ISSN 1977-091X
doi:10.3000/1977091X.C_2013.178.eng
Official Journal
of the European Union
C 178
English edition
Information and Notices
Volume 56
22 June 2013
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ISSN 1977-091X doi:10.3000/1977091X.C_2013.178.eng |
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Official Journal of the European Union |
C 178 |
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English edition |
Information and Notices |
Volume 56 |
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Notice No |
Contents |
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IV Notices |
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NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
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Court of Justice of the European Union |
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2013/C 178/01 |
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IV Notices
NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
Court of Justice of the European Union
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/1 |
2013/C 178/01
Last publication of the Court of Justice of the European Union in the Official Journal of the European Union
Past publications
These texts are available on:
EUR-Lex: http://eur-lex.europa.eu
V Announcements
COURT PROCEEDINGS
Court of Justice
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/2 |
Request for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 20 March 2013 — Bright Service, S.A. v Repsol Comercial de productos petrolíferos, S.A.
(Case C-142/13)
2013/C 178/02
Language of the case: Spanish
Referring court
Audiencia Provincial de Barcelona
Parties to the main proceedings
Applicant: Bright Service, S.A.
Defendant: Repsol Comercial de productos petrolíferos, S.A.
Questions referred
When examining a vertical agreement — containing a non-compete obligation — which [was] already in force on 31 May 2000 and which satisfies the conditions laid down in Regulation No 1984/1983, (1) but which does not satisfy the conditions for exemption provided for in Regulation No 2790/1999, (2) given that the supplier which is a party to the agreement holds a market share which exceeds 30 % (Article 3(1) of Regulation No 2790/1999) and the duration of the non-compete obligation exceeds five years and the contract goods are sold by the buyer from premises and land which are not owned by the supplier (Article 5(a) of Regulation No 2790/1999):
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(a) |
must Article 12(2) of Regulation No 2790/1999 be interpreted as meaning that, as of 1 January 2002, the agreement and, more specifically, the non-compete obligation, are not covered by the exemptions provided for in Regulations Nos 1984/1983 and 2790/1999, and must it be examined on an individual basis whether they are consistent with Article 81(1) EC? |
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(b) |
or, must Article 12(2) of Regulation No 2790/1999 be interpreted as meaning that the maximum duration of five years for a non-compete obligation laid down in Article 5(a) of Regulation No 2790/19999 is to be applied to the agreement, with the result that the agreement and, in particular, the non-compete obligation are covered, from 1 January 2002, for a further period of five years expiring on 31 December 2006? |
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(c) |
or, finally, must Article 12(2) of Regulation No 2790/1999 be interpreted as meaning that the agreement containing a non-compete obligation is covered, from 1 January 2002, for a further period of five years, expiring on 31 December 2006, where the remaining validity of the non-compete obligation — until 1 January 2002 — does not exceed five years, but is not, by contrast, covered by the exemptions, and that it needs to be determined on an individual basis whether it is consistent with Article 81(1) EC where the remaining validity of the non-compete obligation — until 1 January 2002 — exceeds five years? |
(1) Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85 (3) of the Treaty to categories of exclusive purchasing agreements (OJ 1983 L 173, p. 5).
(2) Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21).
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/2 |
Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 21 March 2013 — VDP Dental Laboratory NV, Staatssecretaris van Financiën
(Case C-144/13)
2013/C 178/03
Language of the case: Dutch
Referring court
Hoge Raad der Nederlanden
Parties to the main proceedings
Appellants: VDP Dental Laboratory NV, Staatssecretaris van Financiën
Questions referred
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1. |
Should Article 17(1) and (2) of the Sixth Directive (1) be interpreted to mean that if a national statutory provision, contrary to the Directive, provides for an exemption (in respect of which the right to deduct is excluded), the taxable person is entitled to the right to deduct in reliance on Article 17(1) and (2) of the Sixth Directive? |
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2. |
Should Article 143(a) and Article 140(a) and (b) of the 2006 VAT Directive (2) be interpreted to mean that the exemptions from VAT contained in those provisions do not apply to the importation and the intra-Community acquisition of dental prostheses? If the answer to that question is in the negative, is the application of the exemptions then subject to the condition that the dental prostheses must have been supplied from another country by a dentist or dental technician and/or supplied to a dentist or dental technician? |
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).
(2) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/3 |
Request for a preliminary ruling from the Okresný súd Bardejov (Slovakia), lodged on 26 March 2013 — Pohotovost’, s.r.o. v Ján Soroka
(Case C-153/13)
2013/C 178/04
Language of the case: Slovak
Referring court
Okresný súd Bardejov
Parties to the main proceedings
Applicant: Pohotovost’, s.r.o.
Defendant: Ján Soroka
Questions referred
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1. |
Is Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts (‘Directive 93/13/EEC’), in conjunction with Article 47 and Article 38 of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding legislation of a Member State, such as the legislation at issue in the present case, which does not allow a legal person whose purpose is the protection of consumers’ rights to intervene in court enforcement proceedings, to defend a consumer against whom enforcement proceedings are being brought for the recovery of a claim under a consumer contract, where that consumer is not represented by a lawyer? |
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2. |
Is the European Union law set out in question 1 to be interpreted as meaning that the basic right to legal protection of the consumer and of an intervening party under Article 47 of the Charter of Fundamental Rights is infringed when the intervention of a legal person whose purpose is the protection of consumers’ rights is not allowed in court enforcement proceedings and the consumer is not represented by a lawyer? |
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/3 |
Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 27 March 2013 — Staatssecretaris van Financiën v X B.V.
(Case C-154/13)
2013/C 178/05
Language of the case: Dutch
Referring court
Hoge Raad der Nederlanden
Parties to the main proceedings
Applicant: Staatssecretaris van Financiën
Defendant: X B.V.
