29.9.2014   

EN

Official Journal of the European Union

C 339/1

29.9.2014   

EN

Official Journal of the European Union

C 339/2

29.9.2014   

EN

Official Journal of the European Union

C 339/2

1.

Can Article 48(3) of 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 (1) (‘Directive 2004/18/EC’), in conjunction with Article 2 thereof, be interpreted, where it states that ‘where appropriate’ an economic operator may rely on the capacities of other entities, as covering any situation where a particular economic operator does not have the skills required by the contracting authority and wishes to rely on the capacities of other entities? Or must the indication that an economic operator may rely on the resources of other entities only ‘where appropriate’ be regarded as a restriction indicating that such reliance may be had only exceptionally and not as a rule when providing evidence of the skills of economic operators in procedures for the award of public contracts?

2.

Can Article 48(3) of Directive 2004/18/EC, in conjunction with Article 2 thereof, be interpreted as meaning that reliance by an economic operator on the capacities of other entities in terms of their knowledge and experience ‘regardless of the legal nature of the links which it has with them’ and ‘having at its disposal the resources’ of those entities denote that during performance of the contract an economic operator need not have links with those entities or can have very loose and vague links, that is to say, it can perform the contract independently (without the involvement of another entity) or such participation can consist of ‘advice’, ‘consultation’, ‘training’ and the like? Or must Article 48(3) be interpreted as meaning that the entity on whose capacities the economic operator relies must actually and personally perform the contract in so far as its capacities were declared?

3.

Can Article 48(3) of Directive 2004/18/EC, in conjunction with Article 2 thereof, be interpreted as meaning that an economic operator which has its own experience but to a lesser degree than it would like to indicate to the contracting authority (for example, insufficient experience to submit a tender for the whole contract) may rely additionally on the capacities of other entities to improve its situation in the procedure?

4.

Can Article 48(3) of Directive 2004/18/EC, in conjunction with Article 2 thereof, be interpreted as meaning that in the contract notice or the tendering specifications the contracting authority can (or even must) lay down the rules under which the economic operator may rely on the capacities of other entities, for example in what way the economic operators must participate in the performance of the contract, in what way the capacity of the economic operator and another entity can be combined, and whether the other entity will bear joint and several liability with the economic operator for the due performance of the contract in so far as the economic operator has relied on its capacities?

5.

Does the principle of equal and non-discriminatory treatment of economic operators set out in Article 2 of Directive 2004/18/EC allow reliance on the capacities of another entity under Article 48(3) where the capacities of two or more entities which do not have the capacities in terms of knowledge and experience required by the contracting authority are combined?

6.

Therefore, does the principle of equal and non-discriminatory treatment of economic operators set out in Article 2 of Directive 2004/18/EC allow an interpretation of Articles 44 and 48(3) of Directive 2004/18/EC to the effect that the conditions for participation in the procedure that are laid down by the contracting authority may be fulfilled just formally for the purposes of participating in the procedure and regardless of the actual skills of the economic operator?

7.

Where it is permitted to submit a tender for lots, does the principle of equal and non-discriminatory treatment of economic operators set out in Article 2 of Directive 2004/18/EC allow an economic operator, after the submission of tenders, to state — for example in the context of the supplementing or explaining of documents — to which lot the resources specified by it in order to prove that the conditions for participation in the procedure have been fulfilled are to be assigned?

8.

Do the principle of equal and non-discriminatory treatment of economic operators and the principle of transparency set out in Article 2 of Directive 2004/18/EC allow an auction which has been carried out to be annulled and an electronic auction to be repeated where it was carried out improperly in an essential respect, for example where not all economic operators which submitted admissible tenders were invited to participate?

9.

Do the principle of equal and non-discriminatory treatment of economic operators and the principle of transparency set out in Article 2 of Directive 2004/18/EC allow a contract to be awarded to an economic operator whose tender was selected as result of such an auction without it being repeated, where it is not possible to determine whether or not the participation of the economic operator which was not taken into consideration would have altered the result of the auction?

10.

In interpreting the provisions of Directive 2004/18/EC, is it permitted to use as a guide to interpretation the content of the provisions of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, and of the preamble thereto, even though the period for implementing it has not expired, in so far as it explains certain assumptions and intentions of the EU legislature and is not contrary to Directive 2004/18/EC?

