# Official Journal C 9/2014

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2014.009.eng |
| --- | --- |
| Official Journal
  of the European Union | C 9 |
| | |
| English edition | Information and Notices | Volume 5711 January 2014 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2014.009.eng

Official Journal

of the European Union

C 9

English edition

Information and Notices

Volume 5711 January 2014

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2014/C 009/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 377, 21.12.2013 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2014/C 009/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 377, 21.12.2013

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2014/C 009/02 | Case C-4/11: Judgment of the Court (Grand Chamber) of 14 November 2013 (request for a preliminary ruling from the Hessischer Verwaltungsgerichtshof — Germany) — Bundesrepublik Deutschland v Kaveh Puid (Asylum — Charter of Fundamental Rights of the European Union — Article 4 — Regulation (EC) No 343/2003 — Article 3(1) and (2) — Determination of the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national — Articles 6 to 12 — Criteria for determining the Member State responsible — Article 13 — Fall-back clause) | 2 |
| 2014/C 009/03 | Case C-322/11: Judgment of the Court (First Chamber) of 7 November 2013 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Proceedings brought by K (Reference for a preliminary ruling — Articles 63 TFEU and 65 TFEU — Free movement of capital — Tax legislation of a Member State which does not allow deduction of the loss on the sale of immovable property situated in another Member State from the gain on the sale of securities in the Member State of taxation) | 3 |
| 2014/C 009/04 | Joined Cases C-514/11 P and C-605/11 P: Judgment of the Court (Fifth Chamber) of 14 November 2013 — Liga para a Protecção da Natureza (LPN), Republic of Finland v European Commission (Appeal — Access to the documents of the institutions — Regulation (EC) No 1049/2001 — Third indent of Article 4(2) — Exception concerning the protection of the purpose of inspections, investigations and audits — Environmental information — Regulation (EC) No 1367/2006 — Article 6(1) — Documents relating to the pre-litigation stage of infringement procedures — Refusal of access — Obligation to examine specifically and individually the documents referred to in the request for access — Overriding public interest) | 3 |
| 2014/C 009/05 | Case C-518/11: Judgment of the Court (Third Chamber) of 7 November 2013 (request for a preliminary ruling from the Gerechtshof te Amsterdam — Netherlands) — UPC Nederland BV v Gemeente Hilversum (Electronic communications networks and services — Directives 97/66/EC, 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC — Scope ratione materiae — Provision of a basic package of radio and television programmes via cable — Sale by a municipality of its cable network to a private undertaking — Contractual clause concerning the tariff — Powers of the national regulatory authorities — Principle of sincere cooperation) | 4 |
| 2014/C 009/06 | Case C-638/11 P: Judgment of the Court (Fifth Chamber) of 14 November 2013 — Council of the European Union v Gul Ahmed Textile Mills Ltd, European Commission (Appeal — Dumping — Imports of cotton-type bed linen originating in Pakistan — Regulation (EC) No 384/96 — Article 3(7) — Concept of other factors) | 5 |
| 2014/C 009/07 | Case C-60/12: Judgment of the Court (Grand Chamber) of 14 November 2013 (request for a preliminary ruling from the Vrchní soud v Praze — Czech Republic) — Proceedings concerning the enforcement of a financial penalty issued against Marián Baláž (Police and judicial cooperation in criminal matters — Framework Decision 2005/214/JHA — Application of the principle of mutual recognition to financial penalties — Court having jurisdiction in particular in criminal matters — The Unabhängiger Verwaltungssenat under Austrian law — Nature and scope of the review on the part of the court of the Member State of enforcement) | 5 |
| 2014/C 009/08 | Case C-72/12: Judgment of the Court (Second Chamber) of 7 November 2013 (request for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Gemeinde Altrip, Gebrüder Hört GbR and Willi Schneider v Land Rheinland-Pfalz (Request for a preliminary ruling — Environment — Directive 85/337/EEC — Environmental impact assessment — Aarhus Convention — Directive 2003/35/EC — Right to challenge a development consent decision — Temporal application — Development consent procedure initiated before the period prescribed for transposing Directive 2003/35/EC expired — Decision taken after that date — Conditions of admissibility of the action — Impairment of a right — Nature of the procedural defect that may be invoked — Scope of the review) | 6 |
| 2014/C 009/09 | Case C-90/12: Judgment of the Court (Ninth Chamber) of 7 November 2013 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Air transport — Agreements relating to air services between Member States and third countries — Obligation on Member States to distribute traffic rights among eligible Community air carriers on the basis of a non-discriminatory and transparent procedure and to inform the Commission of that procedure without delay) | 7 |
| 2014/C 009/10 | Joined Cases C-187/12 to C-189/12: Judgment of the Court (First Chamber) of 14 November 2013 (requests for a preliminary ruling from the Consiglio di Stato — Italy) — SFIR — Società Fondiaria Industriale Romagnola SpA, Italia Zuccheri SpA, Co.Pro.B. — Cooperativa Produttori Bieticoli Soc. coop. Agricola, Eridania Sadam SpA v AGEA — Agenzia per le Erogazioni in Agricoltura, Ministero delle Politiche agricole, alimentari e forestali (Request for a preliminary ruling — Regulation (EC) No 320/2006 — Regulation (EC) No 968/2006 — Agriculture — Temporary scheme for the restructuring of the sugar industry — Conditions for granting restructuring aid — Concepts of production facilities and full dismantling) | 7 |
| 2014/C 009/11 | Joined Cases C-199/12 to C-201/12: Judgment of the Court (Fourth Chamber) of 7 November 2013 (request for a preliminary ruling from the Raad van State — Netherlands) — Minister voor Immigratie, Integratie en Asiel v X (C-199/12), Y (C-200/12), Z v Minister voor Immigratie, Integratie en Asiel (C-201/12) (Directive 2004/83/EC — Minimum standards relating to the conditions for granting refugee status or subsidiary protection status — Article 10(1)(d) — Membership of a particular social group — Sexual orientation — Reason for persecution — Article 9(1) — Concept of persecution — Well-founded fear of being persecuted on account of membership of a particular social group — Acts sufficiently serious to justify such a fear — Legislation criminalising homosexual acts — Article 4 — Individual assessment of the facts and circumstances) | 8 |
| 2014/C 009/12 | Case C-221/12: Judgment of the Court (Tenth Chamber) of 14 November 2013 (request for a preliminary ruling from the Raad van State van België — Belgium) — Belgacom NV v Interkommunale voor Teledistributie van het Gewest Antwerpen (Integan), Inter-Media, West-Vlaamse Energie- en Teledistributiemaatschappij (WVEM), Provinciale Brabantse Energiemaatschappij CVBA (PBE) (Request for a preliminary ruling — Article 49 TFEU — Freedom of establishment — Article 56 TFEU — Freedom to provide services — Principles of equal treatment and non-discrimination — Obligation of transparency — Scope — Agreement concluded by public entities of one Member State and an undertaking of that Member State — Transfer, by those entities, of their television provision activities and, for a fixed period, the exclusive right to use their cable networks, to an undertaking in that Member State — Possibility for an economic operator of that same State to rely on Articles 49 TFEU and 56 TFEU before the courts of that Member State — No invitation to tender — Justification — Existence of an earlier agreement — Transaction intended to put an end to litigation concerning the interpretation of that agreement — Risk of depreciation of the transferred activity) | 9 |
| 2014/C 009/13 | Case C-225/12: Judgment of the Court (Second Chamber) of 7 November 2013 (request for a preliminary ruling from the Raad van State — Netherlands) — C. Demir v Staatssecretaris van Justitie (Request for a preliminary ruling — EEC-Turkey Association Agreement — Article 13 of Decision No 1/80 of the Association Council — Standstill clauses — Legally resident) | 9 |
| 2014/C 009/14 | Joined Cases C-249/12 and C-250/12: Judgment of the Court (Third Chamber) of 7 November 2013 (requests for a preliminary ruling from the Înalta Curte de Casație și Justiție — Romania) — Corina-Hrisi Tulică v Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor (C-249/12), Călin Ion Plavoșin v Direcția Generală a Finanțelor Publice Timiș — Serviciul Soluționare Contestații, Activitatea de Inspecție Fiscală — Serviciul de Inspecție Fiscală Timiș (C-250/12) (Taxation — VAT — Directive 2006/112/EC — Articles 73 and 78 — Immovable property transactions carried out by natural persons — Classification of those transactions as taxable — Determination of the VAT owing when the parties have made no provision for it at the time of conclusion of the contract — Question as to whether or not the vendor may recover the VAT from the purchaser — Consequences) | 10 |
| 2014/C 009/15 | Case C-313/12: Judgment of the Court (Fifth Chamber) of 7 November 2013 (request for a preliminary ruling from the Corte dei conti, sezione giurisdizionale per la Regione Siciliana — Italy) — Giuseppa Romeo v Regione Siciliana (National administrative procedure — Purely internal situation — Administrative acts — Obligation to state reasons — Whether it is possible for failure to state reasons to be remedied during legal proceedings against an administrative act — Interpretation of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union — Lack of jurisdiction of the Court) | 11 |
| 2014/C 009/16 | Case C-383/12 P: Judgment of the Court (Fifth Chamber) of 14 November 2013 — Environmental Manufacturing LLP v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Société Elmar Wolf (Appeal — Community trade mark — Opposition proceedings — Figurative mark representing a wolf’s head — Opposition by the proprietor of the national and international figurative marks containing the word elements WOLF Jardin and Outils WOLF — Relative grounds for refusal — Detriment to the distinctive character of the earlier mark — Regulation (EC) No 207/2009 — Article 8(5) — Change in the economic behaviour of the average consumer — Burden of proof) | 11 |
| 2014/C 009/17 | Case C-388/12: Judgment of the Court (Fourth Chamber) of 14 November 2013 (request for a preliminary ruling from the Tribunale amministrativo regionale per le Marche — Italy) — Comune di Ancona v Regione Marche (Structural Funds — European Regional Development Fund (ERDF) — Financial contribution from a Structural Fund — Criteria for the eligibility of expenditure — Regulation (EC) No 1260/1999 — Article 30(4) — Principle of durability of the operation — Substantial modification of an operation — Award of a concession contract without advertisement or a competitive tendering procedure) | 12 |
| 2014/C 009/18 | Case C-442/12: Judgment of the Court (Eighth Chamber) of 7 November 2013 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Jan Sneller v DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV (Legal expenses insurance — Directive 87/344/EEC — Article 4(1) — Insured persons’ freedom to choose a lawyer — Clause in the standard terms and conditions of a contract guaranteeing legal assistance in any inquiry or proceedings by one of the insurer’s employees — Costs relating to legal assistance provided by an external legal adviser reimbursed only where the insurer decides that it is necessary to entrust handling of the case to an external legal adviser) | 13 |
| 2014/C 009/19 | Case C-473/12: Judgment of the Court (Third Chamber) of 7 November 2013 (request for a preliminary ruling from the Cour constitutionnelle — Belgium) — Institut professionnel des agents immobiliers (IPI) v Geoffrey Englebert, Immo 9 SPRL, Grégory Francotte (Processing of personal data — Directive 95/46/EC — Articles 10 and 11 — Obligation to inform — Article 13(1)(d) and (g) — Exceptions — Scope of exceptions — Private detectives acting for the supervisory body of a regulated profession — Directive 2002/58/EC — Article 15(1)) | 13 |
| 2014/C 009/20 | Case C-478/12: Judgment of the Court (Eighth Chamber) of 14 November 2013 (request for a preliminary ruling from the Landesgericht Feldkirch — Austria) — Armin Maletic, Marianne Maletic v lastminute.com GmbH, TUI Österreich GmbH (Jurisdiction in civil and commercial matters — Regulation (EC) No 44/2001 — Article 16(1) — Contract for travel concluded between a consumer domiciled in one Member State and a travel agency established in another Member State — Supplier of services used by the travel agency established in the Member State where the consumer is domiciled — Right of a consumer to bring an action against two undertakings before the court for the place of his domicile) | 14 |
| 2014/C 009/21 | Case C-522/12: Judgment of the Court (Seventh Chamber) of 7 November 2013 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — Tevfik Isbir v DB Services GmbH (Request for a preliminary ruling — Freedom to provide services — Posting of workers — Directive 96/71/EC — Minimum rates of pay — Lump sums and employer contribution to a multiannual savings plan for the benefit of its employees) | 14 |
| 2014/C 009/22 | Case C-547/12 P: Judgment of the Court (Ninth Chamber) of 7 November 2013 — Hellenic Republic v European Commission (Appeal — EAGGF — Guarantee section — Clearance of the accounts of the paying agencies of certain Member States concerning expenditure financed by the EAGGF — Amounts which are recoverable from the Hellenic Republic following failure to recover within the period prescribed — Distortion of evidence) | 15 |
| 2014/C 009/23 | Case C-560/12 P: Judgment of the Court (Second Chamber) of 7 November 2013 — Wam Industriale SpA v European Commission (Appeal — State aid — Establishing a company in certain third countries — Soft loans — Decision declaring aid partly incompatible with the common market and ordering its recovery — Decision taken following the annulment by the General Court of the original decision concerning the same proceedings — Enforcement of a judgment of the General Court) | 15 |
| 2014/C 009/24 | Case C-587/12 P: Judgment of the Court (Second Chamber) of 7 November 2013 — Italian Republic v European Commission (Appeal — State aid — Establishing a company in certain third countries — Soft loans — Decision declaring aid partly incompatible with the common market and ordering its recovery — Decision taken following the annulment by the General Court of the original decision concerning the same proceedings — Enforcement of a judgment of the General Court) | 16 |
| 2014/C 009/25 | Case C-23/13: Judgment of the Court (Sixth Chamber) of 7 November 2013 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Directive 91/271/EEC — Urban waste water treatment — Articles 3 and 4) | 16 |
| 2014/C 009/26 | Case C-527/13: Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain) lodged on 7 October 2013 — Lourdes Cachaldora Fernandez v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) | 17 |
| 2014/C 009/27 | Case C-537/13: Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 14 October 2013 — Birutė Šiba v Arūnas Devėnas | 17 |
| 2014/C 009/28 | Case C-538/13: Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 14 October 2013 — eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos | 18 |
| 2014/C 009/29 | Case C-539/13: Reference for a preliminary ruling from Court of Appeal (United Kingdom) made on 14 October 2013 — Merck Canada Inc., Merck Sharp & Dohme Ltd v Sigma Pharmaceuticals PLC | 19 |
| 2014/C 009/30 | Case C-541/13: Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 16 October 2013 — Douane Advies Bureau Rietveld v Hauptzollamt Hannover | 20 |
| 2014/C 009/31 | Case C-554/13: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 28 October 2013 — Z. Zh.; other party: Staatssecretaris van Veiligheid en Justitie and Staatssecretaris van Veiligheid en Justitie; other party: I.O. | 20 |
| 2014/C 009/32 | Case C-562/13: Request for a preliminary ruling from the Cour du travail de Bruxelles (Belgium) lodged on 31 October 2013 — Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v Moussa Abdida | 20 |
| 2014/C 009/33 | Case C-564/13 P: Appeal brought on 31 October 2013 by Planet AE Anonymi Etaireia Parochis Symvouleftikon Ypiresion against the order of the General Court (Seventh Chamber) delivered on 9 September 2013 in Case T-489/12 Planet v Commission | 21 |
| | General Court |
| 2014/C 009/34 | Case T-377/10: Judgment of the General Court of 18 November 2013 — Preparados Alimenticios v OHIM — Rila Feinkost-Importe (Jambo Afrika) (Community trade mark — Opposition proceedings — Application for the Community word mark Jambo Afrika — Earlier Community figurative marks JUMBO, JUMBO CUBE, JUMBO MARINADE, JUMBO NOKKOS, JUMBO ROF, JUMBO CHORBA MOUTON-MUTTON, JUMBO Aroma All purpose seasoning Condiment — Earlier national figurative marks JUMBO — Non-registered earlier word mark JUMBO — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 22 |
| 2014/C 009/35 | Case T-313/11: Judgment of the General Court of 21 November 2013 — Heede v OHIM (Matrix-Energetics) (Community trade mark — Application for Community word mark Matrix-Energetics — Absolute grounds for refusal — Descriptive character — Relevant public — Date of the determination of the descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009) | 22 |
| 2014/C 009/36 | Case T-337/12: Judgment of the General Court of 21 November 2013 — El Hogar Perfecto del Siglo XXI v OHIM — Wenf International Advisers Ltd (Corkscrew) (Community design — Invalidity proceedings — Registered Community design representing a corkscrew — Earlier national design — Ground for invalidity — Lack of individual character — Overall impression not different — Informed user — Degree of freedom of the designer — Articles 4, 6 and 25(1)(b) of Regulation (EC) No 6/2002) | 22 |
| 2014/C 009/37 | Case T-443/12: Judgment of the General Court of 21 November 2013 — Equinix (Germany) v OHIM — Acotel (ancotel.) (Community trade mark — Opposition proceedings — Application for Community figurative mark ancotel. — Earlier Community figurative mark ACOTEL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 23 |
| 2014/C 009/38 | Case T-524/12: Judgment of the General Court of 21 November 2013 — Recaro v OHIM — Certino Mode (RECARO) (Community trade mark — Revocation proceedings — Community word mark RECARO — Genuine use of the mark — Article 15(15)(a) of Regulation (EC) No 207/2009 — Nature of the use of the mark — Admissibility of new evidence — Article 76(2) of Regulation No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009) | 23 |
| 2014/C 009/39 | Case T-248/13: Action brought on 6 November 2013 — FK v Commission | 24 |
| 2014/C 009/40 | Case T-534/13: Action brought on 4 October 2013 — Panrico v OHIM — HDN Development (Krispy Kreme DOUGHNUTS) | 24 |
| 2014/C 009/41 | Case T-557/13: Action brought on 24 October 2013 — Germany v Commission | 25 |
| 2014/C 009/42 | Case T-562/13: Action brought on 24 October 2013 — Isotis v European Commission | 26 |
| 2014/C 009/43 | Case T-584/13: Action brought on 4 November 2013 — BASF Agro and Others v Commission | 27 |
| | European Union Civil Service Tribunal |
| 2014/C 009/44 | Case F-82/11: Judgment of the Civil Service Tribunal (First Chamber) of 1 October 2013 — Loukakis and Others v Parliament (Civil Service — Parliament Staff Committee — Elections — Irregularities in the electoral process) | 28 |
| 2014/C 009/45 | Case F-59/12: Judgment of the Civil Service Tribunal (1st Chamber) of 17 October 2013 — BF v Court of Auditors of the European Union (Civil service — Appointment — Recruitment of a director — Vacancy notice — Act adversely affecting an official — None — Inadmissibility) | 28 |
| 2014/C 009/46 | Case F-97/12: Judgment of the Civil Service Tribunal (1st Chamber) of 7 October 2013 — Thomé v Commission (Civil service — Open competition — Competition notice EPSO/AD/177/10 — Decision not to recruit a successful candidate — Criteria for admissibility — University qualification) | 28 |
| 2014/C 009/47 | Case F-7/12: Order of the Civil Service Tribunal (First Chamber) of 23 October 2013 — Aristidis Psarras v ENISA (Civil Service — Member of temporary staff — Appraisal — Annual appraisal for 2009 — Career development report — Application for annulment of the career development report — Act adversely affecting the applicant — Action manifestly inadmissible) | 29 |
| 2014/C 009/48 | Case F-57/12: Order of the Civil Service Tribunal (First Chamber) of 7 October 2013 — Marcuccio v Commission (Civil service — Officials — Disability allowance — Deduction of the amount of the debt owed to an institution — Action in part manifestly inadmissible and in part manifestly lacking any basis in law) | 29 |
| 2014/C 009/49 | Case F-50/10: Order of the Civil Service Tribunal of 16 October 2013 — De Roos-Le Large v Commission | 29 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2014/C 009/02