Questions referred
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1. |
Must Article 140(a) and (b) of the 2006 VAT Directive (1) be interpreted as meaning that the exemption from VAT for which that provision provides does not apply to the intra-Community acquisition of dental prostheses? If the answer is no, is the application of the exemption subject to the condition that the dental prostheses are supplied from abroad by a dentist and/or dental technician to a dentist or dental technician? |
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2. |
If the exemption from VAT (whether or not under the conditions described in Question 1) for which Article 140(a) and (b) of the 2006 VAT Directive provides applies to the intra-Community acquisition of dental prostheses, does the exemption therefore apply in Member States, such as the Netherlands, which have complied with the exemption provided for in Article 132 of the 2006 VAT Directive, to the intra-Community acquisition of dental prostheses originating from a Member State which has taken advantage of the derogating and transitional arrangements for which Article 370 of the 2006 VAT Directive provides? |
(1) Council Directive 2006/112/EC from the Raad of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/4 |
Request for a preliminary ruling from the Commissione Tributaria Regionale del Veneto — Sede di Mestre-Venezia (Italy) lodged on 27 March 2013 — SICES and Others v Agenzia Dogane Ufficio delle Dogane di Venezia
(Case C-155/13)
2013/C 178/06
Language of the case: Italian
Referring court
Commissione Tributaria Regionale del Veneto — Sede di Mestre-Venezia
Parties to the main proceedings
Applicants: Società Italiana Commercio e Servizi srl, in liquidation (SICES) and Others
Defendant: Agenzia Dogane Ufficio delle Dogane di Venezia
Question referred
On a proper construction of Article 6 of Regulation (EC) No 341/2007, (1) is there an unlawful transfer of licences for the importation at a preferential rate of duty of garlic of Chinese origin under the GATT quota, where the holder of those licences, following payment of the duty due, places the garlic in question on the market by means of a transfer to another trader who holds import licences and from whom it had — prior to the importation — acquired the garlic concerned?
(1) Commission Regulation (EC) No 341/2007 of 29 March 2007 opening and providing for the administration of tariff quotas and introducing a system of import licences and certificates of origin for garlic and certain other agricultural products imported from third countries (OJ 2007 L 90, p. 12).
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/4 |
Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 28 March 2013 — Staatssecretaris van Financiën v X B.V.
(Case C-160/13)
2013/C 178/07
Language of the case: Dutch
Referring court
Hoge Raad der Nederlanden
Parties to the main proceedings
Applicant: Staatssecretaris van Financiën
Defendant: X B.V.
Question referred
Must Article 140(a) and (b) of the 2006 VAT Directive (1) be interpreted as meaning that the exemption from VAT for which that provision provides does not apply to the intra-Community acquisition of dental prostheses? If the answer is no, is the application of the exemption subject to the condition that the dental prostheses are supplied from abroad by a dentist and/or dental technician to a dentist or dental technician?
(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/4 |
Request for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 8 April 2013 — Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Uwv) v M.S. Demirci and Others
(Case C-171/13)
2013/C 178/08
Language of the case: Dutch
Referring court
Centrale Raad van Beroep
Parties to the main proceedings
Appellant: Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Uwv)
Respondents: M.S. Demirci, D. Cetin, A.I. Önder, R. Keskin, M. Tüle, A. Taskin
Questions referred
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1. |
Must Article 6(1) of Decision No 3/80, (1) having regard to Article 59 of the Additional Protocol, (2) be interpreted as precluding a legislative provision of a Member State, such as Article 4a of the TW, (3) which withdraws the supplementary benefit awarded on the basis of national legislation if the persons in receipt of that benefit no longer live in the territory of that State, even if those persons, while retaining Turkish nationality, have acquired the nationality of the host Member State? |
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2. |
If, in answering the first question, the Court of Justice concludes that the persons concerned may rely on Article 6(1) of Decision No 3/80, but that such reliance is restricted by the effect of Article 59 of the Additional Protocol: must Article 59 of the Additional Protocol be interpreted as precluding continuation of entitlement to the supplementary benefit for Turkish nationals, such as the persons concerned, as from the point in time at which European Union nationals can no longer claim entitlement to that benefit on the basis of European Union law, even if European Union nationals retained that benefit for a longer period of time on the basis of national law? |
(1) Decision No 3/80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families (OJ 1983 C 110, 25.4.1983, p. 60).
(2) Additional Protocol, signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 113, p. 18).
(3) Toeslagenwet (Netherlands Law on supplementary benefits designed to ensure receipt of the minimum income).
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/5 |
Appeal brought on 15 April 2013 by the Kingdom of Spain against the judgment of the General Court (Eighth Chamber) delivered on 31 January 2013 in Case T-235/11 Spain v Commission
(Case C-192/13 P)
2013/C 178/09
Language of the case: Spanish
Parties
Appellant: Kingdom of Spain (represented by: A. Rubio González, agent)
Other party to the proceedings: European Commission
Form of order sought
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Declare that the present appeal is well founded and set aside the judgment of the General Court of 31 January 2013 in Case T-235/11 Spain v Commission. |
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Annul Commission Decision C (2011) 1023 final of 18 February 2011 reducing the assistance granted from the Cohesion Fund to the project stages: ‘Supply and assembly of track materials on the high-speed line Madrid-Zaragoza-Barcelona-French border. Section Madrid-Lleida’ (CCI No 1999.ES.16.C.PT.001); ‘High-speed railway line Madrid-Barcelona. Section Lleida-Martorell (Platform, 1st phase)’ (CCI No 2000.ES.16.C.PT.001); ‘High-speed line Madrid-Zaragoza-Barcelona-French border. Access to Zaragoza’ (CCI No 2000.ES.16.C.PT.003); ‘High-speed line Madrid-Zaragoza-Barcelona-French border. Section Lleida-Martorell. Subsection X-A (Olérdola-Avinyonet del Penedés)’ (CCI No 2001.ES.16.C.PT.007) and ‘New high-speed railway access to Levante. Subsection La Gineta-Albacete (Platform)’ (CCI No 2004.ES.16.C.PT.014). |
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Order the respondent to bear the costs. |
Pleas in law and main arguments
Error of law with respect to the effects of the period of time referred to in Article H(2) of Annex II to Council Regulation (EC) No 1164/94 (1) of 16 May 1994 establishing a Cohesion Fund . After the expiry of the period referred to, the Commission may no longer adopt any financial correction measures and, therefore, it is obliged to make payment and the correction applied is unlawful.