29.9.2014   

EN

Official Journal of the European Union

C 339/4

29.9.2014   

EN

Official Journal of the European Union

C 339/4

1)

‘On a proper interpretation of EU law respecting the common organisation of the market in wine, in particular Regulation EU No 1308/2013 (1), is it lawful for a member state to promulgate a national measure which prescribes a minimum retail selling price for wine related to the quantity of alcohol in the sale product and which thus departs from the basis of free formation of price by market forces which otherwise underlies the market in wine?’

2)

‘In the context of a justification sought under article 36 TFEU, where -

is it permissible under EU law, and if so under what conditions, for a member state to reject such fiscal methods of increasing the price to the consumer in favour of legislative measures fixing minimum retail prices which distort intra EU trade and competition?’

3)

‘Where a court in a member state is called upon to decide whether a legislative measure which constitutes a quantitative restriction on trade incompatible with article 34 TFEU may yet be justified under article 36 TFEU, on the grounds of the protection of human health, is that national court confined to examining only the information, evidence or other materials available to and considered by the legislator at the time at which the legislation was promulgated? And if not, what other restrictions might apply to the national court’s ability to consider all materials or evidence available and offered by the parties at the time of the decision of the national court?’

4)

‘Where a court in a member state is required, in its interpretation and application of EU law, to examine a contention by the national authorities that a measure otherwise constituting a quantitative restriction within the scope of article 34 TFEU is justified as a derogation, in the interests of the protection of human health, under article 36 TFEU, to what extent is the national court required, or entitled, to form — on the basis of the materials before it — an objective view of the effectiveness of the measure in achieving the aim which is claimed; the availability of at least equivalent alternative measures less disruptive of intra EU competition; and the general proportionality of the measure?’

5)

‘In considering (in the context of a dispute as to whether a measure is justified on grounds of the protection of human health under article 36 TFEU) the existence of an alternative measure, not disruptive, or at least less disruptive, of intra EU trade and competition, is it a legitimate ground for discarding that alternative measure that the effects of that alternative measure may not be precisely equivalent to the measure impugned under article 34 TFEU but may bring further, additional benefits and respond to a wider, general aim?’

6)

‘In assessing whether a national measure conceded, or found, to be a quantitative restriction in the sense of article 34 TFEU for which justification is sought under article 36 TFEU and in particular in assessing the proportionality of the measure, to what extent may a court charged with that function take into account its assessment of the nature and extent to which the measure offends as a quantitative restriction offensive to article 34?’

29.9.2014   

EN

Official Journal of the European Union

C 339/5

1.

Is a serviced residence, within the meaning of the Decree of the Council of the Walloon Region of 5 June 1997 relating to retirement homes, serviced residences and day-care centres for persons of 60 or over, [which makes available] for profit individual dwellings designed for one or two persons, comprising a fitted kitchen, a sitting room, a bedroom and a fitted bathroom, thereby enabling residents to lead an independent life, together with a range of optional services supplied against payment, with the aim of making a profit, those services not being available exclusively for the occupants of the serviced residences (… a bar restaurant, … hairdressing and beauty salon, … a physiotherapy room, … occupational therapy activities, … a laundry, … a pharmacy and a blood collection point, a doctor’s surgery), a body that is in essence devoted to social wellbeing which carries out supplies ‘of services and of goods closely linked to welfare and social security work’ for the purposes of Article 13A(1)(g) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (1) (now Article 132(1)(g) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax) (2)?

2.

Is the answer to Question 1 different if the serviced residence in question receives, for the supply of the services in question, subsidies or any other form of advantage or funding from public authorities?

29.9.2014   

EN

Official Journal of the European Union

C 339/6

1(a)

Must Article 56 TFEU be interpreted as meaning that criminal prosecution authorities are prohibited from penalising the intermediation of bets on sporting competitions carried on without German authorisation on behalf of betting organisers licensed in other Member States, where such intermediation is subject to the condition that the betting organiser too must hold a German authorisation, but the legal position under statute that is contrary to EU law (‘monopoly on sports betting’) prohibits the national authorities from issuing an authorisation to non-State-owned betting organisers?

1(b)

Is the answer to question 1(a) altered by the fact that, in one of the 15 German Länder which jointly established and jointly implement the State monopoly on sports betting, the State authorities maintain, in prohibition or criminal proceedings, that the statutory prohibition on the issue of an authorisation to private suppliers is not applied in the event of an application for an authorisation to operate as an organiser or intermediary in that federal Land?