Case C-4/11: Judgment of the Court (Grand Chamber) of 14 November 2013 (request for a preliminary ruling from the Hessischer Verwaltungsgerichtshof — Germany) — Bundesrepublik Deutschland v Kaveh Puid (Asylum — Charter of Fundamental Rights of the European Union — Article 4 — Regulation (EC) No 343/2003 — Article 3(1) and (2) — Determination of the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national — Articles 6 to 12 — Criteria for determining the Member State responsible — Article 13 — Fall-back clause)

2

2014/C 009/03

Case C-322/11: Judgment of the Court (First Chamber) of 7 November 2013 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Proceedings brought by K (Reference for a preliminary ruling — Articles 63 TFEU and 65 TFEU — Free movement of capital — Tax legislation of a Member State which does not allow deduction of the loss on the sale of immovable property situated in another Member State from the gain on the sale of securities in the Member State of taxation)

3

2014/C 009/04

Joined Cases C-514/11 P and C-605/11 P: Judgment of the Court (Fifth Chamber) of 14 November 2013 — Liga para a Protecção da Natureza (LPN), Republic of Finland v European Commission (Appeal — Access to the documents of the institutions — Regulation (EC) No 1049/2001 — Third indent of Article 4(2) — Exception concerning the protection of the purpose of inspections, investigations and audits — Environmental information — Regulation (EC) No 1367/2006 — Article 6(1) — Documents relating to the pre-litigation stage of infringement procedures — Refusal of access — Obligation to examine specifically and individually the documents referred to in the request for access — Overriding public interest)

3

2014/C 009/05

Case C-518/11: Judgment of the Court (Third Chamber) of 7 November 2013 (request for a preliminary ruling from the Gerechtshof te Amsterdam — Netherlands) — UPC Nederland BV v Gemeente Hilversum (Electronic communications networks and services — Directives 97/66/EC, 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC — Scope ratione materiae — Provision of a basic package of radio and television programmes via cable — Sale by a municipality of its cable network to a private undertaking — Contractual clause concerning the tariff — Powers of the national regulatory authorities — Principle of sincere cooperation)

4

2014/C 009/06

Case C-638/11 P: Judgment of the Court (Fifth Chamber) of 14 November 2013 — Council of the European Union v Gul Ahmed Textile Mills Ltd, European Commission (Appeal — Dumping — Imports of cotton-type bed linen originating in Pakistan — Regulation (EC) No 384/96 — Article 3(7) — Concept of other factors)

5

2014/C 009/07

Case C-60/12: Judgment of the Court (Grand Chamber) of 14 November 2013 (request for a preliminary ruling from the Vrchní soud v Praze — Czech Republic) — Proceedings concerning the enforcement of a financial penalty issued against Marián Baláž (Police and judicial cooperation in criminal matters — Framework Decision 2005/214/JHA — Application of the principle of mutual recognition to financial penalties — Court having jurisdiction in particular in criminal matters — The Unabhängiger Verwaltungssenat under Austrian law — Nature and scope of the review on the part of the court of the Member State of enforcement)

5

2014/C 009/08

Case C-72/12: Judgment of the Court (Second Chamber) of 7 November 2013 (request for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Gemeinde Altrip, Gebrüder Hört GbR and Willi Schneider v Land Rheinland-Pfalz (Request for a preliminary ruling — Environment — Directive 85/337/EEC — Environmental impact assessment — Aarhus Convention — Directive 2003/35/EC — Right to challenge a development consent decision — Temporal application — Development consent procedure initiated before the period prescribed for transposing Directive 2003/35/EC expired — Decision taken after that date — Conditions of admissibility of the action — Impairment of a right — Nature of the procedural defect that may be invoked — Scope of the review)

6

2014/C 009/09

Case C-90/12: Judgment of the Court (Ninth Chamber) of 7 November 2013 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Air transport — Agreements relating to air services between Member States and third countries — Obligation on Member States to distribute traffic rights among eligible Community air carriers on the basis of a non-discriminatory and transparent procedure and to inform the Commission of that procedure without delay)

7

2014/C 009/10

Joined Cases C-187/12 to C-189/12: Judgment of the Court (First Chamber) of 14 November 2013 (requests for a preliminary ruling from the Consiglio di Stato — Italy) — SFIR — Società Fondiaria Industriale Romagnola SpA, Italia Zuccheri SpA, Co.Pro.B. — Cooperativa Produttori Bieticoli Soc. coop. Agricola, Eridania Sadam SpA v AGEA — Agenzia per le Erogazioni in Agricoltura, Ministero delle Politiche agricole, alimentari e forestali (Request for a preliminary ruling — Regulation (EC) No 320/2006 — Regulation (EC) No 968/2006 — Agriculture — Temporary scheme for the restructuring of the sugar industry — Conditions for granting restructuring aid — Concepts of production facilities and full dismantling)

7

2014/C 009/11

Joined Cases C-199/12 to C-201/12: Judgment of the Court (Fourth Chamber) of 7 November 2013 (request for a preliminary ruling from the Raad van State — Netherlands) — Minister voor Immigratie, Integratie en Asiel v X (C-199/12), Y (C-200/12), Z v Minister voor Immigratie, Integratie en Asiel (C-201/12) (Directive 2004/83/EC — Minimum standards relating to the conditions for granting refugee status or subsidiary protection status — Article 10(1)(d) — Membership of a particular social group — Sexual orientation — Reason for persecution — Article 9(1) — Concept of persecution — Well-founded fear of being persecuted on account of membership of a particular social group — Acts sufficiently serious to justify such a fear — Legislation criminalising homosexual acts — Article 4 — Individual assessment of the facts and circumstances)

8

2014/C 009/12

Case C-221/12: Judgment of the Court (Tenth Chamber) of 14 November 2013 (request for a preliminary ruling from the Raad van State van België — Belgium) — Belgacom NV v Interkommunale voor Teledistributie van het Gewest Antwerpen (Integan), Inter-Media, West-Vlaamse Energie- en Teledistributiemaatschappij (WVEM), Provinciale Brabantse Energiemaatschappij CVBA (PBE) (Request for a preliminary ruling — Article 49 TFEU — Freedom of establishment — Article 56 TFEU — Freedom to provide services — Principles of equal treatment and non-discrimination — Obligation of transparency — Scope — Agreement concluded by public entities of one Member State and an undertaking of that Member State — Transfer, by those entities, of their television provision activities and, for a fixed period, the exclusive right to use their cable networks, to an undertaking in that Member State — Possibility for an economic operator of that same State to rely on Articles 49 TFEU and 56 TFEU before the courts of that Member State — No invitation to tender — Justification — Existence of an earlier agreement — Transaction intended to put an end to litigation concerning the interpretation of that agreement — Risk of depreciation of the transferred activity)

9

2014/C 009/13

Case C-225/12: Judgment of the Court (Second Chamber) of 7 November 2013 (request for a preliminary ruling from the Raad van State — Netherlands) — C. Demir v Staatssecretaris van Justitie (Request for a preliminary ruling — EEC-Turkey Association Agreement — Article 13 of Decision No 1/80 of the Association Council — Standstill clauses — Legally resident)

9

2014/C 009/14

Joined Cases C-249/12 and C-250/12: Judgment of the Court (Third Chamber) of 7 November 2013 (requests for a preliminary ruling from the Înalta Curte de Casație și Justiție — Romania) — Corina-Hrisi Tulică v Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor (C-249/12), Călin Ion Plavoșin v Direcția Generală a Finanțelor Publice Timiș — Serviciul Soluționare Contestații, Activitatea de Inspecție Fiscală — Serviciul de Inspecție Fiscală Timiș (C-250/12) (Taxation — VAT — Directive 2006/112/EC — Articles 73 and 78 — Immovable property transactions carried out by natural persons — Classification of those transactions as taxable — Determination of the VAT owing when the parties have made no provision for it at the time of conclusion of the contract — Question as to whether or not the vendor may recover the VAT from the purchaser — Consequences)

10

2014/C 009/15

Case C-313/12: Judgment of the Court (Fifth Chamber) of 7 November 2013 (request for a preliminary ruling from the Corte dei conti, sezione giurisdizionale per la Regione Siciliana — Italy) — Giuseppa Romeo v Regione Siciliana (National administrative procedure — Purely internal situation — Administrative acts — Obligation to state reasons — Whether it is possible for failure to state reasons to be remedied during legal proceedings against an administrative act — Interpretation of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union — Lack of jurisdiction of the Court)

11

2014/C 009/16

Case C-383/12 P: Judgment of the Court (Fifth Chamber) of 14 November 2013 — Environmental Manufacturing LLP v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Société Elmar Wolf (Appeal — Community trade mark — Opposition proceedings — Figurative mark representing a wolf’s head — Opposition by the proprietor of the national and international figurative marks containing the word elements WOLF Jardin and Outils WOLF — Relative grounds for refusal — Detriment to the distinctive character of the earlier mark — Regulation (EC) No 207/2009 — Article 8(5) — Change in the economic behaviour of the average consumer — Burden of proof)

11

2014/C 009/17

Case C-388/12: Judgment of the Court (Fourth Chamber) of 14 November 2013 (request for a preliminary ruling from the Tribunale amministrativo regionale per le Marche — Italy) — Comune di Ancona v Regione Marche (Structural Funds — European Regional Development Fund (ERDF) — Financial contribution from a Structural Fund — Criteria for the eligibility of expenditure — Regulation (EC) No 1260/1999 — Article 30(4) — Principle of durability of the operation — Substantial modification of an operation — Award of a concession contract without advertisement or a competitive tendering procedure)

12

2014/C 009/18

Case C-442/12: Judgment of the Court (Eighth Chamber) of 7 November 2013 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Jan Sneller v DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV (Legal expenses insurance — Directive 87/344/EEC — Article 4(1) — Insured persons’ freedom to choose a lawyer — Clause in the standard terms and conditions of a contract guaranteeing legal assistance in any inquiry or proceedings by one of the insurer’s employees — Costs relating to legal assistance provided by an external legal adviser reimbursed only where the insurer decides that it is necessary to entrust handling of the case to an external legal adviser)

13

2014/C 009/19

Case C-473/12: Judgment of the Court (Third Chamber) of 7 November 2013 (request for a preliminary ruling from the Cour constitutionnelle — Belgium) — Institut professionnel des agents immobiliers (IPI) v Geoffrey Englebert, Immo 9 SPRL, Grégory Francotte (Processing of personal data — Directive 95/46/EC — Articles 10 and 11 — Obligation to inform — Article 13(1)(d) and (g) — Exceptions — Scope of exceptions — Private detectives acting for the supervisory body of a regulated profession — Directive 2002/58/EC — Article 15(1))

13

2014/C 009/20

Case C-478/12: Judgment of the Court (Eighth Chamber) of 14 November 2013 (request for a preliminary ruling from the Landesgericht Feldkirch — Austria) — Armin Maletic, Marianne Maletic v lastminute.com GmbH, TUI Österreich GmbH (Jurisdiction in civil and commercial matters — Regulation (EC) No 44/2001 — Article 16(1) — Contract for travel concluded between a consumer domiciled in one Member State and a travel agency established in another Member State — Supplier of services used by the travel agency established in the Member State where the consumer is domiciled — Right of a consumer to bring an action against two undertakings before the court for the place of his domicile)

14

2014/C 009/21

Case C-522/12: Judgment of the Court (Seventh Chamber) of 7 November 2013 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — Tevfik Isbir v DB Services GmbH (Request for a preliminary ruling — Freedom to provide services — Posting of workers — Directive 96/71/EC — Minimum rates of pay — Lump sums and employer contribution to a multiannual savings plan for the benefit of its employees)

14

2014/C 009/22

Case C-547/12 P: Judgment of the Court (Ninth Chamber) of 7 November 2013 — Hellenic Republic v European Commission (Appeal — EAGGF — Guarantee section — Clearance of the accounts of the paying agencies of certain Member States concerning expenditure financed by the EAGGF — Amounts which are recoverable from the Hellenic Republic following failure to recover within the period prescribed — Distortion of evidence)

15

2014/C 009/23

Case C-560/12 P: Judgment of the Court (Second Chamber) of 7 November 2013 — Wam Industriale SpA v European Commission (Appeal — State aid — Establishing a company in certain third countries — Soft loans — Decision declaring aid partly incompatible with the common market and ordering its recovery — Decision taken following the annulment by the General Court of the original decision concerning the same proceedings — Enforcement of a judgment of the General Court)

15

2014/C 009/24

Case C-587/12 P: Judgment of the Court (Second Chamber) of 7 November 2013 — Italian Republic v European Commission (Appeal — State aid — Establishing a company in certain third countries — Soft loans — Decision declaring aid partly incompatible with the common market and ordering its recovery — Decision taken following the annulment by the General Court of the original decision concerning the same proceedings — Enforcement of a judgment of the General Court)

16

2014/C 009/25

Case C-23/13: Judgment of the Court (Sixth Chamber) of 7 November 2013 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Directive 91/271/EEC — Urban waste water treatment — Articles 3 and 4)

16

2014/C 009/26

Case C-527/13: Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain) lodged on 7 October 2013 — Lourdes Cachaldora Fernandez v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS)

17

2014/C 009/27

Case C-537/13: Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 14 October 2013 — Birutė Šiba v Arūnas Devėnas

17

2014/C 009/28

Case C-538/13: Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 14 October 2013 — eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos

18

2014/C 009/29

Case C-539/13: Reference for a preliminary ruling from Court of Appeal (United Kingdom) made on 14 October 2013 — Merck Canada Inc., Merck Sharp & Dohme Ltd v Sigma Pharmaceuticals PLC

19

2014/C 009/30

Case C-541/13: Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 16 October 2013 — Douane Advies Bureau Rietveld v Hauptzollamt Hannover

20

2014/C 009/31

Case C-554/13: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 28 October 2013 — Z. Zh.; other party: Staatssecretaris van Veiligheid en Justitie and Staatssecretaris van Veiligheid en Justitie; other party: I.O.

20

2014/C 009/32

Case C-562/13: Request for a preliminary ruling from the Cour du travail de Bruxelles (Belgium) lodged on 31 October 2013 — Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v Moussa Abdida

20

2014/C 009/33

Case C-564/13 P: Appeal brought on 31 October 2013 by Planet AE Anonymi Etaireia Parochis Symvouleftikon Ypiresion against the order of the General Court (Seventh Chamber) delivered on 9 September 2013 in Case T-489/12 Planet v Commission

21

General Court

2014/C 009/34

Case T-377/10: Judgment of the General Court of 18 November 2013 — Preparados Alimenticios v OHIM — Rila Feinkost-Importe (Jambo Afrika) (Community trade mark — Opposition proceedings — Application for the Community word mark Jambo Afrika — Earlier Community figurative marks JUMBO, JUMBO CUBE, JUMBO MARINADE, JUMBO NOKKOS, JUMBO ROF, JUMBO CHORBA MOUTON-MUTTON, JUMBO Aroma All purpose seasoning Condiment — Earlier national figurative marks JUMBO — Non-registered earlier word mark JUMBO — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

22

2014/C 009/35

Case T-313/11: Judgment of the General Court of 21 November 2013 — Heede v OHIM (Matrix-Energetics) (Community trade mark — Application for Community word mark Matrix-Energetics — Absolute grounds for refusal — Descriptive character — Relevant public — Date of the determination of the descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

22

2014/C 009/36

Case T-337/12: Judgment of the General Court of 21 November 2013 — El Hogar Perfecto del Siglo XXI v OHIM — Wenf International Advisers Ltd (Corkscrew) (Community design — Invalidity proceedings — Registered Community design representing a corkscrew — Earlier national design — Ground for invalidity — Lack of individual character — Overall impression not different — Informed user — Degree of freedom of the designer — Articles 4, 6 and 25(1)(b) of Regulation (EC) No 6/2002)

22

2014/C 009/37

Case T-443/12: Judgment of the General Court of 21 November 2013 — Equinix (Germany) v OHIM — Acotel (ancotel.) (Community trade mark — Opposition proceedings — Application for Community figurative mark ancotel. — Earlier Community figurative mark ACOTEL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

23

2014/C 009/38

Case T-524/12: Judgment of the General Court of 21 November 2013 — Recaro v OHIM — Certino Mode (RECARO) (Community trade mark — Revocation proceedings — Community word mark RECARO — Genuine use of the mark — Article 15(15)(a) of Regulation (EC) No 207/2009 — Nature of the use of the mark — Admissibility of new evidence — Article 76(2) of Regulation No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009)

23

2014/C 009/39

Case T-248/13: Action brought on 6 November 2013 — FK v Commission

24

2014/C 009/40

Case T-534/13: Action brought on 4 October 2013 — Panrico v OHIM — HDN Development (Krispy Kreme DOUGHNUTS)

24

2014/C 009/41

Case T-557/13: Action brought on 24 October 2013 — Germany v Commission

25

2014/C 009/42

Case T-562/13: Action brought on 24 October 2013 — Isotis v European Commission

26

2014/C 009/43

Case T-584/13: Action brought on 4 November 2013 — BASF Agro and Others v Commission

27

European Union Civil Service Tribunal

2014/C 009/44

Case F-82/11: Judgment of the Civil Service Tribunal (First Chamber) of 1 October 2013 — Loukakis and Others v Parliament (Civil Service — Parliament Staff Committee — Elections — Irregularities in the electoral process)

28

2014/C 009/45

Case F-59/12: Judgment of the Civil Service Tribunal (1st Chamber) of 17 October 2013 — BF v Court of Auditors of the European Union (Civil service — Appointment — Recruitment of a director — Vacancy notice — Act adversely affecting an official — None — Inadmissibility)

28

2014/C 009/46

Case F-97/12: Judgment of the Civil Service Tribunal (1st Chamber) of 7 October 2013 — Thomé v Commission (Civil service — Open competition — Competition notice EPSO/AD/177/10 — Decision not to recruit a successful candidate — Criteria for admissibility — University qualification)

28

2014/C 009/47

Case F-7/12: Order of the Civil Service Tribunal (First Chamber) of 23 October 2013 — Aristidis Psarras v ENISA (Civil Service — Member of temporary staff — Appraisal — Annual appraisal for 2009 — Career development report — Application for annulment of the career development report — Act adversely affecting the applicant — Action manifestly inadmissible)

29

2014/C 009/48

Case F-57/12: Order of the Civil Service Tribunal (First Chamber) of 7 October 2013 — Marcuccio v Commission (Civil service — Officials — Disability allowance — Deduction of the amount of the debt owed to an institution — Action in part manifestly inadmissible and in part manifestly lacking any basis in law)

29

2014/C 009/49

Case F-50/10: Order of the Civil Service Tribunal of 16 October 2013 — De Roos-Le Large v Commission

29

| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 11.1.2014 | EN | Official Journal of the European Union | C 9/1 |
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11.1.2014

EN

Official Journal of the European Union

C 9/1

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2014/C 9/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European Union

OJ C 377, 21.12.2013

Past publications

OJ C 367, 14.12.2013

OJ C 359, 7.12.2013

OJ C 352, 30.11.2013

OJ C 344, 23.11.2013

OJ C 336, 16.11.2013

OJ C 325, 9.11.2013

These texts are available on:

EUR-Lex: http://eur-lex.europa.eu

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 11.1.2014 | EN | Official Journal of the European Union | C 9/2 |
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11.1.2014

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Official Journal of the European Union

C 9/2

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Judgment of the Court (Grand Chamber) of 14 November 2013 (request for a preliminary ruling from the Hessischer Verwaltungsgerichtshof — Germany) — Bundesrepublik Deutschland v Kaveh Puid

(Case C-4/11) (1)

(Asylum - Charter of Fundamental Rights of the European Union - Article 4 - Regulation (EC) No 343/2003 - Article 3(1) and (2) - Determination of the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national - Articles 6 to 12 - Criteria for determining the Member State responsible - Article 13 - Fall-back clause)

2014/C 9/02

Language of the case: German

Referring court

Hessischer Verwaltungsgerichtshof

Parties to the main proceedings

Appellant: Bundesrepublik Deutschland

Respondent: Kaveh Puid

Re:

Request for a preliminary ruling — Hessischer Verwaltungsgerichtshof — Interpretation of the first sentence of Article 3(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p. 1) — Duty of a Member State to take responsibility for examining an asylum application on the basis of Article 3(2) of Regulation (EC) No 343/2003 where there is a risk of infringement of the applicant’s fundamental rights and/or of non-application by the Member State responsible for the application according to the criteria laid down in the regulation of the minimum standards laid down in Directives 2003/9/EC and 2005/85/EC

Operative part of the judgment

Where the Member States cannot be unaware that systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum seekers in the Member State initially identified as responsible in accordance with the criteria set out in Chapter III of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national provide substantial grounds for believing that the asylum seeker concerned would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, which is a matter for the referring court to verify, the Member State which is determining the Member State responsible is required not to transfer the asylum seeker to the Member State initially identified as responsible and, subject to the exercise of the right itself to examine the application, to continue to examine the criteria set out in that chapter, in order to establish whether another Member State can be identified as responsible in accordance with one of those criteria or, if it cannot, under Article 13 of the Regulation.

