ISSN 1725-2423
Official Journal C 297
of the European Union
Volume 52 English edition Information and Notices 5 December 2009
Notice No Contents Page
IV Notices
NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES
Court of Justice
2009/C 297/01 Information note on references from national courts for a preliminary ruling ...... 1
2009/C 297/02 Last publication of the Court of Justice in the Official Journal of the European Union OJ C 282, 21.11.2009 ...... 6
V Announcements
COURT PROCEEDINGS
Court of Justice
2009/C 297/03 Case C-35/08: Judgment of the Court (Third Chamber) of 15 October 2009 (reference for a preliminary ruling from the Finanzgericht Baden-Württemberg — Germany) — Grundstücksgemein schaft Busley and Cibrian Fernandez v Finanzamt Stuttgart-Körperschaften (Free movement of capital — Immovable property — Income tax — Deductibility of rental losses from the taxable income of a person liable to tax — Application of the decreasing-balance method of depreciation to the costs of acquisition or construction — More favourable tax treatment confined to immovable property situated on the national territory) ...... 7
Price: EN EUR 3 (Continued overleaf) Notice No Contents (continued) Page
2009/C 297/04 Case C-101/08: Judgment of the Court (Fourth Chamber) of 15 October 2009 (reference for a preliminary ruling from the Cour de cassation (Luxembourg)) — Audiolux SA, BIP Investment Partners SA, Jean-Paul Felten, Joseph Weyland, Luxiprivilège SA, Foyer SA, Investas ASBL, Claudie Stein-Lambert, Christiane Worre-Lambert, Baron Antoine De Schorlemer, Jacques Funck, Jean Petitdidier v Groupe Bruxelles Lambert SA (GBL), RTL Group, Juan Abello Gallo, Didier Bellens, André Desmarais, Gérald Frère, Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin Taylor, Bertelsmann AG, Siegfried Luther, Thomas Middelhoff, Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ Finan zierungs-GmbH, Westdeutsche Allgemeine Zeitungsverlagsgesellschaft E. Brost & J. Funke GmbH & Co (WAZ) (Directives 77/91/EEC, 79/279/EEC and 2004/25/EC — General principle of Community law on the protection of minority shareholders — None — Company law — Acquisition of control — Mandatory bid — Recommendation 77/534/EEC — Code of Conduct) ...... 7
2009/C 297/05 Case C-116/08: Judgment of the Court (Third Chamber) of 22 October 2009 (reference for a preliminary ruling from the Hof van Cassatie van België (Belgium)) — C. Meerts v Proost NV (Directive 96/34/EC — Framework agreement on parental leave concluded by UNICE, CEEP and the ETUC — Interpretation of Clause 2.6 and 2.7 — Part-time parental leave — Dismissal of a worker before the end of parental leave without observing the statutory period of notice — Calculation of compensation) 8
2009/C 297/06 Case C-138/08: Judgment of the Court (Fourth Chamber) of 15 October 2009 (reference for a preliminary ruling from the Fővárosi Ítélőtábla (Republic of Hungary)) — Hochtief AG, Linde-Kca- Dresden GmbH v Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság (Procedures for the award of public works contracts — Procedures initiated after the entry into force of Directive 2004/18/EC and before the expiry of the period for transposition of that directive — Negotiated procedures with publication of a contract notice — Obligation to admit a minimum number of suitable candidates — Obligation to ensure genuine competition) ...... 9
2009/C 297/07 Case C-196/08: Judgment of the Court (Third Chamber) of 15 October 2009 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy)) — Acoset SpA v Conferenza Sindaci e Presidenza Prov. Reg. ATO Idrico Ragusa, Comune di Comiso (RG), Comune di Modica (RG), Provincia Regionale di Ragusa, Comune di Acate (RG), Comune di Chiaramonte Gulfi (RG), Comune di Giarratana (RG), Comune di Ispica (RG), Comune di Monterosso Almo (RG), Comune di Pozzallo (RG), Comune di Ragusa, Comune di Vittoria (RG), Comune di Santa Croce Camerina (RG), Comune di Scicli (RG) (Articles 43 EC, 49 EC and 86 EC — Award of public contracts — Award of water service to a semi-private company — Competitive procedure — Appointment of the private partner responsible for operating the service — Award made without regard to the rules governing the award of public contracts) ...... 9
2009/C 297/08 Case C-232/08: Judgment of the Court (Seventh Chamber) of 15 October 2009 — Commission of the European Communities v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Regulation (EC) No 850/1998 — Article 29(2) — Restrictions on fishing for plaice — Maximum engine power of fishing vessels — Regulation (EEC) No 2847/93 — Article 2(1) — Regulation (EC) No 2371/2002 — Article 23 — Control, and enforcement of the rules) ...... 10
2009/C 297/09 Case C-242/08: Judgment of the Court (Fourth Chamber) of 22 October 2009 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Swiss Re Germany Holding GmbH v Finanzamt München für Körperschaften (Sixth VAT Directive — Articles 9(2)(e), fifth indent, and 13B(a), (c) and (d)(2) and (3) — Insurance and reinsurance transactions — Concept — Transfer of a portfolio of life reinsurance contracts, for consideration, to a person established in a third country — Determination of the place of that transfer — Exemptions) ...... 10
EN Notice No Contents (continued) Page
2009/C 297/10 Case C-255/08: Judgment of the Court (Sixth Chamber) of 15 October 2009 — Commission of the European Communities v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Directive 85/337/EEC — Assessment of the effects of certain public and private projects on the environment — Determination of thresholds — Size of the project — Incomplete transposition) . . . 11
2009/C 297/11 Joined Cases C-261/08 and C-348/08: Judgment of the Court (Third Chamber) of 22 October 2009 (references for preliminary rulings from the Tribunal Superior de Justicia de Murcia (Spain)) — María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08) v Delegación del Gobierno en Murcia (Visas, asylum and immigration — Measures concerning the crossing of external borders — Article 62(1) and (2)(a) EC — Convention implementing the Schengen Agreement — Articles 6b and 23 — Regulation (EC) No 562/2006 — Articles 5, 11 and 13 — Presumption concerning the duration of the stay — Unlawful presence of third-country nationals in the territory of a Member State — National legislation allowing for either a fine or expulsion, depending on the circumstances) ...... 12
2009/C 297/12 Case C-263/08: Judgment of the Court (Second Chamber) of 15 October 2009 (reference for a preliminary ruling from the Högsta domstolen — Sweden) — Djurgården-Lilla Värtans Miljöskydds förening v Stockholms kommun genom dess marknämnd (Directive 85/337/EEC — Public partici pation in environmental decision-making procedures — Right of access to a review procedure to challenge decisions authorising projects likely to have significant effects on the environment) ...... 12
2009/C 297/13 Case C-275/08: Judgment of the Court (Fourth Chamber) of 15 October 2009 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 93/36/EEC — Public supply contracts — Supply of software designed for motor vehicle registration — Negotiated procedure without prior publication of a contract notice) ...... 13
2009/C 297/14 Case C-301/08: Judgment of the Court (Fourth Chamber) of 22 October 2009 (reference for a preliminary ruling from the Cour de cassation (Luxembourg)) — Irène Bogiatzi, married name Ventouras v Deutscher Luftpool, Société Luxair, société luxembourgeoise de navigation aérienne SA, European Communities, Grand Duchy of Luxembourg, Foyer Assurances SA (Transport policy — Regulation (EC) No 2027/97 — Warsaw Convention — Air carrier liability in the event of accidents — Time-limit for bringing an action for damages in respect of harm suffered) ...... 13
2009/C 297/15 Case C-324/08: Judgment of the Court (First Chamber) of 15 October 2009 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Makro Zelfbedienings groothandel C.V., Metro Cash & Carry B.V., Remo Zaandam B.V. v Diesel S.P.A. (Directive 89/104/EEC — Trade-mark law — Exhaustion of trade mark proprietor’s rights — Placing of goods on the market in the European Economic Area by a third party — Implied consent — Conditions) ...... 14
2009/C 297/16 Case C-425/08: Judgment of the Court (Second Chamber) of 15 October 2009 (reference for a preliminary ruling from the Conseil d’État (Belgium)) — Enviro Tech (Europe) Ltd v État belge (Environment and consumer protection — Classification, packaging and labelling of n-propyl bromide as a dangerous substance — Directive 2004/73/EC — Directive 67/548/EEC — Duty to transpose) ...... 14
2009/C 297/17 Case C-438/08: Judgment of the Court (Fourth Chamber) of 22 October 2009 — Commission of the European Communities v Republic of Portugal (Failure of a Member State to fulfil obligations — Freedom of establishment — Directive 96/96/EC — National legislation — Restrictive conditions for access to the activity of vehicle inspection — Article 45 EC — Activities connected with the exercise of official authority — Road safety — Proportionality) ...... 15
EN (Continued overleaf) Notice No Contents (continued) Page
2009/C 297/18 Case C-449/08: Judgment of the Court (Fifth Chamber) of 22 October 2009 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands)) — G. Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit (Common agricultural policy — Integrated administration and control system for certain aid schemes — Regulation (EC) No 1782/2003 — Single payment scheme — Establishment of the reference amount — Farmers in a special situation — National reserve) ...... 15
2009/C 297/19 Case C-30/09: Judgment of the Court (Sixth Chamber) of 15 October 2009 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 96/82/EC — Article 11 — External emergency plans) ...... 16
2009/C 297/20 Case C-181/09: Reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 19 May 2009 — Canon Kabushiki Kaisha v IPN Bulgaria OOD ...... 16
2009/C 297/21 Case C-328/09: Action brought on 14 August 2009 — Commission of the European Communities v Republic of Estonia ...... 17
2009/C 297/22 Case C-358/09 P: Appeal brought on 7 September 2009 by DSV Road NV against the judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009 in Case T-219/07 DSV Road NV v Commission ...... 17
2009/C 297/23 Case C-360/09: Reference for a preliminary ruling from the Amtsgericht Bonn (Germany) lodged on 9 September 2009 — Pfleiderer AG v Bundeskartellamt ...... 18
2009/C 297/24 Case C-367/09: Reference for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) of 8 September 2009 — Belgisch Interventie- en Restitutiebureau v SGS Belgium NV, Firme Derwa NV and Centraal Beheer Achmea NV ...... 18
2009/C 297/25 Case C-375/09: Reference for a preliminary ruling from the Sąd Najwyższy (Republic of Poland), lodged on 23 September 2009 — Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. z o.o., now Netia S.A...... 19
2009/C 297/26 Case C-382/09: Reference for a preliminary ruling from the Augstākās tiesas Senāta Administratīvo lietu departaments lodged on 28 September 2009 — Stils Met SIA v Valsts ieņēmumu dienests . . . . 19
Court of First Instance
2009/C 297/27 Case T-339/07: Judgment of the Court of First Instance of 28 October 2009 — Juwel Aquarium v OHIM — Potschak (Panorama) (Community trade mark — Invalidity proceedings — Community word mark Panorama — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(1)(c) and Article 52(1)(a) of Regulation (EC) No 207/2009)) ...... 20
EN Notice No Contents (continued) Page
2009/C 297/28 Case T-80/08: Judgment of the Court of First Instance of 28 October 2009 — CureVac v OHIM — Qiagen (RNAiFect) (Community trade mark — Opposition proceedings — Application for the Community word mark RNAiFect — Earlier Community word mark RNActive — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) ...... 20
2009/C 297/29 Case T-137/08: Judgment of the Court of First Instance of 28 October 2009 — BCS v OHIM — Deere (Combination of the colours green and yellow) (Community trade mark — Invalidity proceedings — Community trade mark consisting of a combination of the colours green and yellow — Absolute ground for refusal — Distinctive character acquired through use — Article 7(3) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(3) and Article 52(1)(a) of Regulation (EC) No 207/2009) — Relative ground for refusal — Earlier unregistered national mark consisting of a combination of the colours green and yellow — Article 8(4) and Article 52(1)(c) of Regulation No 40/94 (now Article 8(4) and Article 53(1)(c) of Regulation No 207/2009) — Obligation to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009)) ...... 21
2009/C 297/30 Case T-307/08: Judgment of the Court of First Instance of 20 October 2009 — Aldi Einkauf v OHIM — Goya Importaciones y Distribuciones (4 OUT Living) (Community trade mark — Opposition proceedings — Application for figurative Community mark 4 OUT Living — Earlier national figurative mark Living & Co — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) ...... 21
2009/C 297/31 Case T-120/09: Action brought on 27 March 2009 — Phoenix-Reisen and DRV v Commission . . . . 21
2009/C 297/32 Case T-369/09: Action brought on 22 September 2009 — Sociedade Quinta do Portal SA v OHIM — Vallegre‒Vinhos do Porto (PORTO ALEGRE) ...... 22
2009/C 297/33 Case T-381/09: Action brought on 25 September 2009 — RWE Transgas v Commission ...... 22
2009/C 297/34 Case T-382/09: Action brought on 30 September 2009 — ERGO Versicherungsgruppe v OHIM — DeguDent (ERGO) ...... 23
2009/C 297/35 Case T-384/09: Action brought on 1 October 2009 — SKW Stahl-Metallurgie Holding and SKW Stahl- Metallurgie v Commission ...... 23
2009/C 297/36 Case T-391/09: Action brought on 5 October 2009 — Evonik Degussa and AlzChem Hart v Commission ...... 24
2009/C 297/37 Case T-392/09: Action brought on 2 October 2009 — 1. garantovaná v Commission ...... 25
2009/C 297/38 Case T-393/09: Action brought on 2 October 2009 — NEC Display Solutions Europe v OHIM — Nokia (NaViKey) ...... 26
2009/C 297/39 Case T-394/09: Action brought on 5 October 2009 — General Bearing v OHIM (GENERAL BEARING CORPORATION) ...... 26
2009/C 297/40 Case T-395/09: Action brought on 6 October 2009 — Arques Industries v Commission ...... 27
EN (Continued overleaf) Notice No Contents (continued) Page
2009/C 297/41 Case T-396/09: Action brought on 6 October 2009 — Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission ...... 28
2009/C 297/42 Case T-397/09: Action brought on 6 October 2009 — Ernst August Prinz von Hannover Herzog zu Braunschweig und Lüneburg v OHIM (Figurative mark representing a coat of arms) ...... 29
2009/C 297/43 Case T-400/09: Action brought on 6 October 2009 — ECKA Granulate and non ferrum Metallpulver v Commission ...... 29
2009/C 297/44 Case T-401/09: Action brought on 5 October 2009 — Marcuccio v Court of Justice of the European Communities ...... 30
2009/C 297/45 Case T-402/09 P: Appeal brought on 7 October 2009 by Luigi Marcuccio against the order of 20 July 2009 of the Civil Service Tribunal in Case F-86/07, Marcuccio v Commission ...... 30
2009/C 297/46 Case T-403/09: Action brought on 7 October 2009 — Tecnoprocess v Delegation of the European Commission to Morocco and Others ...... 31
2009/C 297/47 Case T-404/09: Action brought on 9 October 2009 — Deutsche Bahn v OHIM (Combination of the colours grey and red) ...... 31
2009/C 297/48 Case T-405/09: Action brought on 9 October 2009 — Deutsche Bahn v OHIM (Combination of the colours grey and red) ...... 32
2009/C 297/49 Case T-415/09: Action brought on 14 October 2009 — New Yorker SHK Jeans v OHIM — Vallis K — Vallis A (FISHBONE) ...... 32
2009/C 297/50 Case T-417/09: Action brought on 16 October 2009 — Poslovni Sistem Mercator v OHIM — Mercator Multihull (MERCATOR STUDIOS) ...... 33
2009/C 297/51 Case T-422/09: Action brought on 19 October 2009 — São Paulo Alpargatas v OHIM — Fischer (BAHANIAS LAS ORIGINALES) ...... 33
European Union Civil Service Tribunal
2009/C 297/52 Case F-16/08: Judgment of the Civil Service Tribunal (Second Chamber) of 10 September 2009 — Behmer v European Parliament (Officials — Procedure for the award of merit points at the European Parliament — Infringement of the obligation to state reasons — Statement of reasons given in the course of the procedure) ...... 35
2009/C 297/53 Case F-29/08: Judgment of the Civil Service Tribunal (Third Chamber) of 7 October 2009 — Y v Commission (Contract staff — Dismissal for obviously inadequate work — Conduct in the service inadequate) ...... 35
EN (Continued on inside back cover) 5.12.2009 EN Official Journal of the European Union C 297/1
IV
(Notices)
NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES
COURT OF JUSTICE
Following the entry into force of the Treaty of Lisbon, this note replaces the information note published in OJ 2005 C 143, p. 1 and the supplement to that note published in OJ 2008 C 64.