Error of law in relation to the concept of an award of a contract within the meaning of Council Directive 93/38/EEC (2) of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors . Points (e) and (f) of Article 20(2) of Directive 93/38 do not apply generally to any amendments whatsoever to public contracts agreed during their execution stage, but to substantive amendments only. A substantive amendment such as to constitute a new award of a contract can be regarded as having arisen only when the conditions laid down in the judgment in Pressetext Nachrichtenagentur (3) are met.
(3) Case C-454/06 Pressetext Nachrichtenagentur [2008] ECR I-4401
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/5 |
Appeal brought on 16 April 2013 by the Kingdom of Spain against the judgment of the General Court (Eighth Chamber) delivered on 31 January 2013 in Case T-540/10 Spain v Commission
(Case C-197/13 P)
2013/C 178/10
Language of the case: Spanish
Parties
Appellant: Kingdom of Spain (represented by: A. Rubio González, agent)
Other party to the proceedings: European Commission
Form of order sought
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— |
Declare, in any event, that the present appeal is well founded and set aside the judgment of the General Court of 31 January 2013 in Case T-540/10 Spain v Commission. |
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— |
Annul Commission Decision C (2010) 6154 of 13 September 2010 reducing the assistance granted from the Cohesion Fund to the project stages: ‘High Speed Line Madrid-Zaragoza-Barcelona-French border. Section Lleida-Martorell (Platform). Subsection IX-A’ (CCI No 2001.ES.16.C.PT.005); ‘High Speed Line Madrid-Zaragoza-Barcelona-French border. Section Lleida-Martorell (Platform). Subsection X-B (Avinyonet del Penedés-Sant Sadurní d’Anoia)’ (CCI No 2001.ES.16.C.PT.008); ‘High Speed Line Madrid-Zaragoza-Barcelona-French border. Section Lleida-Martorell (Platform). Subsections XI-A and XI-B (Sant Sadurní d’Anoia-Gelida)’ (CCI No 2001.ES.16.C.PT.009) and ‘High Speed Line Madrid-Zaragoza-Barcelona-French border. Section Lleida-Martorell (Platform). Subsection IX-C’ (CCI No 2001.ES.16.C.PT.010); |
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— |
Order, in any event, the respondent to bear the costs. |
Pleas in law and main arguments
Error of law with respect to the effects of the period of time referred to in Article H(2) of Annex II to Council Regulation (EC) No 1164/94 (1) of 16 May 1994 establishing a Cohesion Fund . After the expiry of the period referred to, the Commission may no longer adopt any financial correction measures and, therefore, it is obliged to make payment and the correction applied is unlawful.
Error of law in relation to the concept of an award of a contract within the meaning of Council Directive 93/38/EEC (2) of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors . Points (e) and (f) of Article 20(2) of Directive 93/38 do not apply generally to any amendments whatsoever to public contracts agreed during their execution stage, but to substantive amendments only. A substantive amendment such as to constitute a new award of a contract can be regarded as having arisen only when the conditions laid down in the judgment in Pressetext Nachrichtenagentur (3) are met.
(3) Case C-454/06 Pressetext Nachrichtenagentur [2008] ECR I-4401
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/6 |
Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 18 April 2013 — Finanzamt Saarlouis v Heinz Malburg
(Case C-204/13)
2013/C 178/11
Language of the case: German
Referring court
Bundesfinanzhof
Parties to the main proceedings
Defendant and appellant on a point of law: Finanzamt Saarlouis
Applicant and respondent in the appeal on a point of law: Heinz Malburg
Question referred
Having regard to the principle of tax neutrality, must Article 4(1) and (2) and Article 17(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (1) be interpreted as meaning that a partner in a partnership of tax advisors who acquires from the partnership a portion of its client base for the sole purpose of providing directly thereafter to a newly founded partnership of tax advisors, in which he is the principal partner, a licence to use such client base for commercial purposes and free of charge may be entitled to deduct the input tax arising from the acquisition of the client base?
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/6 |
Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 25 April 2013 — K Oy
(Case C-219/13)
2013/C 178/12
Language of the case: Finnish
Referring court
Korkein hallinto-oikeus
Parties to the main proceedings
Applicant: K Oy
Other parties: Veronsaajien oikeudenvalvontayksikkö, Valtiovarainministeriö
Question referred
Do the first subparagraph of Article 98(2) of and point 6 of Annex III (as that point appears in Council Directive 2009/47/EC) (1) to Council Directive 2006/112/EC (2) on the common system of value added tax, when the principle of tax neutrality is taken into account, preclude national legislation under which a reduced rate of value added tax is applied to printed books, but the standard rate of tax is applied to books on other physical means of support such as a CD, CD-ROM or memory stick?
As regards the answer given to the question above, is it of any significance
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whether a book is intended to be read or to be listened to (an audiobook), |
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whether there exists a printed book with the same content as a book or audiobook on a CD, CD-ROM, memory stick or other equivalent physical means of support, |
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that a book on a physical means of support other than paper can exploit technical features provided by that means of support, such as search functions? |
(1) Council Directive 2009/47/EC of 5 May 2009 amending Directive 2006/112/EC as regards reduced rates of value added tax (OJ 2009 L 116, p. 18).