Conversely, in such a situation, a finding that it is impossible to transfer an asylum seeker to the Member State initially identified as responsible does not in itself mean that the Member State which is determining the Member State responsible is required itself, under Article 3(2) of Regulation No 343/2003, to examine the application for asylum.

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(1)  OJ C 95, 26.3.2011.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/3 |
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11.1.2014

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Official Journal of the European Union

C 9/3

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Judgment of the Court (First Chamber) of 7 November 2013 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Proceedings brought by K

(Case C-322/11) (1)

(Reference for a preliminary ruling - Articles 63 TFEU and 65 TFEU - Free movement of capital - Tax legislation of a Member State which does not allow deduction of the loss on the sale of immovable property situated in another Member State from the gain on the sale of securities in the Member State of taxation)

2014/C 9/03

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Party to the main proceedings

K

Re:

Request for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Articles 63 and 65 TFEU — Free movement of capital — National tax legislation not allowing a person with full liability to tax to deduct the loss on the sale of immovable property situated in another Member State from the gain on the transfer of securities in the Member State of taxation

Operative part of the judgment

Articles 63 TFEU and 65 TFEU do not preclude national tax legislation such as that at issue in the main proceedings, which does not allow a taxpayer who resides in the Member State concerned and is fully liable to income tax there to deduct the losses arising on the transfer of immovable property situated in another Member State from the income from moveable assets which is taxable in the first Member State, although that would have been possible, on certain conditions, if the immovable property had been situated in the first Member State.

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(1)  OJ C 252, 27.8.2011.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/3 |
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11.1.2014

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Official Journal of the European Union

C 9/3

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Judgment of the Court (Fifth Chamber) of 14 November 2013 — Liga para a Protecção da Natureza (LPN), Republic of Finland v European Commission

(Joined Cases C-514/11 P and C-605/11 P) (1)

(Appeal - Access to the documents of the institutions - Regulation (EC) No 1049/2001 - Third indent of Article 4(2) - Exception concerning the protection of the purpose of inspections, investigations and audits - Environmental information - Regulation (EC) No 1367/2006 - Article 6(1) - Documents relating to the pre-litigation stage of infringement procedures - Refusal of access - Obligation to examine specifically and individually the documents referred to in the request for access - Overriding public interest)

2014/C 9/04

Language of the case: Portuguese

Parties

Appellants: Liga para a Protecção da Natureza (LPN) (represented by: P. Vinagre e Silva and L. Rossi, advogadas), Republic of Finland (represented by: J. Heliskoski, M. Pere and J. Leppo, acting as Agents)

Intervener in support of the applicants: Republic of Estonia, (represented by: M. Linntam, acting as Agent)

Other parties to the proceedings: European Commission (represented by: P. Costa de Oliveira and D. Recchia, acting as Agents), Kingdom of Denmark (represented by: V. Pasternak Jørgensen and C. Thorning, acting as Agents), Kingdom of Sweden (represented by: A. Falk and C. Meyer-Seitz, acting as Agents)

Intervener in support of the European Commission: Federal Republic of Germany (represented by: T. Henze and A. Wiedmann, acting as Agents)

Re:

Appeals brought against the judgment of the General Court (Third Chamber) of 9 September 2011 in Case T-29/08 LPN v Commission, by which the General Court dismissed the action brought by LPN in so far as it relates to documents and parts of documents to which access was refused to the Liga para a Protecção da Natureza (LPN) in Commission Decision SG.E.3/MIB/psi D(2008) 8639 of 24 October 2008.

Operative part of the judgment

The Court:

| 1. | Dismisses the appeals; |
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1.

Dismisses the appeals;

| 2. | Orders the Liga para a Protecção da Natureza and the Republic of Finland to pay the costs in equal parts; |
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2.

Orders the Liga para a Protecção da Natureza and the Republic of Finland to pay the costs in equal parts;

| 3. | Orders the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia and the Kingdom of Sweden to bear their own costs. |
| --- | --- |

3.

Orders the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia and the Kingdom of Sweden to bear their own costs.

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(1)  OJ C 58, 25.2.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/4 |
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11.1.2014

EN

Official Journal of the European Union

C 9/4

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Judgment of the Court (Third Chamber) of 7 November 2013 (request for a preliminary ruling from the Gerechtshof te Amsterdam — Netherlands) — UPC Nederland BV v Gemeente Hilversum

(Case C-518/11) (1)

(Electronic communications networks and services - Directives 97/66/EC, 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC - Scope ratione materiae - Provision of a basic package of radio and television programmes via cable - Sale by a municipality of its cable network to a private undertaking - Contractual clause concerning the tariff - Powers of the national regulatory authorities - Principle of sincere cooperation)

2014/C 9/05

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam

Parties to the main proceedings

Applicant: UPC Nederland BV

Defendant: Gemeente Hilversum

Re:

Request for a preliminary ruling — Gerechtshof te Amsterdam — Interpretation of Article 8(4) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7), Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), and Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51) — Provision of a package of free-to-air radio and television programmes via cable — Municipality having disposed of its cable operation — Limitation of retail prices — Competition rules — Application by the national courts

Operative part of the judgment

| 1. | Article 2(c) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) must be interpreted as meaning that a service consisting in the supply of a basic package of radio and television programmes via cable, the charge for which includes transmission costs as well as payments to broadcasters and royalties paid to copyright collecting societies in connection with the transmission of programme content, falls within the definition of an ‘electronic communications service’ and, consequently, within the substantive scope both of that directive and Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) and Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), constituting the new regulatory framework applicable to electronic communications services, in so far as that service entails primarily the transmission of television content on the cable distribution network to the receiving terminal of the final consumer. |
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1.

Article 2(c) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) must be interpreted as meaning that a service consisting in the supply of a basic package of radio and television programmes via cable, the charge for which includes transmission costs as well as payments to broadcasters and royalties paid to copyright collecting societies in connection with the transmission of programme content, falls within the definition of an ‘electronic communications service’ and, consequently, within the substantive scope both of that directive and Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) and Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), constituting the new regulatory framework applicable to electronic communications services, in so far as that service entails primarily the transmission of television content on the cable distribution network to the receiving terminal of the final consumer.

| 2. | Those directives must be interpreted as meaning that, from the expiry of the deadline for their implementation, they preclude an entity such as that at issue in the main proceedings, which is not a national regulatory authority, from intervening directly in retail tariffs in respect of the supply of a basic package of radio and television programmes via cable. |
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2.

Those directives must be interpreted as meaning that, from the expiry of the deadline for their implementation, they preclude an entity such as that at issue in the main proceedings, which is not a national regulatory authority, from intervening directly in retail tariffs in respect of the supply of a basic package of radio and television programmes via cable.

| 3. | The same directives must be interpreted as precluding, in circumstances such as those in the main proceedings and having regard to the principle of sincere cooperation, an entity which is not a national regulatory authority from relying on, as against a supplier of basic packages of radio and television programmes via cable, a clause stipulated in an agreement concluded prior to the adoption of the new regulatory framework applicable to electronic communications services which restricts that supplier’s freedom to set tariffs. |
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3.

The same directives must be interpreted as precluding, in circumstances such as those in the main proceedings and having regard to the principle of sincere cooperation, an entity which is not a national regulatory authority from relying on, as against a supplier of basic packages of radio and television programmes via cable, a clause stipulated in an agreement concluded prior to the adoption of the new regulatory framework applicable to electronic communications services which restricts that supplier’s freedom to set tariffs.

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(1)  OJ C 25, 28.1.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/5 |
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11.1.2014

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Official Journal of the European Union

C 9/5

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Judgment of the Court (Fifth Chamber) of 14 November 2013 — Council of the European Union v Gul Ahmed Textile Mills Ltd, European Commission

(Case C-638/11 P) (1)

(Appeal - Dumping - Imports of cotton-type bed linen originating in Pakistan - Regulation (EC) No 384/96 - Article 3(7) - Concept of ‘other factors’)

2014/C 9/06

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: J.-P. Hix, Agent, and G. Berrisch, Rechtsanwalt)

Other parties to the proceedings: Gul Ahmed Textile Mills Ltd (represented by: L. Ruessmann, avocat), European Commission (represented by: A. Stobiecka-Kuik, Agent, and E. McGovern, Barrister)

Re:

Appeal brought against the judgment of the General Court (Seventh Chamber) of 27 September 2011 in Case T-199/04 Gul Ahmed Textile Mills v Council which annulled, in so far as it concerned Gul Ahmed Textile Mills Ltd, Council Regulation (EC) No 397/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Pakistan (OJ 2004 L 66, p. 1) — Infringement of Article 3(7) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1) — Determination of injury — Establishment of a causal link between the dumped imports and the injury caused — Factors to be taken into consideration

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the General Court of the European Union of 27 September 2011 in Case T-199/04 Gul Ahmed Textile Mills v Council; |
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1.

Sets aside the judgment of the General Court of the European Union of 27 September 2011 in Case T-199/04 Gul Ahmed Textile Mills v Council;

| 2. | Refers the case back to the General Court of the European Union; |
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2.

Refers the case back to the General Court of the European Union;

| 3. | Reserves the costs. |
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3.

Reserves the costs.

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(1)  OJ C 65, 3.3.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/5 |
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11.1.2014

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Official Journal of the European Union

C 9/5

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Judgment of the Court (Grand Chamber) of 14 November 2013 (request for a preliminary ruling from the Vrchní soud v Praze — Czech Republic) — Proceedings concerning the enforcement of a financial penalty issued against Marián Baláž

(Case C-60/12) (1)

(Police and judicial cooperation in criminal matters - Framework Decision 2005/214/JHA - Application of the principle of mutual recognition to financial penalties - ‘Court having jurisdiction in particular in criminal matters’ - The ‘Unabhängiger Verwaltungssenat’ under Austrian law - Nature and scope of the review on the part of the court of the Member State of enforcement)

2014/C 9/07

Language of the case: Czech

Referring court

Vrchní soud v Praze

Party to the main proceedings

Marián Baláž

Re:

Request for a preliminary ruling — Vrchní soud v Praze — Interpretation of Article 1(a)(iii) of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ 2005 L 76, p. 16) — ‘Court having jurisdiction in particular in criminal matters’ — ‘Unabhängiger Verwaltungssenat’ under Austrian law — Concept of ‘opportunity to have the case tried’ before a court within the meaning of Article 1(a)(iii) of the Framework Decision — Scope

Operative part of the judgment

| 1. | The term ‘court having jurisdiction in particular in criminal matters’, set out in Article 1(a)(iii) of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, is an autonomous concept of Union law and must be interpreted as covering any court or tribunal which applies a procedure that satisfies the essential characteristics of criminal procedure. The Unabhängiger Verwaltungssenat in den Ländern (Austria) fulfils those criteria and must for that reason be regarded as coming within the scope of that term. |
| --- | --- |

1.

The term ‘court having jurisdiction in particular in criminal matters’, set out in Article 1(a)(iii) of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, is an autonomous concept of Union law and must be interpreted as covering any court or tribunal which applies a procedure that satisfies the essential characteristics of criminal procedure. The Unabhängiger Verwaltungssenat in den Ländern (Austria) fulfils those criteria and must for that reason be regarded as coming within the scope of that term.

| 2. | Article 1(a)(iii) of Framework Decision 2005/214, as amended by Framework Decision 2009/299, must be interpreted as meaning that a person is to be regarded as having had the opportunity to have a case tried before a court having jurisdiction in particular in criminal matters in the situation where, prior to bringing his appeal, that person was required to comply with a pre-litigation administrative procedure. Such a court must have full jurisdiction to examine the case as regards both the legal assessment and the factual circumstances. |
| --- | --- |

2.

Article 1(a)(iii) of Framework Decision 2005/214, as amended by Framework Decision 2009/299, must be interpreted as meaning that a person is to be regarded as having had the opportunity to have a case tried before a court having jurisdiction in particular in criminal matters in the situation where, prior to bringing his appeal, that person was required to comply with a pre-litigation administrative procedure. Such a court must have full jurisdiction to examine the case as regards both the legal assessment and the factual circumstances.

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(1)  OJ C 109, 14.4.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/6 |
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Official Journal of the European Union

C 9/6

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Judgment of the Court (Second Chamber) of 7 November 2013 (request for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Gemeinde Altrip, Gebrüder Hört GbR and Willi Schneider v Land Rheinland-Pfalz

(Case C-72/12) (1)

(Request for a preliminary ruling - Environment - Directive 85/337/EEC - Environmental impact assessment - Aarhus Convention - Directive 2003/35/EC - Right to challenge a development consent decision - Temporal application - Development consent procedure initiated before the period prescribed for transposing Directive 2003/35/EC expired - Decision taken after that date - Conditions of admissibility of the action - Impairment of a right - Nature of the procedural defect that may be invoked - Scope of the review)

2014/C 9/08

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicants: Gemeinde Altrip, Gebrüder Hört GbR, Willi Schneider

Defendant: Land Rheinland-Pfalz

Intervening party: Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

Re:

Request for a preliminary ruling — Bundesverwaltungsgericht Leipzig — Interpretation of Article 6 of Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17) and of Article 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Directive 2003/35/EC — Construction of a flood retention scheme — Right to challenge a development consent decision — Temporal application — Situation in which the development consent procedure was initiated before the date on which the period for transposition of Directive 2003/35/EC expired and the decision was adopted after that date

Operative part of the judgment

| 1. | By providing that it was to be transposed into national law by 25 June 2005 at the latest, Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, which inserted Article 10a into Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, must be interpreted as meaning that the rules of national law adopted for the purposes of transposing that article into national law were intended also to apply to administrative development consent procedures initiated before 25 June 2005 when the latter resulted in the granting of consent after that date. |
| --- | --- |

1.

By providing that it was to be transposed into national law by 25 June 2005 at the latest, Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, which inserted Article 10a into Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, must be interpreted as meaning that the rules of national law adopted for the purposes of transposing that article into national law were intended also to apply to administrative development consent procedures initiated before 25 June 2005 when the latter resulted in the granting of consent after that date.

| 2. | Article 10a of Directive 85/337, as amended by Directive 2003/35, must be interpreted as precluding the Member States from limiting the applicability of the provisions transposing that article to cases in which the legality of a decision is challenged on the ground that no environmental impact assessment was carried out, while not extending that applicability to cases in which such an assessment was carried out but was irregular. |
| --- | --- |

2.

Article 10a of Directive 85/337, as amended by Directive 2003/35, must be interpreted as precluding the Member States from limiting the applicability of the provisions transposing that article to cases in which the legality of a decision is challenged on the ground that no environmental impact assessment was carried out, while not extending that applicability to cases in which such an assessment was carried out but was irregular.

| 3. | Subparagraph (b) of Article 10a of Directive 85/337, as amended by Directive 2003/35, must be interpreted as not precluding national courts from refusing to recognise impairment of a right within the meaning of that article if it is established that it is conceivable, having regard to the circumstances of the case, that the contested decision would not have been different without the procedural defect invoked by the applicant. None the less, that will be the case only if the court of law or body hearing the action does not in any way make the burden of proof fall on the applicant and makes its ruling, where appropriate, on the basis of the evidence provided by the developer or the competent authorities and, more generally, on the basis of all the documents submitted to it, taking into account, inter alia, the seriousness of the defect invoked and ascertaining, in particular, whether that defect has deprived the public concerned of one of the guarantees introduced with a view to allowing that public to have access to information and to be empowered to participate in decision-making, in accordance with the objectives of Directive 85/337. |
| --- | --- |

3.

Subparagraph (b) of Article 10a of Directive 85/337, as amended by Directive 2003/35, must be interpreted as not precluding national courts from refusing to recognise impairment of a right within the meaning of that article if it is established that it is conceivable, having regard to the circumstances of the case, that the contested decision would not have been different without the procedural defect invoked by the applicant. None the less, that will be the case only if the court of law or body hearing the action does not in any way make the burden of proof fall on the applicant and makes its ruling, where appropriate, on the basis of the evidence provided by the developer or the competent authorities and, more generally, on the basis of all the documents submitted to it, taking into account, inter alia, the seriousness of the defect invoked and ascertaining, in particular, whether that defect has deprived the public concerned of one of the guarantees introduced with a view to allowing that public to have access to information and to be empowered to participate in decision-making, in accordance with the objectives of Directive 85/337.

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(1)  OJ C 133, 5.5.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/7 |
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Judgment of the Court (Ninth Chamber) of 7 November 2013 — European Commission v Republic of Poland

(Case C-90/12) (1)

(Failure of a Member State to fulfil obligations - Air transport - Agreements relating to air services between Member States and third countries - Obligation on Member States to distribute traffic rights among eligible Community air carriers on the basis of a non-discriminatory and transparent procedure and to inform the Commission of that procedure without delay)

2014/C 9/09

Language of the case: Polish

Parties

Applicant: European Commission (represented by: K. Simonsson and M. Owsiany-Hornung, acting as Agents)

Defendant: Republic of Poland (represented by: B. Majczyna and M. Szpunar, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 5 and 6 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries (OJ 2004 L 157, p. 7) — Obligation on the Member States to distribute traffic rights among eligible Community air carriers on the basis of a non-discriminatory and transparent procedure and to inform the Commission of that procedure without delay

Operative part of the judgment

The Court:

| 1. | Declares that, by not taking the necessary measures to comply with Articles 5 and 6 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries, the Republic of Poland has failed to fulfil its obligations under those provisions; |
| --- | --- |

1.

Declares that, by not taking the necessary measures to comply with Articles 5 and 6 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries, the Republic of Poland has failed to fulfil its obligations under those provisions;

| 2. | Orders the Republic of Poland to pay the costs. |
| --- | --- |

2.

Orders the Republic of Poland to pay the costs.