INFORMATION NOTE on references from national courts for a preliminary ruling (2009/C 297/01)
I. General 1. The preliminary ruling system is a fundamental mechanism of European Union law aimed at enabling national courts to ensure uniform interpretation and application of that law in all the Member States.
2. The Court of Justice of the European Union has jurisdiction to give preliminary rulings on the interpretation of European Union law and on the validity of acts of the institutions, bodies, offices or agencies of the Union. That general jurisdiction is conferred on it by Article 19(3)(b) of the Treaty on European Union (OJEU 2008 C 115, p. 13) (‘the TEU’) and Article 267 of the Treaty on the Functioning of the European Union (OJEU 2008 C 115, p. 47) (‘the TFEU’).
3. Article 256(3) TFEU provides that the General Court is to have jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute. Since no provisions have been introduced into the Statute in that regard, the Court of Justice alone has jurisdiction to give preliminary rulings.
4. While Article 267 TFEU confers on the Court of Justice a general jurisdiction, a number of provisions exist which lay down exceptions to or restrictions on that jurisdiction. This is true in particular of Articles 275 and 276 TFEU and Article 10 of Protocol (No 36) on Transitional Provisions of the Treaty of Lisbon (OJEU 2008 C 115, p. 322).
5. The preliminary ruling procedure being based on cooperation between the Court of Justice and national courts, it may be helpful, in order to ensure that that cooperation is effective, to provide the national courts with the following information.
6. This practical information, which is in no way binding, is intended to provide guidance to national courts as to whether it is appropriate to make a reference for a preliminary ruling and, should they proceed, to help them formulate and submit questions to the Court. C 297/2 EN Official Journal of the European Union 5.12.2009
The role of the Court of Justice in the preliminary ruling procedure 7. Under the preliminary ruling procedure, the Court’s role is to give an interpretation of European Union law or to rule on its validity, not to apply that law to the factual situation underlying the main proceedings, which is the task of the national court. It is not for the Court either to decide issues of fact raised in the main proceedings or to resolve differences of opinion on the interpretation or application of rules of national law.
8. In ruling on the interpretation or validity of European Union law, the Court makes every effort to give a reply which will be of assistance in resolving the dispute, but it is for the referring court to draw the appropriate conclusions from that reply, if necessary by disapplying the rule of national law in question.
The decision to submit a question to the Court The originator of the question 9. Under Article 267 TFEU, any court or tribunal of a Member State, in so far as it is called upon to give a ruling in proceedings intended to arrive at a decision of a judicial nature, may as a rule refer a question to the Court of Justice for a preliminary ruling ( 1 ). Status as a court or tribunal is interpreted by the Court of Justice as a self-standing concept of European Union law.
10. It is for the national court alone to decide whether to refer a question to the Court of Justice for a preliminary ruling, whether or not the parties to the main proceedings have requested it to do so.
References on interpretation 11. Any court or tribunal may refer a question to the Court of Justice on the interpretation of a rule of European Union law if it considers it necessary to do so in order to resolve a dispute brought before it.
12. However, courts or tribunals against whose decisions there is no judicial remedy under national law must, as a rule, refer such a question to the Court, unless the Court has already ruled on the point (and there is no new context that raises any serious doubt as to whether that case-law may be applied), or unless the correct interpretation of the rule of law in question is obvious.
13. Thus, a court or tribunal against whose decisions there is a judicial remedy may, in particular when it considers that sufficient guidance is given by the case-law of the Court of Justice, itself decide on the correct interpretation of European Union law and its application to the factual situation before it. However, a reference for a preliminary ruling may prove particularly useful, at an appropriate stage of the proceedings, when there is a new question of interpretation of general interest for the uniform application of European Union law in all the Member States, or where the existing case-law does not appear to be applicable to a new set of facts.
14. It is for the national court to explain why the interpretation sought is necessary to enable it to give judgment.
( 1 ) Article 10(1) to (3) of Protocol No 36 provides that the powers of the Court of Justice in relation to acts adopted before the entry into force of the Treaty of Lisbon (OJ 2007 C 306, p. 1) under Title VI of the TEU, in the field of police cooperation and judicial cooperation in criminal matters, and which have not since been amended, are, however, to remain the same for a maximum period of five years from the date of entry into force of the Treaty of Lisbon (1 December 2009). During that period, such acts may, therefore, form the subject-matter of a reference for a preliminary ruling only where the order for reference is made by a court of a Member State which has accepted the jurisdiction of the Court of Justice, it being a matter for each State to determine whether the right to refer a question to the Court is to be available to all of its national courts or is to be reserved to the courts of last instance. 5.12.2009 EN Official Journal of the European Union C 297/3
References on determination of validity 15. Although national courts may reject pleas raised before them challenging the validity of acts of an institution, body, office or agency of the Union, the Court of Justice has exclusive jurisdiction to declare such an act invalid.
16. All national courts must therefore refer a question to the Court when they have doubts about the validity of such an act, stating the reasons for which they consider that that act may be invalid.
17. However, if a national court has serious doubts about the validity of an act of an institution, body, office or agency of the Union on which a national measure is based, it may exceptionally suspend application of that measure temporarily or grant other interim relief with respect to it. It must then refer the question of validity to the Court of Justice, stating the reasons for which it considers the act to be invalid.
The stage at which to submit a question for a preliminary ruling 18. A national court or tribunal may refer a question to the Court for a preliminary ruling as soon as it finds that a ruling on the point or points of interpretation or validity is necessary to enable it to give judgment; it is the national court which is in the best position to decide at what stage of the proceedings such a question should be referred.
19. It is, however, desirable that a decision to seek a preliminary ruling should be taken when the national proceedings have reached a stage at which the national court is able to define the factual and legal context of the question, so that the Court of Justice has available to it all the information necessary to check, where appropriate, that European Union law applies to the main proceedings. It may also be in the interests of justice to refer a question for a preliminary ruling only after both sides have been heard.
The form of the reference for a preliminary ruling 20. The decision by which a national court or tribunal refers a question to the Court of Justice for a preliminary ruling may be in any form allowed by national law as regards procedural steps. It must however be borne in mind that it is that document which serves as the basis of the proceedings before the Court and that it must therefore contain such information as will enable the latter to give a reply which is of assistance to the national court. Moreover, it is only the actual reference for a preliminary ruling which is notified to the interested persons entitled to submit observations to the Court, in particular the Member States and the institutions, and which is translated.
21. Owing to the need to translate the reference, it should be drafted simply, clearly and precisely, avoiding superfluous detail.
22. A maximum of about 10 pages is often sufficient to set out in a proper manner the context of a reference for a preliminary ruling. The order for reference must be succinct but sufficiently complete and must contain all the relevant information to give the Court and the interested persons entitled to submit observations a clear understanding of the factual and legal context of the main proceedings. In particular, the order for reference must:
— include a brief account of the subject-matter of the dispute and the relevant findings of fact, or, at least, set out the factual situation on which the question referred is based;
— set out the tenor of any applicable national provisions and identify, where necessary, the relevant national case-law, giving in each case precise references (for example, a page of an official journal or specific law report, with any internet reference); C 297/4 EN Official Journal of the European Union 5.12.2009
— identify the European Union law provisions relevant to the case as accurately as possible;
— explain the reasons which prompted the national court to raise the question of the interpretation or validity of the European Union law provisions, and the relationship between those provisions and the national provisions applicable to the main proceedings;
— include, if need be, a summary of the main relevant arguments of the parties to the main proceedings.
In order to make it easier to read and refer to the document, it is helpful if the different points or paragraphs of the order for reference are numbered.
23. Finally, the referring court may, if it considers itself able, briefly state its view on the answer to be given to the questions referred for a preliminary ruling.
24. The question or questions themselves should appear in a separate and clearly identified section of the order for reference, generally at the beginning or the end. It must be possible to understand them without referring to the statement of the grounds for the reference, which will however provide the necessary background for a proper assessment.
The effects of the reference for a preliminary ruling on the national proceedings 25. A reference for a preliminary ruling calls for the national proceedings to be stayed until the Court of Justice has given its ruling.
26. However, the national court may still order protective measures, particularly in connection with a reference on determination of validity (see point 17 above).
Costs and legal aid 27. Preliminary ruling proceedings before the Court of Justice are free of charge and the Court does not rule on the costs of the parties to the main proceedings; it is for the national court to rule on those costs.
28. If a party has insufficient means and where it is possible under national rules, the national court may grant that party legal aid to cover the costs, including those of lawyers’ fees, which it incurs before the Court. The Court itself may also grant legal aid where the party in question is not already in receipt of legal aid under national rules or to the extent to which that aid does not cover, or covers only partly, costs incurred before the Court.
Communication between the national court and the Court of Justice 29. The order for reference and the relevant documents (including, where applicable, the case file or a copy of the case file) are to be sent by the national court directly to the Court of Justice, by registered post (addressed to the Registry of the Court of Justice, L-2925 Luxembourg, telephone +352 4303-1).
30. The Court Registry will stay in contact with the national court until a ruling is given, and will send it copies of the procedural documents.
31. The Court of Justice will send its ruling to the national court. It would welcome information from the national court on the action taken upon its ruling in the national proceedings and, where appropriate, a copy of the national court’s final decision. 5.12.2009 EN Official Journal of the European Union C 297/5
II. The Urgent preliminary ruling procedure (PPU) 32. This part of the note provides practical information on the urgent preliminary ruling procedure applicable to references relating to the area of freedom, security and justice. The procedure is governed by Article 23a of Protocol (No 3) on the Statute of the Court of Justice of the European Union (OJEU 2008 C 115, p. 210) and Article 104b of the Rules of Procedure of the Court of Justice. National courts may request that this procedure be applied or request the application of the accelerated procedure under the conditions laid down in Article 23a of the Protocol and Article 104a of the Rules of Procedure.
Conditions for the application of the urgent preliminary ruling procedure 33. The urgent preliminary ruling procedure is applicable only in the areas covered by Title V of Part Three of the TFEU, which relates to the area of freedom, security and justice.
34. The Court of Justice decides whether this procedure is to be applied. Such a decision is generally taken only on a reasoned request from the referring court. Exceptionally, the Court may decide of its own motion to deal with a reference under the urgent preliminary ruling procedure, where that appears to be required.
35. The urgent preliminary ruling procedure simplifies the various stages of the proceedings before the Court, but its application entails significant constraints for the Court and for the parties and other interested persons participating in the procedure, particularly the Member States.
36. It should therefore be requested only where it is absolutely necessary for the Court to give its ruling on the reference as quickly as possible. Although it is not possible to provide an exhaustive list of such situations, particularly because of the varied and evolving nature of the rules of European Union law governing the area of freedom, security and justice, a national court or tribunal might, for example, consider submitting a request for the urgent preliminary ruling procedure to be applied in the following situations: in the case, referred to in the fourth paragraph of Article 267 TFEU, of a person in custody or deprived of his liberty, where the answer to the question raised is decisive as to the assessment of that person’s legal situation or, in proceedings concerning parental authority or custody of children, where the identity of the court having jurisdiction under European Union law depends on the answer to the question referred for a preliminary ruling.
The request for application of the urgent preliminary ruling procedure 37. To enable the Court to decide quickly whether the urgent preliminary ruling procedure should be applied, the request must set out the matters of fact and law which establish the urgency and, in particular, the risks involved in following the normal preliminary ruling procedure.
38. In so far as it is able to do so, the referring court should briefly state its view on the answer to be given to the question(s) referred. Such a statement makes it easier for the parties and other interested persons participating in the procedure to define their positions and facilitates the Court’s decision, thereby contributing to the rapidity of the procedure.
39. The request for the urgent preliminary ruling procedure must be submitted in a form that enables the Court Registry to establish immediately that the file must be dealt with in a particular way. Accordingly, the request should be submitted in a document separate from the order for reference itself, or in a covering letter expressly setting out the request.
40. As regards the order for reference itself, it is particularly important that it should be succinct where the matter is urgent, as this will help to ensure the rapidity of the procedure. C 297/6 EN Official Journal of the European Union 5.12.2009
Communication between the Court of Justice, the national court and the parties 41. As regards communication with the national court or tribunal and the parties before it, national courts or tribunals which submit a request for an urgent preliminary ruling procedure are requested to state the e-mail address or any fax number which may be used by the Court of Justice, together with the e-mail addresses or any fax numbers of the representatives of the parties to the proceedings.
42. A copy of the signed order for reference together with a request for the urgent preliminary ruling procedure can initially be sent to the Court by e-mail ([email protected]) or by fax (+352 43 37 66). Processing of the reference and of the request can then begin upon receipt of the e-mailed or faxed copy. The originals of those documents must, however, be sent to the Court Registry as soon as possible.