General Court
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/8 |
Judgment of the General Court of 7 May 2013 — macros consult v OHIM — MIP Metro (makro)
(Case T-579/10) (1)
(Community trade mark - Invalidity proceedings - Community figurative mark makro - Company name macros consult GmbH - Right acquired prior to the application for registration of a Community trade mark and entitling its holder to prohibit the use of the Community trade mark applied for - Non-registered signs protected under German law - Article 5 of the Markengesetz - Article 8(4), Article 53(1)(c), and Article 65 of Regulation (EC) No 207/2009)
2013/C 178/13
Language of the case: German
Parties
Applicant: macros consult GmbH — Unternehmensberatung für Wirtschafts- und Finanztechnologie (Ottobrunn, Germany) (represented initially by T. Raible, and subsequently by M. Daubenmerkl, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by R. Manea, and subsequently by G. Schneider, acting as Agents)
Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by J.-C. Plate and R. Kaase, lawyers)
Re:
Action brought against the decision of the Fourth Board of Appeal of OHIM of 18 October 2010 (Case R 339/2009-4) relating to invalidity proceedings between macros consult GmbH — Unternehmensberatung für Wirtschafts- und Finanztechnologie and MIP Metro Group Intellectual Property GmbH & Co. KG.
Operative part
The Court:
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1. |
Dismisses the action; |
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2. |
Orders macros consult GmbH — Unternehmensberatung für Wirtschafts- und Finanztechnologie to pay the costs. |
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/8 |
Judgment of the General Court of 14 May 2013 — Sanco v OHIM — Marsalman (Representation of a chicken)
(Case T-249/11) (1)
(Community trade mark - Opposition proceedings - Application for Community figurative mark representing a chicken - Earlier national figurative mark representing a chicken - Relative ground for refusal - Similarity between goods and services - Article 8(1)(b) of Regulation (EC) No 207/2009)
2013/C 178/14
Language of the case: Spanish
Parties
Applicant: Sanco, SA (Barcelona, Spain) (represented by: A. Segura Roda, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carillo, Agent)
Other party to the proceedings before the Board of Appeal of OHIM: Marsalman, SL (Barcelona, Spain)
Re:
Action brought against the decision of the Second Board of Appeal of OHIM of 17 February 2011 (Case R 1073/2010-2), concerning opposition proceedings between Sanco, SA and Marsalman, SL
Operative part of the judgment
The Court:
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1. |
Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 February 2011 (Case R 1073/2010-2); |
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2. |
Dismisses the action as to the remainder; |
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3. |
Orders OHIM to pay the costs. |
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/9 |
Judgment of the General Court of 14 May 2013 — Morelli v OHIM — Associazone nazionale circolo del popolo della libertà et Brambilla (PARTITO DELLA LIBERTA’)
(Case T-321/11 and 322/11) (1)
(Community trade mark - Opposition proceedings - Application for a Community word mark PARTITO DELLA LIBERTA’ and the Community figurative mark Partito della Libertà - Name of the earlier national domain name ‘partitodellaliberta.it’ - Article 8(4) of Regulation (EC) No 207/2009 - Failure to demonstrate the use of the earlier domain name ‘partitodellaliberta.it’ in the course of trade)
2013/C 178/15
Language of the case: Italian
Parties
Applicant: Raffaello Morelli (Rome, Italy) (represented by: G. Brenelli, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock, Agent)
Other parties to the proceedings before the Board of Appeal of OHIM: Associazone nazionale circolo del popolo della libertà (Milan, Italy) (Case T-321/11); and Michela Vittoria Brambilla (Milan) (Case T-322/11) (represented by: P. Tarchini, G. Sena and C.M. Furlani, lawyers)
Re:
Actions brought against the decisions of the First Board of Appeal of OHIM of 17 March 2011 (Cases R 1303/2010-1 and R 1304/2010-1) relating to opposition proceedings between Mr Raffaello Morelli, and, respectively, l’Associazione nazionale circolo del popolo della libertà and Mrs Michela Vittoria Brambilla.
Operative part of the judgment
The Court:
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1. |
Joins Cases T-321/11 and T-322/11 for the purposes of the judgment; |
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2. |
Dismisses the actions; |
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3. |
Orders Mr Raffaello Morelli to pay the costs. |
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/9 |
Judgment of the General Court of 14 May 2013 — Masottina v OHIM — Bodegas Cooperativas de Alicante (CA’MARINA)
(Case T-393/11) (1)
(Community trade mark - Opposition proceedings - Application for Community word mark CA’ MARINA - Earlier Community word mark MARINA ALTA - Relative ground for refusal - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009))
2013/C 178/16
Language of the case: English
Parties
Applicant: Masottina SpA (Cornegliano, Italy) (represented by: N. Schaeffer, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)
Other party to the proceedings before the Board of Appeal of OHIM: Bodegas Cooperativas de Alicante, Coop. V. (Petrel, Spain)
Re:
Action seeking the annulment of the decision of the First Board of Appeal of OHIM of 4 May 2011 (Case R 518/2010-1), relating to opposition proceedings between Bodegas Cooperativas de Alicante, Coop. V. and Masottina SpA.
Operative part of the judgment
The Court:
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1. |
Dismisses the action; |
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2. |
Orders Masottina SpA to pay the costs. |
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22.6.2013 |
EN |
Official Journal of the European Union |
C 178/10 |
Judgment of the General Court of 14 May 2013 — Fabryka Łożysk Tocznych-Kraśnik v OHIM — Impexmetal (IKFŁT KRAŚNIK)
(Case T-19/12) (1)
(Community trade mark - Opposition proceedings - Application for Community figurative mark IKFŁT KRAŚNIK - Earlier Community figurative mark FŁT - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
2013/C 178/17
Language of the case: Polish
Parties
Applicant: Fabryka Łożysk Tocznych-Kraśnik S.A. (Kraśnik, Poland) (represented by: J. Sieklucki, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: D. Walicka, Agent)
Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Impexmetal S.A. (Warsaw, Poland) (represented by: W. Trybowski and K. Pyszków, lawyers)
Re:
Action brought against the decision of the First Board of Appeal of OHIM of 27 October 2011 (Case R 2475/2010-1) concerning opposition proceedings between Impexmetal S.A. and Fabryka Łożysk Tocznych-Kraśnik S.A.