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(1)  OJ C 126, 28.4.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/7 |
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Official Journal of the European Union

C 9/7

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Judgment of the Court (First Chamber) of 14 November 2013 (requests for a preliminary ruling from the Consiglio di Stato — Italy) — SFIR — Società Fondiaria Industriale Romagnola SpA, Italia Zuccheri SpA, Co.Pro.B. — Cooperativa Produttori Bieticoli Soc. coop. Agricola, Eridania Sadam SpA v AGEA — Agenzia per le Erogazioni in Agricoltura, Ministero delle Politiche agricole, alimentari e forestali

(Joined Cases C-187/12 to C-189/12) (1)

(Request for a preliminary ruling - Regulation (EC) No 320/2006 - Regulation (EC) No 968/2006 - Agriculture - Temporary scheme for the restructuring of the sugar industry - Conditions for granting restructuring aid - Concepts of ‘production facilities’ and ‘full dismantling’)

2014/C 9/10

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellants: SFIR — Società Fondiaria Industriale Romagnola SpA, Italia Zuccheri SpA, Co.Pro.B. — Cooperativa Produttori Bieticoli Soc. coop. Agricola, Eridania Sadam SpA

Respondents: AGEA — Agenzia per le Erogazioni in Agricoltura, Ministero delle Politiche agricole, alimentari e forestali

Re:

Requests for a preliminary ruling — Consiglio di Stato — Interpretation of Articles 3 and 4 of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy (OJ 2006 L 58, p. 42) and Article 4 of Commission Regulation (EC) No 968/2006 of 27 June 2006 laying down detailed rules for the implementation of Regulation No 320/2006 (OJ 2006 L 176, p. 32) — Conditions for granting the full amount of aid — Concepts of ‘production facilities’ and ‘full dismantling’ — Whether it is possible for the full amount of aid to be granted for sugar, isoglucose and inulin syrup factories in the event that they retain facilities which are not connected with the production of those products, but are used for other products

Operative part of the judgment

| 1. | Articles 3 and 4 of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy and Article 4 of Commission Regulation (EC) No 968/2006 of 27 June 2006 laying down detailed rules for the implementation of Council Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy must be interpreted as meaning that, for the purposes of those articles, the concept of ‘production facilities’ includes silos intended to store the aid beneficiary’s sugar, irrespective of whether they are employed for other purposes. Silos used only to store sugar, produced under quota, from other producers or bought from those producers, or those silos used only for packing or packaging sugar for the purposes of marketing it are not included within that concept. It is for the national court to carry out such an assessment, on a case-by-case basis, in the light of the technical characteristics of the silos concerned or how they are actually used. |
| --- | --- |

1.

Articles 3 and 4 of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy and Article 4 of Commission Regulation (EC) No 968/2006 of 27 June 2006 laying down detailed rules for the implementation of Council Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy must be interpreted as meaning that, for the purposes of those articles, the concept of ‘production facilities’ includes silos intended to store the aid beneficiary’s sugar, irrespective of whether they are employed for other purposes. Silos used only to store sugar, produced under quota, from other producers or bought from those producers, or those silos used only for packing or packaging sugar for the purposes of marketing it are not included within that concept. It is for the national court to carry out such an assessment, on a case-by-case basis, in the light of the technical characteristics of the silos concerned or how they are actually used.

| 2. | Consideration of the third and fourth questions in Case C-188/12 and the second and third questions in Case C-189/12 has not raised any factor liable to affect the validity of Articles 3 and 4 of Regulation No 320/2006 and Article 4 of Regulation No 968/2006. |
| --- | --- |

2.

Consideration of the third and fourth questions in Case C-188/12 and the second and third questions in Case C-189/12 has not raised any factor liable to affect the validity of Articles 3 and 4 of Regulation No 320/2006 and Article 4 of Regulation No 968/2006.

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(1)  OJ C 194, 30.6.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/8 |
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11.1.2014

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Official Journal of the European Union

C 9/8

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Judgment of the Court (Fourth Chamber) of 7 November 2013 (request for a preliminary ruling from the Raad van State — Netherlands) — Minister voor Immigratie, Integratie en Asiel v X (C-199/12), Y (C-200/12), Z v Minister voor Immigratie, Integratie en Asiel (C-201/12)

(Joined Cases C-199/12 to C-201/12) (1)

(Directive 2004/83/EC - Minimum standards relating to the conditions for granting refugee status or subsidiary protection status - Article 10(1)(d) - Membership of a particular social group - Sexual orientation - Reason for persecution - Article 9(1) - Concept of ‘persecution’ - Well-founded fear of being persecuted on account of membership of a particular social group - Acts sufficiently serious to justify such a fear - Legislation criminalising homosexual acts - Article 4 - Individual assessment of the facts and circumstances)

2014/C 9/11

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: Minister voor Immigratie, Integratie en Asiel, Z

Defendants: X (C-199/12), Y (C-200/12), Minister voor Immigratie, Integratie en Asiel (C-201/12)

Intervening party: Hoog Commissariaat van de Verenigde Naties voor de Vluchtelingen (C-199/12 to C-201/12)

Re:

Request for a preliminary ruling — Raad van State — Interpretation of Arts 9(1)(a) and (2)(c) and Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12) — Grant of refugee status — Conditions — Reasons for persecution — Homosexuality — Concept of particular social group — Legislation of the country of origin providing for imprisonment of not less than 10 years in the case of homosexual relationships

Operative part of the judgment

| 1. | Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group. |
| --- | --- |

1.

Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.

| 2. | Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution. |
| --- | --- |

2.

Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.

| 3. | Article 10(1)(d) of Directive 2004/83, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation. |
| --- | --- |

3.

Article 10(1)(d) of Directive 2004/83, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.

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(1)  OJ C 217, 21.7.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/9 |
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Official Journal of the European Union

C 9/9

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Judgment of the Court (Tenth Chamber) of 14 November 2013 (request for a preliminary ruling from the Raad van State van België — Belgium) — Belgacom NV v Interkommunale voor Teledistributie van het Gewest Antwerpen (Integan), Inter-Media, West-Vlaamse Energie- en Teledistributiemaatschappij (WVEM), Provinciale Brabantse Energiemaatschappij CVBA (PBE)

(Case C-221/12) (1)

(Request for a preliminary ruling - Article 49 TFEU - Freedom of establishment - Article 56 TFEU - Freedom to provide services - Principles of equal treatment and non-discrimination - Obligation of transparency - Scope - Agreement concluded by public entities of one Member State and an undertaking of that Member State - Transfer, by those entities, of their television provision activities and, for a fixed period, the exclusive right to use their cable networks, to an undertaking in that Member State - Possibility for an economic operator of that same State to rely on Articles 49 TFEU and 56 TFEU before the courts of that Member State - No invitation to tender - Justification - Existence of an earlier agreement - Transaction intended to put an end to litigation concerning the interpretation of that agreement - Risk of depreciation of the transferred activity)

2014/C 9/12

Language of the case: Dutch

Referring court

Raad van State van België

Parties to the main proceedings

Applicant: Belgacom NV

Defendants: Interkommunale voor Teledistributie van het Gewest Antwerpen (Integan), Inter-Media, West-Vlaamse Energie- en Teledistributiemaatschappij (WVEM), Provinciale Brabantse Energiemaatschappij CVBA (PBE)

Re:

Request for a preliminary ruling — Raad van State van België — Interpretation of Articles 49 and 56 TFEU — Scope — Principle of transparency — Agreement concluded between a public body and an undertaking of the same Member State concerning the assignment of certain rights from the public body to the undertaking, without any advertising or invitation to other undertakings to submit bids

Operative part of the judgment

| 1. | Articles 49 TFEU and 56 TFEU must be interpreted as meaning that an economic operator in a Member State may, before the courts of that Member State, allege an infringement of the obligation of transparency under those articles occurring at the time of conclusion of an agreement whereby one or more public entities of that Member State have either granted to an economic operator of that same Member State a licence for services of certain cross-border interest or granted an economic operator the exclusive right to engage in an economic activity of cross-border interest. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU must be interpreted as meaning that an economic operator in a Member State may, before the courts of that Member State, allege an infringement of the obligation of transparency under those articles occurring at the time of conclusion of an agreement whereby one or more public entities of that Member State have either granted to an economic operator of that same Member State a licence for services of certain cross-border interest or granted an economic operator the exclusive right to engage in an economic activity of cross-border interest.

| 2. | Articles 49 and 56 TFEU must be interpreted as meaning that:






  — | the wish not to disregard certain rights which public entities have granted to an economic operator under a pre-existing agreement concerning the use of cable networks belonging to them cannot justify an extended scope being given to that agreement which is contrary to European Union law in the form of a direct grant of a service concession or an exclusive right to engage in an activity of certain cross-border interest, including when it is for the purpose of putting an end to a dispute which has arisen between the parties concerned, for reasons entirely outside their control, as to the scope of that agreement; |
| --- | --- | --- |

2.

Articles 49 and 56 TFEU must be interpreted as meaning that:

—

the wish not to disregard certain rights which public entities have granted to an economic operator under a pre-existing agreement concerning the use of cable networks belonging to them cannot justify an extended scope being given to that agreement which is contrary to European Union law in the form of a direct grant of a service concession or an exclusive right to engage in an activity of certain cross-border interest, including when it is for the purpose of putting an end to a dispute which has arisen between the parties concerned, for reasons entirely outside their control, as to the scope of that agreement;

| — | grounds of an economic nature, such as the wish to avoid the depreciation of an economic activity, are not overriding reasons in the public interest liable to justify the direct grant of a licence for services relating to that activity or of an exclusive right to engage in that activity of certain cross-border interest, by way of derogation from the principles of equal treatment and non-discrimination enshrined in those articles. |
| --- | --- |

—

grounds of an economic nature, such as the wish to avoid the depreciation of an economic activity, are not overriding reasons in the public interest liable to justify the direct grant of a licence for services relating to that activity or of an exclusive right to engage in that activity of certain cross-border interest, by way of derogation from the principles of equal treatment and non-discrimination enshrined in those articles.

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(1)  OJ C 243, 11.8.2012

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/9 |
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Judgment of the Court (Second Chamber) of 7 November 2013 (request for a preliminary ruling from the Raad van State — Netherlands) — C. Demir v Staatssecretaris van Justitie

(Case C-225/12) (1)

(Request for a preliminary ruling - EEC-Turkey Association Agreement - Article 13 of Decision No 1/80 of the Association Council - ‘Standstill’ clauses - ‘Legally resident’)

2014/C 9/13

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: C. Demir

Defendant: Staatssecretaris van Justitie

Re:

Request for a preliminary ruling — Raad van State (Netherlands) — Interpretation of Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council established under the EEC/Turkey Association Agreement — Prohibition on the introduction by Member States of new restrictions on access to the labour market for Turkish workers who are legally resident and employed in their respective territories — National legislation laying down a substantive and/or formal condition governing the first admission of Turkish nationals to national territory — Requirement of possession of a temporary residence permit prior to entry into the Netherlands and prior to application for a residence permit — Paragraph 85 of the Court’s judgment in Joined Cases C-317/01 (Abatay) and C-369/01 (Sahin) [2003] ECR I 12301

Operative part of the judgment

| 1. | Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be interpreted as meaning that where a measure taken by a host Member State seeks to define the criteria for the lawfulness of the Turkish nationals’ situation, by adopting or amending the substantive and/or procedural conditions relating to entry, residence and, where applicable, employment, of those nationals in its territory, and where those conditions constitute a new restriction of the exercise of the freedom of movement of Turkish workers, within the meaning of the ‘standstill’ clause set out in Article 13, the mere fact that the purpose of the measure is to prevent, before an application for a residence permit is made, unlawful entry and residence, does not preclude the application of that clause. |
| --- | --- |

1.

Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be interpreted as meaning that where a measure taken by a host Member State seeks to define the criteria for the lawfulness of the Turkish nationals’ situation, by adopting or amending the substantive and/or procedural conditions relating to entry, residence and, where applicable, employment, of those nationals in its territory, and where those conditions constitute a new restriction of the exercise of the freedom of movement of Turkish workers, within the meaning of the ‘standstill’ clause set out in Article 13, the mere fact that the purpose of the measure is to prevent, before an application for a residence permit is made, unlawful entry and residence, does not preclude the application of that clause.

| 2. | Article 13 of Decision No 1/80, must be interpreted as meaning that holding a temporary residence permit, which is valid only pending a final decision on the right of residence, does not fall within the meaning of ‘legally resident’. |
| --- | --- |

2.

Article 13 of Decision No 1/80, must be interpreted as meaning that holding a temporary residence permit, which is valid only pending a final decision on the right of residence, does not fall within the meaning of ‘legally resident’.

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(1)  OJ C 243, 11.8.2012

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/10 |
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11.1.2014

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Official Journal of the European Union

C 9/10

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Judgment of the Court (Third Chamber) of 7 November 2013 (requests for a preliminary ruling from the Înalta Curte de Casație și Justiție — Romania) — Corina-Hrisi Tulică v Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor (C-249/12), Călin Ion Plavoșin v Direcția Generală a Finanțelor Publice Timiș — Serviciul Soluționare Contestații, Activitatea de Inspecție Fiscală — Serviciul de Inspecție Fiscală Timiș (C-250/12)

(Joined Cases C-249/12 and C-250/12) (1)

(Taxation - VAT - Directive 2006/112/EC - Articles 73 and 78 - Immovable property transactions carried out by natural persons - Classification of those transactions as taxable - Determination of the VAT owing when the parties have made no provision for it at the time of conclusion of the contract - Question as to whether or not the vendor may recover the VAT from the purchaser - Consequences)

2014/C 9/14

Language of the case: Romanian

Referring court

Înalta Curte de Casație și Justiție

Parties to the main proceedings

Applicants: Corina-Hrisi Tulică (C-249/12), Călin Ion Plavoșin (C-250/12)

Defendants: Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor (C-249/12), Direcția Generală a Finanțelor Publice Timiș — Serviciul Soluționare Contestații, Activitatea de Inspecție Fiscală — Serviciul de Inspecție Fiscală Timiș (C-250/12)

Re:

Requests for a preliminary ruling — Înalta Curte de Casație și Justiție — Interpretation of Articles 73 and 78 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Taxable amount — Immovable-property transactions carried out by natural persons not subject to VAT — Reclassification, by the national authorities, of those transactions as taxable transactions — Determination of the taxable amount, in the absence of any reference to VAT at the time when the contract was entered into — Deduction of the amount of VAT from the contract price or addition of that amount to the overall price paid by the purchaser

Operative part of the judgment

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in particular Articles 73 and 78 thereof, must be interpreted as meaning that, when the price of a good has been established by the parties without any reference to value added tax and the supplier of that good is the taxable person for the value added tax owing on the taxed transaction, in a case where the supplier is not able to recover from the purchaser the value added tax claimed by the tax authorities, the price agreed must be regarded as already including the value added tax.

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(1)  OJ C 243, 11.8.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/11 |
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11.1.2014

EN

Official Journal of the European Union

C 9/11

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Judgment of the Court (Fifth Chamber) of 7 November 2013 (request for a preliminary ruling from the Corte dei conti, sezione giurisdizionale per la Regione Siciliana — Italy) — Giuseppa Romeo v Regione Siciliana

(Case C-313/12) (1)

(National administrative procedure - Purely internal situation - Administrative acts - Obligation to state reasons - Whether it is possible for failure to state reasons to be remedied during legal proceedings against an administrative act - Interpretation of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union - Lack of jurisdiction of the Court)

2014/C 9/15

Language of the case: Italian

Referring court

Corte dei conti, sezione giurisdizionale per la Regione Siciliana

Parties to the main proceedings

Applicant: Giuseppa Romeo

Defendant: Regione Siciliana

Re:

Request for a preliminary ruling — Corte dei conti, sezione giurisdizionale per la Regione Siciliana — Interpretation of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union — National legislation allowing public authorities not to state the reasons for their acts in certain circumstances or to remedy the failure to state reasons for an administrative act during judicial proceedings brought against that act — National law which makes a renvoi to European Union law in order to regulate purely internal situations — Whether it is possible for the national courts to interpret and apply the provisions and principles of national law in a manner which is at variance with the interpretation provided by the Court of Justice

Operative part of the judgment

| 1. | The first question referred by the Corte dei conti, sezione giurisdizionale per la Regione Siciliana (Italy), by decision of 19 June 2012 is inadmissible. |
| --- | --- |

1.

The first question referred by the Corte dei conti, sezione giurisdizionale per la Regione Siciliana (Italy), by decision of 19 June 2012 is inadmissible.

| 2. | The Court of Justice of the European Union has no jurisdiction to answer the second and third questions referred by the Corte dei conti, sezione giurisdizionale per la Regione Siciliana by decision of 19 June 2012. |
| --- | --- |

2.

The Court of Justice of the European Union has no jurisdiction to answer the second and third questions referred by the Corte dei conti, sezione giurisdizionale per la Regione Siciliana by decision of 19 June 2012.

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(1)  OJ C 295, 29.9.2012

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/11 |
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11.1.2014

EN

Official Journal of the European Union

C 9/11

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Judgment of the Court (Fifth Chamber) of 14 November 2013 — Environmental Manufacturing LLP v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Société Elmar Wolf

(Case C-383/12 P) (1)

(Appeal - Community trade mark - Opposition proceedings - Figurative mark representing a wolf’s head - Opposition by the proprietor of the national and international figurative marks containing the word elements ‘WOLF Jardin’ and ‘Outils WOLF’ - Relative grounds for refusal - Detriment to the distinctive character of the earlier mark - Regulation (EC) No 207/2009 - Article 8(5) - Change in the economic behaviour of the average consumer - Burden of proof)

2014/C 9/16

Language of the case: English

Parties

Appellant: Environmental Manufacturing LLP (represented by: M. Atkins, Solicitor, K. Shadbolt, Advocate, and S. Malynicz, Barrister)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent), Société Elmar Wolf

Re:

Appeal against the judgment of the General Court (Fourth Chamber) of 22 May 2012 in Case T-570/10 Environmental Manufacturing v OHIM — Wolf, by which the General Court dismissed an action for annulment brought by the applicant for the figurative mark representing a wolf’s head, in respect of goods in Class 7, against Decision R 425/2010-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM), of 6 October 2010, annulling the decision of the Opposition Division dismissing the opposition brought by the proprietor of the national and international figurative marks containing the word elements ‘WOLF Jardin’ and ‘Outils WOLF’, in respect of goods in Classes 1, 5, 7, 8, 12, 13 and 31 — Interpretation of Article 8(5) of Regulation (EC) No 207/2009 — Relative grounds for refusal — Detriment to the distinctive character or reputation of the earlier mark

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the General Court of the European Union of 22 May 2012 in Case T 570/10 Environmental Manufacturing v OHIM — Wolf (Representation of a wolf’s head) [2012] ECR II 0000; |
| --- | --- |

1.

Sets aside the judgment of the General Court of the European Union of 22 May 2012 in Case T 570/10 Environmental Manufacturing v OHIM — Wolf (Representation of a wolf’s head) [2012] ECR II 0000;

| 2. | Refers the case back to the General Court of the European Union; |
| --- | --- |

2.

Refers the case back to the General Court of the European Union;

| 3. | Reserves the costs. |
| --- | --- |

3.

Reserves the costs.