(2009/C 297/02)
Last publication of the Court of Justice in the Official Journal of the European Union
OJ C 282, 21.11.2009
Past publications OJ C 267, 7.11.2009 OJ C 256, 24.10.2009 OJ C 244, 10.10.2009 OJ C 233, 26.9.2009 OJ C 220, 12.9.2009 OJ C 205, 29.8.2009
These texts are available on: EUR-Lex: http://eur-lex.europa.eu 5.12.2009 EN Official Journal of the European Union C 297/7
V
(Announcements)
COURT PROCEEDINGS
COURT OF JUSTICE
Judgment of the Court (Third Chamber) of 15 October unlimited taxation are entitled to have (i) losses from the letting or 2009 (reference for a preliminary ruling from the leasing of an immovable property deducted from the taxable amount in Finanzgericht Baden-Württemberg — Germany) — the year in which those losses arise, and (ii) the income from such Grundstücksgemeinschaft Busley and Cibrian Fernandez v property assessed on the basis of the application of the decreasing- Finanzamt Stuttgart-Körperschaften balance method of depreciation, only if the property in question is situated on the territory of that Member State. (Case C-35/08) ( 1 )
(Free movement of capital — Immovable property — Income tax — Deductibility of rental losses from the taxable income of a person liable to tax — Application of the decreasing- ( 1 ) OJ C 92, 12.04.2008. balance method of depreciation to the costs of acquisition or construction — More favourable tax treatment confined to immovable property situated on the national territory)
(2009/C 297/03)
Language of the case: German Judgment of the Court (Fourth Chamber) of 15 October 2009 (reference for a preliminary ruling from the Cour de cassation (Luxembourg)) — Audiolux SA, BIP Investment Referring court Partners SA, Jean-Paul Felten, Joseph Weyland, Finanzgericht Baden-Württemberg Luxiprivilège SA, Foyer SA, Investas ASBL, Claudie Stein- Lambert, Christiane Worre-Lambert, Baron Antoine De Schorlemer, Jacques Funck, Jean Petitdidier v Groupe Bruxelles Lambert SA (GBL), RTL Group, Juan Abello Parties to the main proceedings Gallo, Didier Bellens, André Desmarais, Gérald Frère, Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin Applicant: Grundstücksgemeinschaft Busley and Cibrian Taylor, Bertelsmann AG, Siegfried Luther, Thomas Fernandez Middelhoff, Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ Finanzierungs-GmbH, Westdeutsche Allgemeine Zeitungsverlagsgesellschaft E. Brost & Defendant: Finanzamt Stuttgart-Körperschaften J. Funke GmbH & Co (WAZ)
(Case C-101/08) ( 1 ) Re: (Directives 77/91/EEC, 79/279/EEC and 2004/25/EC — Reference for a preliminary ruling — Finanzgericht Baden- General principle of Community law on the protection of Württemberg — Interpretation of Articles 18 and 56 of the minority shareholders — None — Company law — EC Treaty — National income tax legislation limiting the Acquisition of control — Mandatory bid — Recommendation ability to deduct losses arising from the rental of real 77/534/EEC — Code of Conduct) property to those losses relating to property located on national territory, and reserving to such property alone the application of a more favourable method of depreciation (2009/C 297/04)
Language of the case: French
Operative part of the judgment Referring court Article 56 EC precludes income-tax legislation of a Member State under which natural persons who are resident and liable to Cour de cassation C 297/8 EN Official Journal of the European Union 5.12.2009
Parties to the main proceedings Judgment of the Court (Third Chamber) of 22 October 2009 (reference for a preliminary ruling from the Applicants: Audiolux SA, BIP Investment Partners SA, Jean-Paul Hof van Cassatie van België (Belgium)) — C. Meerts v Felten, Joseph Weyland, Luxiprivilège SA, Foyer SA, Investas Proost NV ASBL, Claudie Stein-Lambert, Christiane Worre-Lambert, Baron Antoine De Schorlemer, Jacques Funck, Jean Petitdidier (Case C-116/08) ( 1 )
(Directive 96/34/EC — Framework agreement on parental leave concluded by UNICE, CEEP and the ETUC — Interpre tation of Clause 2.6 and 2.7 — Part-time parental leave — Defendants: Groupe Bruxelles Lambert SA (GBL), RTL Group, Dismissal of a worker before the end of parental leave Juan Abello Gallo, Didier Bellens, André Desmarais, Gérald without observing the statutory period of notice — Calcu Frère, Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin lation of compensation) Taylor, Bertelsmann AG, Siegfried Luther, Thomas Middelhoff, Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ (2009/C 297/05) Finanzierungs-GmbH, Westdeutsche Allgemeine Zeitungsver lagsgesellschaft E. Brost & J. Funke GmbH & Co (WAZ) Language of the case: Dutch
Referring court Hof van Cassatie van België Re: Reference for a preliminary ruling — Cour de cassation (Grand Duchy of Luxembourg) — Interpretation of (1) Articles 20 and Parties to the main proceedings 42 of the Second Council Directive 77/91/EEC of 13 December Appellant: C. Meerts 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies … in respect of the formation of public limited liability companies and the maintenance and alteration Respondent: Proost NV of their capital, with a view to making such safeguards equivalent (OJ 1977 L 26, p. 1), (2) the Commission Recom mendation of 25 July 1977 concerning a European code of Re: conduct relating to transactions in transferable securities (OJ 1977 L 212 p. 37), (3) Council Directive 79/279/EEC of Reference for a preliminary ruling — Hof van Cassatie van 5 March 1979 coordinating the conditions for the admission of België — Interpretation of clauses 2.4 to 2.7 of the securities to official stock exchange listing (OJ 1979 L 66, p. framework agreement on parental leave concluded by UNICE, 21) and (4) Article 3(1)(a) of Directive 2004/25/EC of the CEEP and the ETUC, annexed to Council Directive 96/34/EC of European Parliament and of the Council of 21 April 2004 on 3 June 1996 (OJ 1996 L 145, p. 4) — Parental leave in the takeover bids (OJ 2004 L 142, p. 12) — Is there, in Community form of part-time working — Dismissal of the employee before law, a general principle of the equality of shareholders? — If so, the end of the period of parental leave without urgent cause or what is the scope ratione materiae and ratione temporis of that without observing the statutory period of notice — Calculation principle? of payment in lieu of notice
Operative part of the judgment Clause 2.6 and 2.7 of the framework agreement on parental leave Operative part of the judgment concluded on 14 December 1995, which is annexed to Council Directive 96/34/EC of 3 June 1996 on the framework agreement Community law does not include any general principle of law under on parental leave concluded by UNICE, CEEP and the ETUC, as which minority shareholders are protected by an obligation on the amended by Council Directive 97/75/EC of 15 December 1997, dominant shareholder, when acquiring or exercising control of a must be interpreted as precluding, where an employer unilaterally company, to offer to buy their shares under the same conditions as terminates a worker’s full-time employment contract of indefinite those agreed when a shareholding conferring or strengthening the duration, without urgent cause or without observing the statutory control of the dominant shareholder was acquired. period of notice, whilst the worker is on part-time parental leave, the compensation to be paid to the worker from being determined on the basis of the reduced salary being received when the dismissal takes place.
( 1 ) OJ C 116, 9.5.2008. ( 1 ) OJ C 128, 24.5.2008. 5.12.2009 EN Official Journal of the European Union C 297/9
Judgment of the Court (Fourth Chamber) of 15 October European Parliament and of the Council of 13 October 1997, 2009 (reference for a preliminary ruling from the Fővárosi must be interpreted as meaning that where a contract is awarded Ítélőtábla (Republic of Hungary)) — Hochtief AG, by a negotiated procedure and the number of suitable candidates is Linde-Kca-Dresden GmbH v Közbeszerzések Tanácsa below the lower limit prescribed for the procedure in question, the Közbeszerzési Döntőbizottság contracting authority may, nevertheless, continue with the procedure by inviting the suitable candidate or candidates to (Case C-138/08) ( 1 ) negotiate the terms of that contract;
(Procedures for the award of public works contracts — 3. Council Directive 93/37, as amended by Directive 97/52, must Procedures initiated after the entry into force of Directive be interpreted as meaning that the obligation to ensure that there 2004/18/EC and before the expiry of the period for trans is genuine competition is satisfied where the contracting authority position of that directive — Negotiated procedures with publi has recourse to the negotiated procedure under the conditions cation of a contract notice — Obligation to admit a minimum referred to in Article 7(2) of that directive. number of suitable candidates — Obligation to ensure genuine competition)
1 (2009/C 297/06) ( ) OJ C 183, 19.07.2008.
Language of the case: Hungarian
Referring court Judgment of the Court (Third Chamber) of 15 October 2009 (reference for a preliminary ruling from the Fővárosi Ítélőtábla Tribunale Amministrativo Regionale per la Sicilia (Italy)) — Acoset SpA v Conferenza Sindaci e Presidenza Prov. Reg. ATO Idrico Ragusa, Comune di Comiso (RG), Parties to the main proceedings Comune di Modica (RG), Provincia Regionale di Ragusa, Applicant: Hochtief AG, Linde-Kca-Dresden GmbH Comune di Acate (RG), Comune di Chiaramonte Gulfi (RG), Comune di Giarratana (RG), Comune di Ispica (RG), Comune di Monterosso Almo (RG), Comune di Defendant: Közbeszerzések Tanácsa Közbeszerzési Döntőb Pozzallo (RG), Comune di Ragusa, Comune di Vittoria izottság (RG), Comune di Santa Croce Camerina (RG), Comune di Scicli (RG) Intervening party: Budapest Főváros Önkormányzata (Case C-196/08) ( 1 )
Re: (Articles 43 EC, 49 EC and 86 EC — Award of public Reference for a preliminary ruling — Fővárosi Ítélőtábla — contracts — Award of water service to a semi-private Interpretation of Article 22(2) and (3) of Council Directive company — Competitive procedure — Appointment of the 93/37/EEC of 14 June 1993 concerning the coordination of private partner responsible for operating the service — procedures for the award of public works contracts (OJ 1993 Award made without regard to the rules governing the L 199, p. 54), and of Article 44(3) of Directive 2004/18/EC of award of public contracts) the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public (2009/C 297/07) works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Whether it is possible Language of the case: Italian to continue a negotiated procedure with publication of a contract notice where the number of suitable candidates is less than the minimum number of the range prescribed in the Referring court contract notice, and less than the minimum number prescribed Tribunale Amministrativo Regionale per la Sicilia for that purpose in the abovementioned directives
Operative part of the judgment Parties to the main proceedings 1. Directive 2004/18/EC of the European Parliament and of the Applicant: Acoset SpA Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts Defendants: Conferenza Sindaci e Presidenza Prov. Reg. ATO and public service contracts is not applicable to a decision taken by Idrico Ragusa, Comune di Comiso (RG), Comune di Modica a contracting authority when awarding a public works contract (RG), Provincia Regionale di Ragusa, Comune di Acate (RG), before the period for transposition of that directive has expired; Comune di Chiaramonte Gulfi (RG), Comune di Giarratana (RG), Comune di Ispica (RG), Comune di Monterosso Almo 2. Article 22(3) of Council Directive 93/37/EEC of 14 June 1993 (RG), Comune di Pozzallo (RG), Comune di Ragusa, Comune concerning the coordination of procedures for the award of public di Vittoria (RG), Comune di Santa Croce Camerina (RG), works contracts, as amended by Directive 97/52/EC of the Comune di Scicli (RG) C 297/10 EN Official Journal of the European Union 5.12.2009
Intervening party: Saceccav Depurazioni Sacede SpA marine organisms, Article 23 of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Re: Common Fisheries Policy and Article 2(1) of Council Regulation Reference for a preliminary ruling — Tribunale Amministrativo (EEC) No 2847/93 of 12 October 1993 establishing a control Regionale per la Sicilia — Interpretation of Articles 43 EC, 49 system applicable to the common fisheries policy — Fishing for EC and 86 EC — Award of water service to a semi-private plaice — Inspection and control of fishing vessels and their company appointing, in accordance with a competitive activities — Responsibility of the Member States procedure, a private partner to be responsible for operating the service — Award made without regard to the rules Operative part of the judgment governing the award of public contracts The Court: Operative part of the judgment 1. Declares that, by allowing fishing vessels to have a higher engine Articles 43 EC, 49 EC and 86 EC do not preclude the direct award of power than permitted under Article 29(2) of Council Regulation a public service which entails the prior execution of certain works, such (EC) No 850/98 of 30 March 1998 for the conservation of as that at issue in the main proceedings, to a semi-public company fishery resources through technical measures for the protection of formed specifically for the purpose of providing that service and juveniles of marine organisms, as amended by Council Regulation possessing a single corporate purpose, the private participant in the (EC) No 2166/2005 of 20 December 2005, the Kingdom of the company being selected by means of a public and open procedure after Netherlands has failed to fulfil its obligations under Article 23 of verification of the financial, technical, operational and management Council Regulation (EC) No 2371/2002 of 20 December 2002 requirements specific to the service to be performed and of the char on the conservation and sustainable exploitation of fisheries acteristics of the tender with regard to the service to be delivered, resources under the Common Fisheries Policy and Article 2(1) of provided that the tendering procedure in question is consistent with Council Regulation (EEC) No 2847/93 of 12 October 1993 the principles of free competition, transparency and equal treatment establishing a control system applicable to the common fisheries laid down by the EC Treaty with regard to concessions. policy, as amended by Council Regulation (EC) No 768/2005 of 26 April 2005;
1 ( ) OJ C 197, 2.8.2008. 2. orders the Kingdom of the Netherlands to pay the costs.
( 1 ) OJ C 209, 15.08.2008. Judgment of the Court (Seventh Chamber) of 15 October 2009 — Commission of the European Communities v Kingdom of the Netherlands Judgment of the Court (Fourth Chamber) of 22 October (Case C-232/08) ( 1 ) 2009 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Swiss Re Germany (Failure of a Member State to fulfil obligations — Regulation Holding GmbH v Finanzamt München für Körperschaften (EC) No 850/1998 — Article 29(2) — Restrictions on fishing for plaice — Maximum engine power of fishing vessels — (Case C-242/08) ( 1 ) Regulation (EEC) No 2847/93 — Article 2(1) — Regulation (EC) No 2371/2002 — Article 23 — Control, and enforcement of the rules) (Sixth VAT Directive — Articles 9(2)(e), fifth indent, and 13B(a), (c) and (d)(2) and (3) — Insurance and reinsurance transactions — Concept — Transfer of a portfolio of life (2009/C 297/08) reinsurance contracts, for consideration, to a person estab lished in a third country — Determination of the place of Language of the case: Dutch that transfer — Exemptions)
Parties (2009/C 297/09)
Applicant: Commission of the European Communities (repre Language of the case: German sented by: T. van Rijn and K. Banks, Agents)
Defendant: Kingdom of the Netherlands (represented by: Referring court M. de Grave and C. Wissels, Agents) Bundesfinanzhof
Re: Parties to the main proceedings Failure of a Member State to fulfil obligations — Infringement of Article 29(2) of Council Regulation (EC) No 850/98 of Applicant: Swiss Re Germany Holding GmbH 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of Defendant: Finanzamt München für Körperschaften 5.12.2009 EN Official Journal of the European Union C 297/11
Re: Judgment of the Court (Sixth Chamber) of 15 October 2009 — Commission of the European Communities v Reference for a preliminary ruling — Bundesfinanzhof — Inter Kingdom of the Netherlands pretation of the fifth indent of Article 9(2)(e) and Article 13B(a), (c) and (d)(2) and (3) of the Sixth Council Directive 77/388/EEC 1 of 17 May 1977 on the harmonisation of the laws of the (Case C-255/08) ( ) Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L (Failure of a Member State to fulfil obligations — Directive 145, p.1) — Transfer, for remuneration payable by the 85/337/EEC — Assessment of the effects of certain public purchaser established in a third country, of a portfolio of life and private projects on the environment — Determination insurance contracts authorised by the policyholders and of thresholds — Size of the project — Incomplete trans involving the transfer of all the rights and obligations arising position) from the contracts transferred but not involving any transfer of other economic goods — Determination of the place of supply (2009/C 297/10) for tax purposes — Applicability to the abovementioned trans action of one of the exemptions contained in the abovemen Language of the case: Dutch tioned provisions of Article 13B of Directive 77/388/EEC
Parties Applicant: Commission of the European Communities (repre sented by: M. van Beek and J.-B. Laignelot, Agents)
Operative part of the judgment 1. A transfer for consideration, by a company established in one Defendant: Kingdom of the Netherlands (represented by: Member State, to an insurance company established in a third C.M. Wissels and M. Noort, Agents) State, of a portfolio of life reinsurance contracts, with the conse quence that the transferee company assumes, with the consent of the insured persons, all the rights and obligations resulting from those contracts, does not constitute either a transaction falling Re: under Article 9(2)(e), fifth indent, and Article 13B(a) of Sixth Failure of a Member State to fulfil obligations — Incorrect Council Directive 77/388/EEC of 17 May 1977 on the harmon transposition of Article 4(2) and (3) in conjunction with isation of the laws of the Member States relating to turnover taxes Annexes II and III of Council Directive 85/337/EEC of — Common system of value added tax: uniform basis of 27 June 1985 on the assessment of the effects of certain assessment, or a transaction falling under a combination of public and private projects on the environment, as amended Article 13B(d)(2) and (3) thereof. by Directives 97/11/EC and 2003/35 (OJ 1985 L 175, p. 40)
Operative part of the judgment 2. In the context of a transfer for consideration of a portfolio of 195 The Court: life reinsurance contracts, the fact that it is not the transferee but the transferor who pays the consideration, in the present case the fixing of a negative value, for the acquisition of 18 of those contracts, does not affect the answer to the first question. 1. Declares that, by failing to adopt all the provisions necessary to ensure that projects likely to have significant effects on the environment are made subject to a consent procedure and to an assessment of those effects, in accordance with Article 4(2) and (3) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3. Article 13B(c) of Sixth Directive 77/388/EC must be interpreted 3 March 1997 and by Directive 2003/35/EC of the European as meaning that it does not apply to a transfer for consideration of Parliament and of the Council of 26 May 2003, in conjunction a portfolio of life reinsurance contracts such as that at issue in the with Annexes II and III to Directive 85/337, the Kingdom of the main proceedings. Netherlands has failed to fulfil its obligations under that directive;
2. orders the Kingdom of the Netherlands to pay the costs.