Operative part of the judgment
The Court:
|
1. |
Dismisses the action; |
|
2. |
Orders Fabryka Łożysk Tocznych-Kraśnik S.A to pay the costs. |
|
22.6.2013 |
EN |
Official Journal of the European Union |
C 178/10 |
Judgment of the General Court of 14 May 2013 — Unister v OHIM (fluege.de)
(Case T-244/12) (1)
(Community trade mark - Application for the Community word mark fluege.de - Absolute grounds for refusal - Descriptive character - No distinctive character - Distinctive character acquired through use - Article 7(1)(b) and (c) and Article 7(2) and (3) of Regulation (EC) No 207/2009)
2013/C 178/18
Language of the case: German
Parties
Applicant: Unister GmbH (Leipzig (Germany)) (represented by: H. Hug and A. Kessler-Jensch, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka, acting as Agent)
Re:
Action brought against the decision of the First Board of Appeal of OHIM of 14 March 2012 (Case R 2149/2011-1) concerning an application for registration of the word sign fluege.de as a Community trade mark
Operative part of the judgment
The Court:
|
1. |
Dismisses the action; |
|
2. |
Orders Unister GmbH to bear its own costs and to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). |
|
22.6.2013 |
EN |
Official Journal of the European Union |
C 178/10 |
Action brought on 29 January 2013 — Rose Vision and Seseña v Commission
(Case T-45/13)
2013/C 178/19
Language of the case: Spanish
Parties
Applicants: Rose Vision, SL (Seseña, Spain) and Julián Seseña (Pozuelo de Alarcón, Spain) (represented by: M. Muñiz Bernuy and A. Alonso Villa, lawyers)
Defendant: European Commission
Form of order sought
The applicants claim that the General Court should:
|
— |
annul the decisions to suspend agreed payments; |
|
— |
remove Rose Vision, SL from the Central Exclusion Database and the Early Warning System (EWS); |
|
— |
order the defendant to pay EUR 5 000 624 in damages. |
Pleas in law and main arguments
One of the two applicants, an undertaking principally engaged in telecommunications, research and development (R&D) and consultancy services in telecommunications, research and innovation, has worked on numerous projects with the Commission since 2002.
This action has arisen out of two audits of the applicant undertaking carried out between February and April 2011. The audit reports allege a series of failures and irregularities on the part of the applicant undertaking, which were the basis for the suspension of outstanding payments.
The applicants claim that those allegations do not reflect reality. They maintain that it can in fact be seen from a careful reading of one of the two audit reports mentioned above that the aim informing the report was to make an unjustified attack on the applicants for the purpose of discrediting them. In this way, the audit report is mostly based on unverified information. The Commission’s approach is more akin to an investigative, supervisory or inspection-related approach than to that of an audit, in which information must be verified and the reliability of sources ensured.
All of this has caused the applicant undertaking serious harm, not only of an economic nature but also to its professional reputation and to its credibility.
|
22.6.2013 |
EN |
Official Journal of the European Union |
C 178/11 |
Action brought on 18 March 2013 — TestBioTech and Others/Commission
(Case T-177/13)
2013/C 178/20
Language of the case: English
Parties
Applicants: TestBioTech eV (Munich, Germany); European Network of Scientists for Social and Environmental Responsibility eV (Braunschweig, Germany); and Sambucus eV (Vahlde, Germany) (represented by: K. Smith, QC, J. Stevenson, Barrister)
Defendant: European Commission
Form of order sought
The applicants claim that the Court should:
|
— |
Declare the application admissible; |
|
— |
Annul the decision of the Commission of 8 January 2013, which rejected the applicants’ requests for Internal Review of the Commission Decision No 2012/347/EU of 28 June 2012, granting a market authorisation under Regulation No 1829/2003 on genetically modified food and feed to Monsanto Europe SA for its genetically modified soybean ‘MON 87701 x MON 89788’; |
|
— |
Order the Commission to pay the applicants’ costs; and |
|
— |
Order any other measure deemed appropriate. |
Pleas in law and main arguments
In support of the action, the applicants rely on four pleas in law.
|
1. |
First plea in law, alleging that EFSA’s assessment that the Soybean is ‘substantially equivalent’ to its appropriate comparators is unlawful, is based on a scientific assessment which was not carried out in accordance with its own guidance, and/or is based on a manifest error of assessment. |
|
2. |
Second plea in law, alleging that EFSA’s failure to give adequate or any consideration to the potential synergistic/combinatorial effects between the Soybean and other factors, and/or to require an adequate toxicity assessment to be conducted is contrary to its own guidance, legal obligations and/or it constitutes a manifest error of assessment. |
|
3. |
Third plea in law, alleging that EFSA’s failure to require an adequate immunological assessment to be carried out is contrary to its own guidance, legal obligations and/or constitutes a manifest error of assessment. |
|
4. |
Fourth plea in law, alleging that EFSA’s determination that no post-market authorisation monitoring of the consumption of the Soybean is manifestly in error and/or is vitiated by the flaws identified in the first three pleas. |
|
22.6.2013 |
EN |
Official Journal of the European Union |
C 178/11 |
Action brought on 12 April 2013 — Olive Line International v OHIM (OLIVE LINE)
(Case T-209/13)
2013/C 178/21
Language of the case: Spanish
Parties
Applicant: Olive Line International, SL (Madrid, Spain) (represented by: M. Aznar Alonso, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Form of order sought
The applicant claims that the General Court should:
|
— |
annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 January 2013 in Case R 1447/2012-1; |
|
— |
order OHIM to pay the costs. |
Pleas in law and main arguments
Community trade mark concerned: Figurative mark representing a green quadrangular bottle including the words ‘OLIVE LINE’ for goods in Class 29 — International registration no 1 088 753 designating the European Community
Decision of the Examiner: Application rejected
Decision of the Board of Appeal: Appeal dismissed
Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009
|
22.6.2013 |
EN |
Official Journal of the European Union |
C 178/12 |
Action brought on 15 April 2013 — Madaus/OHIM — Indena (ECHINAMID)
(Case T-212/13)
2013/C 178/22
Language in which the application was lodged: English
Parties
Applicant: Madaus GmbH (Cologne, Germany) (represented by: V. Töbelmann and A. Späth, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Indena SpA (Milan, Italy)
Form of order sought
The applicant claims that the Court should:
|
— |
Overturn the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 January 2013 (Case R 27/2012-1); |
|
— |
Order OHIM to bear its own costs as well as the costs of the applicant; |
|
— |
In the event that Indena S.p.A. joins in the appeal as an intervening party, order the intervening party to bear its own costs. |
Pleas in law and main arguments
Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal
Community trade mark concerned: The word mark ‘ECHINAMID’ for goods in class 1 — Community trade mark application No 6 830 103
Proprietor of the mark or sign cited in the opposition proceedings: The applicant
Mark or sign cited in opposition: The Greek word mark ‘ECHINACIN’ for goods in class 5
Decision of the Opposition Division: Rejected the opposition
Decision of the Board of Appeal: Dismissed the appeal
Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.