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(1)  OJ C 331, 27.10.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/12 |
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11.1.2014

EN

Official Journal of the European Union

C 9/12

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Judgment of the Court (Fourth Chamber) of 14 November 2013 (request for a preliminary ruling from the Tribunale amministrativo regionale per le Marche — Italy) — Comune di Ancona v Regione Marche

(Case C-388/12) (1)

(Structural Funds - European Regional Development Fund (ERDF) - Financial contribution from a Structural Fund - Criteria for the eligibility of expenditure - Regulation (EC) No 1260/1999 - Article 30(4) - Principle of durability of the operation - ‘Substantial modification’ of an operation - Award of a concession contract without advertisement or a competitive tendering procedure)

2014/C 9/17

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per le Marche

Parties to the main proceedings

Applicant: Comune di Ancona

Defendant: Regione Marche

Re:

Request for a preliminary ruling — Tribunale amministrativo regionale per le Marche — Interpretation of Article 30(4) of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1) — Withdrawal and recovery of Community financial aid — Concept of ‘Substantial modification’ — Relationship between, first, the condition for modifying the use of the operation or detailed rules for its exercise and, second, the condition for modifying the condition of lack of undue advantage on the part of an undertaking or public body — Functional modification — Condition of compliance of the financed operations with European Union provisions concerning public works contracts — Partial change of use of the works financed and concession of the management thereof to a private operator outside a procedure for awarding public works contracts

Operative part of the judgment

| 1. | Article 30(4) of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds must be interpreted as meaning that the modifications referred to in that provision include, not only those that take place during the performance of a project, but also those that take place afterwards, in particular in the course of the project’s management, provided that those modifications take place within the five-year period specified in that provision. |
| --- | --- |

1.

Article 30(4) of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds must be interpreted as meaning that the modifications referred to in that provision include, not only those that take place during the performance of a project, but also those that take place afterwards, in particular in the course of the project’s management, provided that those modifications take place within the five-year period specified in that provision.

| 2. | Article 30(4) of Regulation No 1260/1999 must be interpreted as meaning that in order to undertake an assessment as to whether the grant of the concession generates substantial revenue for the contracting authority or undue advantage for the concessionaire, it is not first necessary to establish whether the works under concession have undergone a substantial modification. |
| --- | --- |

2.

Article 30(4) of Regulation No 1260/1999 must be interpreted as meaning that in order to undertake an assessment as to whether the grant of the concession generates substantial revenue for the contracting authority or undue advantage for the concessionaire, it is not first necessary to establish whether the works under concession have undergone a substantial modification.

| 3. | Article 30(4) of Regulation No 1260/1999 must be interpreted as referring both to physical modifications — where the works carried out are not as specified in the project approved for funding — and to modifications affecting function, it being understood that, in the case of a modification consisting in the use of works for activities other than those originally envisaged in the project submitted for funding, such a modification must be capable of significantly reducing the capacity of the operation in question to attain its designated objective. |
| --- | --- |

3.

Article 30(4) of Regulation No 1260/1999 must be interpreted as referring both to physical modifications — where the works carried out are not as specified in the project approved for funding — and to modifications affecting function, it being understood that, in the case of a modification consisting in the use of works for activities other than those originally envisaged in the project submitted for funding, such a modification must be capable of significantly reducing the capacity of the operation in question to attain its designated objective.

| 4. | In circumstances such as those of the case before the referring court, EU law does not preclude the award, without a call for tenders, of a public service concession relating to works, provided that that award is consistent with the principle of transparency, observance of which, without necessarily entailing an obligation to call for tenders, must make it possible for an undertaking located in the territory of a Member State other than that of the contracting authority to have access to appropriate information regarding that concession before it is awarded, so that, if that undertaking so wishes, it would be in a position to express its interest in obtaining that concession — it being for the referring court to determine whether that was the position in the case before it. |
| --- | --- |

4.

In circumstances such as those of the case before the referring court, EU law does not preclude the award, without a call for tenders, of a public service concession relating to works, provided that that award is consistent with the principle of transparency, observance of which, without necessarily entailing an obligation to call for tenders, must make it possible for an undertaking located in the territory of a Member State other than that of the contracting authority to have access to appropriate information regarding that concession before it is awarded, so that, if that undertaking so wishes, it would be in a position to express its interest in obtaining that concession — it being for the referring court to determine whether that was the position in the case before it.

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(1)  OJ C 295, 29.9.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/13 |
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11.1.2014

EN

Official Journal of the European Union

C 9/13

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Judgment of the Court (Eighth Chamber) of 7 November 2013 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Jan Sneller v DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV

(Case C-442/12) (1)

(Legal expenses insurance - Directive 87/344/EEC - Article 4(1) - Insured persons’ freedom to choose a lawyer - Clause in the standard terms and conditions of a contract guaranteeing legal assistance in any inquiry or proceedings by one of the insurer’s employees - Costs relating to legal assistance provided by an external legal adviser reimbursed only where the insurer decides that it is necessary to entrust handling of the case to an external legal adviser)

2014/C 9/18

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Jan Sneller

Defendant: DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV

Re:

Request for a preliminary — Hoge Raad der Nederlanden — Netherlands — Interpretation of Article 4(1) of Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance (OJ 1987 L 185, p. 77) — Insured person’s freedom to choose a lawyer

Operative part of the judgment

| 1. | Article 4(1)(a) of Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance must be interpreted as precluding a legal expenses insurer which stipulates in its insurance contracts that legal assistance will in principle be provided by its employees from also providing that the costs of legal assistance provided by a lawyer or legal representative chosen freely by the insured person will be covered only if the insurer takes the view that the handling of the case must be subcontracted to an external lawyer; |
| --- | --- |

1.

Article 4(1)(a) of Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance must be interpreted as precluding a legal expenses insurer which stipulates in its insurance contracts that legal assistance will in principle be provided by its employees from also providing that the costs of legal assistance provided by a lawyer or legal representative chosen freely by the insured person will be covered only if the insurer takes the view that the handling of the case must be subcontracted to an external lawyer;

| 2. | The answer to question 1 will not differ depending on whether or not legal assistance is compulsory under national law in the inquiry or proceedings concerned. |
| --- | --- |

2.

The answer to question 1 will not differ depending on whether or not legal assistance is compulsory under national law in the inquiry or proceedings concerned.

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(1)  OJ C 9, 12.1.2013.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/13 |
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11.1.2014

EN

Official Journal of the European Union

C 9/13

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Judgment of the Court (Third Chamber) of 7 November 2013 (request for a preliminary ruling from the Cour constitutionnelle — Belgium) — Institut professionnel des agents immobiliers (IPI) v Geoffrey Englebert, Immo 9 SPRL, Grégory Francotte

(Case C-473/12) (1)

(Processing of personal data - Directive 95/46/EC - Articles 10 and 11 - Obligation to inform - Article 13(1)(d) and (g) - Exceptions - Scope of exceptions - Private detectives acting for the supervisory body of a regulated profession - Directive 2002/58/EC - Article 15(1))

2014/C 9/19

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicant: Institut professionnel des agents immobiliers (IPI)

Defendants: Geoffrey Englebert, Immo 9 SPRL, Grégory Francotte

Intervening parties: Union professionnelle nationale des détectives privés de Belgique (UPNDP), Association professionnelle des inspecteurs et experts d’assurances ASBL (APIEA), Conseil des ministres

Re:

Request for a preliminary ruling — Cour constitutionnelle (Belgium) — Interpretation of Articles 11(1) and 13(1)(d) and (g) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) and of Article 6(3) TEU — Whether there is full harmonisation — Option for a Member State to provide for a restriction of, or an exception to, the obligation to inform the person concerned immediately — Scope of the exception to that obligation — Whether the professional activities of private detectives are included — If not, whether Article 13 of Directive 95/46/EC is compatible with Article 6(3) TEU, more specifically with the principle of equality and non-discrimination

Operative part of the judgment

Article 13(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that Member States have no obligation, but have the option, to transpose into their national law one or more of the exceptions which it lays down to the obligation to inform data subjects of the processing of their personal data.

The activity of a private detective acting for a professional body in order to investigate breaches of ethics of a regulated profession, in this case that of estate agent, is covered by the exception in Article 13(1)(d) of Directive 95/46.

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(1)  OJ C 26, 26.1.2013.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/14 |
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11.1.2014

EN

Official Journal of the European Union

C 9/14

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Judgment of the Court (Eighth Chamber) of 14 November 2013 (request for a preliminary ruling from the Landesgericht Feldkirch — Austria) — Armin Maletic, Marianne Maletic v lastminute.com GmbH, TUI Österreich GmbH

(Case C-478/12) (1)

(Jurisdiction in civil and commercial matters - Regulation (EC) No 44/2001 - Article 16(1) - Contract for travel concluded between a consumer domiciled in one Member State and a travel agency established in another Member State - Supplier of services used by the travel agency established in the Member State where the consumer is domiciled - Right of a consumer to bring an action against two undertakings before the court for the place of his domicile)

2014/C 9/20

Language of the case: German

Referring court

Landesgericht Feldkirch

Parties to the main proceedings

Applicant: Armin Maletic, Marianne Maletic

Defendant: lastminute.com GmbH, TUI Österreich GmbH

Re:

Request for a preliminary ruling — Landesgericht Feldkirch — Interpretation of Article 16(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Jurisdiction in respect of contracts entered into by consumers — All-inclusive travel contract concluded between a consumer and a company — Situation in which the company is established in a Member State other than that of the consumer and has recourse, for the purpose of performing that contract, to a company which is established in the Member State of the consumer — Whether the consumer is entitled to bring proceedings, before the court of his place of residence, against those two companies

Operative part of the judgment

The concept of ‘other party to the contract’ laid down in Article 16(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning, in circumstances such as those at issue in the main proceedings, that it also covers the contracting partner of the operator with which the consumer concluded that contract and which has its registered office in the Member State in which the consumer is domiciled.

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(1)  OJ C 26, 26.1.2013.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/14 |
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11.1.2014

EN

Official Journal of the European Union

C 9/14

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Judgment of the Court (Seventh Chamber) of 7 November 2013 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — Tevfik Isbir v DB Services GmbH

(Case C-522/12) (1)

(Request for a preliminary ruling - Freedom to provide services - Posting of workers - Directive 96/71/EC - Minimum rates of pay - Lump sums and employer contribution to a multiannual savings plan for the benefit of its employees)

2014/C 9/21

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: Tevfik Isbir

Defendant: DB Services GmbH

Re:

Request for a preliminary ruling — Bundesarbeitsgericht — Interpretation of Article 3(1)(c) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1) — Calculation of the minimum rate of pay — Inclusion of the employer contribution to a multiannual savings plan for the benefit of its employees — Situation in which the employees cannot have access to those assets for several years

Operative part of the judgment

Article 3(1)(c) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, is to be interpreted as meaning that it does not preclude the inclusion in the minimum wage of elements of remuneration which do not alter the relationship between the service provided by the worker, on the one hand, and the consideration which he receives by way of remuneration for that service, on the other. It is for the national court to verify whether that is the case as regards the elements of remuneration at issue in the main proceedings.

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(1)  OJ C 32, 2.2.2013.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/15 |
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11.1.2014

EN

Official Journal of the European Union

C 9/15

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Judgment of the Court (Ninth Chamber) of 7 November 2013 — Hellenic Republic v European Commission

(Case C-547/12 P) (1)

(Appeal - EAGGF - ‘Guarantee’ section - Clearance of the accounts of the paying agencies of certain Member States concerning expenditure financed by the EAGGF - Amounts which are recoverable from the Hellenic Republic following failure to recover within the period prescribed - Distortion of evidence)

2014/C 9/22

Language of the case: Greek

Parties

Appellant: Hellenic Republic (represented by: I. Chalkias and S. Papaïoannou, acting as Agents)

Other party to the proceedings: European Commission (represented by: H. Tserepa-Lacombe and D.Triantafyllou, acting as Agents)

Re:

Appeal brought against the judgment of the General Court (Second Chamber) of 10 October 2012 in Case T-158/09 Greece v Commission by which the General Court partially rejected an action for annulment of Commission Decision C(2009) 810 final of 13 February 2009 on the financial treatment to be applied, in the context of clearance of expenditure financed by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), in certain cases of irregularity by operators

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal; |
| --- | --- |

1.

Dismisses the appeal;

| 2. | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

2.

Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 26, 26.1.2013.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/15 |
| --- | --- | --- | --- |

11.1.2014

EN

Official Journal of the European Union

C 9/15

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Judgment of the Court (Second Chamber) of 7 November 2013 — Wam Industriale SpA v European Commission

(Case C-560/12 P) (1)

(Appeal - State aid - Establishing a company in certain third countries - Soft loans - Decision declaring aid partly incompatible with the common market and ordering its recovery - Decision taken following the annulment by the General Court of the original decision concerning the same proceedings - Enforcement of a judgment of the General Court)

2014/C 9/23

Language of the case: Italian

Parties

Appellant: Wam Industriale SpA (represented by: E. Giliani and R. Bertoni, avvocati)

Other party to the proceedings: European Commission (represented by: V. Di Bucci and D. Grespan, acting as Agents)

Re:

Appeal brought against the judgment of the General Court (Fifth Chamber) of 27 September 2012 in Case T-303/10 Wam Industriale v Commission, in which the General Court rejected an application for the annulment of Commission Decision 2011/134/EU of 24 March 2010 concerning State aid implemented by Italy for Wam SpA (OJ 2011 L 57, p. 29) — Obligation to state reasons — Rights of the defence — Principle of proportionality — Principle of sound administration — Reasonable time-limit

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal; |
| --- | --- |

1.

Dismisses the appeal;

| 2. | Orders Wam Industriale SpA to pay the costs. |
| --- | --- |

2.

Orders Wam Industriale SpA to pay the costs.

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(1)  OJ C 63, 2.3.2013.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/16 |
| --- | --- | --- | --- |

11.1.2014

EN

Official Journal of the European Union

C 9/16

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Judgment of the Court (Second Chamber) of 7 November 2013 — Italian Republic v European Commission

(Case C-587/12 P) (1)

(Appeal - State aid - Establishing a company in certain third countries - Soft loans - Decision declaring aid partly incompatible with the common market and ordering its recovery - Decision taken following the annulment by the General Court of the original decision concerning the same proceedings - Enforcement of a judgment of the General Court)

2014/C 9/24

Language of the case: Italian

Parties

Appellant: Italian Republic (represented by: G. Palmieri, acting as Agent, and P. Gentili, avvocato dello Stato)

Other party to the proceedings: European Commission (represented by: V. Di Bucci and D. Grespan, acting as Agents)

Re:

Appeal against the judgment of the General Court (Fifth Chamber) of 27 September 2012 in Case T-257/10 Italy v Commission, by which the General Court dismissed an action for annulment of Commission Decision 2011/134/EU of 24 March 2010 on the State aid implemented by Italy for Wam SpA (OJ 2011 L 57, p. 29) — Obligation to state reasons — Principle of audi alteram partem — Res judicata — Principle of proportionality — De minimis Regulation

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal; |
| --- | --- |

1.

Dismisses the appeal;

| 2. | Orders the Italian Republic to pay the costs. |
| --- | --- |

2.

Orders the Italian Republic to pay the costs.

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(1)  OJ C 63, 2.3.2013.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/16 |
| --- | --- | --- | --- |

11.1.2014

EN

Official Journal of the European Union

C 9/16

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Judgment of the Court (Sixth Chamber) of 7 November 2013 — European Commission v French Republic

(Case C-23/13) (1)

(Failure of a Member State to fulfil obligations - Directive 91/271/EEC - Urban waste water treatment - Articles 3 and 4)

2014/C 9/25

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne and E. Manhaever, acting as Agents)

Defendant: French Republic (represented by: D. Colas and S. Menez, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Breach of Articles 3 and 4 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40) — Deficiencies in the collection and treatment of urban waste water in 8 agglomerations

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to provide for:






  — | the collection of urban waste waters in the agglomeration of Basse-Terre, with a population equivalent of more than 15 000, and |
| --- | --- | --- |

1.

Declares that, by failing to provide for:

—

the collection of urban waste waters in the agglomeration of Basse-Terre, with a population equivalent of more than 15 000, and

| — | the treatment of urban waste waters in the agglomerations of Ajaccio-Sanguinaires, Basse-Terre, Bastia-Nord, Cayenne-Leblond and Saint-Denis, with a population equivalent of more than 15 000, |
| --- | --- |

—

the treatment of urban waste waters in the agglomerations of Ajaccio-Sanguinaires, Basse-Terre, Bastia-Nord, Cayenne-Leblond and Saint-Denis, with a population equivalent of more than 15 000,

the French Republic failed to fulfil its obligations under Articles 3, 4(1) and 4(3) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment.

| 2. | Orders the French Republic to pay the costs. |
| --- | --- |

2.

Orders the French Republic to pay the costs.

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(1)  OJ C 79, 16.3.2013.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/17 |
| --- | --- | --- | --- |

11.1.2014

EN

Official Journal of the European Union

C 9/17

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Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain) lodged on 7 October 2013 — Lourdes Cachaldora Fernandez v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS)

(Case C-527/13)

2014/C 9/26

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Galicia

Parties to the main proceedings

Applicant: Lourdes Cachaldora Fernandez

Defendants: Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS)

Questions referred

| 1. | Is a national provision, such as additional provision 7(1), rule 3(b) of Spain’s General Law on Social Security, contrary to Article 4 of Council Directive 79/7 (1) of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, in that it affects a group comprising mainly women, and according to which contribution gaps existing within the period for calculating the reference base of a permanent invalidity contributory pension, after a period of part-time employment, are covered by taking the minimum contribution bases applicable at any time, reduced as a result of the partiality coefficient of the employment before the contribution gap, whereas if the employment is full-time, there is no reduction? |
| --- | --- |

1.

Is a national provision, such as additional provision 7(1), rule 3(b) of Spain’s General Law on Social Security, contrary to Article 4 of Council Directive 79/7 (1) of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, in that it affects a group comprising mainly women, and according to which contribution gaps existing within the period for calculating the reference base of a permanent invalidity contributory pension, after a period of part-time employment, are covered by taking the minimum contribution bases applicable at any time, reduced as a result of the partiality coefficient of the employment before the contribution gap, whereas if the employment is full-time, there is no reduction?

| 2. | Is a national provision, such as additional provision 7(1), rule 3(b) of Spain’s General Law on Social Security, contrary to clause 5(1)(a) of Council Directive 97/81/EC (2) of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, in that it affects a group comprising mainly women, and according to which contribution gaps existing within the period for calculating the reference base of a permanent invalidity contributory pension, after a period of part-time employment, are covered by taking the minimum contribution bases applicable at any time, reduced as a result of the partiality coefficient of the employment before the contribution gap, whereas if it the employment is full-time, there is no reduction? |
| --- | --- |

2.

Is a national provision, such as additional provision 7(1), rule 3(b) of Spain’s General Law on Social Security, contrary to clause 5(1)(a) of Council Directive 97/81/EC (2) of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, in that it affects a group comprising mainly women, and according to which contribution gaps existing within the period for calculating the reference base of a permanent invalidity contributory pension, after a period of part-time employment, are covered by taking the minimum contribution bases applicable at any time, reduced as a result of the partiality coefficient of the employment before the contribution gap, whereas if it the employment is full-time, there is no reduction?

---

(1)  OJ 1979 L 6, 10.1.1979, p. 24.

(2)  OJ 1998 L 14, 20.1.1998, p. 9.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/17 |
| --- | --- | --- | --- |

11.1.2014

EN

Official Journal of the European Union

C 9/17

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Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 14 October 2013 — Birutė Šiba v Arūnas Devėnas

(Case C-537/13)

2014/C 9/27

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Applicant: Birutė Šiba

Defendant: Arūnas Devėnas

Questions referred

| 1. | Is a natural person who receives legal services pursuant to agreements for legal services concluded with a lawyer (an advokatas) for a fee, those services being supplied in cases which are likely to be connected with the natural person’s personal interests (divorce, division of assets acquired in the marriage and so forth), to be regarded as a consumer within the meaning of EU consumer protection laws? |
| --- | --- |

1.