( 1 ) OJ C 223, 30.8.2008. ( 1 ) OJ C 223, 30.08.2008. C 297/12 EN Official Journal of the European Union 5.12.2009
Judgment of the Court (Third Chamber) of 22 October there, that Member State is not obliged to adopt a decision to expel 2009 (references for preliminary rulings from the that person. Tribunal Superior de Justicia de Murcia (Spain)) — María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08) v Delegación del Gobierno en Murcia
(Joined Cases C-261/08 and C-348/08) ( 1) ( 1 ) OJ C 209, 15.8.2008. OJ C 260, 11.10.2008. (Visas, asylum and immigration — Measures concerning the crossing of external borders — Article 62(1) and (2)(a) EC — Convention implementing the Schengen Agreement — Articles 6b and 23 — Regulation (EC) No 562/2006 — Articles 5, 11 and 13 — Presumption concerning the duration of the stay — Unlawful presence of third-country nationals in the territory of a Member State — National legislation allowing for either a fine or expulsion, depending Judgment of the Court (Second Chamber) of 15 October on the circumstances) 2009 (reference for a preliminary ruling from the Högsta domstolen — Sweden) — Djurgården-Lilla Värtans (2009/C 297/11) Miljöskyddsförening v Stockholms kommun genom dess marknämnd Language of the cases: Spanish (Case C-263/08) ( 1 )
Referring court (Directive 85/337/EEC — Public participation in environ Tribunal Superior de Justicia de Murcia mental decision-making procedures — Right of access to a review procedure to challenge decisions authorising projects likely to have significant effects on the environment) Parties to the main proceedings (2009/C 297/12) Appellants: María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08) Language of the case: Swedish Respondent: Delegación del Gobierno en Murcia Referring court Re: Högsta domstolen Reference for a preliminary ruling — Tribunal Superior de Justicia de Murcia — Interpretation of Article 62(1) and (2)(a) EC and Articles 5, 11 and 13 of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing Parties to the main proceedings the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1) — National rules allowing the Applicant: Djurgården-Lilla Värtans Miljöskyddsförening penalty of expulsion to be replaced by the payment of a fine
Operative part of the judgment Defendant: Stockholms kommun genom dess marknämnd Articles 6b and 23 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen on 19 June 1990, as Re: amended by Council Regulation (EC) No 2133/2004 of 13 December 2004 on the requirement for the competent authorities Reference for a preliminary ruling — Högsta domstolen — of the Member States to stamp systematically the travel documents of Interpretation of Articles 1(2), 6(4) and 10a and of point 10 third-country nationals when they cross the external borders of the of Annex II to Directive 85/337/EEC of 27 June 1985 on the Member States and amending the provisions of the Convention imple assessment of the effects of certain public and private projects menting the Schengen agreement and the common manual to this end, on the environment (OJ 1985 L 175, p. 40), as amended by and Article 11 of Regulation (EC) No 562/2006 of the European Directive 2003/35/EC of the European Parliament and of the Parliament and of the Council of 15 March 2006 establishing a Council of 26 May 2003 for public participation in respect of Community Code on the rules governing the movement of persons the drawing up of certain plans and programmes relating to the across borders (Schengen Borders Code), must be interpreted as environment and amending with regard to public participation meaning that, where a third-country national is unlawfully present and access to justice Council Directives 85/337/EEC and on the territory of a Member State because he or she does not 96/61/EC — Statement by the Commission (OJ 2003 L 156, fulfil, or no longer fulfils, the conditions of duration of stay applicable p. 17) — Local non-profit-making association which 5.12.2009 EN Official Journal of the European Union C 297/13 participated in the preliminary planning consent proceedings for Defendant: Federal Republic of Germany (represented by: a project which may have significant effects on the environment M. Lumma and N. Graf Vitzthum, Agents) — National legislation making the right of non-profit-making associations to appeal against planning consent decisions for such projects subject to the conditions that an association’s Re: purpose under its statutes is environmental protection, that it Failure of a Member State to fulfil obligations — Breach of has been active for at least three years and that it has at least Article 6, in conjunction with Article 9, of Council Directive 2 000 members 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) — Contract for the supply of a software application designed for Operative part of the judgment motor vehicle registration concluded without contracting 1. A project such as that at issue in the main proceedings, concerning procedures between two bodies governed by public law abstraction of water leaking into a tunnel which houses electric responsible for data-processing on behalf of local authorities cables and its recharging into the ground or rock in order to compensate for any reduction in the amount of groundwater, Operative part of the judgment and the construction and maintenance of facilities for the abstraction and recharging, are covered by point 10(l) in Annex The Court: II to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on 1. Declares that, by reason of the fact that the Datenzentrale Baden- the environment, as amended by Directive 2003/35/EC of the Württemberg (Central Data Office of Baden-Württemberg) European Parliament and of the Council of 26 May 2003, irre awarded a contract for the supply of software designed for spective of the ultimate destination of the groundwater and, in motor vehicle registration by a negotiated procedure without publi particular, of whether or not it is put to a subsequent use. cation of a contract notice, the Federal Republic of Germany has failed to fulfil its obligations under Council Directive 93/36/EEC 2. Members of the ‘public concerned’ within the meaning of Article of 14 June 1993 coordinating procedures for the award of public 1(2) and 10a of Directive 85/337, as amended by Directive supply contracts; 2003/35, must be able to have access to a review procedure to challenge the decision by which a body attached to a court of law 2. orders the Federal Republic of Germany to pay the costs. of a Member State has given a ruling on a request for devel opment consent, regardless of the role they might have played in the examination of that request by taking part in the procedure ( 1 ) OJ C 223, 30.08.2008. before that body and by expressing their views.
3. Article 10a of Directive 85/337, as amended by Directive 2003/35, precludes a provision of national law which reserves Judgment of the Court (Fourth Chamber) of 22 October the right to bring an appeal against a decision on projects which 2009 (reference for a preliminary ruling from the Cour de fall within the scope of that directive, as amended, solely to cassation (Luxembourg)) — Irène Bogiatzi, married name environmental protection associations which have at least 2 000 Ventouras v Deutscher Luftpool, Société Luxair, société members. luxembourgeoise de navigation aérienne SA, European Communities, Grand Duchy of Luxembourg, Foyer Assurances SA ( 1 ) OJ C 209,15.08.2008.
(Case C-301/08) ( 1 )
(Transport policy — Regulation (EC) No 2027/97 — Warsaw Judgment of the Court (Fourth Chamber) of 15 October Convention — Air carrier liability in the event of accidents — 2009 — Commission of the European Communities v Time-limit for bringing an action for damages in respect of Federal Republic of Germany harm suffered)
(Case C-275/08) ( 1 ) (2009/C 297/14)
(Failure of a Member State to fulfil obligations — Directive Language of the case: French 93/36/EEC — Public supply contracts — Supply of software designed for motor vehicle registration — Negotiated procedure without prior publication of a contract notice) Referring court Cour de cassation (2009/C 297/13)
Language of the case: German Parties to the main proceedings Applicant: Irène Bogiatzi, married name Ventouras Parties Defendants: Deutscher Luftpool, Société Luxair, société luxem Applicant: Commission of the European Communities (repre bourgeoise de navigation aérienne SA, European Communities, sented by: G. Wilms and D. Kukovec, Agents) Grand Duchy of Luxembourg, Foyer Assurances SA C 297/14 EN Official Journal of the European Union 5.12.2009
Re: Parties to the main proceedings Reference for a preliminary ruling — Court of Cassation Applicants: Makro Zelfbedieningsgroothandel C.V., Metro Cash & (Luxembourg) — Interpretation of Article 5(1) and (3) of Carry B.V., Remo Zaandam B.V. Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (OJ 1997 L 285, p. Defendant: Diesel S.P.A. 1), in relation to Article 29 of the Convention for the Unifi cation of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929, as amended at The Re: Hague on 28 September 1955 — Time-limit for bringing an action for compensation for damage suffered — Effect of an Reference for a preliminary ruling — Hoge Raad der Neder advance payment by the carrier, even if without the temporal landen Den Haag — Interpretation of Article 7(1) of First framework provided for by the regulation, on the recognition of Council Directive 89/104/EEC of 21 December 1988 to that carrier’s liability approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Exhaustion of the right conferred by the mark — Product placed on the market in the Community or the EEA by the trade mark proprietor or Operative part of the judgment with his consent — Implied consent — Conditions 1. The Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October Operative part of the judgment 1929, as amended by the four additional protocols signed at Montreal on 25 September 1975, does not form part of the Article 7(1) of First Council Directive 89/104/EEC of 21 December rules of the Community legal order which the Court of Justice 1988 to approximate the laws of the Member States relating to trade has jurisdiction to interpret under Article 234 EC. marks, as amended by the Agreement on the European Economic Area of 2 May 1992, must be interpreted as meaning that the consent of the proprietor of a trade mark to the marketing of goods bearing that mark carried out directly in the European Economic Area by a third 2. Council Regulation (EC) No 2027/97 of 9 October 1997 on air party who has no economic link to that proprietor may be implied, in carrier liability in the event of accidents must be interpreted as not so far as such consent is to be inferred from facts and circumstances precluding the application of Article 29 of the Convention for the prior to, simultaneous with or subsequent to the placing of the goods Unification of Certain Rules Relating to International Carriage by on the market in that area which, in the view of the national court, Air, signed at Warsaw on 12 October 1929, as amended by the unequivocally demonstrate that the proprietor has renounced his four additional protocols signed at Montreal on 25 September exclusive rights. 1975, to a situation in which a passenger seeks to establish the liability of the air carrier on account of harm suffered by him when flying between Member States of the European Community. ( 1 ) OJ C 272, 25.10.2008.
( 1 ) OJ C 236, 13.9.2008. Judgment of the Court (Second Chamber) of 15 October 2009 (reference for a preliminary ruling from the Conseil d’État (Belgium)) — Enviro Tech (Europe) Ltd v État belge
(Case C-425/08) ( 1 ) Judgment of the Court (First Chamber) of 15 October 2009 (reference for a preliminary ruling from the Hoge (Environment and consumer protection — Classification, Raad der Nederlanden (Netherlands)) — Makro packaging and labelling of n-propyl bromide as a dangerous Zelfbedieningsgroothandel C.V., Metro Cash & Carry B.V., substance — Directive 2004/73/EC — Directive 67/548/EEC Remo Zaandam B.V. v Diesel S.P.A. — Duty to transpose)
(Case C-324/08) ( 1 ) (2009/C 297/16) (Directive 89/104/EEC — Trade-mark law — Exhaustion of Language of the case: French trade mark proprietor’s rights — Placing of goods on the market in the European Economic Area by a third party — Implied consent — Conditions) Referring court
(2009/C 297/15) Conseil d’État
Language of the case: Dutch Parties to the main proceedings Applicant: Enviro Tech (Europe) Ltd Referring court Hoge Raad der Nederlanden Defendant: État belge 5.12.2009 EN Official Journal of the European Union C 297/15
Re: Operative part of the judgment Reference for a preliminary ruling — Conseil d’État (Belgium) The Court: — Validity, in the light of Framework Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classifi 1. Declares that, by imposing restrictions on the freedom of estab cation, packaging and labelling of dangerous substances (OJ, lishment of bodies of other Member States intending to carry on in English Special Edition 1967, p. 234), in particular Annex V Portugal the activity of vehicle inspection, namely, the making of (point A.9) and Annex VI (point 4.2.3) thereto, of Commission the grant of authorisations subject to the public interest, the Directive 2004/73/EC of 29 April 2004 adapting to technical requirement of a minimum share capital of EUR 100 000, the progress for the twenty-ninth time Framework Directive limiting of the undertakings’ company objects and the imposition 67/548/EEC (OJ 2004 L 152, p. 1) — National provisions of incompatibility rules on members, managers and directors, the unlawful on the ground that they transpose a directive Portuguese Republic has failed to fulfil its obligations under presumed to be contrary to the framework directive — Classifi Article 43 EC; cation of the substance called n-propyl bromide as a highly flammable and toxic substance.
2. Orders the Portuguese Republic to pay the costs. Operative part of the judgment Examination of the questions referred has shown no factor capable of affecting the validity of Directive 2004/73/EC of 29 April 2004 1 adapting to technical progress for the 29th time Council Directive ( ) OJ C 313, 6.12.2008. 67/548/EEC of 27 June 1967 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, in that it classifies n- propyl bromide as a highly flammable substance (R11) and toxic for reproduction in category 2 (R60). Judgment of the Court (Fifth Chamber) of 22 October 2009 (reference for a preliminary ruling from the College van
( 1 ) OJ C 327, 20.10.2008. Beroep voor het bedrijfsleven (Netherlands)) — G. Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit
(Case C-449/08) ( 1 ) Judgment of the Court (Fourth Chamber) of 22 October 2009 — Commission of the European Communities v (Common agricultural policy — Integrated administration and Republic of Portugal control system for certain aid schemes — Regulation (EC) No 1782/2003 — Single payment scheme — Establishment 1 (Case C-438/08) ( ) of the reference amount — Farmers in a special situation — National reserve) (Failure of a Member State to fulfil obligations — Freedom of establishment — Directive 96/96/EC — National legislation (2009/C 297/18) — Restrictive conditions for access to the activity of vehicle inspection — Article 45 EC — Activities connected with the Language of the case: Dutch exercise of official authority — Road safety — Proportionality) Referring court (2009/C 297/17) College van Beroep voor het bedrijfsleven Language of the case: Portuguese
Parties Parties to the main proceedings Applicant: Commission of the European Communities (repre Applicant: G. Elbertsen sented by: E. Traversa and M. Teles Romão, acting as Agents)
Defendant: Republic of Portugal (represented by: L. Fernandes Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit and A. Pereira de Miranda, acting as Agents)
Re: Re: Failure of a Member State to fulfil obligations — Infringement Reference for a preliminary ruling — College van Beroep voor of Article 43 EC — Legislation imposing restrictions on the het bedrijfsleven — Interpretation of Article 42(4) of Council freedom of establishment of entities wishing to carry on Regulation (EC) No 1782/2003 of 29 September 2003 estab vehicle inspection activity in Portugal lishing common rules for direct support schemes under the C 297/16 EN Official Journal of the European Union 5.12.2009 common agricultural policy and establishing certain support Defendant: Portuguese Republic (represented by: L. Inez schemes for farmers and amending Regulations (EEC) Fernandes, Agent) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and Re: (EC) No 2529/2001 (OJ 2003 L 270, p. 1) and of Article 21 of Commission Regulation (EC) No 795/2004 of 21 April 2004 Failure of a Member State to fulfil obligations — Infringement laying down detailed rules for the implementation of the single of Article 11 of Council Directive 96/82/EC of 9 December payment scheme provided for in Council Regulation (EC) 1996 on the control of major-accident hazards involving No 1782/2003 establishing common rules for direct support dangerous substances (OJ 1997 L 10, p. 13), as amended by schemes under the common agricultural policy and establishing Directive 2003/105/EC of the European Parliament and of the certain support schemes for farmers (OJ 2004 L 141, p. 1) — Council (OJ 2003 L 345, p. 97) — Failure to draw up external Integrated administration and control system for certain aid emergency plans for certain establishments schemes — Single payment scheme — Establishment of the reference amount — Entitlement to payment not granted in certain situations Operative part of the judgment Operative part of the judgment The Court: 1. Article 42(4) of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support 1. Declares that, by failing to ensure the implementation of the schemes under the common agricultural policy and establishing measures provided for under Article 11 of Council Directive certain support schemes for farmers and amending Regulations 96/82/EC of 9 December 1996 on the control of major- (EEC) No 2019/93, (EC) No 1452/2001, (EC) accident hazards involving dangerous substances, as amended by No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, Directive 2003/105/EC of the European Parliament and of the (EC) No 1251/1999, (EC) No 1254/1999, (EC) Council of 16 December 2003, the Portuguese Republic has failed No 1673/2000, (EEC) No 2358/71 and (EC) to fulfil its obligations under that article; No 2529/2001 must be interpreted as giving the Member States such discretion as to permit them to establish a reference amount of EUR 0 and not to allocate any payment entitlements 2. orders the Portuguese Republic to pay the costs. from the national reserve to a farmer who finds himself in a special situation as described in Article 21 of Commission Regu lation (EC) No 795/2004 of 21 April 2004 laying down detailed rules for the implementation of the single payment ( 1 ) OJ C 82, 04.04.2009. scheme provided for in Regulation No 1782/2003, as amended by Commission Regulation (EC) No 1974/2004 of 29 October 2004, provided that that amount is based on objective criteria, does not prejudice the equal treatment of farmers and does not create market or competition distortions. Reference for a preliminary ruling from the Sofiyski 2. Community law does not preclude the application of a national gradski sad (Bulgaria) lodged on 19 May 2009 — Canon provision under which any increase in the amount of additional Kabushiki Kaisha v IPN Bulgaria OOD payments arising as a result of an investment in production (Case C-181/09) capacity or a purchase of land is subject to a deduction of EUR 500 before a reference amount is established as the basis (2009/C 297/20) for the allocation of entitlements to payments from the national reserve. Language of the case: Bulgarian
( 1 ) OJ C 6, 10.1.2009. Referring court Sofiyski gradski sad (Bulgaria) Judgment of the Court (Sixth Chamber) of 15 October 2009 — Commission of the European Communities v Portuguese Republic Parties to the main proceedings Applicant: Canon Kabushiki Kaisha (Case C-30/09) ( 1 )
(Failure of a Member State to fulfil obligations — Directive Defendant: IPN Bulgaria OOD 96/82/EC — Article 11 — External emergency plans)
(2009/C 297/19) By decision of 17 September 2009, the Court of Justice Language of the case: Portuguese (Fifth Chamber) declared the reference for a preliminary ruling to be manifestly inadmissible. Parties Applicant: Commission of the European Communities (repre sented by: A. Sipos and P. Guerra e Andrade, Agents) 5.12.2009 EN Official Journal of the European Union C 297/17
Action brought on 14 August 2009 — Commission of the Other party to the proceedings: Commission of the European European Communities v Republic of Estonia Communities
(Case C-328/09)
(2009/C 297/21) Form of order sought
Language of the case: Estonian — Declare the appellant’s appeal admissible and well founded;
Parties — Set aside in full the judgment of the Court of First Instance Applicant: Commission of the European Communities (repre of 8 July 2008 in Case T-219/07; sented by M. van Beek and K. Saaremäel-Stoilov, acting as Agents)
— And in so far as, in the event of setting aside the judgment, the Court decides to rule in the case itself: Defendant: Republic of Estonia
Annul the Decision of the Commission of the European Communities of 24 April 2007 concerning the request of Form of order sought the Kingdom of Belgium, notified under REC 05/02, — declare that, by failing to adopt all the necessary laws, regu C (2007) 1776, which found that the import duties of lations and administrative provisions for fully transposing EUR 168 004,65 which were the subject of the Kingdom Council Directive 2004/113/EC of 13 December 2004 of Belgium’s request of 12 August 2002 had to be implementing the principle of equal treatment between recovered, and that there was no justification for men and women in the access to and supply of goods remission of the import duties of EUR 168 004,65 which and services, ( 1 ) or in any event by failing to notify the were the subject of the Kingdom of Belgium’s request of Commission of the adoption of the necessary provisions 12 August 2002. for fully transposing the directive, the Republic of Estonia has failed to fulfil its obligations under Article 17 of the directive; Pleas in law and main arguments
1. With regard to Article 220(2)(b) of the Customs Code ( 1 )
— order the Republic of Estonia to pay the costs. First ground of appeal: When applying Article 220(2)(b) of the Customs Code, the Court of First Instance failed to take account of the interpretation of that article by the Court of Pleas in law and main arguments Justice in its judgment of 9 March 2006, ( 2) in particular The period for transposing the directive into national law with regard to the substance of the burden of proving that expired on 21 December 2007. incorrect certificates had been issued because of an incorrect account of the facts by the exporter, a burden which, according to that judgment, is not only unequivocally that of the customs authority seeking recovery but must also be satisfied by means of objective, original documentary ( 1 ) OJ 2004 L 373, p. 37. evidence.