1(c)

Must the principles of EU law, in particular the freedom to provide services, and the judgment of the Court of Justice in Case C-186/11 be interpreted as precluding a permanent prohibition or an imposition of penalties (described as ‘precautionary’) on the cross-border intermediation of bets on sporting competitions, where this is justified on the ground that it ‘was not obvious, that is to say recognisable without further examination’ to the prohibiting authority at the time of its decision that the intermediation activity fulfils all the substantive conditions of authorisation (apart from the reservation of such activities to a State monopoly)?

2

Must Directive 98/34/EC (1) be interpreted as precluding the imposition of penalties for the intermediation of bets on sporting competitions via a gaming machine, without a German authorisation, on behalf of a betting organiser licensed in another EU Member State, where the interventions by the State are based on a law, not notified to the European Commission, which was adopted by an individual Land and has as its content the expired Staatsvertrag zum Glücksspielwesen (State Treaty on Gaming) (‘the GlüStV’)?

3

Must Article 56 TFEU, the requirement of transparency, the principle of equality and the EU-law prohibition of preferential treatment be interpreted as precluding the imposition of penalties for the intermediation of bets on sporting competitions, without a German authorisation, on behalf of a betting organiser licensed in another EU Member State in a situation characterised by the Glücksspieländerungsstaatsvertrag (State Treaty amending the provisions on games of chance) (‘the GlüÄndStV’), applicable for a period of nine years and containing an ‘experimental clause for bets on sporting competitions’, which, for a period of seven years, provides for the theoretical possibility of awarding also to non-State-owned betting organisers a maximum of 20 licences, legally effective in all German Länder, as a necessary condition of authorisation to operate as an intermediary, where:

29.9.2014   

EN

Official Journal of the European Union

C 339/8

1)

Must Article 17 of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (1) be interpreted as meaning that the national legislature is authorised to provide that after the termination of the contract, the commercial agent has the right to an indemnity for customers of which the amount must not be greater than the amount of remuneration for one year, and that, if that amount does not cover the whole of the loss actually suffered, damages in the sum of the difference between the amount of loss actually suffered and the amount of that indemnity?

2)

More specifically, must Article 17(2)(c) of [Directive 86/653] be interpreted as making the award of damages additional to the indemnity for customers conditional upon the existence of a breach of contract or breach of a quasi-delictual duty of care by the principal which was the cause of the losses claimed, and to the existence of loss which is distinct from that compensated for by the lump sum of the indemnity for customers?

3)

If the answer to the latter question is yes, must the breach be something other than the unilateral termination of the contract, such as, for example, giving insufficient notice, the grant of insufficient compensation in respect of notice and customers, the existence of serious reasons on the part of the principal, a breach of the right to terminate the contract or any other types of breaches of, in particular, market practice?

29.9.2014   

EN

Official Journal of the European Union

C 339/8

1.

Is the transportation of passengers by open sloop on the internal waterways of Amsterdam, with the main purpose of providing, for payment, tours and rentals for festive occasions, as in the case in the present proceedings, a service to which the provisions of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) apply, regard being had to the exception set out in Article 2(2)(d) of that directive in respect of services in the field of transport?

2.

If the answer to Question 1 is in the affirmative:

Does Chapter III of Directive 2006/123 apply to purely internal situations, or is the assessment of the question as to whether that chapter applies subject to the case-law of the Court of Justice concerning the Treaty provisions on freedom of establishment and the free movement of services in purely internal situations?

3.

If the answer to Question 2 is that the case-law of the Court of Justice concerning the Treaty provisions on freedom of establishment and the free movement of services in a purely internal situation applies to the assessment of the question as to whether Chapter III of Directive 2006/123 is applicable:

4.

Does it follow from Article 11(1)(b) of Directive 2006/123 that, if the number of authorisations is limited by an overriding reason relating to the public interest, the duration of the validity of the authorisations must also be limited, regard being had also to the objective pursued by that directive of securing free access to the market for services, or is this a matter which lies within the discretion of the competent authority of the Member State?

29.9.2014   

EN

Official Journal of the European Union

C 339/9

1.

Does Chapter III of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) apply to purely internal situations, or is the assessment of the question as to whether that chapter applies subject to the case-law of the Court of Justice concerning the Treaty provisions on freedom of establishment and the free movement of services in purely internal situations?

