoSafe)
   (Case T-482/13)
   2013/C 313/63
   Language in which the application was lodged: German

      Parties

      Applicant: MedSkin Solutions Dr. Suwelack AG (Billerbeck, Germany) (represented by: A. Thünken, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Cryo-Save AG (Pfäffikon, Switzerland)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 4 July 2013 (Case R 1759/2012-4) and alter it to the effect that the appeal lodged by the applicant at OHIM is well-founded and the opposition is therefore to be rejected;

               —

               In the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 4 July 2013 (Case R 1759/2012-4) and refer the case back to the competent Examiner at OHIM;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the word mark ‘CryoSafe’ for goods and services in Classes 5 and 40 — Community trade mark application No 9 619 586

      Proprietor of the mark or sign cited in the opposition proceedings: Cryo-Save AG

      Mark or sign cited in opposition: the word mark ‘CryoSave’ for goods in Classes 10, 42 and 44

      Decision of the Opposition Division: the opposition was upheld in part

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009


title: Reference for a preliminary ruling by the Tribunale Civile e Penale di Verona by order of 19 August 1998 in the case of Idropi SpA against MTMD-Lydis Megatherm Magneta SA (Case C-323/98)

text:
24.10.98              EN                  Official Journal of the European Communities                                    C 327/11
Ð For the purposes of Article 1(4), second indent, of                Reference for a preliminary ruling from the Bundes-
     Directive 91/689/EEC, what procedure must an                    vergabeamt by order of that tribunal of 23 April 1998
     individual Member State follow in classifying as                in the case of Telaustria Verlags Gesellschaft m.b.H. and
     hazardous waste other than that on the list adopted by          Telefonadress GmbH v Post & Telekom Austria AG, third
     Council Decision 904/94/EC which exhibits one of the                           party: Herold Business Data AG
     characteristics set out in Annex III to the directive?
     What body is competent to make the assessment and                                      (Case C-324/98)
     subsequently notify the Commission?                                                     (98/C 327/17)
Ð Can the judicial authorities of an individual Member
     State also be required to notify the Commission?                Reference has been made to the Court of Justice of the
                                                                     European Communities by an order of the Eighth Senate
                                                                     of the Bundesvergabeamt (Federal Procurement Office) of
                                                                     23 April 1998, which was received at the Court Registry
Ð Under Community legislation, is diphenylmethane                    on 26 August 1998, for a preliminary ruling in the case of
     diisocyanate (MDI) to be classified as hazardous waste          Telaustria Verlags Gesellschaft m.b.H. and Telefonadress
     or not?                                                         GmbH v Post & Telekom Austria AG, third party: Herold
                                                                     Business Data AG, on the following questions:
(1) OJ L 377, 31.12.1991, p. 20.
(2) OJ L 356, 31.12.1994, p. 14.
                                                                     Principal question:
                                                                     1. Can it be inferred from the legislative history of
                                                                          Directive 92/50/EEC (1), in particular the proposal of
                                                                          the Commission (COM (90) 372 final, OJ C 23,
                                                                          31.1.1991, p. 1), or from the definition of the term
Reference for a preliminary ruling by the Tribunale Civile                public service contract' in Article 1(a) of Directive 92/
e Penale di Verona by order of 19 August 1998 in the case                 50/EEC, that certain categories of contracts concluded
of Idropi SpA against MTMD-Lydis Megatherm Magneta                        by contracting authorities subject to that directive with
                              SA                                          undertakings which provide services are to be
                       (Case C-323/98)                                    excluded a priori from the scope of the directive,
                                                                          solely on the basis of certain common characteristics
                         (98/C 327/16)                                    as specified in that proposal of the Commission,
                                                                          without the need to rely on Article 1(a)(i) to (viii) or
                                                                          Articles 4 to 6 of Directive 92/50/EEC?
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Civile e              If the principal question is answered in the affirmative:
Penale di Verona (Civil and Criminal District Court,
Verona) of 19 August 1998, received at the Court Registry
on 25 August 1998, for a preliminary ruling in the case of
Idropi SpA against MTMD-Lydis Megatherm Magneta SA                   2. Do such categories of contracts also exist, having
on the following question:                                                regard in particular to the 24th recital in the preamble
                                                                          to Council Directive 93/38/EEC (2), within the scope of
                                                                          Directive 93/38/EEC?
Is the rule of national law contained in the last paragraph
of Article 633 of the Code of Civil Procedure, by virtue of
which an Italian creditor seeking to enforce a claim                 If the second question is answered in the affirmative:
against a foreign debtor is denied protection under the
summary order procedure provided for by Article 633 et
seq. of the Code of Civil Procedure, where the order has
to be served abroad, incompatible with and precluded by              3. May those categories of contracts excluded from the
application of the principles of freedom of movement of                   scope of Directive 93/38/EEC be adequately described,
goods and capital and freedom to provide services                         by analogy with Commission proposal COM (90) 372,
enshrined in Articles 34, 59 and 73b of the Treaty of                     as having as their essential feature that a contracting
Rome?'                                                                    entity which falls within the scope ratione personae of
                                                                          Directive 93/38/EEC cedes a service for which it is
                                                                          responsible to an undertaking of its choice in return
                                                                          for the right to operate the service concerned for
                                                                          financial gain?


