ISSN 1725-2423
Official Journal C 179
of the European Union
Volume 53 English edition Information and Notices 3 July 2010
Notice No Contents Page
IV Notices
NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
Court of Justice of the European Union
2010/C 179/01 Last publication of the Court of Justice in the Official Journal of the European Union OJ C 161, 19.6.2010 ...... 1
V Announcements
COURT PROCEEDINGS
Court of Justice
2010/C 179/02 Joined Cases C-145/08 and C-149/08: Judgment of the Court (Fourth Chamber) of 6 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Club Hotel Loutraki AE, Athinaïki Techniki AE, Evangelos Marinakis v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias (C-145/08) and Aktor Anonimi Tekhniki Etairia (Aktor ATE) v Ethniko Simvoulio Radiotileorasis (C-149/08) (Directive 92/50/EEC — Public service contracts — Service concessions — Mixed contract — Contract including the transfer of a block of shares in a public casino business — Contract under which the contracting authority entrusts to the contracting under taking the management of a casino business and the execution of a development plan consisting in upgrading the casino premises and improving the surrounding area — Directive 89/665/EEC — Decision of the contracting authority — Effective and rapid remedies — National procedural law — Criteria for the award of damages — Prior annulment of the unlawful act or omission or a finding of its nullity by the competent court — Members of a consortium in a public procurement procedure — Decision adopted in the context of that procedure by an authority other than the contracting authority — Action brought, individually, by some members of the consortium — Admissibility) ...... 2
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2010/C 179/03 Case C-304/08: Judgment of the Court (First Chamber) of 14 January 2010 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH (Directive 2005/29/EC — Unfair commercial practices — National legislation laying down a prohibition in principle of commercial practices which make the participation of consumers in a lottery conditional on the purchase of goods or the use of services) 3
2010/C 179/04 Case C-308/08: Judgment of the Court (Fourth Chamber) of 20 May 2010 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Conser vation of natural habitats — Wild fauna and f lora — Protection arrangements before a habitat is placed on the list of sites of Community importance — Article 12(4) — Project for upgrading a country road) 3
2010/C 179/05 Case C-341/08: Judgment of the Court (Grand Chamber) of 12 January 2010 (reference for a preliminary ruling from the Sozialgericht Dortmund — Germany) — Domnica Petersen v Berufung sausschuss für Zahnärzte für den Bezirk Westfalen-Lippe (Directive 2000/78/EC — Articles 2(5) and 6(1) — Prohibition of discrimination on grounds of age — Provision of national law setting a maximum age of 68 for practice as a panel dentist — Aim pursued — Measure necessary for the protection of health — Consistency — Appropriateness of the measure) ...... 4
2010/C 179/06 Case C-352/08: Judgment of the Court (First Chamber) of 20 May 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Modehuis A. Zwijnenburg BV v Staatssecretaris van Financiën (Approximation of laws — Directive 90/434/EEC — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States — Article 11(1)(a) — Whether applicable to transaction tax) 5
2010/C 179/07 Case C-365/08: Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Sugar — Regulation (EC) No 318/2006 — Article 16 — Calculation of the production charge — Inclusion of the quantity of quota sugar withdrawn from the market in the basis for assessment of the charge — Principles of proportionality and non- discrimination) ...... 5
2010/C 179/08 Case C-370/08: Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Data I/O GmbH v Hauptzollamt Hannover, formerly Bundesfinanzdirektion Südost (Common Customs Tariff — Tariff classification — Combined Nomen clature — Chapter 84, Note 5(B) — Adapter containing a memory-chip and designed to provide the electrical connection between an automatic programming machine and electrical components to be programmed — Headings 8471, 8473 and 8536) ...... 6
2010/C 179/09 Case C-434/08: Judgment of the Court (First Chamber) of 20 May 2010 (reference for a preliminary ruling from the Oberlandesgericht Oldenburg (Germany)) — Arnold und Johann Harms als Gesellschaft bürgerlichen Rechts v Freerk Heidinga (Common agricultural policy — Integrated administration and control system for certain aid schemes — Regulation (EC) No 1782/2003 — Single payment scheme — Transfer of payment entitlements — Definitive transfer) ...... 6