Is a natural person who receives legal services pursuant to agreements for legal services concluded with a lawyer (an advokatas) for a fee, those services being supplied in cases which are likely to be connected with the natural person’s personal interests (divorce, division of assets acquired in the marriage and so forth), to be regarded as a consumer within the meaning of EU consumer protection laws?

| 2. | Is a lawyer (an advokatas who is a member of a ‘[liberal] profession’) who draws up an agreement with a natural person for the supply of legal services in return for a fee, which obliges him to provide legal services so that the natural person may achieve aims unconnected with her occupation or profession, to be regarded as a trader for the purposes of EU consumer protection laws? |
| --- | --- |

2.

Is a lawyer (an advokatas who is a member of a ‘[liberal] profession’) who draws up an agreement with a natural person for the supply of legal services in return for a fee, which obliges him to provide legal services so that the natural person may achieve aims unconnected with her occupation or profession, to be regarded as a trader for the purposes of EU consumer protection laws?

| 3. | Do agreements for the supply of legal services for a fee which a lawyer (an advokatas) draws up in the course of his professional activities as a representative of a liberal profession fall within the scope of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts? |
| --- | --- |

3.

Do agreements for the supply of legal services for a fee which a lawyer (an advokatas) draws up in the course of his professional activities as a representative of a liberal profession fall within the scope of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts?

| 4. | If the third question should be answered in the affirmative, are general criteria to be applied in classifying such agreements as consumer contracts or should they be recognised as consumer contracts according to special criteria? If it is necessary to apply special criteria for the classification of such agreements as consumer contracts, what are those criteria? |
| --- | --- |

4.

If the third question should be answered in the affirmative, are general criteria to be applied in classifying such agreements as consumer contracts or should they be recognised as consumer contracts according to special criteria? If it is necessary to apply special criteria for the classification of such agreements as consumer contracts, what are those criteria?

---

(1)  OJ L 95, p. 29.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/18 |
| --- | --- | --- | --- |

11.1.2014

EN

Official Journal of the European Union

C 9/18

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Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 14 October 2013 — eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos

(Case C-538/13)

2014/C 9/28

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas (Supreme Court) (Lithuania)

Parties to the main proceedings

Appellant in cassation: eVigilo Ltd

Respondent in cassation: Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos

Questions referred

| 1. | Are the public procurement rules of European Union law — the third subparagraph of Article 1(1) of [Directive 89/665, as amended by] Directive 2007/66, (1) in which are laid down the principles of effectiveness and expeditiousness with regard to the defence of rights of tenderers which have been infringed, Article 2 of Directive 2004/18, (2) which lays down the principles of equal treatment of tenderers and of transparency, and Articles 44(1) and 53(1)(a) of Directive 2004/18, in which is set out the procedure governing the conclusion of a contract with the tenderer which has submitted the most economically advantageous tender — to be understood and interpreted together or separately (but without a limitation to the aforementioned provisions) as meaning that:






  (a) | in the case where a tenderer has become aware of a possible significant connection (link) which another tenderer has with the contracting authority’s experts who evaluated the tenders, and (or) has become aware of the potentially exceptional position of that tenderer by reason of preparatory work previously performed in connection with the procurement procedure in dispute, and where, in regard to those circumstances, the contracting authority has not undertaken any actions, that information alone is sufficient to establish a claim that the review body should recognise as unlawful the actions of the contracting authority which failed to ensure transparency and objectivity in the procedures, the applicant, moreover, not being required to prove in concrete terms that the experts acted in a biased manner? |
| --- | --- | --- |

1.

Are the public procurement rules of European Union law — the third subparagraph of Article 1(1) of [Directive 89/665, as amended by] Directive 2007/66, (1) in which are laid down the principles of effectiveness and expeditiousness with regard to the defence of rights of tenderers which have been infringed, Article 2 of Directive 2004/18, (2) which lays down the principles of equal treatment of tenderers and of transparency, and Articles 44(1) and 53(1)(a) of Directive 2004/18, in which is set out the procedure governing the conclusion of a contract with the tenderer which has submitted the most economically advantageous tender — to be understood and interpreted together or separately (but without a limitation to the aforementioned provisions) as meaning that:

(a)

in the case where a tenderer has become aware of a possible significant connection (link) which another tenderer has with the contracting authority’s experts who evaluated the tenders, and (or) has become aware of the potentially exceptional position of that tenderer by reason of preparatory work previously performed in connection with the procurement procedure in dispute, and where, in regard to those circumstances, the contracting authority has not undertaken any actions, that information alone is sufficient to establish a claim that the review body should recognise as unlawful the actions of the contracting authority which failed to ensure transparency and objectivity in the procedures, the applicant, moreover, not being required to prove in concrete terms that the experts acted in a biased manner?

| (b) | the review body, having established that the grounds for the applicant’s abovementioned claim are well founded, is not obliged, when ruling on the consequences which those grounds may have for the results of the tendering procedure, to have regard for the fact that the results of the evaluation of the tenders submitted by tenderers would essentially have been the same if there had not been any biased assessors among the experts who evaluated the tenders? |
| --- | --- |

(b)

the review body, having established that the grounds for the applicant’s abovementioned claim are well founded, is not obliged, when ruling on the consequences which those grounds may have for the results of the tendering procedure, to have regard for the fact that the results of the evaluation of the tenders submitted by tenderers would essentially have been the same if there had not been any biased assessors among the experts who evaluated the tenders?

| (c) | the tenderer becomes (finally) aware of the content of the criteria relating to the most economically advantageous tender, which were formulated in accordance with the qualitative parameters and set out in abstract terms in the tendering conditions (criteria such as completeness and compatibility with the needs of the contracting authority), in respect of which the tenderer was essentially able to submit a tender, only at the time when, in accordance with those criteria, the contracting authority evaluated the tenders submitted by tenderers and provided interested parties with comprehensive information concerning the grounds for the decisions taken, and only from that moment could the limitation period governing the review procedure laid down in national law be applied to that tenderer? |
| --- | --- |

(c)

the tenderer becomes (finally) aware of the content of the criteria relating to the most economically advantageous tender, which were formulated in accordance with the qualitative parameters and set out in abstract terms in the tendering conditions (criteria such as completeness and compatibility with the needs of the contracting authority), in respect of which the tenderer was essentially able to submit a tender, only at the time when, in accordance with those criteria, the contracting authority evaluated the tenders submitted by tenderers and provided interested parties with comprehensive information concerning the grounds for the decisions taken, and only from that moment could the limitation period governing the review procedure laid down in national law be applied to that tenderer?

| 2. | Must Article 53(1)(a) of Directive 2004/18, applied in conjunction with the principles governing the award of a contract set out in [Article] 2 of that directive, be understood and interpreted as meaning that contracting authorities are prohibited from establishing (and applying) a procedure for the evaluation of tenders submitted by tenderers under which the results of the evaluation of tenders depend on how comprehensively tenderers have demonstrated that their tenders satisfy the requirements of the tendering documents, that is to say, the more comprehensively (more extensively) the tenderer has described the conformity of its tender with the tendering conditions, the greater will be the number of marks awarded to its tender? |
| --- | --- |

2.

Must Article 53(1)(a) of Directive 2004/18, applied in conjunction with the principles governing the award of a contract set out in [Article] 2 of that directive, be understood and interpreted as meaning that contracting authorities are prohibited from establishing (and applying) a procedure for the evaluation of tenders submitted by tenderers under which the results of the evaluation of tenders depend on how comprehensively tenderers have demonstrated that their tenders satisfy the requirements of the tendering documents, that is to say, the more comprehensively (more extensively) the tenderer has described the conformity of its tender with the tendering conditions, the greater will be the number of marks awarded to its tender?

---

(1)  Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31).

(2)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/19 |
| --- | --- | --- | --- |

11.1.2014

EN

Official Journal of the European Union

C 9/19

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Reference for a preliminary ruling from Court of Appeal (United Kingdom) made on 14 October 2013 — Merck Canada Inc., Merck Sharp & Dohme Ltd v Sigma Pharmaceuticals PLC

(Case C-539/13)

2014/C 9/29

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

Applicants: Merck Canada Inc., Merck Sharp & Dohme Ltd

Defendant: Sigma Pharmaceuticals PLC

Questions referred

| 1. | May the holder, or his beneficiary, of a patent or supplementary protection certificate rely upon his rights under the first paragraph of the Specific Mechanism only if he has first demonstrated his intention to do so? |
| --- | --- |

1.

May the holder, or his beneficiary, of a patent or supplementary protection certificate rely upon his rights under the first paragraph of the Specific Mechanism only if he has first demonstrated his intention to do so?

| 2. | If the answer to Question 1 is yes:






  (a) | How must that intention be demonstrated? |
| --- | --- | --- |

2.

If the answer to Question 1 is yes:

(a)

How must that intention be demonstrated?

| (b) | Is the holder, or his beneficiary, precluded from relying upon his rights with respect to any import or marketing of the pharmaceutical product in a Member State that occurred prior to the demonstration of his intention to rely upon those rights? |
| --- | --- |

(b)

Is the holder, or his beneficiary, precluded from relying upon his rights with respect to any import or marketing of the pharmaceutical product in a Member State that occurred prior to the demonstration of his intention to rely upon those rights?

| 3. | Who must give the prior notification to the holder or beneficiary of a patent or supplementary protection certificate under the second paragraph of the Specific Mechanism? In particular:






  (a) | Must the prior notification be given by the person intending to import or market the pharmaceutical product?
  or |
| --- | --- | --- |

3.

Who must give the prior notification to the holder or beneficiary of a patent or supplementary protection certificate under the second paragraph of the Specific Mechanism? In particular:

(a)

Must the prior notification be given by the person intending to import or market the pharmaceutical product?

or

| (b) | Where. as permitted by the national regulatory system, an application for regulatory approval is made by someone other than the intended importer, can prior notification given by the applicant for regulatory approval be effective if that person does not itself intend to import or market the pharmaceutical product but where the intended importation and marketing will be carried out under the applicant's regulatory approval?; and






  (i) | Does it make any difference if the prior notification identifies the person that will import or market the pharmaceutical product? |
| --- | --- | --- |

(b)

Where. as permitted by the national regulatory system, an application for regulatory approval is made by someone other than the intended importer, can prior notification given by the applicant for regulatory approval be effective if that person does not itself intend to import or market the pharmaceutical product but where the intended importation and marketing will be carried out under the applicant's regulatory approval?; and

(i)

Does it make any difference if the prior notification identifies the person that will import or market the pharmaceutical product?

| (ii) | Does it make any difference if the prior notification is given and the application for regulatory approval is made by one legal person within a group of companies which form a single economic unit, and the acts of importation and marketing are to be carried out by another legal person within that group under licence from the first legal person, but where the prior notification does not identify the legal person that will import or market the pharmaceutical product? |
| --- | --- |

(ii)

Does it make any difference if the prior notification is given and the application for regulatory approval is made by one legal person within a group of companies which form a single economic unit, and the acts of importation and marketing are to be carried out by another legal person within that group under licence from the first legal person, but where the prior notification does not identify the legal person that will import or market the pharmaceutical product?

| 4. | To whom must prior notification be given under the second paragraph of the Specific Mechanism? In particular:






  (a) | Is the beneficiary of a patent or supplementary protection certificate limited to persons who have a legal right under national law to bring proceedings to enforce that patent or supplementary protection certification?
  or |
| --- | --- | --- |

4.

To whom must prior notification be given under the second paragraph of the Specific Mechanism? In particular:

(a)

Is the beneficiary of a patent or supplementary protection certificate limited to persons who have a legal right under national law to bring proceedings to enforce that patent or supplementary protection certification?

or

| (b) | In a case where a group of companies forms a single economic unit comprising a number of legal entities, is it sufficient if the notification is addressed to a legal entity which is the operating subsidiary and marketing authorisation holder in the Member State of importation rather than the entity within the group that has a legal right under national law to bring proceedings to enforce that patent or supplementary protection certificate, on the basis either that such legal entity may be characterised as a beneficiary of the patent or SPC, or that it is to be expected that such notification in the ordinary course of events will to come to the attention of the persons who make decisions on behalf of the patent or SPC holder? |
| --- | --- |

(b)

In a case where a group of companies forms a single economic unit comprising a number of legal entities, is it sufficient if the notification is addressed to a legal entity which is the operating subsidiary and marketing authorisation holder in the Member State of importation rather than the entity within the group that has a legal right under national law to bring proceedings to enforce that patent or supplementary protection certificate, on the basis either that such legal entity may be characterised as a beneficiary of the patent or SPC, or that it is to be expected that such notification in the ordinary course of events will to come to the attention of the persons who make decisions on behalf of the patent or SPC holder?

| (c) | If the answer to Question 4(b) is yes, is a notification which is otherwise compliant rendered non-compliant if it is addressed to the ‘the Manager, Regulatory Affairs’ of a company when that company is not the entity within the group that has a legal right under national law to bring proceedings to enforce that patent or supplementary protection certificate but is the operating subsidiary or marketing authorisation holder in the Member State of importation and when that Regulatory Affairs department in practice regularly receives notifications from parallel importers regarding the Specific Mechanism and other matters? |
| --- | --- |

(c)

If the answer to Question 4(b) is yes, is a notification which is otherwise compliant rendered non-compliant if it is addressed to the ‘the Manager, Regulatory Affairs’ of a company when that company is not the entity within the group that has a legal right under national law to bring proceedings to enforce that patent or supplementary protection certificate but is the operating subsidiary or marketing authorisation holder in the Member State of importation and when that Regulatory Affairs department in practice regularly receives notifications from parallel importers regarding the Specific Mechanism and other matters?

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/20 |
| --- | --- | --- | --- |

11.1.2014

EN

Official Journal of the European Union

C 9/20

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Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 16 October 2013 — Douane Advies Bureau Rietveld v Hauptzollamt Hannover

(Case C-541/13)

2014/C 9/30

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Douane Advies Bureau Rietveld

Defendant: Hauptzollamt Hannover

Question referred
   (1)

Is the concept of ‘reagent’, as used in the phrase ‘diagnostic or laboratory reagents’ in tariff heading 3822 of the CN, to be interpreted as meaning a substance which by means of its chemical transformation as a result of a chemical reaction on or with a substance under investigation is used to indicate a state or property of the latter substance?

---

(1)  Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) as amended by Commission Implementing Regulation (EU) No 927/2012 of 9 October 2012 (OJ 2012 L 304, p. 1).

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/20 |
| --- | --- | --- | --- |

11.1.2014

EN

Official Journal of the European Union

C 9/20

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Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 28 October 2013 — Z. Zh.; other party: Staatssecretaris van Veiligheid en Justitie and Staatssecretaris van Veiligheid en Justitie; other party: I.O.

(Case C-554/13)

2014/C 9/31

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Z. Zh.

Other party: Staatssecretaris van Veiligheid en Justitie

and

Appellant: Staatssecretaris van Veiligheid en Justitie

Other party: I.O.

Questions referred

| 1. | Does a third-country national who is staying illegally within the territory of a Member State pose a risk to public policy, within the meaning of Article 7(4) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348; ‘the Return Directive’), merely because he is suspected of having committed a criminal offence under national law, or is it necessary that he should have been convicted in a criminal court for the commission of that offence and, in the latter case, must that conviction have become final and absolute? |
| --- | --- |

1.

Does a third-country national who is staying illegally within the territory of a Member State pose a risk to public policy, within the meaning of Article 7(4) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348; ‘the Return Directive’), merely because he is suspected of having committed a criminal offence under national law, or is it necessary that he should have been convicted in a criminal court for the commission of that offence and, in the latter case, must that conviction have become final and absolute?

| 2. | In the assessment as to whether a third-country national who is staying illegally within the territory of a Member State poses a risk to public policy within the meaning of Article 7(4) of the Return Directive, do other facts and circumstances of the case, in addition to a suspicion or a conviction, also play a role, such as the severity or type of criminal offence under national law, the time that has elapsed and the intention of the person concerned? |
| --- | --- |

2.

In the assessment as to whether a third-country national who is staying illegally within the territory of a Member State poses a risk to public policy within the meaning of Article 7(4) of the Return Directive, do other facts and circumstances of the case, in addition to a suspicion or a conviction, also play a role, such as the severity or type of criminal offence under national law, the time that has elapsed and the intention of the person concerned?

| 3. | Do the facts and circumstances of the case which are relevant to the assessment referred to in Question 2 also have a role to play in the option provided for in Article 7(4) of the Return Directive, in a case where the person concerned poses a risk to public policy within the meaning of that provision, of being able to choose between, on the one hand, refraining from granting a period for voluntary departure and, on the other hand, granting a period for voluntary departure which is shorter than seven days? |
| --- | --- |

3.

Do the facts and circumstances of the case which are relevant to the assessment referred to in Question 2 also have a role to play in the option provided for in Article 7(4) of the Return Directive, in a case where the person concerned poses a risk to public policy within the meaning of that provision, of being able to choose between, on the one hand, refraining from granting a period for voluntary departure and, on the other hand, granting a period for voluntary departure which is shorter than seven days?

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/20 |
| --- | --- | --- | --- |

11.1.2014

EN

Official Journal of the European Union

C 9/20

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Request for a preliminary ruling from the Cour du travail de Bruxelles (Belgium) lodged on 31 October 2013 — Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v Moussa Abdida

(Case C-562/13)

2014/C 9/32

Language of the case: French

Referring court

Cour du travail de Bruxelles

Parties to the main proceedings

Appellant: Centre public d’action sociale d’Ottignies-Louvain-La-Neuve

Respondent: Moussa Abdida

Questions referred

| 1. | On a proper construction of Directives 2004/83/EC, (1) 2005/85/EC (2) and 2003/9/EC, (3) is a Member State which provides that a foreign national has the right to subsidiary protection for the purposes of Article 15(b) of Directive 2004/83/EC if that person ‘suffers from an illness which is of such a kind as to entail a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment where there is no adequate treatment for that illness in his country of origin’ under an obligation to






  — | provide for a remedy with suspensive effect in respect of the administrative decision refusing leave to remain and/or subsidiary protection, and ordering the person to leave the territory of that State, |
| --- | --- | --- |

1.

On a proper construction of Directives 2004/83/EC, (1) 2005/85/EC (2) and 2003/9/EC, (3) is a Member State which provides that a foreign national has the right to subsidiary protection for the purposes of Article 15(b) of Directive 2004/83/EC if that person ‘suffers from an illness which is of such a kind as to entail a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment where there is no adequate treatment for that illness in his country of origin’ under an obligation to

—

provide for a remedy with suspensive effect in respect of the administrative decision refusing leave to remain and/or subsidiary protection, and ordering the person to leave the territory of that State,

| — | make provision under its social security or reception system for the basic needs of the person applying for subsidiary protection (other than his medical needs) to be met pending a ruling on his appeal against that administrative decision? |
| --- | --- |

—

make provision under its social security or reception system for the basic needs of the person applying for subsidiary protection (other than his medical needs) to be met pending a ruling on his appeal against that administrative decision?

| 2. | If the answer to Question 1 is in the negative, does the Charter of Fundamental Rights — and, in particular, Articles 1 to 3 (human dignity, right to life and integrity), Article 4 (prohibition of inhuman or degrading treatment), Article 19(2) (right not to be removed to a State where there is a serious risk of inhuman or degrading treatment), Articles 20 and 21 (equality and non-discrimination as compared with other categories of applicants for subsidiary protection) and/or Article 47 (right to an effective remedy) of that Charter — place a Member State in course of transposing Directives 2004/83/EC, 2005/85/EC and 2003/9/EC into national law under an obligation to make provision for a remedy with suspensive effect and for the requisite means of meeting the basic needs referred to in Question 1? |
| --- | --- |

2.