title: Case C-407/13: Request for a preliminary ruling from the Corte suprema di Cassazione (Italy) lodged on 17 July 2013 — Rotondo and Others v Rete Ferroviaria Italiana

text:
               26.10.2013

               EN

               Official Journal of the European Union

               C 313/7

         Request for a preliminary ruling from the Corte suprema di Cassazione (Italy) lodged on 17 July 2013 — Rotondo and Others v Rete Ferroviaria Italiana
   (Case C-407/13)
   2013/C 313/12
   Language of the case: Italian

      Referring court

   Corte suprema di Cassazione

      Parties to the main proceedings

      Appellants: Francesco Rotondo and Others

      Respondent: Rete Ferroviaria Italiana SpA

      Questions referred

               1.

               Are the clauses of the framework agreement on fixed-term work implemented by Directive 1999/70 (1) applicable to maritime labour and, in particular, does clause 2(1) thereof also cover workers engaged for a fixed term on ferries making daily crossings?

               2.

               Does the framework agreement implemented by Directive 1999/70, in particular clause 3(1), preclude national legislation (Article 332 of the Italian Navigation Code) that provides that the ‘duration’ of the contract, rather than its ‘term’, is to be indicated, and is it compatible with that directive to provide for the duration of the contract by indicating a terminating point that is definite as regards the question whether it exists (‘a maximum of 78 days’) but indefinite as regards the question of when it occurs?

               3.

               Does the framework agreement implemented by Directive 1999/70, in particular clause 3(1), preclude national legislation (Articles 325, 326 and 332 of the Italian Navigation Code) in which the objective reasons for a fixed-term contract are expressed simply in terms of the voyage or voyages to be made, in essence equating the purpose of the contract (the service provided) with its cause (the reasons for fixing a term)?

               4.

               Does the framework agreement implemented by the directive preclude national legislation (in the present case the rules of the Italian Navigation Code) that, in the event of the use of successive contracts (in such a way as to be considered abusive for the purposes of clause 5) excludes the transformation of those contracts into contracts of indefinite duration (as provided by Article 326 of the Italian Navigation Code only in situations in which the seaman works continuously for more than a year and in situations in which the period between the ending of one contract and the drawing-up of the following contract is no more than 60 days)?

      (1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).


title: Case C-624/15: Judgment of the Court (Ninth Chamber) of 18 May 2017 (request for a preliminary ruling from the Vilniaus apygardos administracinis teismas — Lithuania) — ‘Litdana’ UAB v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos (Reference for a preliminary ruling — Taxation — Value added tax (VAT) — Directive 2006/112/EC — Article 314 — Margin scheme — Conditions under which it is applicable — Refusal by the national tax authorities to grant a taxable person the right to apply the margin scheme — References on the invoices relating both to the application of the margin scheme by the supplier and to exemption from VAT — Margin scheme not applied by the supplier to the supply — Indications giving grounds for suspecting an infringement or fraud in the supply)

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/7

         Judgment of the Court (Ninth Chamber) of 18 May 2017 (request for a preliminary ruling from the Vilniaus apygardos administracinis teismas — Lithuania) — ‘Litdana’ UAB v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos
   (Case C-624/15) (1)

   ((Reference for a preliminary ruling - Taxation - Value added tax (VAT) - Directive 2006/112/EC - Article 314 - Margin scheme - Conditions under which it is applicable - Refusal by the national tax authorities to grant a taxable person the right to apply the margin scheme - References on the invoices relating both to the application of the margin scheme by the supplier and to exemption from VAT - Margin scheme not applied by the supplier to the supply - Indications giving grounds for suspecting an infringement or fraud in the supply))
   (2017/C 239/09)
   Language of the case: Lithuanian

      Referring court

   Vilniaus apygardos administracinis teismas

      Parties to the main proceedings

      Applicant:‘Litdana’ UAB

      Defendant: Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

      Third party: Klaipėdos apskrities valstybinė mokesčių inspekcija

      Operative part of the judgment

   Article 314 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, must be interpreted as precluding the competent authorities of a Member State from denying a taxable person the right to apply the margin scheme where he received an invoice that includes references relating both to the margin scheme and to exemption from value added tax (VAT), even if it is apparent from a subsequent check carried out by those authorities that the taxable dealer supplying the second-hand goods had not actually applied that scheme to the supply of those goods, unless it is established by the competent authorities that the taxable person did not act in good faith or did not take every reasonable measure in his power to satisfy himself that the transaction carried out by him does not result in his participation in tax evasion — a matter which it is for the referring court to determine.