|
22.6.2013 |
EN |
Official Journal of the European Union |
C 178/12 |
Action brought on 15 April 2013 — Deutsche Rockwool Mineralwoll/OHIM — Recticel (Lambda)
(Case T-215/13)
2013/C 178/23
Language in which the application was lodged: English
Parties
Applicant: Deutsche Rockwool Mineralwoll GmbH & Co. OHG (Gladbeck, Germany) (represented by: J. Krenzel, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Recticel SA (Brussels, Belgium)
Form of order sought
The applicant claims that the Court should:
|
— |
Set aside the decision of the defendant, R 112/2012-5, and |
|
— |
Impose the costs on the defendant. |
Pleas in law and main arguments
Registered Community trade mark in respect of which an application for revocation has been made: The figurative mark representing the Greek letter lambda in red and white colours, Community trade mark registration No 2 960 789
Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal
Party applying for revocation of the Community trade mark: The applicant
Decision of the Cancellation Division: Partially revoked the Community trade mark
Decision of the Board of Appeal: Partially dismissed the appeal
Pleas in law: Infringement of Article 51(1)(a) of Council Regulation No 207/2009.
|
22.6.2013 |
EN |
Official Journal of the European Union |
C 178/13 |
Action brought on 12 April 2013 — T&L Sugars and Sidul Açúcares v Commission
(Case T-225/13)
2013/C 178/24
Language of the case: English
Parties
Applicants: T&L Sugars Ltd (London, United Kingdom) and Sidul Açúcares, Unipessoal Lda (Santa Iria de Azóia, Portugal) (represented by: D. Waelbroeck, lawyer, and D. Slater, Solicitor)
Defendants: European Commission and the European Union, represented in the present case by the European Commission
Form of order sought
The applicants claim that the Court should:
|
— |
Annul (i) Regulations (EU) No 131/2013 (1) and No 281/2013 (2) laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2012/2013; (ii) Regulations (EU) No 194/2013 (3) and 332/2013 (4) fixing an allocation coefficients for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy; (iii) Regulation (EU) No 36/2013 (5) opening a standing invitation to tender for the 2012/2013 marketing year for imports of sugar of CN codes 1701 14 10 and 1701 99 10 at a reduced customs duty; and (iv) Regulation (EU) No 67/2013 (6) on the minimum customs duty to be fixed in response to the first partial invitation to tender, as well as Regulation (EU) No 178/2013 (7) on the minimum customs duty to be fixed in response to the second partial invitation to tender; |
|
— |
In the alternative, declare the plea of illegality under Article 277 TFEU against Regulations (EU) No 131/2013 and No 281/2013 and Regulation (EU) No 36/2013 admissible and well founded; |
|
— |
Declare Articles 186(a) and 187 of Regulation (EC) No 1234/2007 (8) illegal under Article 277 TFEU to the extent these do not correctly transpose the relevant provisions of Regulation (EC) No 318/2006 (9); |
|
— |
Condemn the European Union, as represented by the Commission, to repair any damage suffered by the applicants as a result of the Commission's breach of its legal obligations and set the amount of this compensation for the damage suffered by the applicants during the period 25 June 2012 to 31 March 2013 at 184 725 960 EUR plus any ongoing losses suffered by the applicants after that date or any other amount reflecting the damage suffered or to be suffered by the applicants as further established by them in the course of this procedure especially to take due account of future damage, all the aforementioned amounts to be augmented by interest from the date of judgment by the General Court until actual payment; |
|
— |
Order an interest at the rate set at the time by the European Central Bank for main refinancing operations, plus two percentage points, or any other appropriate rate to be determined by the General Court, be paid on the amount payable as from the date of the General Court's judgment until actual payment; |
|
— |
Order the Commission to pay all costs and expenses in these proceedings. |
Pleas in law and main arguments
In support of the action, the applicants rely on eight pleas in law.