2.

If the answer to Question 1 is that the case-law of the Court of Justice concerning the Treaty provisions on freedom of establishment and the free movement of services in a purely internal situation applies to the assessment of the question as to whether Chapter III of Directive 2006/123 is applicable:

3.

To the extent to which the operator is entitled to rely on the provisions of Chapter III of Directive 2006/123, does Article 10(2)(c) of that directive preclude a measure such as that at issue here, whereby an operator of window prostitution businesses is allowed to rent out rooms in shifts only to prostitutes who are able to make themselves understood by the operator in a language which he understands?

29.9.2014   

EN

Official Journal of the European Union

C 339/10

1.

Do amino acid mixes such as those at issue in the present case (RM0630 and RM0789), from which (in combination with carbohydrates and fats) a foodstuff is manufactured by which a substance that is vital for health and present in normal diet but which can in individual cases trigger an allergic reaction is replaced and, as a result, allergy-induced health impairments can be avoided and existing complaints alleviated, if not cured, constitute medicaments consisting of two or more constituents which have been mixed together for therapeutic or prophylactic uses within the meaning of heading 3003 of the Combined Nomenclature (1)?

If Question 1 is answered in the negative:

2.

Do the amino acid mixes constitute food preparations under heading 2106 of the Combined Nomenclature which, pursuant to note 1(a) to Chapter 30 of the Combined Nomenclature, are excluded from Chapter 30 because they have no prophylactic or therapeutic effect beyond the supply of nutrition?

29.9.2014   

EN

Official Journal of the European Union

C 339/11

29.9.2014   

EN

Official Journal of the European Union

C 339/11

1.

Does the relationship of worker member in a cooperative (cooperativa de trabajo asociado) such as that regulated in Article 80 of (Spanish) Law 27/99 on Cooperatives and Article 89 of Law 8/2003 on Cooperatives of the Autonomous Community of Valencia — a relationship which, although characterised by the national legislation and case-law as ‘associative’ (one of membership), could be considered to amount to an ‘employment contract’ under Community law — come within the scope of Directive 2010/18 (1) relating to the ‘revised Framework Agreement on parental leave’ as defined in Clause 1(2) of [the Agreement]?

If that first question is answered in the negative, a second, subsidiary question arises.

2.

Must Clause 8(2) of the ‘revised Framework Agreement on Parental Leave’ (Directive 2010/18), and, more specifically, the provision in accordance with which ‘[i]mplementation of the provisions of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field covered by this agreement’, be interpreted as meaning that, should a Member State fail to implement Directive 2010/18 expressly, the scope of the protection which that State itself defined in transposing the earlier Directive 96/34 (2) may not be reduced?

Only if the answer to either of those two questions is in the affirmative, Directive 2010/18 being considered applicable to an ‘associative-work’ relationship such as that of the applicant, will the other questions which follow be justified, for the reasons set out below.

3.

Must Clause 6 of the new ‘revised Framework Agreement on Parental Leave’, incorporated in Directive 2010/18, be interpreted as meaning that the national implementing provision or agreement must incorporate and make explicit the obligations of employers to ‘consider’ and ‘respond to’ the requests of its workers for ‘changes to … working hours and/or patterns’, when returning from parental leave, taking into account both employers’ and workers’ needs, and that the implementing mandate cannot be understood to be have been complied with by means of national rules — legislative or those of cooperatives — which make the effectiveness of such a right conditional solely upon the mere discretion of the employer as to whether or not to grant such requests?

4.

Must it be found that Clause 6 [of the] ‘Revised Framework Agreement on Parental Leave’ — in the light of Article 3 of Directive [2010/18] and the ‘Final provisions’ in Clause 8 of the Agreement — has, where there has been a failure to transpose, ‘horizontal direct effect’ as a result of being a minimum Community standard?

29.9.2014   

EN

Official Journal of the European Union

C 339/12

1.

Are Article 56 of the Worker’s Statute (Royal legislative decree 1/1995 of 24 March), the Fifth transitional provision of Law 3/2012 of 6 July on urgent measures for the reform of the labour market and Articles 123 and 124.13 of Law 36/2011 of 10 October governing the social courts (Ley Reguladora de la Jurisdicción Social, which refers to the other provisions) contrary to Articles 107 and 108 of the consolidated version of the Treaty on the Functioning of the European Union, inasmuch as they materially increase the compensation authorised by the Decision of the European Commission in the case ‘State aid SA.35253 (2012/N) Spain. Restructuring and Recapitalisation of the BFA Group’?