      (1)  OJ C 48, 8.2.2016.


title: Case T-273/05: Action brought on 20 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/55

         Action brought on 20 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-273/05)
   (2005/C 217/113)
   Language in which the application was lodged: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 20 July 2005 by The Black & Decker Corporation, established in Towson, Maryland (USA), represented by P. Harris, Solicitor.
   Atlas Copco Aktiebolag established in Stockholm (Sweden), was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the contested decision of the First Board of Appeal of the OHIM of 3 May 2005 (Case R 786/2004-1);

               —

               declare opposition proceedings B623 589 inadmissible;

               —

               order that the costs occasioned by the applicant in the course of the present proceedings and its appeal be borne by the OHIM.

         Pleas in law and main arguments

               Applicant for Community trade mark:

               The applicant

               Community trade mark concerned:

               Colour mark in black and yellow in Class 7 (manually operated portable electric power tools etc.)

               Proprietor of mark or sign cited in the opposition proceedings:

               Atlas Copco Aktiebolag

               Trade mark or sign cited in opposition:

               Non-registered trade marks and signs, used in the course of trade in all Member States for power tools

               Decision of the Opposition Division:

               Rejects opposition as inadmissible

               Decision of the Board of Appeal:

               Annuls the contested decision and remits the case to the Opposition Division for further prosecution

               Pleas in law:

               The applicant claims that the opposition should have been declared inadmissible as it did not identify sufficiently clearly the earlier marks and signs relied on, in violation of Rule 18(1) of Regulation No. 2868/1995 (1).

      (1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, OJ L 303, 15/12/1995, p. 1


title: Case T-430/11: Action brought on 4 August 2011 — Telefónica v Commission

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/47

         Action brought on 4 August 2011 — Telefónica v Commission
   (Case T-430/11)
   2011/C 282/86
   Language of the case: Spanish

      Parties

      Applicant: Telefónica, SA (Madrid, Spain) (represented by: J. Ruiz Calzado, M. Núñez-Müller and J. Domínguez Pérez, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul Article 1(1) of the decision;

               —

               in the alternative, annul Article 1(4) and (5) of the decision;

               —

               in the further alternative, annul Article 4 of the decision, or amend its scope as appropriate, and

               —

               order the Commission to pay all the costs arising from these proceedings.

      Pleas in law and main arguments

   This action has been brought against the Commission's Decision of 12 January 2011 in Case No C 45/2007 (ex NN 51/2007, ex CP 9/2007), on the tax amortisation of financial goodwill for foreign shareholding acquisitions implemented by Spain.
   The pleas in law and main arguments are those raised in Case T-429/11 BBVA v Commission.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 19 September 1996 in Case C-236/95: Commission of the European Communities v. Hellenic Republic (Failure by a Member State to fulfil its obligations - Failure to implement Directive 89/665/EEC within the prescribed period - Review procedures relating to public supply and public works contracts)