|
1. |
First plea in law, alleging violation of the principle of non-discrimination, as on the one hand, Regulations (EU) No 131/2013 and No 281/2013 provide for fixed, generally applicable 224 EUR and 172 EUR per tonne Surplus Levy — i.e. less than half to the usual 500 EUR per tonne — applying to a specific quantities (a total of 300 000 tonnes) of sugar, divided equally only between beet producer applicants. On the other hand, Regulation (EU) No 36/2013 provides for an unknown, unpredictable customs duty, applicable only to auction winners (who can be cane refiners, beet processors, or any other third party) and for an unspecified total amount. |
|
2. |
Second plea in law, alleging violation of Regulation (EC) No 1234/2007/absence of an appropriate legal basis, since with regard to Regulations (EU) No 131/2013 and No 281/2013, the Commission has no power whatsoever to increase quotas and is on the contrary required to impose high, dissuasive levies on the release of out-of-quota sugar on the EU market. As regards the tax auctions, the Commission clearly has no mandate or power to adopt this kind of measure, which was never envisaged in the basic legislation. |
|
3. |
Third plea in law, alleging violation of the principle of legal certainty as the Commission created a system whereby customs duties are not predictable and fixed through the application of consistent, objective criteria, but are rather determined by subjective willingness to pay (moreover of actors that are subject to very different pressures and incentives in this regard) with no actual link with the actual products being imported. |
|
4. |
Fourth plea in law, alleging violation of the principle of proportionality in so far as the Commission could easily have adopted less restrictive measures to tackle the supply shortage, which would have not been taken exclusively to the detriment of importing refiners. |
|
5. |
Fifth plea in law, alleging violation of legitimate expectations, as the applicants were legitimately led to expect that the Commission would use the tools available in Regulation (EC) No 1234/2007 to restore the availability of supply of raw cane sugar for refining. The applicants were also legitimately led to expect that the Commission would preserve the balance between importing refiners and domestic sugar producers. |
|
6. |
Sixth plea in law, alleging violation of the principle of diligence, care and good administration, since in managing the sugar market, the Commission repeatedly committed fundamental errors and self contradictions that demonstrate at best a lack of understanding about basic market mechanisms. For instance, its balance sheet — which constitutes one of the main tools for the content and timing of market intervention — was grossly incorrect and based on a flawed methodology. Moreover, the actions taken by the Commission were manifestly inappropriate in light of the supply shortage. |
|
7. |
Seventh plea in law, alleging violation of Article 39 TFEU since the Commission failed to achieve two of the objectives set out in this Treaty provision. |
|
8. |
Eighth plea in law, alleging violation of Regulation (EU) No 1006/2011 (10), as the duties applied to white sugar are indeed only fractionally higher than for raw sugar, the difference being as low as 20 EUR per tonne. This contrasts sharply with the 80 EUR difference between the standard import duty for refined sugar (€419) and raw sugar for refining (€339) which are set out in Regulation (EU) No 1006/2011. In addition, in support of their request for damages, the applicants allege that the Commission exceeded gravely and manifestly the margin of discretion conferred to it by Regulation (EC) No 1234/2007, through its passivity and inappropriateness of action. Furthermore, the Commission failure to adopt adequate measures constitutes a manifest infringement of a rule of law ‘intended to confer rights on individuals’. The Commission violated in particular the EU general principles of legal certainty, non-discrimination, proportionality, legitimate expectations and the duty of diligence, care and good administration. |
(1) Commission Implementing Regulation (EU) No 131/2013 of 15 February 2013 laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during the 2012/2013 marketing year (OJ 2013 L 45, p. 1)
(2) Commission Implementing Regulation (EU) No 281/2013 of 22 March 2013 laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during the 2012/2013 marketing year (OJ 2013 L 84, p. 19)
(3) Commission Implementing Regulation (EU) No 194/2013 of 6 March 2013 fixing an allocation coefficient for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy during the 2012/2013 marketing year (OJ 2013 L 64, p. 3)
(4) Commission Implementing Regulation (EU) No 332/2013 of 10 April 2013 fixing an allocation coefficient for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy during the 2012/2013 marketing year (OJ 2013 L 102, p. 18)
(5) Commission Implementing Regulation (EU) No 36/2013 of 18 January 2013 opening a standing invitation to tender for the 2012/2013 marketing year for imports of sugar of CN codes 1701 14 10 and 1701 99 10 at a reduced customs duty (OJ 2013 L 16, p. 7)
(6) Commission Implementing Regulation (EU) No 67/2013 of 24 January 2013 on the minimum customs duty for sugar to be fixed in response to the first partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 36/2013 (OJ 2013 L 22, p. 9)
(7) Commission Implementing Regulation (EU) No 178/2013 of 28 February 2013 on the minimum customs duty for sugar to be fixed in response to the second partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 36/2013 (OJ 2013 L 58, p. 3)
(8) Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (OJ 2007 L 299, p. 1)
(9) Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (OJ 2006 L 58, p. 1)
(10) Commission Regulation (EU) No 1006/2011 of 27 September 2011 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2011 L 282, p. 1)
|
22.6.2013 |
EN |
Official Journal of the European Union |
C 178/15 |
Action brought on 17 April 2013 — Bayer Intellectual Property/OHIM — Interhygiene (INTERFACE)
(Case T-227/13)
2013/C 178/25
Language in which the application was lodged: English
Parties
Applicant: Bayer Intellectual Property GmbH (Monheim am Rhein, Germany) (represented by: E. Armijo Chávarri, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Interhygiene GmbH (Cuxhaven, Germany)
Form of order sought
The applicant claims that the Court should:
|
— |
Annul the contested decision for being contrary to law insofar as it declares that the INTERFACE Community trademark application is incompatible with the earlier Interfog trademark; |
|
— |
Expressly sentence OHIM to court fees. |
Pleas in law and main arguments
Applicant for a Community trade mark: The applicant
Community trade mark concerned: The word mark ‘INTERFACE’ for goods in class 5 — Community trade mark application 8 133 977
Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal
Mark or sign cited in opposition: Community trade mark registration of the word mark ‘Interfog’ for goods in class 5
Decision of the Opposition Division: Upheld the opposition
Decision of the Board of Appeal: Dismissed the appeal
Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.
|
22.6.2013 |
EN |
Official Journal of the European Union |
C 178/15 |
Action brought on 22 April 2013 — HTC Sweden/OHIM — Vermop Salmon (TWISTER)
(Case T-230/13)
2013/C 178/26
Language in which the application was lodged: English
Parties
Applicant: HTC Sweden AB (Söderköping, Sweden) (represented by: G. Hasselblatt and D. Kipping, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Vermop Salmon GmbH (Gilching, Germany)
Form of order sought
The applicant claims that the Court should:
|
— |
Overturn the decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 January 2013, joined Cases R 1873/2011-1 and R 1881/2011-1; |
|
— |
Order OHIM to bear its own costs as well as the costs of the applicant. |
Pleas in law and main arguments
Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘TWISTER’ for goods in classes 3, 7 and 21 — Community trade mark registration No 4 617 932
Proprietor of the Community trade mark: The applicant
Applicant for the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal
Grounds for the application for a declaration of invalidity: The application of invalidity was based on Articles 53(1)(a) and 8 (1)(b) of Council Regulation No 207/2009
Decision of the Cancellation Division: Declared the contested Community trade mark partially invalid
Decision of the Board of Appeal: Dismissed the appeal partially
Pleas in law: Infringement of Article 7(1)(c) of Council Regulation No 207/2009.