The Court of First Instance thereby misapplied Article 220(2)(b) of the Customs Code and thus misapplied, and therefore infringed, Community law. Appeal brought on 7 September 2009 by DSV Road NV against the judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009 in Case T-219/07 DSV Road NV v Commission Second ground of appeal: The Court of First Instance, when appraising the evidence submitted to it, misconstrued that (Case C-358/09 P) evidence in all respects, as that evidence does not satisfy the requirements of Article 220(2)(b) of the Customs Code, as (2009/C 297/22) interpreted and clarified by the Court of Justice in its judgment of 9 March 2006. ( 3 ) Language of the case: Dutch
Parties The Court of First Instance thereby erred in law in its char Appellant: DSV Road NV (represented by: A. Poelmans and acterisation of the evidence and therefore infringed G. Preckler, advocaten) Community law. ( 4 ) C 297/18 EN Official Journal of the European Union 5.12.2009
Moreover, when appraising the evidence, the Court of First with Article 3(1)(g) EC — to be interpreted as meaning that Instance did not rule coherently, but inconsistently in that, parties adversely affected by a cartel may not, for the purpose of on the one hand, it regarded that evidence as sufficient to bringing civil-law claims, be given access to leniency appli satisfy the Commission’s burden of proving that incorrect cations or to information and documents voluntarily provided certificates had been issued because of an incorrect account in that connection by applicants for leniency which the national of the facts by the exporter but, on the other hand, in competition authority of a Member State has received, pursuant regard to the same rules, rejected it as insufficient to to a national leniency programme, within the framework of satisfy the proof required of the appellant that the Thai proceedings for the imposition of fines which are (also) customs authorities knew, or at least reasonably ought to intended to enforce Article 81 EC? have known, that the goods were not eligible for preferential treatment.
1 The Court of Justice should rule that the errors of the Court ( ) OJ 2003 L 1, p. 1. of First Instance when considering and appraising the documents adduced as evidence constitute a failure to state reasons. ( 5)
2. With regard to Article 239 of the Customs Code Reference for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) of 8 September 2009 — Belgisch Interventie- en Restitutiebureau v SGS Belgium Sole ground of appeal: On the basis of a misapplication of NV, Firme Derwa NV and Centraal Beheer Achmea NV Article 220(2)(b) of the Customs Code and/or the errors in appraising the documents submitted as evidence, the Court (Case C-367/09) of First Instance wrongly held that the circumstances in which the appellant finds itself is not a special situation (2009/C 297/24) for the purposes of Article 239 of the Customs Code. Language of the case: Dutch
Referring court ( 1 ) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab lishing the Community Customs Code (OJ 1992 L 302, p.1). Hof van beroep te Antwerpen ( 2 ) Case C-293/04 Beemsterboer [2006] ECR I-2263. ( 3 ) Ibid. ( 4 ) Order in Case C-325/94 P An Taisce and WWF UK v Commission [1996] ECR I-3739, paras. 28 and 30. Parties to the main proceedings ( 5 ) Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5399, para 40. Appellant: Belgisch Interventie- en Restitutiebureau Respondents: SGS Belgium NV Firme Derwa NV Reference for a preliminary ruling from the Amtsgericht Centraal Beheer Achmea NV Bonn (Germany) lodged on 9 September 2009 — Pfleiderer AG v Bundeskartellamt
(Case C-360/09) Questions referred
(2009/C 297/23) 1. Do the provisions of Articles 5 and 7 of Council Regulation (EC, Euratom) No 2988/95 ( 1 ) of 18 December 1995 on the Language of the case: German protection of the European Communities’ financial interests have direct effect in the national legal orders of the Member Referring court States without any discretion on the part of those Member States and without the national authorities being required to Amtsgericht Bonn adopt any measures for their implementation?
Parties to the main proceedings 2. Can an international control and supervisory agency Applicant: Pfleiderer AG approved by the Member State in which the export declaration was accepted — in this case, Belgium — Defendant: Bundeskartellamt which has submitted a false certificate of unloading within the meaning of Article 18(2)(c) of Regulation (EEC) No 3665/87 ( 2) be deemed to be an economic operator Question referred within the meaning of Article 1 of Regulation No 2988/95, or a person who has taken part in the irregularity Are the provisions of Community competition law — in or is under a duty to take responsibility for the irregularity particular Articles 11 and 12 of Regulation No 1/2003 ( 1) or to ensure that it is not committed, within the meaning of and the second paragraph of Article 10 EC, in conjunction Article 7 of Regulation No 2988/95? 5.12.2009 EN Official Journal of the European Union C 297/19
3. Can a communication derived from an investigative report to an end only by taking a decision which states that the drawn up by the Economic Inspection Board, or a letter practice does not restrict competition, is the third sentence requesting the production of additional documents as of Article 5 of Council Regulation (EC) No 1/2003 of evidence of the release for consumption, or a registered 16 December 2002 on the implementation of the rules letter imposing a sanction, be deemed to be investigation on competition laid down in Articles 81 and 82 of the or legal proceedings within the meaning of the third Treaty to be interpreted as constituting a direct legal basis subparagraph of Article 3(1) of Regulation No 2988/95? for that authority to ‘decide that there are no grounds for action on [its] part’? ( 1 ) OJ 1995 L 312, p. 1. ( 2 ) Commission Regulation (EEC) No 3665/87 of 27 November 1987 ( 1 ) OJ 2003 L 1, p. 1. laying down common detailed rules for the application of the system of export refunds on agricultural products.
Reference for a preliminary ruling from the Augstākās Reference for a preliminary ruling from the Sąd Najwyższy tiesas Senāta Administratīvo lietu departaments lodged on (Republic of Poland), lodged on 23 September 2009 — 28 September 2009 — Stils Met SIA v Valsts ieņēmumu Prezes Urzędu Ochrony Konkurencji i Konsumentów v dienests Tele2 Polska sp. z o.o., now Netia S.A. (Case C-382/09) (Case C-375/09) (2009/C 297/26) (2009/C 297/25) Language of the case: Latvian Language of the case: Polish Referring court Referring court Augstākās tiesas Senāta Administratīvo lietu departaments Sąd Najwyższy Parties to the main proceedings Parties to the main proceedings Applicant: Stils Met SIA Appellant: Prezes Urzędu Ochrony Konkurencji i Konsumentów Defendant: Valsts ieņēmumu dienests Respondent: Tele2 Polska sp. z o.o., now Netia S.A. Questions referred Questions referred 1. Is Article 5 of Council Regulation (EC) No 1/2003 of 1. Are TARIC codes 7312 10 82 19, 7312 10 84 19 and 16 December 2002 on the implementation of the rules 7312 10 86 19 to be interpreted as meaning that, in on competition laid down in Articles 81 and 82 of the 2004 and 2005, steel articles –ropes and cables not Treaty ( 1 ) to be interpreted as meaning that a national coated or only plated or coated with zinc– and, in competition authority cannot take a decision stating that a particular, alloy steel not consigned from Moldova or practice does not restrict competition within the meaning of Morocco, ought to have been classified under these codes, Article 82 EC in a case in which it has found, after depending on their cross-sectional dimensions, irrespective conducting proceedings, that the undertaking did not of their chemical composition (excluding stainless steel)? breach the prohibition of abuse of a dominant position 2. Is Article 14(1) of Council Regulation (EC) No 384/96 of under that Treaty provision? 22 December 1995 on protection against dumped imports 2. If the answer to the first question is in the affirmative: in a from countries not members of the European Community situation in which, under national competition law — if it to be interpreted as precluding a penalty (fine) calculated on should be established that the practice of an undertaking the amount of anti-dumping duties which is imposed on the does not infringe the prohibition in Article 82 EC — a basis of national legislation (Article 32(2) of the Law ‘Par national competition authority may bring cartel proceedings nodokļiem un nodevām’) governing breaches of tax law? C 297/20 EN Official Journal of the European Union 5.12.2009
COURT OF FIRST INSTANCE
Judgment of the Court of First Instance of 28 October Judgment of the Court of First Instance of 28 October 2009 — Juwel Aquarium v OHIM — Potschak (Panorama) 2009 — CureVac v OHIM — Qiagen (RNAiFect)
(Case T-339/07) ( 1) (Case T-80/08) ( 1)
(Community trade mark — Invalidity proceedings — (Community trade mark — Opposition proceedings — Appli Community word mark Panorama — Absolute ground for cation for the Community word mark RNAiFect — Earlier refusal — Descriptive character — Article 7(1)(c) and Community word mark RNActive — Relative ground for Article 51(1)(a) of Regulation (EC) No 40/94 (now Article refusal — No likelihood of confusion — Article 8(1)(b) of 7(1)(c) and Article 52(1)(a) of Regulation (EC) No Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation 207/2009)) (EC) No 207/2009))
(2009/C 297/27) (2009/C 297/28)
Language of the case: German Language of the case: German
Parties Parties Applicant: Juwel Aquarium GmbH & Co. KG (Rotenburg, Applicant: CureVac GmbH (Tübingen, Germany) (represented by: Germany) (represented by: P. Mes, C. Graf von der Groeben, F. Graf von Stosch, lawyer) G. Rother, J. Bühling, A. Verhauwen, J. Künzel, D. Jestaedt and M. Bergermann, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: M. Kicia and Defendant: Office for Harmonisation in the Internal Market S. Schäffner, Agents) (Trade Marks and Designs) (represented by: G. Schneider, Agent)
Other party to the proceedings before the Board of Appeal of OHIM, Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Qiagen GmbH (Hilden, intervener before the Court of First Instance: Christian Potschak Germany) (represented by: initially E. Krings, and subsequently (Bobingen, Germany) (represented by: D. Donath, lawyer) V. von Bomhard, A. Renck and T. Dolde, lawyers)
Re: Re: Action brought against the decision of the First Board of Appeal Action brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 214/2006-1) relating to of OHIM of 11 December 2007 (Case R 1219/2006-1) relating invalidity proceedings between Christian Potschak and Juwel to opposition proceedings between CureVac GmbH and Qiagen Aquarium GmbH & Co. KG. GmbH.
Operative part of the judgment Operative part of the judgment The Court: The Court:
1. Dismisses the action; 1. Dismisses the action;
2. Orders Juwel Aquarium GmbH & Co. KG to pay the costs. 2. Orders CureVac GmbH to pay the costs.
( 1 ) OJ C 269, 10.11.2007. ( 1 ) OJ C 107, 26.4.2008. 5.12.2009 EN Official Journal of the European Union C 297/21
Judgment of the Court of First Instance of 28 October Judgment of the Court of First Instance of 20 October 2009 — BCS v OHIM — Deere (Combination of the 2009 — Aldi Einkauf v OHIM — Goya Importaciones y colours green and yellow) Distribuciones (4 OUT Living)
(Case T-137/08) ( 1) (Case T-307/08) ( 1)
(Community trade mark — Invalidity proceedings — (Community trade mark — Opposition proceedings — Appli Community trade mark consisting of a combination of the cation for figurative Community mark 4 OUT Living — colours green and yellow — Absolute ground for refusal — Earlier national figurative mark Living & Co — Relative Distinctive character acquired through use — Article 7(3) and ground for refusal — Likelihood of confusion — Article Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) 7(3) and Article 52(1)(a) of Regulation (EC) No 207/2009) of Regulation (EC) No 207/2009)) — Relative ground for refusal — Earlier unregistered national mark consisting of a combination of the colours (2009/C 297/30) green and yellow — Article 8(4) and Article 52(1)(c) of Regulation No 40/94 (now Article 8(4) and Article 53(1)(c) Language of the case: English of Regulation No 207/2009) — Obligation to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Parties Regulation No 207/2009)) Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks and (2009/C 297/29) C. Fürsen, lawyers) Language of the case: English Defendant: Office for Harmonisation in the Internal Market Parties (Trade Marks and Designs) (represented by: R. Manea and G. Schneider, acting as Agents) Applicant: BCS SpA (Milan, Italy) (represented by: M. Franzosi, V. Jandoli and F. Santonocito, lawyers) Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Goya Importaciones y Distribuciones, SL (Cuarte de Huerva, Spain) Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, acting as Re: Agent) Action brought against the decision of the First Board of Appeal of OHIM of 7 May 2008 (Case R 1199/2007-1) relating to opposition proceedings between Goya Importaciones y Distri Other party to the proceedings before the Board of Appeal of OHIM buciones, SL and Aldi Einkauf GmbH & Co. OHG. intervening before the Court of First Instance: Deere & Company (Wilmington, United States) (represented by: J. Gray, Solicitor, and A. Tornato, lawyer) Operative part of the judgment The Court:
Re: 1. Dismisses the action; Action brought against the decision of the Second Board of 2. Orders Aldi Einkauf GmbH & Co. OHG to pay the costs. Appeal of OHIM of 16 January 2008 (Case R 222/2007-2) relating to invalidity proceedings between BCS SpA and Deere & Company. ( 1 ) OJ C 260, 11.10.2008.