text:
 9 . 11 . 96           EN                   Official Journal of the European Communities                                 No C 336/ 15
 Chamber, G. F. Mancini and H. Ragnemalm ( Rapporteur),                 1 . Declares that, by not adopting within the prescribed
Judges; D. Ruiz-Jarabo Colomer, Advocate-General; D.                          period the laws, regulations and administrative
 Louterman-Hubeau, Principal Administrator, for the                          provisions necessary to comply fully with Council
 Registrar, has given a judgment on 17 September 1996 , in                    Directive 89/665/EEC of 21 December 1989 on the
 which it rules :                                                             coordination ofthe laws, regulations and administrative
                                                                             provisions relating to the application of review
 1 . By adopting four Ministry of Health Decrees, namely                     procedures to the award of public supply and public
      No 256 of 1 August 1990, No 257 of 1 August 1990 and                    works contracts, the Hellenic Republic has failed to
      those of 1 September 1990 and 7 June 1991 , without                    fulfil its obligations pursuant to Article 5 of that
      notifying them to the Commission at the draft stage, the                Directive;
      Italian Republic failed to fulfil its obligations pursuant
      to Article 8 of Council Directive 83/189/EEC of                  2 . Orders the Hellenic Republic to pay the costs.
      28 March 1983 laying down a procedure for the
      provision of information in the field of technical               (') OJ No C 248 , 23 . 9 . 1995 .
      standards and regulations, as amended by Council                 ( 2 ) OJ No L 395 , 1989 , p . 33 .
      Directive 88/182/EEC of 22 March 1988.
2 . The Italian Republic is ordered to pay the costs.
(M OJ No C 351 , 10 . 12 . 1994 .
                                                                                ORDER OF THE COURT
( 2 ) OJ No L 109 , 1983 , p . 8 .
( 3 ) OJ No L 81 , 1988 , p . 75 .                                                               of 11 July 1996
                                                                       in Case C-445/93 : European Parliament v. Commission of
                                                                       the European Communities, supported by the French
                                                                       Republic and the United Kingdom of Great Britain and
                                                                                Northern Ireland ( 1 )
                JUDGMENT OF THE COURT                                                   (Case not proceeding to judgment)
                          ( Fifth Chamber)                                                        ( 96/C 336/28 )
                     of 19 September 1996
                                                                                (Language of the case: French)
       in Case C-236/95 : Commission of the European
             Communities v. Hellenic Republic ( x )                    In Case C-445/93 : European Parliament ( Agents : J. Schoo
(Failure by a Member State to fulfil its obligations — Failure         and J. L. Rufas Quintana ) v. Commission of the European
to implement Directive 89/665/EEC within the prescribed                Communities ( Agents : J.-L . Dewost, D. Sorasio and P. van
period — Review procedures relating to public supply and              Nuffel ), supported by the French Republic ( Agents : J. F.
                    public works contracts)                            Dobelle, C. de Salins and C. Chavance ) and the United
                            ( 96/C 336/27)                             Kingdom of Great Britain and Northern Ireland ( Agent: J. E.
                                                                       Collins, assisted by The Right Honourable the Lord Rodger
                 (Language of the case: Greek)                         of Earlsferry, S. Richards and E. Sharpston ) — application
                                                                       for a declaration that the Commission has failed, contrary to
                                                                      the Treaty, to submit the necessary proposals for the
(Provisional translation; the definitive translation will be          establishment of freedom of movement for persons within
           published in the European Court Reports)                   the internal market, pursuant to Article 7a of the EC Treaty
                                                                      — the Court, composed of G. C. Rodriguez Iglesias,
In Case C-236/95 : Commission of the European                         President, C. N. Kakouris, D. A. O. Edward, J. -P. Puissochet
Communities ( Agent: Dimitrios Gouloussis ) v. Hellenic                and G. Hirsch, Presidents of Chambers, G. F. Mancini, J. C.
Republic ( Agents : Aikaterini Samoni-Rantou and Dimitra              Moitinho de Almeida , P. J. G. Kapteyn, C. Gulmann, J. L.
Tsagkaraki ) — application for a declaration that by not              Murray, P. Jann, H. Ragnemalm and M. Wathelet
adopting or not notifying to the Commission within the                 ( Rapporteur ), Judges; A. La Pergola , Advocate-General; R.
prescribed period, the laws, regulations and administrative            Grass, Registrar, made an order on 11 July 1996, the
provisions necessary to comply fully with Council Directive           operative part of which is as follows :
89/665/EEC of 21 December 1989 on the coordination of
the laws, regulations and administrative provisions relating           1 . There is no need to give a decision on the
to the application of review procedures to the award of                      application.
public supply and public works contracts (2 ), the Hellenic
Republic has failed to fulfil its obligations under the EC
Treaty and that Directive — the Court ( Fifth Chamber),               2 . The parties, including the interveners, are ordered to
                                                                             bear their own costs .
composed of: D. A. O. Edward, President of the Chamber,
J. C. Moitinho de Almeida ( Rapporteur ), C. Gulmann,
L. Sevón and M. Wathelet, Judges; P. Leger,                            (') OJ No C 1 , 4 . 1 . 1994 ( not for publication in the Court
Advocate-General; H. A. Rühl, Principal Administrator, for                   Reports ).
the Registrar, has given a judgment on 19 September 1996 ,
in which it:


title: Appeal brought on 17 April 1998 by Société Guérin Automobiles EURL against the order delivered on 13 February 1998 by the Second Chamber of the Court of First Instance of the European Communities in Case T-275/97 between Société Guérin Automobiles EURL and the Commission of the European Communities (Case C-153/98 P)