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2010/C 179/10 Case C-533/08: Judgment of the Court (Grand Chamber) of 4 May 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — TNT Express Nederland B.V. v AXA Versicherung AG (Judicial cooperation in civil and commercial matters — Jurisdiction and recognition and enforcement of judgments — Regulation (EC) No 44/2001 — Article 71 — Conventions concluded by the Member States in relation to particular matters — Convention on the Contract for the International Carriage of Goods by Road (CMR)) ...... 7
2010/C 179/11 Case C-545/08: Judgment of the Court (Third Chamber) of 6 May 2010 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Electronic communications — Directives 2002/21/EC and 2002/22/EC — High-speed internet access provider — Obligation to obtain authorisation for the access tariffs to high-speed internet services and to fix those tariffs on the basis of the costs of the provision of such services — No market analysis) ...... 8
2010/C 179/12 Case C-583/08 P: Judgment of the Court (First Chamber) of 20 May 2010 — Christos Gogos v European Commission (Appeals — Officials — Internal competition for promotion from one category to another — Appointment — Classification in grade — Article 31(2) of the Staff Regulations — Unlimited jurisdiction — Dispute of a financial character — Length of proceedings before the General Court — Reasonable time — Claim for equitable compensation) ...... 8
2010/C 179/13 Case C-17/09: Judgment of the Court (Forth Chamber) of 21 January 2010 — European Commission v Federal Republic of Germany (Public service contracts — Bio-waste and green waste disposal service — Award without an open public tender procedure) ...... 9
2010/C 179/14 Case C-56/09: Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Commissione tributaria provinciale di Roma — Italy) — Emiliano Zanotti v Agenzia delle Entrate — Ufficio Roma 2 (Freedom to provide services — Citizenship of the European Union — Articles 18 EC and 49 EC — National income tax legislation — Right to deduct total tuition fees from gross tax up to a fixed percentage — University course attended in another Member State — Imposition of a quantitative limit — Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by national State universities — Imposition of a territorial limit — Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by the national State university nearest to the taxpayer’s residence for fiscal purposes) ...... 9
2010/C 179/15 Case C-63/09: Judgment of the Court (Third Chamber) of 6 May 2010 (reference for a preliminary ruling from the Juzgado de lo Mercantil n o 4 de Barcelona — Spain) — Axel Walz v Clickair S.A. (Air transport — Montreal Convention — Liability of carriers in respect of checked baggage — Article 22(2) — Limits of liability in case of destruction, loss, damage or delay of baggage — Concept of ‘damage’ — Material and non-material damage) ...... 10
2010/C 179/16 Case C-94/09: Judgment of the Court (First Chamber) of 6 May 2010 — European Commission v French Republic (Failure of a Member State to fulfil obligations — VAT — Directive 2006/112/EC — Article 98(1) and (2) — Supply of services by undertakers — Application of a reduced rate to the service involving transportation of a body by vehicle) ...... 11
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2010/C 179/17 Case C-111/09: Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Okresní soud v Chebu — Czech Republic) — Česká podnikatelská pojišťovna as, Vienna Insurance Group v Michal Bilas (Regulation (EC) No 44/2001 — Action brought by an insurer before the court of its place of domicile seeking the payment of an insurance premium by the policyholder, domiciled in a different Member State — Appearance of the defendant entered before the court seised — Jurisdiction not contested and defence as to substance — Entering an appearance conferring jurisdiction) ...... 11
2010/C 179/18 Case C-138/09: Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Tribunale ordinario di Palermo (Italy)) — Todaro Nunziatina & C. Snc v Assessorato del Lavoro, della Previdenza Sociale, della Formazione Professionale e dell’Emigrazione della regione Sicilia (Reference for a preliminary ruling — State aid — Commission decisions — Interpretation — Aid granted by the Region of Sicily to undertakings entering into training and work-experience contracts or converting such contracts into open-ended contracts — Time-limit for the grant of aid — Budgetary limits — Default interest — Inadmissibility) ...... 12