2.

Is an interpretation of those national provisions that would allow the court, in the event that the dismissal is held to be fair, to adjust the compensation to the legal minimum provided for under national law contrary to the abovementioned provisions of EU law and to the Decision of the European Commission in the case ‘State aid SA.35253 (2012/N) Spain. Restructuring and Recapitalisation of the BFA Group’?

3.

Is an interpretation of those national provisions that would allow the court, in the event that the dismissal is held to be unfair, to adjust the compensation to the amounts provided for under the agreement reached in the consultation period, provided that those amounts are greater than the legal minimum but lower than the legal maximum, contrary to the abovementioned provisions of EU law and to the Decision of the European Commission in the case ‘State aid SA.35253 (2012/N) Spain. Restructuring and Recapitalisation of the BFA Group’?

29.9.2014   

EN

Official Journal of the European Union

C 339/13

1.

Are Article 56 of the Worker’s Statute (Royal legislative decree 1/1995 of 24 March), the Fifth transitional provision of Law 3/2012 of 6 July on urgent measures for the reform of the labour market and Articles 123 and 124.13 of Law 36/2011 of 10 October governing the social courts (Ley Reguladora de la Jurisdicción Social, which refers to the other provisions) contrary to Articles 107 and 108 of the consolidated version of the Treaty on the Functioning of the European Union, inasmuch as they materially increase the compensation authorised by the Decision of the European Commission in the case ‘State aid SA.35253 (2012/N) Spain. Restructuring and Recapitalisation of the BFA Group’?

2.

Is an interpretation of those national provisions that would allow the court, in the event that the dismissal is held to be fair, to adjust the compensation to the legal minimum provided for under national law contrary to the abovementioned provisions of EU law and to the Decision of the European Commission in the case ‘State aid SA.35253 (2012/N) Spain. Restructuring and Recapitalisation of the BFA Group’?

3.

Is an interpretation of those national provisions that would allow the court, in the event that the dismissal is held to be unfair, to adjust the compensation to the amounts provided for under the agreement reached in the consultation period, provided that those amounts are greater than the legal minimum but lower than the legal maximum, contrary to the abovementioned provisions of EU law and to the Decision of the European Commission in the case ‘State aid SA.35253 (2012/N) Spain. Restructuring and Recapitalisation of the BFA Group’?

29.9.2014   

EN

Official Journal of the European Union

C 339/14

—

set aside the judgment of the General Court of the European Union (Seventh Chamber) delivered on 13 May 2014 in Joined cases T-458/10 to T-467/10 and T-471/10 Peter McBride and others v European Commission

—

reject the annulment action, and in any case the first plea

—

or in the alternative, refer the case back to the General Court of the European Union for adjudication on the pleas raised before it on which the Court of Justice of the European Union has not ruled, and

—

order the applicants at first instance to pay the costs of the appeal and the procedure before the General Court.

First, the General Court misinterpreted and misapplied Article 266 of the Treaty on the Functioning of the European Union (‘TFEU’ or ‘the Treaty’) in conjunction with Article 263 TFEU and the principle of effectiveness, the principle of conferral of powers, the principle of legal certainty, the principle of continuity of the legal order, the temporal application of law, the principle of legitimate expectations and the principles governing succession of legal rules, insofar as it annulled certain Commission decisions intended to carry out the Commission’s obligations under the judgments in Joined Cases T-218/03 to T-241/03, Boyle and others v Commission and Joined Cases C-373/06 P, C-379/06 P and C-382/06 P, Flaherty and others v Commission. The contested judgment finds that the Commission had a duty to take the necessary measures to comply with those judgments but that it had no competence to do so.

Second, the General Court failed to give proper reasons for its judgment and to respond to a central argument of the Commission (as well as a question about admissibility in one case). It thus breached Article 36 of the Statute of the Court of Justice and Article 81 of the Rules of Procedure of the General Court.

29.9.2014   

EN

Official Journal of the European Union

C 339/14

1.

Must the extraordinary circumstance within the meaning of Article 5(3) of Regulation No 261/2004 (1) relate directly to the booked flight?

2.