text:
C 234/12                EN                 Official Journal of the European Communities                                    25.7.98
                 JUDGMENT OF THE COURT                                Appeal brought on 17 April 1998 by SocieÂteÂ GueÂrin
                                                                      Automobiles EURL against the order delivered on
                         (Fifth Chamber)                              13 February 1998 by the Second Chamber of the Court of
                                                                      First Instance of the European Communities in Case
                         of 28 May 1998                               T-275/97 between SocieÂteÂ GueÂrin Automobiles EURL and
                                                                             the Commission of the European Communities
in    Case    C-298/97: Commission of the European
              Communities v Kingdom of Spain (1)                                           (Case C-153/98 P)
                                                                                (98/C 234/23)
(Failure of a Member State to fulfil its obligations Ð
Directive 91/157/EEC Ð Failure by a Member State to
adopt programmes provided for in Article 6 of the
                             directive)                               An appeal against the order delivered on 13 February
                                                                      1998 by the Second Chamber of the Court of First
                           (98/C 234/22)                              Instance of the European Communities in Case T-275/97
                                                                      between SocieÂteÂ GueÂrin Automobiles EURL and the
                                                                      Commission of the European Communities was brought
                                                                      before the Court of Justice of the European Communities
                                                                      on 17 April 1998 by SocieÂteÂ GueÂrin Automobiles EURL,
                 (Language of the case: Spanish)
                                                                      represented by Jean-Claude Fourgoux, of the Paris and
                                                                      Brussels Bars, with an address for service in Luxembourg
                                                                      at the Chambers of Pierrot Schiltz, 4 Rue BeÂatrix de
                                                                      Bourbon.
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                    The appellant claims that the Court should:
                                                                      Ð set aside the order of the Court of First Instance of the
                                                                          European Communities of 13 February 1998;
In Case C-198/97: Commission of the European
Communities (represented by Fernando Castillo de la
Torre) v Kingdom of Spain (represented by Paloma Plaza                Ð order the Commission to pay the costs.
García), for an application for a declaration that, by
failing to adopt or communicate to the Commission
within the prescribed period the programmes provided for              Pleas in law and main arguments adduced in support:
in Article 6 of Council Directive 91/157/EEC of 18 March
1991 on batteries and accumulators containing certain
dangerous substances (OJ L 78 of 26.3.1991, p. 38), the               Breach of general principles of Community law, in
Kingdom of Spain has failed to fulfil its obligations under           particular the right to an effective judicial remedy,
that article, the Court (Fifth Chamber), composed of:                 legitimate expectations, legal certainty and respect for the
C. Gulmann (Rapporteur), President of the Chamber,                    rights of the defence; failure to observe the provisions of
M. Wathelet, J. C. Moitinho de Almeida, P. Jann and                   the Convention for the Protection of Human Rights and
L. Sevón, Judges; G. Cosmas, Advocate General; R. Grass,              Fundamental Freedoms (Article F.2 of the Maastricht
Registrar, has given a judgment on 28 May 1998, in                    Treaty): since the decision to take no further action on the
which it:                                                             complaint did not mention the court before which an
                                                                      action could be brought, or the time-limit for doing so, it
                                                                      did not fulfil the obligation to respect the fundamental
                                                                      principles of Community law.
1. Declares that, by not adopting within the prescribed
     period the programmes referred to in Article 6 of
     Council Directive 91/157/EEC of 18 March 1991 on
     batteries and accumulators containing certain
     dangerous substances, the Kingdom of Spain has failed
     to fulfil its obligations under that article;
                                                                      Action brought on 24 April 1998 by the Federal Republic
                                                                      of Germany against the Commission of the European
                                                                                Communities
                                                                                (Case C-156/98)
2. Orders the Kingdom of Spain to pay the costs.
                                                                                (98/C 234/24)
(1) OJ C 318 of 18.10.1997.
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of Justice of
                                                                      the European Communities on 24 April 1998 by the
                                                                      Federal Republic of Germany, represented by Claus-Dieter


title: Case T-333/10: Judgment of the General Court of 16 September 2013 — ATC and Others v Commission (Non-contractual liability — Health policy — Safeguard measures in crisis situation — Protection measures in relation to highly pathogenic avian influenza in certain third countries — Prohibition on imports of wild birds captured in their natural habitat — Sufficiently serious breach of rules of law conferring rights on individuals — Manifest and grave disregard of the limits on the discretion — Directives 91/496/EC and 92/65/C — Precautionary principle — Duty of diligence — Proportionality)

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/22

         Judgment of the General Court of 16 September 2013 — ATC and Others v Commission
   (Case T-333/10) (1)

   (Non-contractual liability - Health policy - Safeguard measures in crisis situation - Protection measures in relation to highly pathogenic avian influenza in certain third countries - Prohibition on imports of wild birds captured in their natural habitat - Sufficiently serious breach of rules of law conferring rights on individuals - Manifest and grave disregard of the limits on the discretion - Directives 91/496/EC and 92/65/C - Precautionary principle - Duty of diligence - Proportionality)
   2013/C 325/37
   Language of the case: Dutch

      Parties

      Applicants: Animal Trading Company (ATC) BV (Loon op Zand, Netherlands); Avicentra NV (Malle, Belgium); Borgstein Birds and Zoofood Trading VOF (Wamel, Netherlands); Bird Trading Company Van der Stappen BV (Dongen, Netherlands); New Little Bird’s srl (Anagni, Italy); Vogelhuis Kloeg (Zevenbergen, Netherlands) and Giovanni Pistone (Westerlo, Belgium) (represented by: M. Osse and J. Houdijk, lawyers)

      Defendant: European Commission (represented by: F. Jimeno Fernández and B. Burggraaf, acting as Agents)

      Re:

   Action for compensation in respect of the harm allegedly suffered by the applicants as a result of the adoption first, of Commission Decision 2005/760/EC of 27 October 2005 concerning certain protection measures in relation to highly pathogenic avian influenza in certain third countries for the import of captive birds (OJ 2005 L 285, p. 60), as extended, and of Commission Regulation (EC) No 318/2007 of 23 March 2007 laying down animal health conditions for imports of certain birds into the Community and the quarantine conditions thereof (OJ 2007 L 84, p. 7).