Operative part of the judgment Action brought on 27 March 2009 — Phoenix-Reisen and The Court: DRV v Commission
(Case T-120/09)
1. Dismisses the action; (2009/C 297/31)
Language of the case: German 2. Orders BCS SpA to pay the costs. Parties Applicants: Phoenix-Reisen GmbH (Bonn, Germany) and Deutscher Reiseverband eV (DRV) (Berlin, Germany) (repre ( 1 ) OJ C 142, 7.6.2008. sented by: R. Gerharz and A. Funke, lawyers)
Defendant: Commission of the European Communities C 297/22 EN Official Journal of the European Union 5.12.2009
Form of order sought Marks and Designs) of 18 June 2009 in Case R 1012/2008–1, dismissing the appeal brought by the — Annul the defendant’s decision of 13 February 2009 by applicant against the decision of the Cancellation Division which it refused to take action against State aid granted which declared the Community word mark PORTO by the Federal Republic of Germany in the form of ALEGRE invalid; and insolvency payments; — Order OHIM to pay the costs. — In the alternative, reinterpret the action for annulment as an action for failure to act, in the event that the Court should take the view that the present proceedings must take the Pleas in law and main arguments form of an action for failure to act. Registered Community trade mark in respect of which a declaration of invalidity has been sought: word mark PORTO ALEGRE, for goods in Class 33 Pleas in law and main arguments The applicants’ action is directed against the Commission’s letter Proprietor of the Community trade mark: the applicant (reference D/50594) of 13 February 2009 concerning its complaint in connection with insolvency benefit payments to Applicant for the declaration of invalidity: the other party to the undertakings and with the financing of the payment proceedings before the Board of Appeal of insolvency benefit in the Federal Republic of Germany (CP 79/2007 — Alleged State Aid in the form of insolvency Trade mark right of applicant for the declaration: earlier Portuguese benefit payments). In that letter the Commission states word mark VISTA ALEGRE, for goods in Class 33 repeatedly that there is in its view no infringement of the provisions on State aid. Decision of the Cancellation Division: Community word mark PORTO ALEGRE declared invalid In support of their claim, the applicants maintain that the contested measures cannot be justified under Directive Decision of the Board of Appeal: appeal dismissed 80/987/EEC. ( 1) Furthermore, the Commission’s refusal to take action against the alleged wrongdoing infringes Community law. That rejection also cannot be justified by the decisions of Plea in law: Infringement of Article 8(1)(b) of Regulation the Bundessozialgericht (Federal Social Court). No 207/2009 in so far as the Board of Appeal misinterpreted that provision and, consequently, wrongly held that there was a likelihood of confusion between the marks in question.
( 1 ) Council Directive 80/987/EEC of 20 October 1980 on the approxi mation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23) Action brought on 25 September 2009 — RWE Transgas v Commission
Action brought on 22 September 2009 — Sociedade (Case T-381/09) Quinta do Portal SA v OHIM — Vallegre–Vinhos do (2009/C 297/33) Porto (PORTO ALEGRE) Language of the case: German (Case T-369/09) Parties (2009/C 297/32) Applicant: RWE Transgas a.s. (Prague, Czech Republic) (repre Language in which the application was lodged: Portuguese sented by: W. Deselaers, D. Seeliger and S. Einhaus, lawyers) Parties Defendant: Commission of the European Communities Applicant: Sociedade Quinta do Portal SA (Lisbon, Portugal) (represented by: B. Belchior, lawyer) Form of order sought — Declare invalid the third sentence of Point 89(a) of Defendant: Office for Harmonisation in the Internal Market Commission Decision C(2009) 4694 of 12 June 2009, (Trade Marks and Designs) insofar as it finds that the applicant and Gazprom — to be considered for this purpose jointly — may together Other party to the proceedings before the Board of Appeal: account for no more than 50 % of capacity as long as Vallegre–Vinhos do Porto SA (Sabrosa, Portugal) substantial long-term gas supply agreements exist between them;
Form of order sought — in the alternative, annul the decision in its entirety; — Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade — order the Commission to pay the costs. 5.12.2009 EN Official Journal of the European Union C 297/23
Pleas in law and main arguments — Order the defendant or, in the case of an intervention by the other party to the proceedings before the defendant, the The applicant, an importer of gas into the Czech Republic, has intervener to pay the costs. brought an action against the letter of 12 June 2009 sent by the Commission to the German energy regulator, the Bundesnetza gentur (Federal Network Agency) in which the Commission asks Pleas in law and main arguments the Bundesnetzagentur to amend certain aspects of the exemption it has granted, pursuant to Article 22 of Directive Applicant for a Community trade mark: ERGO Versicherungs 2003/55/EC, ( 1 ) for the gas pipeline project Ostseepipeline- gruppe AG Anbindungsleitung (Baltic Sea Pipeline Link) (‘OPAL’). The applicant complains that one of the Commission’s conditions would have the effect of restricting or, as the case may be, Community trade mark concerned: The word mark ‘ERGO’ for preventing the applicant’s access to OPAL’s transport/release goods and services in Classes 1 to 45 (Application capacities in the Czech Republic. No 3 292 638)
In support of its action, the applicant claims, first, that the Proprietor of the mark or sign cited in the opposition proceedings: defendant infringed its right to a fair hearing by denying it DeguDent GmbH any opportunity to comment on the condition imposing a burden on it before it was adopted. Mark or sign cited in opposition: The German word mark No 39 832 880 and the Community trade mark Second, the applicant contends that the defendant infringed the No 1 064 674 ‘CERGO’ for goods in Class 10, the opposition applicant’s right of access to documents, by denying it any being brought only against the registration for goods in Classes access to the file of the proceedings. 5 and 10
Finally, the applicant complains that the defendant misapplied Decision of the Opposition Division: Opposition upheld Article 22(4) of Directive 2003/55/EC and the principle of proportionality, the principle of equal treatment and the duty to state reasons (Article 253 EC). Decision of the Board of Appeal: Appeal dismissed
Pleas in law: Infringement of the first sentence of Article 42(5) in 1 ( ) Directive 2003/55/EC of the European Parliament and of the conjunction with the first sentence of Article 64(1) and Article Council of 26 June 2003 concerning common rules for the 76(1) of Regulation (EC) No 207/2009 ( 1), since the Board of internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57). Appeal did not fully decide on the appeal;
Infringement of Article 8(1)(b) of Regulation No 207/2009, since there is no likelihood of confusion between the Action brought on 30 September 2009 — ERGO opposing marks. Versicherungsgruppe v OHIM — DeguDent (ERGO)
(Case T-382/09) ( 1 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the (2009/C 297/34) Community trade mark (OJ 2009 L 78, p. 1).
Language in which the application was lodged: German
Parties Action brought on 1 October 2009 — SKW Stahl- Applicant: ERGO Versicherungsgruppe AG (Düsseldorf, Metallurgie Holding and SKW Stahl-Metallurgie v Germany) (represented by: V. von Bomhard, A. Renck, Commission T. Dolde and J. Pause, lawyers) (Case T-384/09)
Defendant: Office for Harmonisation in the Internal Market (2009/C 297/35) (Trade Marks and Designs) Language of the case: German
Other party to the proceedings before the Board of Appeal of OHIM: Parties DeguDent GmbH (Hanau on Main, Germany) Applicants: SKW Stahl-Metallurgie Holding AG (Unterneu kirchen, Germany) and SKW Stahl-Metallurgie GmbH (Unter Forms of order sought neukirchen, Germany) (represented by: A. Birnstiel, S. Janka and S. Dierckens, lawyers) — Annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 in Case R 44/2008-4; Defendant: Commission of the European Communities C 297/24 EN Official Journal of the European Union 5.12.2009
Form of order sought Finally, the applicants claim that there has been an infringement of Article 23(2) of Regulation (EC) No 1/2003, since the fine — Annul the contested decision, insofar as it concerns the the Commission imposed on SKW Stahl-Metallurgie GmbH applicants; exceeded 10 % of the turnover of that company.
— in the alternative, amend Article 2 of the contested decision, which imposes a fine on the applicants, to the effect that the ( 1 ) Council Regulation (EC) No 1/2003 of 16 December 2002 on the fine is lifted or at least substantially reduced; implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p.1). — order the defendant to bear its own costs and to pay those incurred by the applicants.
Pleas in law and main arguments Action brought on 5 October 2009 — Evonik Degussa and AlzChem Hart v Commission The applicants have brought an action against Commission Decision C(2009) 5791 final of 22 July 2009 in Case (Case T-391/09) COMP/39.396 — Calcium Carbide and magnesium based reagents for the steel and gas industries. The contested (2009/C 297/36) decision imposes a fine on the applicants and other under takings in respect of an infringement of Article 81 EC as well Language of the case: German as Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a single and Parties continuous infringement in the calcium carbide and Applicants: Evonik Degussa GmbH (Essen, Germany) and magnesium sectors in the whole of the European Economic AlzChem Hart GmbH (Trostberg, Germany) (represented by: Area, with the exception of Spain, Portugal, Ireland and the C. Steinle, O. Andresen and I. Hermeneit, lawyers) United Kingdom, taking the form of market sharing, agreements on quotas, customer allocation, price fixing and the exchange of confidential information relating to prices, customers and sales Defendant: Commission of the European Communities volumes.
In support of their actions, the applicants have submitted six Form of order sought pleas. — Annul Commission Decision C (2009) 5791 final of 22 July 2009 (Case COMP/39.396 — Calcium carbide First, the applicants claim that the defendant infringed the and magnesium based reagents for the steel and gas applicants’ rights of defence when it failed to give the applicants industries) in so far as it concerns the applicants; the opportunity of a hearing for the submission of oral arguments. — in the alternative, reduce the fine imposed on the applicants under Article 2(g) and (h) of the decision referred to; Second, the applicants claim that the Commission committed an error of law in the application of Article 81(1) EC. In this respect, the applicants claim that the Commission wrongly — in the alternative, in the event that point 1 of the appli attributed the actions of SKW Stahl-Metallurgie GmbH to cation is dismissed, amend Article 2(g) and (h) of the SKW Stahl-Metallurgie Holding AG. Further, the applicants decision in such a way as to make SKW Stahl-Metallurgie claim that it is impossible to meet the conditions for the GmbH jointly and severally liable for the full amount of the rebuttal of the presumption that a parent company has fine imposed on the applicants; decisive influence over its subsidiary. At the same time, the defendant’s conduct breached the principle of ex officio investi gation. — order the Commission to pay the costs of the proceedings.
Third, the applicant claims that the Commission infringed its Pleas in law and main arguments obligation to state reasons pursuant to Article 253 EC, since it did not explain why the applicants’ submission did not suffice The applicants contest Commission Decision C (2009) 5791 to refute the presumption that SKW Stahl-Metallurgie Holding final of 22 July 2009 in case COMP/39.396 — Calcium AG had decisive influence over SKW Stahl-Metallurgie GmbH. carbide and magnesium based reagents for the steel and gas industries. The contested decision imposed a fine on the applicants and on other undertakings for infringement of Fourth, the applicants claim that, as regards the calculation of Article 81 EC and Article 53 of the EEA Agreement. the fines, the Commission in several respects infringed the According to the Commission, the applicants participated in a principle of equal treatment. single and continuous infringement in the calcium carbide and magnesium sector in the EEA, except in Spain, Portugal, Ireland Fifth, the applicants claim that, as regards the calculation of the and the United Kingdom, which consisted in market sharing, fines, the Commission infringed Articles 7 and 23 of Regulation agreements on quotas, customer allocations, price fixing and (EC) No 1/2003 ( 1) as well as the principle of proportionality exchange of sensitive information relating to prices, customers and the principle that penalties must have a proper legal basis. and sales volumes. 5.12.2009 EN Official Journal of the European Union C 297/25
In support of their action, the applicants submit, first, that they — in the alternative, reduce the fine imposed on the applicant have not infringed Article 81 EC. In that regard, they submit, in in Article 2 of the decision relating to a proceeding under particular, that they cannot be held liable for an infringement Article 81 EC and Article 53 EEA in case COMP/F/39.396 committed by their former subsidiary, SKW Stahl-Metallurgie — Calcium carbide and magnesium based reagents for the GmbH, since neither they nor their legal predecessors formed steel and gas industries, an economic unit with that company. Instead, the applicants have proved that their legal predecessors did not exercise decisive influence over SKW Stahl-Metallurgie GmbH. Accordingly, the defendant has also infringed the principle of — order the Commission to pay the costs. personal responsibility, the presumption of innocence, the fault principle and the fault requirement. Pleas in law and main arguments
Furthermore, the applicants also object to the fine imposed on By means of its application, the applicant seeks the partial them. In that regard, they submit that the contested decision is annulment of Commission’s Decision C (2009) 5791 final of 1 22 July 2009, finding the existence of a cartel in the calcium contrary to Article 23(3) of Regulation (EC) No 1/2003 ( ) and 2 carbide and magnesium sectors, giving rise to an infringement to the Guidelines on setting fines, ( ) as well as to the Leniency 3 of Article 81 EC for which the applicant was held liable jointly Notice, ( ) the principle of equal treatment and the principle of proportionality. and severally, with the company Novácke chemické závody a.s. (“NCHZ”).
Finally, the applicants submit that the Commission failed to fulfil its obligation to state reasons in accordance with Article The application is based on two broad submissions. 253 EC in respect of its findings concerning the joint and several liability of SKW Stahl-Metallurgie GmbH. First, the applicant submits that the Commission erred in law and in fact in imputing NCHZ’s conduct to the applicant, both by unlawfully reversing the burden of proof onto the applicant ( 1 ) Council Regulation No 1/2003 of 16 December 2002 on the imple and by failing to discharge the burden of proof itself. The mentation of the rules on competition laid down in Articles 81 and applicant claims that the Commission wrongly applied the 82 of the Treaty (OJ 2003 L 1, p. 1). presumption applicable to parents with wholly-owned ( 2 ) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2). subsidiaries to the applicant, which was a majority shareholder ( 3 ) Commission notice on immunity from fines and reduction of fines in a company that was directly involved in a competition law in cartel cases (OJ 2002 C 45, p. 3). infringement. In any event, the applicant contends that the Commission failed to show that the applicant actually and effectively exercised decisive influence over NCHZ during the period of the infringement.
Action brought on 2 October 2009 — 1. garantovaná v Commission Second, and in the alternative, should the Court uphold the attribution of liability to the applicant, the latter seeks a (Case T-392/09) reduction of the fine imposed on it, jointly and severally with NCHZ, pursuant to the Court’s unlimited jurisdiction under (2009/C 297/37) Article 229 EC read in conjunction with Article 31 of Regu lation (EC) No 1/2003 ( 1 ), on the basis that the Commission Language of the case: English incorrectly applied the 10 % turnover limit contained in Article 23 of Regulation (EC) No 1/2003. According to the applicant, Parties the Commission manifestly erred in using the 2007 as the Applicant: 1. garantovaná a.s. (Bratislava, Slovak Republic) reference year for calculating the 10 % turnover limit, instead (represented by: M. Powell, Solicitor, A. Sutton and of 2008. G. Forwood, Barristers)
In addition, the applicant claims that the Commission’s decision Defendant: Commission of the European Communities to depart from the general rule contained in Article 23(2) of Regulation (EC) No 1/2003 amounts to a breach of an essential procedural requirement, since the Commission had a duty to respect the applicant’s right to be heard before doing so. Form of order sought — Annul the Commission’s decision of 22 July 2009 relating to a proceeding under Article 81 EC and Article 53 EEA in Moreover, the applicant submits that the contested decision is case COMP/F/39.396 — Calcium carbide and magnesium vitiated by Commission’s failure to state reasons for departing based reagents for the steel and gas industries, in whole from the general rule of taking the preceding business year in or in part, in so far as it is addressed to the applicant; order to calculate the 10 % turnover limit. C 297/26 EN Official Journal of the European Union 5.12.2009
In respect of the level of the fine, the applicant claims that it is — Order the other party to the proceedings before the Board disproportionate in relation to the legitimate objective pursued, of Appeal to pay the costs, including those incurred by the namely, to ensure competition in the internal market is not applicant before the Board of Appeal, should it become an distorted. According to the applicant, the level of the fine will intervener in this case. reduce the number of competitors and reinforce the market strength of the major company, Akzo Nobel, running thus counter to the objective enshrined in Article 3 EC. Pleas in law and main arguments Applicant for the Community trade mark: The applicant Finally, the applicant claims that the Commission erred in 2 failing to take account of its own Guidelines ( ) with respect Community trade mark concerned: The word mark “NaViKey” for to the applicant’s ability to pay the fine. The applicant submits, goods in class 9 in particular, that the rejection of its submissions on its inability to pay is vitiated by the fact that it is insufficiently reasoned and is manifestly unreasonable, since the Commission allegedly Proprietor of the mark or sign cited in the opposition proceedings: The failed to take into account of the objective evidence that was other party to the proceedings before the Board of Appeal provided to it, that imposition of the fine would irretrievably jeopardise the economic viability of the applicant and cause its Mark or sign cited: Community trade mark registration of the assets to lose all their value. word mark “NAVI” for goods and services in classes 9 and 38; Finish trade mark registration of the word mark “NAVI” for goods in class 9 ( 1 ) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ L 1, p. 1) Decision of the Opposition Division: Upheld the opposition in its ( 2 ) Guidelines on the method of setting fines imposed pursuant to entirety Article 23(2)(a) of Regulation No 1/2003 (OJ C 210, p. 2) Decision of the Board of Appeal: Dismissal of the appeal
Pleas in law: Infringement of Article 8(1)(b) of Council Regu Action brought on 2 October 2009 — NEC Display lation No 207/2009 as the Board of Appeal: (i) erred when Solutions Europe v OHIM — Nokia (NaViKey) determining the relevant public whose perception must be taken into account; (ii) erred when assessing the similarity (Case T-393/09) between the trade marks concerned and the goods covered; (2009/C 297/38) and (iii) failed to take into account that the other party to the proceedings before the Board of Appeal is not entitled to Language in which the application was lodged: English prohibit the use of later trade marks containing the element “NAVI”, as a result of the lack of distinctiveness of such or of Parties low degree of distinctiveness, and therefore not entitled to rely on Article 8(1)(b) of Council Regulation 207/2009 to obtain Applicant: NEC Display Solutions Europe GmbH (Munich, the rejection of the application for the Community trade mark Germany) (represented by: P. Munzinger, lawyer) concerned; infringement of Article 75 of Council Regulation No 207/2009 as the Board of Appeal failed to state reasons for its finding that there was a likelihood of confusion between the Defendant: Office for Harmonisation in the Internal Market trade marks concerned. (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Nokia Corp. (Helsinki, Finland) Action brought on 5 October 2009 — General Bearing v OHIM (GENERAL BEARING CORPORATION) Form of order sought — Annul the decision of the Second Board of Appeal of the (Case T-394/09) Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 June 2009 in case (2009/C 297/39) R 1143/2008-2; Language of the case: English
— Dismiss the opposition filed by the other party to the Parties proceedings before the Board of Appeal against the regis Applicant(s): General Bearing Corp. (West Nyack, United States) tration of the Community trade mark concerned; (represented by: A. Dellmeier-Beschorner, lawyer)
— Order OHIM to pay the costs, including those incurred by Defendant: Office for Harmonisation in the Internal Market the applicant before the Board of Appeal; and (Trade Marks and Designs) 5.12.2009 EN Official Journal of the European Union C 297/27
Form of order sought — Calcium carbide etc in so far as the decision is addressed to the applicant; — Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 July 2009 in case R 73/2009-1; — in the alternative, reduce the fine imposed on the applicant under Article 2(f) of the decision; — Order the defendant to register the Community trade mark concerned; — in the alternative, annul Articles 1 and 3 of the decision in so far as they concern the applicant; and — Order the defendant to pay the costs incurred in the proceedings before the court; and — order the Commission to pay the costs.