2010/C 179/19 Case C-158/09: Judgment of the Court (Fifth Chamber) of 20 May 2010 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2003/88/EC — Organi sation of working time — Non-civilian personnel in public authorities — Failure to transpose within the prescribed period) ...... 12
2010/C 179/20 Case C-160/09: Judgment of the Court (Third Chamber) of 20 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Ioannis Katsivardas — Nikolaos Tsitsikas OE v Ipourgos Ikonomikon (Regulation (EEC) No 1591/84 — Cooperation Agreement between the European Economic Community, of the one part, and the Cartagena Agreement and the member countries thereof, Bolivia, Colombia, Ecuador, Peru and Venezuela, of the other part — Most- favoured-nation clause — Direct effect — Excise duty on the import of bananas into Greece) ...... 13
2010/C 179/21 Case C-210/09: Judgment of the Court (Third Chamber) of 20 May 2010 (reference for a preliminary ruling from the Cour administrative d’appel de Nantes (France)) — Scott SA, Kimberly Clark SNC, now Kimberly Clark SAS v Ville d’Orléans (State aid — Regulation (EC) No 659/1999 — Article 14(3) — Recovery of aid — Principle of effectiveness — Assessments vitiated by a procedural defect — Annulment) ...... 13
2010/C 179/22 Case C-311/09: Judgment of the Court (Third Chamber) of 6 May 2010 — Commission of the European Communities v Republic of Poland (Failure of a Member State to fulfil obligations — Taxation — VAT — International carriage of persons — Flat-rate taxation of transporters domiciled outside the national territory) ...... 14
2010/C 179/23 Case C-136/09: Order of the Court (Seventh Chamber) of 18 March 2010 (reference for a preliminary ruling from the Arios Pagos — Greece) — Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v Divani Acropolis Hotel and Tourism AE (Article 104(3) of the Rules of Procedure — Copyright and related rights in the information society — Directive 2001/29/EC — Article 3 — Concept of ‘communication to the public’ — Works communicated by means of television sets installed in hotel rooms) ...... 14
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2010/C 179/24 Case C-153/10: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 1 April 2010 — Sony Logistics Europe B.V. v Staatssecretaris van Financiën ...... 15
2010/C 179/25 Case C-154/10 P: Appeal brought on 1 April 2010 by Nokia Oyj against the judgment of the General Court (Eighth Chamber) delivered on 20 January 2010 in Case T-460/07 Nokia Oyj v Office for Harmonisation in the Internal Market (Trade Marks and Designs) ...... 15
2010/C 179/26 Case C-157/10: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 2 April 2010 — Banco Bilbao Vizcaya Argentaria S.A. v Administración General del Estado ...... 16
2010/C 179/27 Case C-177/10: Reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 12 de Sevilla (Spain) lodged on 7 April 2010 — Francisco Javier Rosado Santana v Consejería de la Justicia y Administración Pública de la Junta de Andalucía ...... 16
2010/C 179/28 Case C-180/10: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 9 April 2010 — Jarosław Słaby v Minister Finansów ...... 17
2010/C 179/29 Case C-181/10: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 9 April 2010 — Emilian Kuć and Halina Jeziorska-Kuć v Dyrektor Izby Skarbowej w Warszawie ...... 17
2010/C 179/30 Case C-182/10: Reference for a preliminary ruling from the Cour Constitutionnelle (Belgium) lodged on 9 April 2010 — Marie-Noëlle Solvay, Le Poumon vert de la Hulpe ASBL, Jacques Solvay de la Hulpe, Jean-Marie Solvay de la Hulpe, La Hulpe — Notre village ASBL, Alix Walsh, André Philips, Les amis de la Forêt de Soignes ASBL, Association des Riverains et Habitants des Communes Proches de l’Aéroport B.S.C.A. (Brussels South Charleroi Airport) ASBL, Grégoire Stassin, André Gilliard, Société Wallone des Aéroports SA (SOWAER), Paul Fastrez, Henriette Fastrez, Infrabel SA, Jean-Pierre Olivier, Pierre Deneye, Paul Thiry, Antoine Boxus, Willy Roua, Gouvernement f lamand, Inter-Environnement Wallonie ASBL, Sartau SA, Charleroi South Air Pur ASBL, Pierre Grymonprez, Philippe Grisard de la Rochette, Nicole Laloux, Annabelle Denoël-Gevers, Marc Traversin, Joseph Melard, Chantal Michiels, Thierry Regout, René Canfin, Georges Lahaye, Jeanine Postelmans, Christophe Dehousse, Christine Lahaye, Jean-Marc Lesoinne, Jacques Teheux, Anne-Marie Larock, Berbadette Mestdag, Jean-François Serrafin, Françoise Mahoux, Ferdinand Wallraf, Jeanne Mariel, Agnès Fortemps, Georges Serrafin, Jeannine Melen, Groupement Cerexhe-Heuseux/Beaufays ASBL, Action et Défense de l’Environnement de la vallée de la Senne et de ses affluents ASBL, Réserves naturelles RNOB ASBL, Stéphane Banneux, Zénon Darquenne, Guido Durlet, Société régionale wallonne du transport SRWT, Philippe Daras, Bernard Croiselet, Bernard Page, Intercommunale du Brabant Wallon SCRL, Codic Belgique SA, Fédéral Express European Services Inc. v Walloon Region ...... 18