      Operative part of the judgment

   The Court:

               1.

               The European Union is ordered to compensate for the loss suffered by the Animal Trading Company (ATC) BV, Avicentra NV, Borgstein Birds and Zoofood Trading vof, Bird Trading Company Van der Stappen BV, New Little Bird’s srl, Vogelhuis Kloeg and Mr Pistone Giovanni as a result of the adoption and implementation by the European Commission of: (i) Commission Decision 2005/760/EC of 27 October 2005 concerning certain protection measures in relation to highly pathogenic avian influenza in certain third countries for the import of captive birds; (ii) Commission Decision 2005/862/EC of 30 November 2005 amending Decisions 2005/759/EC and 2005/760/EC relating to measures to combat avian influenza in birds other than poultry; (iii) Commission Decision 2006/79/EC of 31 January 2006 amending Decisions 2005/759/EC and 2005/760/EC as regards an extension of their period of application; (iv) Commission Decision 2006/405/EC of 7 June 2006 amending Decisions 2005/710/EC, 2005/734/EC, 2005/758/EC, 2005/759/EC, 2005/760/EC, 2006/247/EC and 2006/265/EC as regards certain protection measures in relation to highly pathogenic avian influenza; (v) Commission Decision 2006/522/EC of 25 July 2006 amending Decisions 2005/759/EC and 2005/760/EC as regards certain protection measures in relation to highly pathogenic avian influenza and movements of certain live birds into the Community; (vi) Commission Decision 2007/21/EC of 22 December 2006 amending Decision 2005/760/EC as regards certain protection measures in relation to highly pathogenic avian influenza and imports of birds other than poultry into the Community; (vii) Commission Decision 2007/183/EC of 23 March 2007 amending Decision 2005/760/EC.

               2.

               The action is dismissed as to the remainder.

               3.

               The parties are ordered to provide the General Court with the amounts (in figures) of compensation to be paid, established by common agreement, within three months of the date of judgment.

               4.

               If the parties fail to reach an agreement, they are to provide the General Court with their forms of order sought, including figures, within the same period.

               5.

               Costs are reserved.

      (1)  OJ C 274, 9.10.2010.


title: Case C-119/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — C Danmark I v Skatteministeriet

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/27

         Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — C Danmark I v Skatteministeriet
   (Case C-119/16)
   (2016/C 270/32)
   Language of the case: Danish

      Referring court

   Østre Landsret

      Parties to the main proceedings

      Applicant: C Danmark I

      Defendant: Skatteministeriet

      Questions referred

               1.

               Is Article 1(1) of Directive 2003/49/EC, (1) read in conjunction with Article 1(4) thereof, to be interpreted as meaning that a company resident in a Member State that is covered by Article 3 of the Directive and, in circumstances such as those of the present case, receives interest from a subsidiary in another Member State, is the ‘beneficial owner’ of that interest for the purposes of the Directive?

                           1.1.

                           Is the concept ‘beneficial owner’ in Article 1(1) of Directive 2003/49/EC, read in conjunction with Article 1(4) thereof, to be interpreted in accordance with the corresponding concept in Article 11 of the OECD 1977 Model Tax Convention?

                           1.2.

                           If question 1.1. is answered in the affirmative, should the concept then be interpreted solely in the light of the commentary on Article 11 of the 1977 Model Tax Convention (paragraph 8), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’ (paragraph 8.1, now paragraph 10.1), and the additions made in 2014 regarding ‘contractual or legal obligations’ (paragraph 10.2)?

                           1.3.

                           If the 2003 Commentaries can be incorporated into the interpretation, is it then a condition for deeming a company not to be a ‘beneficial owner’ for the purposes of Directive 2003/49/EC that there actually has been a channelling of funds to those persons who are deemed by the State in which the interest payer is resident to be ‘the beneficial owners’ of the interest in question, and — if so — is it then a further condition that the actual passing take place at a point close in time to the payment of the interest and/or take place as a payment of interest?

                                       1.3.1.