If the answer to Question 1 is in the negative, does the Charter of Fundamental Rights — and, in particular, Articles 1 to 3 (human dignity, right to life and integrity), Article 4 (prohibition of inhuman or degrading treatment), Article 19(2) (right not to be removed to a State where there is a serious risk of inhuman or degrading treatment), Articles 20 and 21 (equality and non-discrimination as compared with other categories of applicants for subsidiary protection) and/or Article 47 (right to an effective remedy) of that Charter — place a Member State in course of transposing Directives 2004/83/EC, 2005/85/EC and 2003/9/EC into national law under an obligation to make provision for a remedy with suspensive effect and for the requisite means of meeting the basic needs referred to in Question 1?

---

(1)  Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 2).

(2)  Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13).

(3)  Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18).

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/21 |
| --- | --- | --- | --- |

11.1.2014

EN

Official Journal of the European Union

C 9/21

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Appeal brought on 31 October 2013 by Planet AE Anonymi Etaireia Parochis Symvouleftikon Ypiresion against the order of the General Court (Seventh Chamber) delivered on 9 September 2013 in Case T-489/12 Planet v Commission

(Case C-564/13 P)

2014/C 9/33

Language of the case: Greek

Parties

Appellant: Planet AE Anonymi Etaireia Parochis Symvouleftikon Ypiresion (represented by: V. Christianos, lawyer)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | set aside the order of the General Court delivered on 9 September 2013 in Case T-489/12; |
| --- | --- |

—

set aside the order of the General Court delivered on 9 September 2013 in Case T-489/12;

| — | refer the case back to the General Court for it to rule on the substance; |
| --- | --- |

—

refer the case back to the General Court for it to rule on the substance;

| — | order the European Commission to pay the costs. |
| --- | --- |

—

order the European Commission to pay the costs.

Pleas in law and main arguments

The appellant maintains that the order of the General Court delivered on 9 September 2013 in Case T-489/12 contains findings as to the law which are contrary to the rules of European Union law and challenges them by this appeal.

In the appellant’s opinion, the order under appeal should be set aside, because the court misinterpreted and misapplied European Union law, as regards the content of the interest in bringing proceedings which is required, under European Union law, for the bringing of declaratory proceedings the subject-matter of which is determining a breach of contractual obligations and as regards whether that [interest in bringing proceedings] is vested and present.

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General Court

| 11.1.2014 | EN | Official Journal of the European Union | C 9/22 |
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11.1.2014

EN

Official Journal of the European Union

C 9/22

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Judgment of the General Court of 18 November 2013 — Preparados Alimenticios v OHIM — Rila Feinkost-Importe (Jambo Afrika)

(Case T-377/10) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark Jambo Afrika - Earlier Community figurative marks JUMBO, JUMBO CUBE, JUMBO MARINADE, JUMBO NOKKOS, JUMBO ROF, JUMBO CHORBA MOUTON-MUTTON, JUMBO Aroma All purpose seasoning Condiment - Earlier national figurative marks JUMBO - Non-registered earlier word mark JUMBO - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2014/C 9/34

Language of the case: English

Parties

Applicant: Preparados Alimenticios, SA (L’Hospitalet de Llobregat, Spain) (represented by: D. Pellisé Urquiza, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Rila Feinkost-Importe GmbH & Co. KG (Stemwede-Levern, Germany) (represented by: T. Weeg, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 9 June 2010 (Case No R 1144/2009-1), relating to opposition proceedings between Preparados Alimenticios, SA and Rila Feinkost-Importe GmbH & Co. KG.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
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1.

Dismisses the action;

| 2. | Orders Preparados Alimenticios, SA to pay the costs. |
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2.

Orders Preparados Alimenticios, SA to pay the costs.

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(1)  OJ C 301, 6.11.2010.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/22 |
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11.1.2014

EN

Official Journal of the European Union

C 9/22

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Judgment of the General Court of 21 November 2013 — Heede v OHIM (Matrix-Energetics)

(Case T-313/11) (1)

(Community trade mark - Application for Community word mark Matrix-Energetics - Absolute grounds for refusal - Descriptive character - Relevant public - Date of the determination of the descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

2014/C 9/35

Language of the case: German

Parties

Applicant: Günter Heede (Walldorf-Baden) (represented by: R. Utz, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Klüpfel, Agent)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 April 2011 (Case R 1848/2010-4) concerning the application for registration of the word sign Matrix-Energetics as a Community word mark.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
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1.

Dismisses the action;

| 2. | Orders Mr Günter Heede to pay the costs. |
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2.

Orders Mr Günter Heede to pay the costs.

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(1)  OJ C 238, 13.8.2011.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/22 |
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11.1.2014

EN

Official Journal of the European Union

C 9/22

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Judgment of the General Court of 21 November 2013 — El Hogar Perfecto del Siglo XXI v OHIM — Wenf International Advisers Ltd (Corkscrew)

(Case T-337/12) (1)

(Community design - Invalidity proceedings - Registered Community design representing a corkscrew - Earlier national design - Ground for invalidity - Lack of individual character - Overall impression not different - Informed user - Degree of freedom of the designer - Articles 4, 6 and 25(1)(b) of Regulation (EC) No 6/2002)

2014/C 9/36

Language of the case: Spanish

Parties

Applicant: El Hogar Perfecto del Siglo XXI, SL (Madrid (Spain)) (represented by: C. Ruiz Gallegos and E. Veiga Conde, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: Ó. Mondéjar Ortuño, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Wenf International Advisers Ltd (Tortola, British Virgin Islands) (represented by J.L. Rivas Zurdo, E. Seijo Veiguela and I. Munilla Muñoz, lawyers)

Re:

ACTION brought against the decision of the Third Board of Appeal of OHIM of 1 June 2012 (Case R 89/2011-3) in relation to invalidity proceedings between Wenf International Advisers Ltd and El Hogar Perfecto del Siglo XXI, SL.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
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1.

Dismisses the action;

| 2. | Orders El Hogar Perfecto del Siglo XXI, SL to pay the costs. |
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2.

Orders El Hogar Perfecto del Siglo XXI, SL to pay the costs.

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(1)  OJ C 287, 22.9.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/23 |
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11.1.2014

EN

Official Journal of the European Union

C 9/23

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Judgment of the General Court of 21 November 2013 — Equinix (Germany) v OHIM — Acotel (ancotel.)

(Case T-443/12) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark ancotel. - Earlier Community figurative mark ACOTEL - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2014/C 9/37

Language of the case: German

Parties

Applicant: Equinix (Germany) GmbH, formerly ancotel GmbH (Frankfurt am Main, Germany) (represented by: H. Truelsen, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Poch, Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Acotel SpA (Rome, Italy)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 3 August 2012 (Case R 1895/2011-4) relating to opposition proceedings between Acotel SpA and ancotel GmbH, now Equinix (Germany) GmbH.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
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1.

Dismisses the action;

| 2. | Orders Equinix (Germany) GmbH to pay the costs. |
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2.

Orders Equinix (Germany) GmbH to pay the costs.

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(1)  OJ C 379, 8.12.2012.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/23 |
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11.1.2014

EN

Official Journal of the European Union

C 9/23

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Judgment of the General Court of 21 November 2013 — Recaro v OHIM — Certino Mode (RECARO)

(Case T-524/12) (1)

(Community trade mark - Revocation proceedings - Community word mark RECARO - Genuine use of the mark - Article 15(15)(a) of Regulation (EC) No 207/2009 - Nature of the use of the mark - Admissibility of new evidence - Article 76(2) of Regulation No 207/2009 - Obligation to state reasons - Article 75 of Regulation No 207/2009)

2014/C 9/38

Language of the case: English

Parties

Applicant: Recaro Holding GmbH, formerly Recaro Beteiligungs-GmbH (Stuttgart (Germany)) (represented by: J. Weiser, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Certino Mode SL (Elche (Spain))

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 6 September 2012 (Case R 1761/2011-1) relating to revocation proceedings between Recaro Beteiligungs-GmbH and Certino Mode SL

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
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1.

Dismisses the action;

| 2. | Orders Recaro Holding GmbH to pay the costs. |
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2.

Orders Recaro Holding GmbH to pay the costs.

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(1)  OJ C 32, 2.2.2013.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/24 |
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11.1.2014

EN

Official Journal of the European Union

C 9/24

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Action brought on 6 November 2013 — FK v Commission

(Case T-248/13)

2014/C 9/39

Language of the case: English

Parties

Applicant: FK (Damascus, Syria) (represented by: E. Grieves, Barrister, and J. Carey, Solicitor)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul Commission Regulation (EC) No 14/2007 of 10 January 2007 amending for the 74th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 (OJ L 6, p.6) insofar as it applies to the applicant, and Commission’s decision of 6 March 2013 to maintain the listing; |
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Annul Commission Regulation (EC) No 14/2007 of 10 January 2007 amending for the 74th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 (OJ L 6, p.6) insofar as it applies to the applicant, and Commission’s decision of 6 March 2013 to maintain the listing;

| — | Order the Commission to pay the costs. |
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Order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the contested decision was not taken promptly or within a reasonable time period. |
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1.

First plea in law, alleging that the contested decision was not taken promptly or within a reasonable time period.

| 2. | Second plea in law, alleging that the Commission has failed to meaningfully evaluate for itself whether the applicant satisfied the relevant criteria. In particular, the applicant states that the Commission: (a) failed to seek and/or obtain the underlying evidence for the allegations; (b) failed to ensure the statement of reasons was coterminous with the reason relied upon by the United Nations Sanctions Committee and failed to seek and/or obtain sufficient detail of the allegations such as to permit the applicant to answer such effectively; (c) failed to assess whether any of the allegations are based upon material tainted by torture; and (d) failed to seek and/or obtain any relevant exculpatory material. |
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2.

Second plea in law, alleging that the Commission has failed to meaningfully evaluate for itself whether the applicant satisfied the relevant criteria. In particular, the applicant states that the Commission: (a) failed to seek and/or obtain the underlying evidence for the allegations; (b) failed to ensure the statement of reasons was coterminous with the reason relied upon by the United Nations Sanctions Committee and failed to seek and/or obtain sufficient detail of the allegations such as to permit the applicant to answer such effectively; (c) failed to assess whether any of the allegations are based upon material tainted by torture; and (d) failed to seek and/or obtain any relevant exculpatory material.

| 3. | Third plea in law, alleging that the Commission has failed to apply the correct burden and standard of proof. |
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3.

Third plea in law, alleging that the Commission has failed to apply the correct burden and standard of proof.

| 4. | Fourth plea in law, alleging that the statement of reasons relied upon by the Commission is legally defective in that: (a) none of the allegations are supported by evidence thereby failing to demonstrate the allegations are well founded; (b) some allegations are insufficiently precise such as to enable to the applicant to effectively challenge the allegations; (c) some allegations are so historic and/or vague such as to fail to rationally connect to the relevant criteria; and (d) some allegations are inconsistent with exculpatory material. |
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4.

Fourth plea in law, alleging that the statement of reasons relied upon by the Commission is legally defective in that: (a) none of the allegations are supported by evidence thereby failing to demonstrate the allegations are well founded; (b) some allegations are insufficiently precise such as to enable to the applicant to effectively challenge the allegations; (c) some allegations are so historic and/or vague such as to fail to rationally connect to the relevant criteria; and (d) some allegations are inconsistent with exculpatory material.

| 5. | Fifth plea in law, alleging that the Commission failed to perform a proportionality exercise, balancing the fundamental rights of the applicant with the actual current risk he is said to pose. |
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5.

Fifth plea in law, alleging that the Commission failed to perform a proportionality exercise, balancing the fundamental rights of the applicant with the actual current risk he is said to pose.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/24 |
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11.1.2014

EN

Official Journal of the European Union

C 9/24

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Action brought on 4 October 2013 — Panrico v OHIM — HDN Development (Krispy Kreme DOUGHNUTS)

(Case T-534/13)

2014/C 9/40

Language in which the application was lodged: Spanish

Parties

Applicant: Panrico, SA (Barcelona, Spain) (represented by: D. Pellisé Urquiza, lawyer)

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

Other party to the proceedings before the Board of Appeal: HDN Development Corp. (Frankfort, United States of America)

Form of order sought

The applicant claims that the General Court should:

| — | declare the present action admissible; |
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declare the present action admissible;

| — | set aside the decision of 25 July 2013 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market in Case R 623/2011-4, notified to the applicant on 29 July 2013; and |
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set aside the decision of 25 July 2013 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market in Case R 623/2011-4, notified to the applicant on 29 July 2013; and

| — | declare invalid Community trade mark No 1 298 785‘KRISPY KREME DOUGHNUTS’. |
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declare invalid Community trade mark No 1 298 785‘KRISPY KREME DOUGHNUTS’.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark ‘Krispy Kreme DOUGHNUTS’ for products and services in Classes 25, 30 and 42 — Registered Community trade mark No 1 298 785

Proprietor of the Community trade mark: HDN Development Corp.

Applicant for the declaration of invalidity of the Community trade mark: Applicant

Grounds for the application for a declaration of invalidity: Infringement of Article 8(1)(b) of Regulation No 207/2009 in conjunction with Article 53(1)(a) of that regulation

Decision of the Cancellation Division: Dismissal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 in conjunction with Article 53(1)(a) of that regulation

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/25 |
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11.1.2014

EN

Official Journal of the European Union

C 9/25

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Action brought on 24 October 2013 — Germany v Commission

(Case T-557/13)

2014/C 9/41

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: T. Henze and J. Möller)

Defendant: European Commission

Form of order sought

| — | Annul Article 1 and the Annex to Commission Implementing Decision 2013/433/EU of 13 August 2013 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as financing by the European Union is therein excluded in respect of payments of a total of EUR 6 192 951,34 made by the competent paying agencies of the Federal Republic of Germany in the framework of the implementation of the aid rules for the potato starch sector for the years 2003 to 2005; |
| --- | --- |

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Annul Article 1 and the Annex to Commission Implementing Decision 2013/433/EU of 13 August 2013 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as financing by the European Union is therein excluded in respect of payments of a total of EUR 6 192 951,34 made by the competent paying agencies of the Federal Republic of Germany in the framework of the implementation of the aid rules for the potato starch sector for the years 2003 to 2005;

| — | Order the defendant to bear the costs. |
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—

Order the defendant to bear the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging failure to observe the conditions for the grant of the premium and the aid — payment of the minimum price
  The applicant alleges infringement of Article 7(4) of Regulation (EC) No 1258/1999 (1) and Article 31 of Regulation (EC) No 1290/2005, (2) read in conjunction with Article 5 of Regulation (EC) No 1868/94, (3) Article 11 of Regulation (EC) No 97/95, (4) Article 10 of Regulation (EC) No 2236/2003 (5) and Article 26 of Regulation (EC) No 2237/2003 (6) as a result of the exclusion of expenditure from financing, although the conditions for the grant of the premium and the aid were fulfilled, the minimum price for the amount applied for having been paid. |
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1.

First plea in law, alleging failure to observe the conditions for the grant of the premium and the aid — payment of the minimum price

The applicant alleges infringement of Article 7(4) of Regulation (EC) No 1258/1999 (1) and Article 31 of Regulation (EC) No 1290/2005, (2) read in conjunction with Article 5 of Regulation (EC) No 1868/94, (3) Article 11 of Regulation (EC) No 97/95, (4) Article 10 of Regulation (EC) No 2236/2003 (5) and Article 26 of Regulation (EC) No 2237/2003 (6) as a result of the exclusion of expenditure from financing, although the conditions for the grant of the premium and the aid were fulfilled, the minimum price for the amount applied for having been paid.

| 2. | Second plea in law, alleging deficient reasoning
  By this plea in law the applicant claims that Article 296(2) TFEU has been infringed because the Commission failed to provide adequate and non-contradictory reasoning explaining why on the basis of Article 11 of Regulation No 97/95, Article 10 of Regulation No 2236/2003 and Article 26 of Regulation No 2237/2003, taking all language versions into account, it should be a condition of payment of the premium or aid that the starch undertaking must already have paid the minimum price for the all the potato deliveries in the financial year. |
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2.

Second plea in law, alleging deficient reasoning

By this plea in law the applicant claims that Article 296(2) TFEU has been infringed because the Commission failed to provide adequate and non-contradictory reasoning explaining why on the basis of Article 11 of Regulation No 97/95, Article 10 of Regulation No 2236/2003 and Article 26 of Regulation No 2237/2003, taking all language versions into account, it should be a condition of payment of the premium or aid that the starch undertaking must already have paid the minimum price for the all the potato deliveries in the financial year.

| 3. | Third plea in law, alleging breach of the obligation to notify complaints within 24 months
  The applicant alleges infringement of subparagraph 1 of Article 7(4), read in conjunction with point (a) of subparagraph 5 of Article 7(4) of Regulation No 1258/199, and Article 8(1) of Regulation (EC) No 1663/95 (7) and subparagraph 1 of Article 31(3), read in conjunction with Article 31(4)(a), of Regulation No 1290/2005, and Article 11(1) of Regulation (EC) No 885/2006, (8) because the Commission failed effectively to communicate the complaint (absence of ‘key controls’), on which it based the exclusion of the expenditure, to the Federal Republic of Germany, in writing, within 24 months following the date when the expenditure was incurred. |
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3.

Third plea in law, alleging breach of the obligation to notify complaints within 24 months

The applicant alleges infringement of subparagraph 1 of Article 7(4), read in conjunction with point (a) of subparagraph 5 of Article 7(4) of Regulation No 1258/199, and Article 8(1) of Regulation (EC) No 1663/95 (7) and subparagraph 1 of Article 31(3), read in conjunction with Article 31(4)(a), of Regulation No 1290/2005, and Article 11(1) of Regulation (EC) No 885/2006, (8) because the Commission failed effectively to communicate the complaint (absence of ‘key controls’), on which it based the exclusion of the expenditure, to the Federal Republic of Germany, in writing, within 24 months following the date when the expenditure was incurred.

| 4. | Fourth plea in law, alleging excessive length of proceedings
  In this context, the applicant alleges infringement of Article 7(4) of Regulation No 1258/1999, Article 8 of Regulation No 1663/95, Article 31 of Regulation No 1290/2005 and Article 11 of Regulation No 885/2006, in conjunction with the general legal principle that administrative proceedings should be conducted within a reasonable time, and infringement of the rights of the defence, since the proceedings before the Commission lasted too long. |
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4.

Fourth plea in law, alleging excessive length of proceedings

In this context, the applicant alleges infringement of Article 7(4) of Regulation No 1258/1999, Article 8 of Regulation No 1663/95, Article 31 of Regulation No 1290/2005 and Article 11 of Regulation No 885/2006, in conjunction with the general legal principle that administrative proceedings should be conducted within a reasonable time, and infringement of the rights of the defence, since the proceedings before the Commission lasted too long.

| 5. | Fifth plea in law: infringement of subparagraph 4 of Article 7(4) of Regulation No 1258/1999, Article 31(2) of Regulation No 1290/2005 and of the principle of proportionality
  The applicant alleges in this context that, by imposing a flat-rate correction of 10 %, the Commission failed to take appropriate account of the nature and the clearly limited scope of the supposed infringement and ignored the fact that not only was no financial damage actually caused to the Union, but that there was never even a real danger that such damage would occur. |
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5.

Fifth plea in law: infringement of subparagraph 4 of Article 7(4) of Regulation No 1258/1999, Article 31(2) of Regulation No 1290/2005 and of the principle of proportionality

The applicant alleges in this context that, by imposing a flat-rate correction of 10 %, the Commission failed to take appropriate account of the nature and the clearly limited scope of the supposed infringement and ignored the fact that not only was no financial damage actually caused to the Union, but that there was never even a real danger that such damage would occur.

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(1)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103).

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

(3)  Council Regulation (EC) No 1868/94 of 27 July 1994 establishing a quota system in relation to the production of potato starch (OJ 1994 L 197, p. 4).