2010/C 179/31 Case C-184/10: Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 14 April 2010 — Mathilde Grasser v Freistaat Bayern ...... 19
2010/C 179/32 Case C-186/10: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 15 April 2010 — Tural Oguz v Secretary of State for the Home Department . . . 20
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2010/C 179/33 Case C-195/10: Action brought on 21 April 2010 — European Commission v Republic of Estonia 20
2010/C 179/34 Case C-198/10: Reference for a preliminary ruling from the Corte d’appello di Milano (Italy) lodged on 23 April 2010 — Cassina SpA v Alivar Srl and Galliani Host Arredamenti Srl ...... 20
2010/C 179/35 Case C-200/10 P: Appeal brought on 26 April 2010 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Fourth Chamber) delivered on 9 February 2010 in Case T-340/07: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission ...... 21
2010/C 179/36 Case C-204/10 P: Appeal brought on 28 April 2010 by Enercon GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 February 2010 in Case T-472/07: Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks & Designs) ...... 21
2010/C 179/37 Case C-206/10: Action brought on 30 April 2010 — European Commission v Federal Republic of Germany ...... 22
2010/C 179/38 Case C-207/10: Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 30 April 2010 — Paranova Danmark A/S, Paranova Pack A/S v Merck Sharp & Dohme Corp., Merck Sharp & Dohme B.V. and Merck Sharp & Dohme ...... 23
2010/C 179/39 Case C-208/10: Action brought on 30 April 2010 — European Commission v Portuguese Republic 24
2010/C 179/40 Case C-209/10: Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 3 May 2010 — Post Danmark A/S v Konkurrencerådet ...... 25
2010/C 179/41 Case C-211/10: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 3 May 2010 — Doris Povse v Mauro Alpago ...... 25
2010/C 179/42 Case C-216/10 P: Appeal brought on 6 May 2010 by Lufthansa AirPlus Servicekarten GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2010 in Case T-321/07: Lufthansa AirPlus Servicekarten GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) ...... 26
2010/C 179/43 Case C-231/10: Action brought on 10 May 2010 — European Commission v Republic of Estonia 27
2010/C 179/44 Case C-315/09: Order of the President of the Court of 25 March 2010 — European Commission v Kingdom of Belgium ...... 27
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2010/C 179/45 Case C-105/10 PPU: Order of the President of the Third Chamber of the Court of 3 April 2010 (reference for a preliminary ruling from the Korkein oikeus (Finland)) — Virallinen syyttäjä v Malik Gataev, Khadizhat Gataeva ...... 27
General Court
2010/C 179/46 Case T-425/04, T-444/04, T-450/04 and T-456/04: Judgment of the General Court of 21 May 2010 — France v Commission (State aid — Financial measures in favour of France Télécom — Draft share holder’s advance — Public declarations by a member of the French Government — Decision declaring the aid incompatible with the common market and not ordering its recovery — Action for annulment — Interest in bringing proceedings — Admissibility — Meaning of State Aid — Advantage — State resources — Duty to state reasons) ...... 28
2010/C 179/47 Case T-11/05: Judgment of the General Court of 19 May 2010 — Wieland-Werke and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Ne bis in idem principle — Fines — Actual impact on the market — Size of the relevant market — Duration of the infringement — Attenuating circumstances) ...... 29
2010/C 179/48 Case T-18/05: Judgment of the General Court of 19 May 2010 — IMI and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tubes sector — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Interruption of participation — Fines — Limited participation in the cartel) ...... 29
2010/C 179/49 Case T-19/05: Judgment of the General Court of 19 May 2010 — Boliden and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Fines — Limitation period — Cooperation) ...... 30
2010/C 179/50 Case T-20/05: Judgment of the General Court of 19 May 2010 — Outokumpu and Luvata v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Fines — Size of the relevant market — Aggravating circumstance — Repeat infringement) ...... 30
2010/C 179/51 Case T-21/05: Judgment of the General Court of 19 May 2010 — Chalkor v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Fines — Limited participation in the cartel — Geographic extent of the relevant market — Duration of the infringement — Cooperation) ...... 31