                                       Of what significance is it in that connection if equity capital is used for the loan, if the interest in question is entered on the principal (‘rolled up’), if the interest recipient has subsequently made an intra-group transfer to its parent company resident in the same State with a view to adjusting earnings for tax purposes under the prevailing rules in the State in question, if the interest in question is subsequently converted into equity in the borrowing company, if the interest recipient has had a contractual or legal obligation to pass the interest to another person, and if most of the persons deemed by the State where the person paying the interest is resident to be the ‘beneficial owners’ of the interest are resident in other Member States or other States with which Denmark has entered into a double taxation convention, so that under the Danish taxation legislation there would not have been a basis for retaining tax at source had those persons been lenders and thereby received the interest directly?

                           1.4.

                           What significance does it have for the assessment of the issue whether the interest recipient must be deemed to be a ‘beneficial owner’ for the purposes of the Directive if the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention?

               2.

               Does a Member State’s reliance on Article 5(1) of the Directive on the application of national provisions for the prevention of fraud or abuse, or of Article 5(2) of the Directive, presuppose that the Member State in question has adopted a specific domestic provision implementing Article 5 of the Directive, or that national law contains general provisions or principles on fraud, abuse and tax evasion that can be interpreted in accordance with Article 5?

                           2.1.

                           If question 2 is answered in the affirmative, can Paragraph 2(2)(d) of the Law on corporation tax, which provides that the limited tax liability on interest income does not include ‘interest which is tax-exempt … under Directive 2003/49/EC on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 5 of the Directive?

               3.

               Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of interest is contingent on whether the interest recipient is deemed to be the beneficial owner of the interest, a conventional anti-abuse provision covered by Article 5 of the Directive?

               4.

               Is a Member State that does not wish to recognise that a company in another Member State is the beneficial owner of interest and claims that the company in the other Member State is a so-called artificial conduit company, bound under Directive 2003/49/EC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner?

               5.

               If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to have limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 EC, preclude legislation under which the latter Member State requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims (including interest income) lodged against a company resident in the same Member State?

               6.

               If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to be a taxable person with limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which:

                           (a)

                           the latter Member State requires the person paying the interest to retain tax at source on the interest and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the interest recipient is resident in the latter Member State?

                           (b)

                           a parent company in the latter Member State would not have been required to make advance payments of corporation tax in the first two fiscal years, but would only have begun to pay corporation tax at a much later time than the due date for tax at source?

                     The EU Court of Justice is requested to include the answer to question 5 in its answer to question 6.

      (1)  Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States.

      OJ 2003 L 157, p. 49


title: Case T-193/01: Action brought on 11 August 2001 by Alain-Pierre Allo against the Commission of the European Communities