— Set a date for an oral hearing if such is deemed necessary.
Pleas in law and main arguments Pleas in law and main arguments The applicant contests Commission Decision C (2009) 5791 final of 22 July 2009 in case COMP/39.396 — Calcium Community trade mark concerned: The word mark “GENERAL carbide and magnesium based reagents for the steel and gas BEARING CORPORATION” for goods in classes 7 and 12 industries. The contested decision imposed a fine on the applicant and on other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. Decision of the examiner: Refused the application for a According to the Commission, the applicant participated in a Community trade mark single and continuous infringement in the calcium carbide and magnesium sector in the EEA, except in Spain, Portugal, Ireland and the United Kingdom, which consisted in market sharing, Decision of the Board of Appeal: Dismissed the appeal agreements on quotas, customer allocations, price fixing and exchange of sensitive information relating to prices, customers and sales volumes. Pleas in law: Infringement of Articles 7(1)(b), 7(1)(c) and 7(2) of Council Regulation 207/2009, as well as of general principles of trademark law, as the Board of Appeal wrongly found that the The applicant puts forward eight pleas in law in support of its Community trade mark concerned is not eligible for registration action, which are set out in three parts. due to the fact that it is a purely descriptive term.
By the first part, the applicant seeks to have the contested decision annulled in so far as the applicant was found jointly and severally liable for the conduct of SKW Stahl-Metallurgie GmbH, and relies in that respect on the following pleas in law:
Action brought on 6 October 2009 — Arques Industries v Commission — erroneous application of Article 81(1) EC and of Article 23(2) of Regulation (EC) No 1/2003 ( 1) in that the (Case T-395/09) Commission deemed the applicant to be jointly and severally liable with SKW Stahl-Metallurgie GmbH; (2009/C 297/40)
Language of the case: German — infringement of Article 253 EC since the Commission did Parties not give reasons for the exercise of its discretion in relation to the applicant’s liability as a former parent company; Applicant: Arques Industries AG (Starnberg, Germany) (repre sented by: C. Grave, B. Meyring and A. Scheidtmann, lawyers)
— erroneous application of Article 81, since the defendant Defendant: Commission of the European Communities erred in law in its assumption as to the existence of a single and continuous infringement.
Form of order sought By the second part, the applicant seeks, in the alternative, a — Annul Articles 1, 2, 3 and 4 of Commission Decision reduction of the amount of the fine imposed on it, and relies C (2009) 5791 final of 22 July 2009 in Case COMP/39.396 in that respect on the following pleas in law: C 297/28 EN Official Journal of the European Union 5.12.2009
— infringement of Article 253 EC since the contested decision — order the Commission to pay the costs of the proceedings. is inherently contradictory as regards the level of the fine;
— infringement of Article 23 of Regulation No 1/2003 since the Commission erred in its assessment of the gravity and Pleas in law and main arguments duration of the infringement; The applicants are two Netherlands environmental organisations which, on the basis of Article 10(1) of Regulation — infringement of the general principle of equal treatment in No 1367/2006, ( 1) requested the defendant to carry out a relation to the gravity and duration of the infringement review of the earlier Commission Decision C(2009) 2560 of assumed by the Commission; 7 April 2009, by which the Commission had authorised the Netherlands to defer to a later date compliance with its obli gations under Directive 2008/50/EC ( 2 ) in respect of — infringement of Article 23 of Regulation No 1/2003 since improvements to air quality. The applicants are challenging the Commission failed to take account of the mitigating the Commission’s decision to declare inadmissible their circumstance that the applicant expressly did not dispute request for a review of the earlier decision addressed to the the Commission’s findings in the administrative procedure. Netherlands.
In the third part, the applicant applies, in the alternative, for Articles 1 and 3 of the contested decision to be annulled in so far as they concern the applicant, since they are based on the In support of their application, the applicants submit, first, that, erroneous application of Article 81 EC and Article 7 of Regu in the contested decision, the Commission did not invoke the lation No 1/2003 and are contrary to Article 253 EC. restriction of the scope of Regulation No 1367/2006 set out in Article 2(1)(c) and that, as a consequence, it did not adopt the decision of 7 April 2009 while acting in a legislative capacity.
( 1 ) Council Regulation No 1/2003 of 16 December 2002 on the imple mentation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
The applicants also contend that the decision of 7 April 2009 is individual, and not general, in its scope.
Action brought on 6 October 2009 — Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission The applicants conclude by submitting that, if secondary (Case T-396/09) Community legislation does not comply with the Aarhus Convention approved by the Council, ( 3) the legislation in (2009/C 297/41) question must be interpreted in accordance with that convention, and that, if this is not possible, the Convention Language of the case: Dutch must be applied directly by the organs and institutions of the Community. Article 2(1)(g) of Regulation No 1367/2006 Parties should for that reason, according to the applicants, not be Applicants: Vereniging Milieudefensie (Amsterdam, Netherlands) applied. and Stichting Stop Luchtverontreiniging Utrecht (Utrecht, Netherlands) (represented by: A. van den Biesen, lawyer)
Defendant: Commission of the European Communities ( 1 ) Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Form of order sought Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ — declare the action brought by the applicants to be well 2006 L 264, p. 13). founded; ( 2 ) Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1). 3 — set aside Commission Decision C(2009) 6121 of 28 July ( ) Council Decision 2005/370/EC of 17 February 2005 on the 2009, which is contested in this case; conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 1). — order the Commission to examine, as to its substance, the request for an internal review within a period to be determined by the Court of First Instance; 5.12.2009 EN Official Journal of the European Union C 297/29
Action brought on 6 October 2009 — Ernst August Prinz Salzburg, Austria) (represented by: H. Janssen and M. Franz, von Hannover Herzog zu Braunschweig und Lüneburg v lawyers) OHIM (Figurative mark representing a coat of arms)
(Case T-397/09) Defendant: Commission of the European Communities
(2009/C 297/42) Form of order sought Language in which the application was lodged: German — Annul the contested decision in so far as it concerns the Parties applicants; Applicant: Ernst August Prinz von Hannover Herzog zu Braun schweig und Lüneburg (Hanover, Germany) (represented by — in the alternative, reduce appropriately the fine imposed on R. Stötzel and J. Hilger, lawyers) the applicants by the contested decision;
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) — order the defendant to pay the costs.
Forms of order sought Pleas in law and main arguments — Annulment of the decision of the First Board of Appeal of The applicants contest Commission Decision C (2009) 5791 the Office for Harmonisation in the Internal Market (Trade final of 22 July 2009 in case COMP/39.396 — Calcium Marks and Designs) of 23 July 2009 in Case R 1361/2008- carbide and magnesium based reagents for the steel and gas 1 concerning the application for Community trade mark industry. The contested decision imposed a fine on the No 5 627 245 and admission of the application for applicants and on other undertakings for infringement of Community trade mark No 5 627 245 for publication in Article 81 EC and Article 53 of the EEA Agreement. the Community Trade Marks Bulletin; According to the Commission, the applicants participated in a single and continuous infringement in the calcium carbide and — Order OHIM to pay the costs. magnesium sector in the EEA, except in Spain, Portugal, Ireland and the United Kingdom, which consisted in market sharing, Pleas in law and main arguments agreements on quotas, customer allocations, price fixing and exchange of sensitive information relating to prices, customers Community trade mark concerned: The colour figurative mark and sales volumes. representing a coat of arms for goods and services in Classes 16, 25, 28, 2, 33, 35, 39, 41 and 43 (Application No 5 627 245) In support of their action, the applicants submit the following pleas in law: Decision of the Examiner: Application refused — Infringement of the principle of legal certainty by Article 23 Decision of the Board of Appeal: Appeal dismissed of Regulation (EC) No 1/2003 ( 1 ) since the Commission has an almost unfettered discretion in relation to setting the Pleas in law: Inter alia, infringement of Article 7(1)(h) of Regu fine; lation No 207/2009 ( 1), since the mark applied for is neither identical with the opposing royal emblem nor a heraldic immi tation thereof. — unlawful setting of the fine since the Guidelines on setting fines ( 2) grant the Commission an almost unfettered discretion in relation to setting the amount of the fine;
( 1 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1). — disproportionality of the amount of the fine since the defendant failed to take account of the applicants’ effective cooperation; Action brought on 6 October 2009 — ECKA Granulate and non ferrum Metallpulver v Commission — disproportionality of the amount of the fine since the defendant failed to take account of the fact that the (Case T-400/09) applicants have no experience of infringements of the law relating to cartels; (2009/C 297/43)
Language of the case: German — disproportionality of the amount of the fine since the Parties defendant failed to take into account as a mitigating circum stance the applicants’ introduction of ‘compliance measures’ Applicants: ECKA Granulate GmbH & Co. KG (Fürth, Germany) and the fact that, on personnel grounds also, there is no risk and non ferrum Metallpulver GmbH & Co. KG (St Georgen bei of repetition; C 297/30 EN Official Journal of the European Union 5.12.2009
— disproportionality of the amount of the fine since the infringement of provisions of law and a manifest error of defendant failed to take into account as a mitigating circum assessment. stance the fact that the applicants did not stint in the supply of magnesium;
— disproportionality of the amount of the fine since no account was taken of the applicants’ lack of resources. Appeal brought on 7 October 2009 by Luigi Marcuccio against the order of 20 July 2009 of the Civil Service ( 1 ) Council Regulation No 1/2003 of 16 December 2002 on the imple Tribunal in Case F-86/07, Marcuccio v Commission mentation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). (Case T-402/09 P) ( 2 ) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2). (2009/C 297/45)
Language of the case: Italian
Parties Action brought on 5 October 2009 — Marcuccio v Court of Justice of the European Communities Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer) (Case T-401/09)
(2009/C 297/44) Other party to the proceedings: Commission of the European Communities Language of the case: Italian
Parties Form of order sought by the appellant Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer) — In any event, set aside in its entirety and without exception the order under appeal;
Defendant: Court of Justice of the European Communities — declare that the action at first instance, in relation to which the order under appeal was made, was perfectly admissible Form of order sought in its entirety and without any exception whatsoever; — Annul the decision, however framed, which constituted rejection by the defendant of the request of 24 May 2009 — allow in its entirety and without any exception whatsoever submitted by the applicant to the defendant; the relief sought by the appellant at first instance;
— annul the note dated 15 June 2009 from the Registry of the Court of Justice; — order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to both the proceedings at first instance and the — order the defendant to pay to the applicant the sum of present appeal proceedings; EUR 10 000,00 (ten thousand Euro), or such greater or lesser sum as the Court may consider just and fair, by way of compensation for the damage suffered; — in the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision. — order the defendant to pay all the costs, disbursements and fees incurred in the proceedings. Pleas in law and main arguments Pleas in law and main arguments The present appeal is brought against the order made by the The present action concerns the defendant’s refusal to accede to Civil Service Tribunal (CST) on 20 July 2009 in Case F-86/07 the request for compensation for the alleged damage arising Marcuccio v Commission. That order dismissed, as partly from the fact that a lawyer who was no longer authorised to manifestly inadmissible and partly manifestly unfounded, an receive it was notified of the Commission’s appeal against a action for annulment of the Commission’s decision refusing decision of the Civil Service Tribunal granting in part the the appellant’s request for an investigation into the psycho form of order sought by the applicant. logical harassment suffered by the appellant during the period in which he was on secondment to the Commission’s delegation in Angola, and for an order that the defendant pay compen In support of his claims, the applicant alleges a total failure to sation for the damage resulting from the psychological state reasons, breach of the duty of sound administration, harassment alleged. 5.12.2009 EN Official Journal of the European Union C 297/31
In support of his claims, the appellant relies on the following to pay the applicant the sum of EUR 114 069,94, together pleas: with interest until payment in full, or such other amount as the Court of First Instance may find to be appropriate, together with interest on that amount until payment in full. — incorrect and inappropriate interpretation of the concept of investigation in Article 17(2) of the Common Rules on insurance against the risk of accident and of occupational — Order that the Delegation to Abuja, the Delegation to Rabat diseases of officials of the European Communities and the and the European Commission be jointly and severally liable concept of inquiry for the purpose of establishing whether to pay the costs of the present proceedings. an official of an institution has been subjected to psycho logical harassment; Pleas in law and main arguments — the Tribunal erred in law in declaring inadmissible the appli cation for annulment of the decision rejecting the request The applicant in the present proceedings, which is the same for an inquiry, by reason, inter alia, of misinterpretation in party as the applicant in Case T-264/09 Tecnoprocess v rejecting that application as unfounded; Commission and Delegation of the European Commission to the Kingdom of Morocco and in Case T-367/09 Tecnoprocess v Commission and Delegation of the European Commission to the — the Tribunal erred in law in declaring inadmissible the appli Republic of Nigeria, claims that in the performance of the cation for annulment of the report drawn up by the Inves contracts concluded with the Moroccan and Nigerian authorities tigation and Disciplinary Office (IDOC), by reason, inter alia, that are the subject-matter of those cases the abovementioned of a total failure to state reasons, failure to rule on a funda Delegations and the European Commission have unjustifiably mental aspect of the dispute and misapplication of the refused to enter into negotiations for the settlement of a concept of a preparatory act in the circumstances of the number of issues that arise in relation to the execution of the case; contracts in question; and that notwithstanding that the applicant has, on several occasions, proposed to the — misinterpretation of the concept of psychological Community institutions that the gains and losses arising harassment and of the burden of proof of the psychological under those contracts should be offset. harassment on the person claiming such harassment;
The result of that state of affairs is that the Delegations and the — total failure to state reasons with regard to the assertions Commission have unjustifiably withheld payment of very made by way of alleged justification of the rejection of the significant sums which should have been transferred to the claim for damages. applicant, thereby giving rise to a situation which constitutes unjustified enrichment.