If the first question is to be answered in the negative, how many earlier flights involving the aircraft to be used for the scheduled flight are relevant to the existence of an extraordinary circumstance? Is there a time-limit to the consideration of extraordinary circumstances which occur during earlier flights? If so, how is that time-limit to be calculated?

3.

If extraordinary circumstances which occur during earlier flights are also relevant to a later flight, must the reasonable measures to be taken by the operating air carrier, in accordance with Article 5(3) of the regulation, relate only to preventing the extraordinary circumstance or also to avoiding a long delay?

29.9.2014   

EN

Official Journal of the European Union

C 339/15

—

Set aside the judgment of the General Court of 21 May 2014 in Case T-519/09 Toshiba Corporation v European Commission insofar as it rejected Toshiba’s claim for annulment of Articles 1 and 2 of the Decision of the European Commission in case COMP/39.129 — Power Transformers and annul the Decision;

—

Alternatively, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice as to points of law; and, in any event

—

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

—

First plea: Toshiba submits that the General Court applied the wrong legal test when considering that the Japanese manufacturers of power transformers were potential competitors on the EEA market (1) on the ground that barriers to entry on the EEA market were not insurmountable and (2) on the basis of the existence of the Gentlemen’s Agreement, instead it should have verified if the Japanese producers had real concrete possibilities to enter the EEA market and that such an entry was an economically viable strategy. In the absence of potential competition between Japanese and European producers, the Gentlemen’s Agreement could not infringe Article 81 EC and the Commission lacked jurisdiction to pursue a case. The Contested Judgment and Contested Decision should therefore be annulled as regards Toshiba.

—

Second plea: Toshiba submits that the General Court distorted the content of a letter in which another party to the proceedings stated that it would not challenge the Commission’s findings. The Commission considered that the letter superseded that party’s previous statements confirming that it had not made any sales in the EEA. However, this is a distortion of the evidence on which the General Court relies to find that the barriers to entry on the EEA market were not insurmountable. Toshiba therefore submits that the Contested Judgment and Contested Decision should be annulled.

—

Third plea: Toshiba submits that the General Court gave contradictory reasoning, applied the wrong legal test for public distancing and violated the principle of personal liability by considering that Toshiba’s argument regarding its non-participation in the 2003 Zurich meeting was ‘ineffective’. The Contested Judgment and Contested Decision should therefore be annulled in so far as they conclude that Toshiba continued to participate in the Gentlemen’s Agreement until May 2003.

—

Fourth plea: Toshiba submits that the General Court gave the wrong interpretation to paragraph 18 of the Fining Guidelines in applying global market shares as a proxy for the parties’ weight in the infringement. The Contested Judgment and Contested Decision should therefore be annulled in so far as they calculate Toshiba’s fine on the basis of Toshiba’s worldwide market share and Toshiba’s fine should be reduced accordingly.

29.9.2014   

EN

Official Journal of the European Union

C 339/17

1.

There is no longer any need to adjudicate on the action.

2.

The applicant and the intervener shall bear their own costs and shall each pay half of the costs incurred by the defendant.

29.9.2014   

EN

Official Journal of the European Union

C 339/17

1.

There is no longer any need to adjudicate on the action.

2.

The applicant shall bear its own costs and shall pay the costs incurred by the defendant.

29.9.2014   

EN

Official Journal of the European Union

C 339/18

1.

There is no longer any need to adjudicate on the action.

2.

The applicant and intervener shall bear their own costs and each shall pay one half of the costs borne by the defendant.

29.9.2014   

EN

Official Journal of the European Union

C 339/19

1.

There is no further need to adjudicate on the action.

2.

The applicant shall bear its costs, including those incurred by the defendant and the other party to the proceedings.

29.9.2014   

EN

Official Journal of the European Union

C 339/19

1.

There is no further need to adjudicate on the action.

2.

The applicant shall bear its costs, including those incurred by the defendant and the other party to the proceedings.

29.9.2014   

EN

Official Journal of the European Union

C 339/20

—

Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 April 2014 given in joined Cases R 240/2013-5 and R 303/2013-5;

—

Order the defendant to pay the costs of proceedings.