text:
C 303/22               EN                     Official Journal of the European Communities                                     27.10.2001
—     bioclimatic      architecture     (Solaire     Bioclimatique       European Communities on 11 August 2001 by Alain-Pierre
      DIS/0161/95-BE contract);                                          Allo, resident in Brussels, represented by Nicolas Lhoëst,
                                                                         lawyer, with an address for service in Luxembourg.
—     Biomasse combustion (Biomasse SME/1539/97-BE con-
      tract);
—     wind energy technology (Windenergy SME-0792-96/BE
      contract);                                                         The applicant claims that the Court should:
—     energy saving in respect of road transport (Transport
      DIS/1178/97-BE contract); and                                      —     annul the Commission decision of 26 October 2000 in
                                                                               that it deprived the applicant of a middle-management
—     photovoltaic        solar     technology       (Photovoltaic             post and reassigned him to the post of Adviser ad
      SME/1883/198-EU contract).                                               personam in the RELEX G1 ‘Horizontal matters’ unit;
Furthermore, in the context of the Altener II Programme for              —     annul the Commission decision of 31 January 2001 and
the dissemination of information on renewable energy, the                      any similar decision refusing to transfer the applicant to
Commission entrusted to the applicant the task of creating                     another service or another DG in accordance with
an Agores Internet site containing information about, and                      Article 7 of the Staff Regulations;
promoting the use of renewable forms of energy, and a ‘link’
to all sites providing information concerning renewable forms
of energy.                                                               —     in so far as necessary, annul the Commission decision of
                                                                               3 May 2001, expressly rejecting the complaint submitted
The present application is founded on:                                         by the applicant on 23 January 2001, and the Com-
                                                                               mission decision of 19 June 2001, expressly rejecting the
—     the suspension of the final payments under the Biomasse                  complaint submitted by the applicant on 30 April 2001;
      and Windenergy contracts, following an audit carried out
      by the Commission;
                                                                         —     order the defendant to pay a sum of 25 000 Euros as
—     the unilateral termination of the Photovoltic contract,                  compensation for the damage suffered;
      after two years and five months’ performance of the
      contract and the demand for reimbursement of the
      advance of 36 000 Euros;                                           —     order the defendant to pay all the costs of the action.
—     the termination of the Transport contract and the demand
      for reimbursement of the advance of 36 000 Euros;
—     the suspension of payment of the balance of 68 070 Euros
      allegedly owed in respect of the Agores contract.
                                                                         Pleas in law and main arguments
In support of its claims, the applicant submits that the
Commission’s decisions giving rise to the present action have
no legislative, legal or contractual basis.
                                                                         In the course of reorganizing the Commission’s directorates-
                                                                         general, the unit of which the applicant was, until then, head
                                                                         of unit was abolished, and the applicant was reassigned as
                                                                         Adviser ad personam in another unit. That reassignment,
                                                                         resulted inter alia in putting the applicant in a situation where
                                                                         he was subordinate to an official in a lower grade than his.
Action brought on 11 August 2001 by Alain-Pierre Allo
  against the Commission of the European Communities
                                                                         The applicant submits that the Commission should have
                         (Case T-193/01)
                                                                         examined the comparative merits of each of the three heads of
                                                                         unit affected by the reorganisation. The Commission’s decision
                         (2001/C 303/36)                                 concerning the reassignment of the applicant did not contain
                                                                         any explanation of the reasons behind the Commission’s
                   (Language of the case: French)                        choice to bring to an end his duties as head of unit. The
                                                                         Commission therefore infringed Article 25(2) of the Staff
                                                                         Regulations. The applicant also submits that, in breach of
An action against the Commission of the European Communi-                Article 7 of the Staff Regulations, the decision clearly failed to
ties was brought before the Court of First Instance of the               have regard to the needs of the service.
 ---pagebreak--- 27.10.2001             EN                     Official Journal of the European Communities                                       C 303/23
In support of his action for annulment, the applicant also               Grounds of claim:            Incorrect       interpretation   of
alleges infringement of the guidelines adopted by the Com-                                            article 7 (1) (b) of the Council
mission on 18 September 1999, breach of the principle of                                              Regulation No 40/94 — The mark
equal treatment and psychological harassment in the work                                              is sufficiently distinctive. The
place. Finally the applicant claims compensation for damage                                           Applicant claims further that the
he claims to have suffered.                                                                           burden to proof otherwise lays
                                                                                with the Board of Appeal. It is not
                                                                                up to the Applicant to show that
                                                                                article 7(1) (b) of the Council
                                                                                Regulation No 40/94 is not appli-
                                                                                cable.
Action brought on 14 August 2001 by Unilever N.V.
against the Office for Harmonization in the Internal
                              Market
                         (Case T-194/01)
                         (2001/C 303/37)
                                                                         Action brought on 20 August 2001 by the Government
                                                                         of Gibraltar against the Commission of the European
                   (Language of the case: English)                                                Communities
An action against the Office for Harmonization in the Internal                                   (Case T-195/01)
Market was brought before the Court of First Instance of the
European Communities on 14 August 2001 by Unilever N.V.,
a company registered in Rotterdam (Netherlands) represented                                      (2001/C 303/38)
by Dr. Verna von Bomhard and Dr. Andreas Renck of Lovells
Boesebeck Droste, Alicante (Spain).
                                                                                (Language of the case: English)
The applicant claims that the Court should:
                                                                         An action against the Commission of the European Communi-
—     alter the decision of the First Board of Appeal of the             ties was brought before the Court of First Instance of the
      Office for Harmonization in the Internal Market (Trade             European Communities on 20 August 2001 by the Govern-
      Marks and Designs) of 22 May 2001 (Case R 1086/                    ment of Gibraltar, represented by Alastair Sutton, Michael
      2000-1) to provide that the trade mark at hand is eligible         Llamas and Walter Schuster, of White & Case, Brussels
      for registration as a Community trade mark;                        (Belgium).
—     alternatively, the decision be annulled;
                                                                         The applicant claims that the Court should:
—     order the defendant to bear the costs of the proceedings.
                                                                         —     annul the Commission’s decision to open the procedure
                                                                               under Article 88(2), in the form of the letter of 11 July
Pleas in law and main arguments                                                2001 addressed to the United Kingdom;
                                                                         —     order the defendant to pay the costs.
Applicant for the Com-         Unilever N.V.
munity trade mark:
The Community trade            Three dimensional mark (Pebble            Pleas in law and main arguments
mark concerned:                shape)        —         Application
                               No 1 418 250 for certain goods
                               in class 3                                The Government of Gibraltar introduced a tax scheme under
                                                                         which certain companies, under certain conditions, were
Decision of the Exam-          Rejection of the Application              exempt from income tax and subject only to a fixed tax (the
iner:                                                                    exempt company legislation). That legislation was modified by
                                                                         several amendments before and after the accession of the
Decision of the Board of       Partial acceptance of the Appeal          United Kingdom and Gibraltar to the European Communities
Appeal:                                                                  in 1973.