(4)  Commission Regulation (EC) No 97/95 of 17 January 1995 laying down detailed rules for the application of Council Regulation (EEC) No 1766/92 as regards the minimum price and compensatory payment to be paid to potato producers and of Council Regulation (EC) No 1868/94 establishing a quota system in relation to the production of potato starch (OJ 1995 L 16, p. 3).

(5)  Commission Regulation (EC) No 2236/2003 of 23 December 2003 laying down detailed rules for the application of Council Regulation (EC) No 1868/94 establishing a quota system in relation to the production of potato starch (OJ 2003 L 339, p. 45).

(6)  Commission Regulation (EC) No 2237/2003 of 23 December 2003 laying down detailed rules for the application of certain support schemes provided for in Title IV of Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2003 L 339, p. 52).

(7)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ 1995 L158, p. 6).

(8)  Commission Regulation (EC) No 885/2006 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).

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/26 |
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11.1.2014

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Action brought on 24 October 2013 — Isotis v European Commission

(Case T-562/13)

2014/C 9/42

Language of the case: Greek

Parties

Applicant: Information Society open to Impairments — ISOTIS (Athens, Greece) (represented by: S. Skliris, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | declare that the Commission, by seeking from the applicant the sum of EUR 47 197,93 which the Commission paid within the framework of the REACH 112 agreement No 238940, is in breach of the agreement in question; |
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—

declare that the Commission, by seeking from the applicant the sum of EUR 47 197,93 which the Commission paid within the framework of the REACH 112 agreement No 238940, is in breach of the agreement in question;

| — | declare that the applicant is under no obligation to repay the amount which the Commission paid; |
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—

declare that the applicant is under no obligation to repay the amount which the Commission paid;

| — | declare that, in any event, the abovementioned request by the Commission, to the extent of the amount of EUR 13 821,12, is wholly unfounded; |
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declare that, in any event, the abovementioned request by the Commission, to the extent of the amount of EUR 13 821,12, is wholly unfounded;

| — | declare that the general conditions of FP6 contracts are not applicable within the framework of the REACH 112 agreement No 238940 and that, consequently, the applicant is, under the agreement in question, in no way obliged to pay any amount of liquidated damages; |
| --- | --- |

—

declare that the general conditions of FP6 contracts are not applicable within the framework of the REACH 112 agreement No 238940 and that, consequently, the applicant is, under the agreement in question, in no way obliged to pay any amount of liquidated damages;

| — | declare that the Commission, by indicating its intent to claim liquidated damages on the basis of the general conditions of FP6 contracts, is in breach of REACH 112 agreement No 238940; |
| --- | --- |

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declare that the Commission, by indicating its intent to claim liquidated damages on the basis of the general conditions of FP6 contracts, is in breach of REACH 112 agreement No 238940;

| — | order the Commission to pay the applicant’s costs. |
| --- | --- |

—

order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

In support of the action, which is based on (1) the arbitration clauses in the agreement in question and (2) on Belgian law, which governs the agreement in question, the applicant puts forward three arguments.

| 1. | The first argument is based on the Commission’s failure to respect the principles of good faith and fair dealing. Specifically, the applicant maintains that the Commission sought differing amounts, but failed to provide concrete and specific reasons for the creation of each claim, and that the Commission’s way of doing business is contrary to the provisions of the Charter of Fundamental Rights. Further, the applicant maintains that the Commission’s intention to make claims on the basis of the general conditions of a different type of contract (FP6) which differ from those which apply in the REACH 112 (CIP) agreement also reveals that the Commission’s conduct is contrary to accepted standards. |
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1.

The first argument is based on the Commission’s failure to respect the principles of good faith and fair dealing. Specifically, the applicant maintains that the Commission sought differing amounts, but failed to provide concrete and specific reasons for the creation of each claim, and that the Commission’s way of doing business is contrary to the provisions of the Charter of Fundamental Rights. Further, the applicant maintains that the Commission’s intention to make claims on the basis of the general conditions of a different type of contract (FP6) which differ from those which apply in the REACH 112 (CIP) agreement also reveals that the Commission’s conduct is contrary to accepted standards.

| 2. | The second argument is based on the infringement of the provisions of Article II.28, paragraphs 1 and 5, of the REACH 112 agreement No 238940. Specifically, the applicant maintains that the Commission made claims when there had been no prior audit procedure within the framework of the agreement in question and relied on general and indeterminate audit findings which do not relate to the REACH 112 agreement in question. |
| --- | --- |

2.

The second argument is based on the infringement of the provisions of Article II.28, paragraphs 1 and 5, of the REACH 112 agreement No 238940. Specifically, the applicant maintains that the Commission made claims when there had been no prior audit procedure within the framework of the agreement in question and relied on general and indeterminate audit findings which do not relate to the REACH 112 agreement in question.

| 3. | The third argument, in the alternative, is that the making of the claim for repayment by the Commission was in bad faith and abusive. |
| --- | --- |

3.

The third argument, in the alternative, is that the making of the claim for repayment by the Commission was in bad faith and abusive.

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| 11.1.2014 | EN | Official Journal of the European Union | C 9/27 |
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11.1.2014

EN

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Action brought on 4 November 2013 — BASF Agro and Others v Commission

(Case T-584/13)

2014/C 9/43

Language of the case: English

Parties

Applicants: BASF Agro BV (Arnhem, Netherlands); BASF SE (Ludwigshafen am Rhein, Germany); BASF Belgium Coordination Center (Antwerpen, Belgium); BASF Española, SL (Barcelona, Spain); BASF Italia SpA (Cesano Maderno, Italy); BASF Nederland BV (Arnhem); and BASF Slovensko spol. s r. o. (Bratislava, Slovakia) (represented by: J. Montfort and M. Peristeraki, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | Annul Commission Implementing Regulation (EU) No 781/2013 of 14 August 2013, amending Commission Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substance fipronil, and prohibiting the use and sale of seeds treated with plant protection products containing this active substance (OJ 2013 L 219, p. 22); |
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Annul Commission Implementing Regulation (EU) No 781/2013 of 14 August 2013, amending Commission Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substance fipronil, and prohibiting the use and sale of seeds treated with plant protection products containing this active substance (OJ 2013 L 219, p. 22);

| — | In the alternative, and only if the form of order sought above is not granted, annul the contested regulation, insofar as it withdraws the authorisation for the use and sale of sunflower seeds treated with fipronil; |
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In the alternative, and only if the form of order sought above is not granted, annul the contested regulation, insofar as it withdraws the authorisation for the use and sale of sunflower seeds treated with fipronil;

| — | Order the defendant to pay the costs of the applicants that they incurred in these proceedings. |
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Order the defendant to pay the costs of the applicants that they incurred in these proceedings.

Pleas in law and main arguments

In support of the action, the applicants rely on seven pleas in law.

| 1. | First plea in law, alleging that the Commission violated Article 21 of Regulation (EC) No 1107/2009 (1) because in adopting the contested regulation it did not rely on any new scientific or technical knowledge but rather on ‘high controversy’ data. The Commission also ignored relevant monitoring data. Monitoring data that were available did not show any adverse effects on honeybee colonies. The applicants also submit that the Commission wrongfully considered that the criteria of Article 4 of Regulation (EC) No 1107/2009 were no longer satisfied by the active substance fipronil. |
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1.

First plea in law, alleging that the Commission violated Article 21 of Regulation (EC) No 1107/2009 (1) because in adopting the contested regulation it did not rely on any new scientific or technical knowledge but rather on ‘high controversy’ data. The Commission also ignored relevant monitoring data. Monitoring data that were available did not show any adverse effects on honeybee colonies. The applicants also submit that the Commission wrongfully considered that the criteria of Article 4 of Regulation (EC) No 1107/2009 were no longer satisfied by the active substance fipronil.

| 2. | Second plea in law, alleging that the Commission violated Article 49 of Regulation (EC) No 1107/2009 because with the contested regulation it adopted restrictive measures on seeds treated with fipronil without demonstrating that these treated seeds are likely to constitute a ‘serious risk’ to bees that cannot be contained satisfactorily by other means. Furthermore, the Commission failed to take into account risk mitigation measures that could contain the alleged risks in a satisfactory manner. |
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2.

Second plea in law, alleging that the Commission violated Article 49 of Regulation (EC) No 1107/2009 because with the contested regulation it adopted restrictive measures on seeds treated with fipronil without demonstrating that these treated seeds are likely to constitute a ‘serious risk’ to bees that cannot be contained satisfactorily by other means. Furthermore, the Commission failed to take into account risk mitigation measures that could contain the alleged risks in a satisfactory manner.

| 3. | Third plea in law, alleging that the contested regulation was adopted on the basis of a methodology provided in draft guidance documents, rather than the existing and approved guidance. This way, the Commission committed errors in law, and violated the fundamental principles of legal certainty and legitimate expectations given that guidance documents must be available and agreed ex ante, before the review of an approval of an active substance, and not ex post. |
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3.

Third plea in law, alleging that the contested regulation was adopted on the basis of a methodology provided in draft guidance documents, rather than the existing and approved guidance. This way, the Commission committed errors in law, and violated the fundamental principles of legal certainty and legitimate expectations given that guidance documents must be available and agreed ex ante, before the review of an approval of an active substance, and not ex post.

| 4. | Fourth plea in law, alleging that the contested regulation cannot be justified on the basis of the precautionary principle, given that the conditions of that principle are not met in the present case. More precisely, the applicants submit that the risks the Commission considered relevant were based on mere hypotheses that have not been scientifically confirmed; relevant data were not considered; the Commission's risk assessment was based on a wrong methodology; while the Commission failed to involve the applicants in the risk management stage, as it ought to have done. This led to the adoption of disproportionate and inconsistent measures with the contested regulation. |
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4.

Fourth plea in law, alleging that the contested regulation cannot be justified on the basis of the precautionary principle, given that the conditions of that principle are not met in the present case. More precisely, the applicants submit that the risks the Commission considered relevant were based on mere hypotheses that have not been scientifically confirmed; relevant data were not considered; the Commission's risk assessment was based on a wrong methodology; while the Commission failed to involve the applicants in the risk management stage, as it ought to have done. This led to the adoption of disproportionate and inconsistent measures with the contested regulation.

| 5. | Fifth plea in law, alleging that the contested regulation imposes excessive restrictions on the fipronil seed treatment without these being neither appropriate nor necessary to protect bee health in the EU. The applicants also point out that with regard to sunflowers in particular, the Commission disregarded that fipronil treatment has never had adverse consequences on bee health. |
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5.

Fifth plea in law, alleging that the contested regulation imposes excessive restrictions on the fipronil seed treatment without these being neither appropriate nor necessary to protect bee health in the EU. The applicants also point out that with regard to sunflowers in particular, the Commission disregarded that fipronil treatment has never had adverse consequences on bee health.

| 6. | Sixth plea in law, alleging that because of the tight time frame within which the contested regulation was adopted and the complexity of the case, the Commission was not able to take into account the substantive and detailed comments of the applicants on the technical, regulatory and scientific aspects of the European Food Safety Authority’s ‘Conclusion on the peer review of the pesticide risk assessment for bees for the active substance fipronil’ in an effective manner. |
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6.

Sixth plea in law, alleging that because of the tight time frame within which the contested regulation was adopted and the complexity of the case, the Commission was not able to take into account the substantive and detailed comments of the applicants on the technical, regulatory and scientific aspects of the European Food Safety Authority’s ‘Conclusion on the peer review of the pesticide risk assessment for bees for the active substance fipronil’ in an effective manner.

| 7. | Seventh plea in law, alleging that the Commission failed to explain adequately the concerns that led it to request EFSA to review the approval of fipronil. The Comission also failed to explain why it dismissed the arguments and the evidence submited by the applicants. The contested regulation also fails to clearly disclose the primary objective pursued by the Commission with its adoption. |
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7.

Seventh plea in law, alleging that the Commission failed to explain adequately the concerns that led it to request EFSA to review the approval of fipronil. The Comission also failed to explain why it dismissed the arguments and the evidence submited by the applicants. The contested regulation also fails to clearly disclose the primary objective pursued by the Commission with its adoption.

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(1)  Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1)

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European Union Civil Service Tribunal

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Judgment of the Civil Service Tribunal (First Chamber) of 1 October 2013 — Loukakis and Others v Parliament

(Case F-82/11) (1)

(Civil Service - Parliament Staff Committee - Elections - Irregularities in the electoral process)

2014/C 9/44

Language of the case: French

Parties

Applicants: Nicolaos Loukakis and Others (Brussels, Belgium) (represented by: M.-A. Lucas, lawyer)

Defendant: European Parliament (represented by: S. Seyr and M. Ecker, acting as Agents, and, initially, D. Waelbroeck, lawyer, and, subsequently, A. Duron, lawyer)

Interveners: Solidarité pour les agents et fonctionnaires européens, Syndicat general du personnel des organismes européens, Fédération de la function publique européenne and Pluralist (represented by: J. Choucroun, lawyer)

Re:

Application for a declaration that the elections to the Staff Committee of the Parliament, and the European Parliament’s failure to take action in respect of the various illegalities that affected the electoral process, are unlawful

Operative part of the judgment

The Tribunal:

| 1. | Annuls the implied decision of the European Parliament of 20 May 2011 not to censure the irregularities affecting the Staff Committee elections of November 2010; |
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1.

Annuls the implied decision of the European Parliament of 20 May 2011 not to censure the irregularities affecting the Staff Committee elections of November 2010;

| 2. | Dismisses the remainder of the action |
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2.

Dismisses the remainder of the action

| 3. | Orders the European Parliament to bear its own costs and to pay the costs incurred by the applicants; |
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3.

Orders the European Parliament to bear its own costs and to pay the costs incurred by the applicants;

| 4. | Orders the trade union organisations Solidarité pour les agents et fonctionnaires européens, Syndicat general du personnel des organismes européens, Fédération de la function publique européenne, on the one hand, and the trade union organisation Pluralist, on the other, to bear their own costs. |
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4.

Orders the trade union organisations Solidarité pour les agents et fonctionnaires européens, Syndicat general du personnel des organismes européens, Fédération de la function publique européenne, on the one hand, and the trade union organisation Pluralist, on the other, to bear their own costs.

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(1)  OJ C 340, 19.11.2011, p. 41.

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Judgment of the Civil Service Tribunal (1st Chamber) of 17 October 2013 — BF v Court of Auditors of the European Union

(Case F-59/12) (1)

(Civil service - Appointment - Recruitment of a director - Vacancy notice - Act adversely affecting an official - None - Inadmissibility)

2014/C 9/45

Language of the case: French

Parties

Applicant: BF (Luxembourg, Luxembourg) (represented by: L. Levi, lawyer)

Defendant: Court of Auditors of the European Union (represented by: T. Kennedy and J. Vermer, Agents, assisted by D. Waelbroeck, lawyer)

Re:

Application to annul vacancy notice ECA/2011/67 of the Court of Auditors for the post of Director of the Human Resources Directorate.

Operative part of the judgment

The Tribunal:

| 1. | Dismisses the action; |
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1.

Dismisses the action;

| 2. | Orders BF to bear his own costs and to pay the costs incurred by the Court of Auditors of the European Union. |
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2.

Orders BF to bear his own costs and to pay the costs incurred by the Court of Auditors of the European Union.

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(1)  OJ C 227, 28.7.2012, p. 38.

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Judgment of the Civil Service Tribunal (1st Chamber) of 7 October 2013 — Thomé v Commission

(Case F-97/12) (1)

(Civil service - Open competition - Competition notice EPSO/AD/177/10 - Decision not to recruit a successful candidate - Criteria for admissibility - University qualification)

2014/C 9/46

Language of the case: French

Parties

Applicant: Florence Thomé (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal and D. Abreu Caldas, lawyers)

Defendant: European Commission (represented by: B. Eggers and G. Gattinara, Agents)

Re:

Application to annul the decision of the Commission’s appointing authority not to recruit the applicant after she had passed competition EPSO/AD/177/10-EPA and an application for damages and interest.

Operative part of the judgment

The Tribunal:

| 1. | Annuls the European Commission’s decisions of 11 November 2011 and 5 June 2012; |
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1.

Annuls the European Commission’s decisions of 11 November 2011 and 5 June 2012;

| 2. | Orders the European Commission to pay Ms Thomé the sum of EUR 14 000; |
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2.

Orders the European Commission to pay Ms Thomé the sum of EUR 14 000;

| 3. | Dismisses the application as to the remainder; |
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3.

Dismisses the application as to the remainder;

| 4. | Orders the European Commission to bear its own costs and to pay the costs incurred by Ms Thomé. |
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4.

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

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(1)  OJ C 355, 17.11.2012, p. 39.

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Order of the Civil Service Tribunal (First Chamber) of 23 October 2013 — Aristidis Psarras v ENISA

(Case F-7/12) (1)

(Civil Service - Member of temporary staff - Appraisal - Annual appraisal for 2009 - Career development report - Application for annulment of the career development report - Act adversely affecting the applicant - Action manifestly inadmissible)

2014/C 9/47

Language of the case: French

Parties

Applicant: Aristidis Psarras (Heraklion, Greece) (represented by: L. Levi and A. Tymen, lawyers)

Defendant: European Union Agency for Network and Information Security (ENISA) (represented by: E. Maurage, acting as Agent, and D. Waelbroeck and A. Duron, lawyers)

Re:

Application for the annulment of the applicant’s staff report for 2009 and the decision establishing the list of officials promoted in 2010 and, if necessary, the decision rejecting the applicant’s claim of 17 October 2011.

Operative part of the order

| 1. | The action is dismissed as manifestly inadmissible. |
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1.

The action is dismissed as manifestly inadmissible.

| 2. | The European Union Agency for Network and Information Security shall bear its own costs and pay those incurred by Mr Psarras. |
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2.

The European Union Agency for Network and Information Security shall bear its own costs and pay those incurred by Mr Psarras.

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(1)  OJ C 133, 5.5.2012, p. 20.

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Order of the Civil Service Tribunal (First Chamber) of 7 October 2013 — Marcuccio v Commission

(Case F-57/12) (1)

(Civil service - Officials - Disability allowance - Deduction of the amount of the debt owed to an institution - Action in part manifestly inadmissible and in part manifestly lacking any basis in law)

2014/C 9/48

Language of the case: Italian

Parties

Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Defendant: European Commission (represented by: C. Berardis-Kayser and G. Gattinara, Agents, and A. Dal Ferro, lawyer)

Re:

Application for annulment of the Commission’s implied decisions to reduce the amount of the applicant’s disability allowance for the months June to September 2011, for payment of interest at the rate of 15 % and payment of the sum of EUR 500.

Operative part of the order

| 1. | The application is dismissed on the basis that it is in part manifestly inadmissible and in part manifestly lacking any basis in law. |
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1.

The application is dismissed on the basis that it is in part manifestly inadmissible and in part manifestly lacking any basis in law.

| 2. | Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission, including those relating to the interim proceedings in Cases F-57/12 R and T-464/12 P(R). |
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2.

Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission, including those relating to the interim proceedings in Cases F-57/12 R and T-464/12 P(R).

| 3. | Mr Marcuccio is ordered to pay to the General Court the sum of EUR 2 000. |
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3.

Mr Marcuccio is ordered to pay to the General Court the sum of EUR 2 000.

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(1)  OJ C 227, 28.7.2012, p. 37.

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Order of the Civil Service Tribunal of 16 October 2013 — De Roos-Le Large v Commission

(Case F-50/10) (1)

2014/C 9/49

Language of the case: Dutch

The President of the Tribunal sitting in a Full Court has ordered that the case be removed from the register.

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(1)  OJ C 260, 25.9.2010, p. 27.

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