29.9.2014   

EN

Official Journal of the European Union

C 339/21

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 May 2014 in Case R 1911/2013-4, because it is unlawful and infringes the legal provisions in force concerning the Community trade mark; deliver a judgment in accordance with the claims set out in the application, whether on the basis of the intrinsic distinctiveness of the three-dimensional mark applied for or the distinctiveness acquired by use, upholding the present action and ordering the registration of the application for a three-dimensional Community trade mark No 1 1 7 47  987, for goods in class 30 of the International Classification, on the grounds that it is lawful and admissible;

—

once the present action has been upheld and the trade mark in question has been registered, order the party opposing that claim to pay the costs of the proceedings and to reimburse the appeal fees paid to OHIM.

29.9.2014   

EN

Official Journal of the European Union

C 339/21

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 May 2014 in Case R 1859/2013-2 concerning the international trade mark in the European Union No 0962191 and to alter it to the effect that the appeal is well founded and the application for a declaration of invalidity is granted;

—

Order the defendant and, where appropriate, the other party to the proceedings before the Board of Appeal to pay the costs including those incurred in the course of the appeal proceedings.

—

Infringement of Article 158 in conjunction with Article 52(1)(a) and Article 7(1)(c) of Regulation No 207/2009

—

Infringement of Article 158 in conjunction with Article 52(1)(a) and Article 7(1)(b) of Regulation No 207/2009

29.9.2014   

EN

Official Journal of the European Union

C 339/22

—

Alter the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 May 2014 in Case R 1128/2013-4 in such a way that the opposition is rejected;

—

In the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 May 2014 in Case R 1128/2013-4;

—

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

—

Infringement of Article 8(1)(b) of Regulation No 207/2009

—

Infringement of Article 63 in conjunction with Rule 20(7)(c) of Regulation No 2868/95

—

Infringement of Articles 63(2), 75 and 76 of Regulation No 207/2009

29.9.2014   

EN

Official Journal of the European Union

C 339/23

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 June 2014 in Case R 303/2014-4;

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order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

29.9.2014   

EN

Official Journal of the European Union

C 339/24

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annul the decision of the First Board of Appeal of OHIM of 23 April 2014 in Case R 1553/2013-1, in which it dismissed the applicant’s appeal and affirmed the decision of the Opposition Division upholding Opposition No B 1 9 38  458 and rejecting in part Community trade mark application No 1 0 1 81  154‘MESSI’ (figurative);

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order the party or parties opposing the action to pay the costs.

29.9.2014   

EN

Official Journal of the European Union

C 339/25

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annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 May 2014 in Case R 941/2013-1;

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order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and the Brauerei S. Riegele, Inh. Riegele KG to pay the costs.

29.9.2014   

EN

Official Journal of the European Union

C 339/26

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Declare that the Commission has unlawfully failed to initiate the assessment of Health Claims on Botanical Substances by European Food Safety Authority for the Procedure foreseen by Article 13 Section 3 of the Regulation (EC) 1924/2006 (1) since 01/08/2014; and

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in the alternative, annul the decision, allegedly contained in the Commission’s letter of 29/06/2014, not to initiate the assessment of Health Claims on botanical substances by EFSA through the procedure foreseen by Article 13 before 01/08/2014.

29.9.2014   

EN

Official Journal of the European Union

C 339/27

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annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 May 2014 in Case R 1118/2013-2 in so far as it confirmed the revocation for non-use of the Community trade mark ‘ZARA’ No 1 12  755 in respect of the following services in Class 39: ‘services in relation to the transport and distribution of goods, in particular, articles of clothing, shoes and accessories, perfumery and cosmetics’, inasmuch as the Board of Appeal infringed Article 51(1)(a) of Regulation No 207/2009 by making the following errors:

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error of law by the Board of Appeal in regarding the franchisees of Inditex as integral entities of the internal organisation of the company when, in fact, they are legal entities independent of the Inditex Group;

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error in the assessment of the evidence, inasmuch as the Board of Appeal criticises the appellant for failing to adduce evidence of the turnover generated by the supply of transport services for the purposes of proving external use of the mark, and despite the fact that such evidence was adduced in the proceedings;

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order OHIM, and if appropriate, the intervener, to pay the costs.

29.9.2014   

EN

Official Journal of the European Union

C 339/27

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annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 May 2014 in Case R 1735/2012-1 and, accordingly, dismiss the opposition brought by Aucar Trailer S.L., allowing the grant of Community trade mark No 9 6 90  314‘Polycart A Whole Cart Full of Benefits’ in respect of the goods applied for pursuant to the limitation of 16 November 2012, and dismissing the opposition brought against the same;

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order the defendant to pay the costs.