|
22.6.2013 |
EN |
Official Journal of the European Union |
C 178/16 |
Action brought on 7 May 2013 — Italy v Commission
(Case T-255/13)
2013/C 178/27
Language of the case: Italian
Parties
Applicant: Italian Republic (represented by: M. Salvatorelli, avvocato dello Stato, and by G. Palmieri, Agent)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
|
— |
annul Commission Implementing Decision C(2013) 981 final of 26 February 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 it involves flat rate financial corrections made in connection with Investigations AC/2005/44, XC/2007/0107 and XC/2007/030 (flat rate financial correction relating to cross-compliance for the claim years 2005, 2006 and 2007 in the amount of EUR 48 095 235,86), Investigations FV/2007/315 and FV/2007/355 (flat rate financial correction relating to the processing of citrus fruits for the financial years 2005, 2006 and 2007 in the amount of EUR 17 913 976,32), and Investigations FA/2008/64, FA/2008/103, FA/2009/064 and FA/2009/104 (flat rate financial correction relating to recognition criteria for the financial years 2007, 2008 and 2009 in the amount of EUR 6 354 112,39); |
|
— |
order the Commission of the European Union to pay the costs. |
Pleas in law and main arguments
The contested decision is alleged to be unlawful for several reasons:
|
1. |
the Commission made the corrections despite a total or partial failure to transpose directives, thus rendering those corrections vulnerable if ever infringement proceedings were to be initiated; |
|
2. |
the Commission, without reason, disregarded the Italian authorities’ conduct, failing to take into account (i) the need for a gradual approach to an extremely complex system, (ii) the significance of the reference made by the EU legislation to the options for its adoption by each of the Member States, and (iii) the relative uncertainty as to the interpretation of Community law: as a result, the contested decision infringes the principles of legal certainty, legality, proportionality, good faith and protection of legitimate expectations; |
|
3. |
the Commission completely disregarded the differences between the monitoring systems used by each of the paying agencies; |
|
4. |
the Commission applied a high level of correction — 10 % — which is in fact only applicable in the event of inadequate random monitoring; and |
|
5. |
it infringes the principle that a decision must state the reasons on which it is based. |
|
6. |
The specific complaints made by the Commission in that decision are also contested, following a detailed investigation of the facts relating to the documentation examined by the Commission. |
|
7. |
The part of the decision which concerns the flat rate correction relating to the processing of citrus fruits for the years 2005, 2006 and 2007 is unlawful and is contested in so far as it attributes responsibility for the cases of fraud discovered within the sector to inadequate monitoring on the part of the Member State. In particular, the Commission has not taken into account the fact that no partial or total failure to act was imputable to the State, given that the fraudulent activity in question was in fact imputable to the public officials who were supposed to confirm, following the monitoring entrusted to them, the legality of the activity carried out and the scope of the contributions; therefore, it was not possible for the investigations to be carried out in any other way, and thus avoid fraud, until the criminal conduct mentioned was discovered. |
|
8. |
The flat rate correction relating to the ARBEA (Agenzia della Regione Basilicata per le Erogazioni in Agricoltura) (Agricultural Payments Agency — Basilicata Region) recognition criteria for the financial years 2007, 2008 and 2009, which was made on the basis of alleged organisational shortcomings supposedly imputable to Italy, is contested on the grounds that (i) rules have been applied to the situation which were not in force at the time the material events took place and (ii) the Commission has disregarded the fact that Italy adopted the necessary corrective measures in good time. |
|
22.6.2013 |
EN |
Official Journal of the European Union |
C 178/17 |
Action brought on 7 May 2013 — Italy v Commission
(Case T-256/13)
2013/C 178/28
Language of the case: Italian
Parties
Applicant: Italian Republic (represented by: W. Ferrante, avvocato dello Stato, and by G. Palmieri, Agent)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should annul the letter of 22 February 2013 from the European Commission’s Directorate-General for Education and Culture (Commission ref.: Ares(2013) 237719) concerning ‘Agreement No: ADEC 2007-0266 — Reimbursement — review after appeal’, sent on 25 February 2013 and received by the Agenzia nazionale per i Giovani (National Youth Agency) on 6 March 2013 (Agenzia ref.: ANG/2741/AMS), requesting the reimbursement of sums totalling EUR 1 486 485,90, insofar as it seeks reimbursement of EUR 52 036,24 and EUR 183 729,70, together with the letter of 28 February 2013 from the European Commission’s Directorate-General for Education and Culture (Commission ref.: Ares(2013) 267064) addressed to the Head of the Youth and National Civilian Service Department, Prime Minister’s Office, communicating the ‘Final evaluation conclusions’ from the ‘2011 Declaration of assurance’.
Pleas in law and main arguments
The present action concerns the Commission’s request for reimbursement of various sums totalling EUR 1 486 485,90, a figure which includes sums in the amount of EUR 52 036,24, relating to expenses incurred by the Agenzia nazionale per i Giovani for training and assessing EVS (European Voluntary Service) volunteers in connection with the Youth in Action Programme during 2007 which have been considered ineligible, and of EUR 183 729,70, relating to sums not yet recovered by the Agenzia following requests for reimbursement addressed to beneficiaries of that programme from 2000 to 2004 inclusive.
In support of its action, the Italian Republic relies on two pleas in law.
|
1. |
First plea in law, alleging breach of the combined provisions of Article 3.2.1 and of the last paragraph of Article 5.2.2 of ‘Grant Agreement No 2007 — 0266/001 — 001 for the operational implementation of the Youth in Action Programme’ between the European Commission and the Agenzia nazionale per i Giovani.
|
|
2. |
Second plea in law, alleging breach of Article 10.2 of Annex II.1 to Agreement No 2003 — 1805/001 — 001 between the European Commission and the Agenzia nazionale per i Giovani.
|