Action brought on 7 October 2009 — Tecnoprocess v Delegation of the European Commission to Morocco and Others Action brought on 9 October 2009 — Deutsche Bahn v (Case T-403/09) OHIM (Combination of the colours grey and red)
(2009/C 297/46) (Case T-404/09)
Language of the case: Italian (2009/C 297/47)
Parties Language in which the application was lodged: German Applicant: Tecnoprocess Srl (Rome, Italy) (represented by: Parties A. Majoli, lawyer) Applicant: Deutsche Bahn AG (Berlin, Germany) (represented by U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, lawyers) Defendants: Delegation of the European Commission to Morocco, Delegation of the European Commission to the Republic of Nigeria and Commission of the European Commu Defendant: Office for Harmonisation in the Internal Market nities (Trade Marks and Designs)
Form of order sought Forms of order sought — Declare that the Delegation to Abuja, the Delegation to — Annulment of the decision of the First Board of Appeal of Rabat and the European Commission have been unjusfiably the Office for Harmonisation in the Internal Market (Trade enriched. Marks and Designs) of 23 July 2009 (Case R 379/2009-1);
— Consequently, order the Delegation to Abuja, the Delegation to Rabat and the European Community jointly and severally — Order the defendant to pay the costs. C 297/32 EN Official Journal of the European Union 5.12.2009
Pleas in law and main arguments Action brought on 14 October 2009 — New Yorker SHK Jeans v OHIM — Vallis K — Vallis A (FISHBONE) Community trade mark concerned: A trade mark consisting of the combination of the colours grey and red for services in Class 39 (Case T-415/09) (Application No 6 733 315) (2009/C 297/49) Decision of the Examiner: Application refused Language in which the application was lodged: English
Decision of the Board of Appeal: Appeal dismissed Parties Applicant: New Yorker SHK Jeans GmbH (Braunschweig, Pleas in law: In its assessment of the mark applied for, the Office Germany) (represented by: A. Gaul, T. Golda, S. Kirschstein- for Harmonisation in the Internal Market applied criteria which Freund and V. Spitz lawyers) are inconsistent with the case-law of the Court of First Instance; it was, in particular, ignored that different criteria are applicable to the registration of colour marks for services than for goods. Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Vallis K Action brought on 9 October 2009 — Deutsche Bahn v — Vallis A & Co. OE (Athens, Greece) OHIM (Combination of the colours grey and red)
(Case T-405/09)
(2009/C 297/48) Form of order sought — Amend the decision of the First Board of Appeal of the Language in which the application was lodged: German Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case Parties R 1051/2008-1 and rule that the appeal is justified and Applicant: Deutsche Bahn AG (represented by U. Hildebrandt, the opposition is rejected for goods in class 25; K. Schmidt-Hern and B. Weichhaus)
Defendant: Office for Harmonisation in the Internal Market — Alternatively, annul the decision of the First Board of Appeal (Trade Marks and Designs) of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 1051/2008-1 in so far as the appeal is dismissed and the Forms of order sought rejection of the application for goods in class 25 is — Annulment of the decision of the First Board of Appeal of confirmed; the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 (Case R 379/2009-1); — Order the defendant to pay the costs, including those — Order the defendant to pay the costs. incurred by the applicant before the Board of Appeal.
Pleas in law and main arguments Pleas in law and main arguments Community trade mark concerned: A trade mark consisting of the combination of the colours grey and red for services in Class 39 Applicant for the Community trade mark: The applicant (Application No 6 735 401)
Decision of the Examiner: Application refused Community trade mark concerned: The word mark “FISHBONE” for goods in classes 18 and 25 Decision of the Board of Appeal: Appeal dismissed
Pleas in law: In its assessment of the mark applied for, the Office Proprietor of the mark or sign cited in the opposition proceedings: The for Harmonisation in the Internal Market applied criteria which other party to the proceedings before the Board of Appeal are inconsistent with the case-law of the Court of First Instance; it was, in particular, ignored that different criteria are applicable to the registration of colour marks for services than for goods. Mark or sign cited: Greek trade mark registration of the mark “FISHBONE BEACHWEAR” for goods in class 25; earlier sign “Fishbone” (word and device) used in the course of trade in Greece for “garments in general, footwear, and headgear” 5.12.2009 EN Official Journal of the European Union C 297/33
Decision of the Opposition Division: Upheld the opposition (Trade Marks and Designs) of 16 July 2009 in case R 1031/2008-1;
Decision of the Board of Appeal: Allowed the appeal in part and — Order the defendant to pay the costs. dismissed the appeal for the reminder
Pleas in law and main arguments Pleas in law: Infringement of Articles 43(2) and 74(2) of Council Regulation No 40/94 (which became Articles 42(2) and 76(2) Applicant for the Community trade mark: The other party to the of Council Regulation No 207/2009), as well as of Rule 22(2) proceedings before the Board of Appeal of Commission Regulation No 2868/95 ( 1 ) as the Board of Appeal wrongly concluded that it was entitled to take into account the catalogues submitted on 15 January 2007; Community trade mark concerned: The word mark “MERCATOR infringement of Article 73 of Council Regulation No 40/94 STUDIOS”, for goods in class 42 (which became Article 75 of Council Regulation No 207/2009) as the Board of Appeal did not state the reasons Proprietor of the mark or sign cited in the opposition proceedings: The for taking into account the catalogues submitted on 15 January applicant 2007; infringement of Articles 43(2) and (5), as well as 15(1) and (2)(a) of Council Regulation No 40/94 (which became Articles 42(2), (5) and 15(1), first and second subparagraph, Mark or sign cited: Slovenian trade mark registrations of the point a of Council Regulation No 207/2009) as the Board of figurative mark “Mercator” registered for services in classes 35, Appeal wrongly stated that the genuine use of the opposition 36, 39, 41 and 42, and for goods in classes 1-6, 8-11, 13-34; mark was shown; infringement of Article 8(1)(b) of Council Slovenian trade mark registration of the figurative marks Regulation No 40/94 (which became Article 8(1)(b) of “Mercator Slovenska Košarica” registered for goods and Council Regulation No 207/2009) as the Board of Appeal services in classes 1-6, 8-11, 13-34, 39, 41, 43 and 44; Inter wrongly assumed that there was a likelihood of confusion national registrations of the mark “Mercator”, for goods in between the trade marks concerned. classes 1-6, 8-11, 13, 14, 16-18, 20-33, and for services in classes 36, 41 and 42
( 1 ) Commission Regulation (EC) No 2868/95 of 13 December 1995 Decision of the Opposition Division: Rejected the opposition implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1). Decision of the Board of Appeal: Dismissed the appeal
Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 40/94 (which became Articles 8(1)(b) and 8(5) of Action brought on 16 October 2009 — Poslovni Sistem Council Regulation No 207/2009) as the Board of Appeal failed Mercator v OHIM — Mercator Multihull (MERCATOR to make a global analysis of the relevant factors and instead STUDIOS) rejected the opposition on the basis that the services are (Case T-417/09) different, and incorrectly assessed the ground of opposition based on the latter legal provision. (2009/C 297/50)
Language in which the application was lodged: English
Parties Applicants: Poslovni Sistem Mercator, d.d. (Ljubljana, Slovenia) Action brought on 19 October 2009 — São Paulo (represented by: M. Curell Aguila and J. Güell Serra, lawyers) Alpargatas v OHIM — Fischer (BAHANIAS LAS ORIGINALES)
(Case T-422/09) Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (2009/C 297/51)
Language in which the application was lodged: Spanish Other party to the proceedings before the Board of Appeal: Mercator Multihull, Inc. (Vancouver, Canada) Parties Applicant: São Paulo Alpargatas, SA (represented by: P. Merino Baylos, lawyer) Form of order sought — Annul the decision of the First Board of Appeal of Defendant: Office for Harmonisation in the Internal Market the Office for Harmonisation in the Internal Market (Trade Marks and Designs) C 297/34 EN Official Journal of the European Union 5.12.2009
Other party to the proceedings before the Board of Appeal of OHIM: Proprietor of the mark or sign cited in the opposition proceedings: The Enrique Fischer applicant. Form of order sought Mark or sign cited in opposition: Community figurative mark containing the verbal component “havaianas” (No 3 772 431), — uphold the application and annul the decision of the Second Spanish figurative mark containing the verbal component Board of Appeal of OHIM of 17 August 2009, with all the “havaianas” (M 2 341 904) and Spanish word mark appropriate consequences under Community law; “HAVAIANAS” (M 2 341 905), all for goods in class 25. — order OHIM to pay the costs. Decision of the Opposition Division: Refusal of the application for Pleas in law and main arguments a Community mark in its entirety. Applicant for a Community trade mark: Enrique Fischer Decision of the Board of Appeal: Annulment of the contested decision. Community trade mark concerned: Figurative mark containing the verbal component “BAHIANAS (LAS ORIGINALES)” (Appli Pleas in law: Incorrect interpretation of Article 8(1)(b) of Regu cation No 5 024 591) for goods in class 25. lation No 207/2009. 5.12.2009 EN Official Journal of the European Union C 297/35
EUROPEAN UNION CIVIL SERVICE TRIBUNAL
Judgment of the Civil Service Tribunal (Second Chamber) Judgment of the Civil Service Tribunal (Third Chamber) of of 10 September 2009 — Behmer v European Parliament 7 October 2009 — Y v Commission
(Case F-16/08) ( 1 ) (Case F-29/08) ( 1 )
(Officials — Procedure for the award of merit points at the (Contract staff — Dismissal for obviously inadequate work — European Parliament — Infringement of the obligation to Conduct in the service inadequate) state reasons — Statement of reasons given in the course of the procedure) (2009/C 297/53)
(2009/C 297/52) Language of the case: French
Language of the case: French Parties
Parties Applicant: Y (Brussels, Belgium) (represented by: N. Lhoëst, lawyer) Applicant: Joachim Behmer (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers) Defendant: Commission of the European Communities (repre sented by: J.-P. Keppenne and L. Lozano Palacios, Agents)
Defendant: European Parliament (represented by: C. Burgos and Re: R. Ignătescu, Agents) Annulment of the decision of the authority authorised to conclude contracts of employment of 24 May 2007 to dismiss the applicant as a member of the contract staff on account of the applicant’s allegedly inadequate conduct in the Re: service and compensation for the material and non-material Action for annulment of the decision to award the applicant damage suffered two merit points for the years 2004 and 2006. Operative part of the judgment The Tribunal: Operative part of the judgment 1. Dismisses the action; The Tribunal: 2. orders Y to pay all the costs.
1. Declares that it is not necessary to rule on the action in so far as ( 1 ) OJ C 116, of 09.05.2008 p. 35. it is directed against the decision of the European Parliament of 4 June 2007 awarding Mr Behmer two merit points in respect of the year 2004; Judgment of the Civil Service Tribunal (First Chamber) of 21 October 2009 — V v Commission
2. annuls the decision of the European Parliament of 26 June 2007 (Case F-33/08) ( 1 ) awarding Mr Behmer two merit points in respect of the year 2006; (Staff case — Members of the contract staff — Recruitment — Refusal to employ the applicant for physical unfitness to perform her duties — Validity of the procedure — Validity of the medical examination prior to appointment — Preparatory 3. orders the European Parliament to bear its own costs and to pay acts) one half of the costs incurred by Mr Behmer; (2009/C 297/54)
Language of the case: French 4. orders Mr Behmer to bear one half of his own costs. Parties Applicant: V (Brussels, Belgium) (represented by: C. Ronzi, A. Grauling and É. Boigelot, lawyers) ( 1 ) OJ C 116, of 09.05.2008 p. 32. Defendant: Commission of the European Communities (repre sented by: L. Lozano Palacios and D. Martin, Agents) C 297/36 EN Official Journal of the European Union 5.12.2009
Re: Operative part of the judgment Staff case — Annulment of the Commission decision of 15 May The Tribunal: 2007 informing the applicant that she did not fulfil the physically fitness requirements necessary for her to perform 1. Dismisses the action; her duties and a claim for damages for material and non- material loss. 2. Orders Ms Ramaekers-Jørgensen to bear her own costs and to pay the cost of the Commission of the European Communities; Operative part of the judgment 3. Orders the Council of the European Union to bear its own costs. The Tribunal:
1 1. Dismisses the action; ( ) OJ C 272, 25.10.2008, p. 52.
2. Orders the Commission of the European Communities to bear its own costs and to pay half of V’s costs; Action brought on 14 September 2009 — Cusack-Gard'ner v Commission
3. Orders V to bear half of her own costs. (Case F-76/09) (2009/C 297/56)
Language of the case: English ( 1 ) OJ C 158, 21.6.2008, p. 26. Parties Applicant: Carolyn Cusack-Gard'ner (Wavre, Belgium) (repre sented by: J. Temple Lang, Solicitor) Judgment of the Civil Service Tribunal (Third Chamber) of 21 October 2009 — Ramaekers-Jørgensen v Commission Defendant: Commission of the European Communities
(Case F-74/08) ( 1 ) Subject-matter and description of the proceedings (Officials — Community tax — Calculation — Combining the amount of personal remuneration and the survivor’s Action for annulment of the decision of 22 June 2009 rejecting pension — Rules for collecting the tax — Date of levy) the applicant’s request to be able to benefit from a full reim bursement of the costs resulting from the treatment of her (2009/C 297/55) illness. Language of the case: French Form of order sought Parties — annul the decision of 22 June 2009 rejecting the applicant’s Applicant: Dominique Ramaekers-Jørgensen (Genval, Belgium) request; (represented by: L. Vogel, lawyer) — declare that Chapter 3 of Title II of the Commission Decision of 2 July 2007 laying down General Implementing Defendant: Commission of the European Communities (repre Provisions for the reimbursement of medical expenses is sented by: J. Currall and D. Martin, Agents) inapplicable in accordance with Article 241 of the EC Treaty: Intervener in support of the defendant: Council of the European Union (represented by K. Zieleśkiewicz and M. Bauer, Agents) — insofar as it provides that the cost of providing ‘board and lodging’ for an essential living-in carer is not refundable, and, Re: — in so far as it imposes a limit on the amount of the First, annulment of the decision of the appointing authority to repayment that may be made for the cost of an essential calculate the applicant’s Community tax by combining the living-in care; amount of personal remuneration and the survivor’s pension, and of the decision rejecting the application for the Community tax on her survivor’s pension not to be deducted in advance, — order the defendant to pay the costs. prior to the payment thereof, from her remuneration. Second, a finding that Articles 3 and 4 of Regulation No 260/68, are unlawful. 5.12.2009 EN Official Journal of the European Union C 297/37
Action brought on 16 October 2009 — Nolin v Subject-matter and description of the proceedings Commission Application for annulment of the decision of the appointing (Case F-82/09) authority of 19 December 2008 concerning the withdrawal of the applicant’s promotion points and priority points. (2009/C 297/57) Form of order sought Language of the case: French — Annul the decision of the Director General of DG Admin of 19 December 2008; Parties — Order the Commission to pay to the applicant the sum of Applicant: Michel Nolin (Brussels, Belgium) (represented by: EUR 3 000 as damages to make good the non-material loss S. Orlandi, A. Coolen, J-N. Louis and É. Marchal, lawyers) which he suffered as a result of its injurious and vexatious behaviour and the infringement of the principle of legitimate expectations which led to a failure to take account of his right to an effective remedy; Defendant: Commission of the European Communities — Order the defendant to pay the costs.
Notice No Contents (continued) Page
2009/C 297/54 Case F-33/08: Judgment of the Civil Service Tribunal (First Chamber) of 21 October 2009 — V v Commission (Staff case — Members of the contract staff — Recruitment — Refusal to employ the applicant for physical unfitness to perform her duties — Validity of the procedure — Validity of the medical examination prior to appointment — Preparatory acts) ...... 35
2009/C 297/55 Case F-74/08: Judgment of the Civil Service Tribunal (Third Chamber) of 21 October 2009 — Ramaekers-Jørgensen v Commission (Officials — Community tax — Calculation — Combining the amount of personal remuneration and the survivor’s pension — Rules for collecting the tax — Date of levy) ...... 36
2009/C 297/56 Case F-76/09: Action brought on 14 September 2009 — Cusack-Gard'ner v Commission ...... 36
2009/C 297/57 Case F-82/09: Action brought on 16 October 2009 — Nolin v Commission ...... 37
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