2010/C 179/52 Case T-25/05: Judgment of the General Court of 19 May 2010 — KME Germany and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Fines — Actual impact on the market — Size of the relevant market — Duration of the infringement — Ability to pay — Cooperation) ...... 31
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2010/C 179/53 Case T-432/05: Judgment of the General Court of 12 May 2010 — EMC Development v Commission (Competition — Agreements, decisions and concerted practices — European cement market — Decision rejecting a complaint — Harmonised standard for cement — Binding nature — Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements) ...... 32
2010/C 179/54 Case T-258/06: Judgment of the General Court of 20 May 2010 — Germany v Commission (Provisions applicable to public procurement — Contract awards not subject, or not subject in full, to the Public Procurement Directives — Interpretative communication of the Commission — Actionable measure — Measure intended to produce legal effects) ...... 32
2010/C 179/55 Case T-121/08: Judgment of the General Court of 11 May 2010 — PC-Ware Information Technologies v Commission (Public supply contracts — Community tendering procedure — Acquisition of software products and licences — Rejection of a tender — Abnormally low tender — Obligation to state reasons) ...... 33
2010/C 179/56 Case T-148/08: Judgment of the General Court of 12 May 2010 — Beifa Group v OHIM — Schwan- Stabilo Schwanhaüßer (Instrument for writing) (Community design — Invalidity proceedings — Registered Community design representing an instrument for writing — Earlier national figurative mark — Ground for invalidity — Use in the Community design of an earlier sign the holder of which has the right to prohibit such use — Article 25(1)(e) of Regulation (EC) No 6/2002 — Request for proof of genuine use of the earlier mark made for the first time before the Board of Appeal) . . 33
2010/C 179/57 Case T-163/08: Order of the General Court of 19 May 2010 — Arbeitsgemeinschaft Golden Toast v OHIM (Golden Toast) (Community trade mark — Application for the Community word mark Golden Toast — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation No 207/2009)) ...... 34
2010/C 179/58 Case T-181/08: Judgment of the General Court of 19 May 2010 — Tay Za v Council (Common foreign and security policy — Restrictive measures against Myanmar — Freezing of funds — Action for annulment — Joint legal basis of Articles 60 EC and 301 EC — Obligation to state the reasons on which a decision is based — Rights of the defence — Right to effective judicial review — Right to respect for property — Proportionality) ...... 34
2010/C 179/59 Case T-237/08: Judgment of the General Court of 11 May 2010 — Abadía Retuerta v OHIM (CUVÉE PALOMAR) (Community trade mark — Application for the Community word mark CUVÉE PALOMAR — Absolute ground for refusal — Trade marks for wines containing geographical indications — TRIPS Agreement — Article 7(1)(j) of Regulation (EC) No 40/94 (now Article 7(1)(j) of Regulation (EC) No 207/2009)) ...... 35
2010/C 179/60 Case T-243/08: Judgment of the General Court of 19 May 2010 — Ravensburger v OHIM — Educa Borras (EDUCA Memory game) (Community trade mark — Invalidity proceedings — Community figurative mark EDUCA Memory game — Earlier national and international word marks MEMORY — Relative ground for refusal — Lack of similarity between the signs — Articles 8(1)(b) and (5), 74 and 75 of Regulation (EC) No 40/94 (now Articles 8(1)(b) and (5), 76 and 77 of Regulation (EC) No 207/2009)) ...... 35
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2010/C 179/61 Case T-424/08: Judgment of the General Court of 19 May 2010 — Nexus Europe (Ireland) v Commission (Arbitration clause — Fifth framework programme for research, technological devel opment and demonstration activities — Macro-Economic and Urban Trends in Europe’s Information Society (MUTEIS) Project — Loss caused by amending a contract in relation to the system for reimbursing costs incurred by a participant in the project) ...... 36
2010/C 179/62 Case T-464/08: Judgment of the General Court of 19 May 2010 — Zeta Europe v OHIM (Super leggera) (Community trade mark — Application for the figurative Community trade mark Superleggera — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) — Examination of the facts of its own motion — Article 74 of Regulation No 40/94 (now Article 76 of Regulation No 207/2009) — Obligation to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009)) ...... 36
2010/C 179/63 Case T-491/08 P: Judgment of the General Court of 12 May 2010 — Bui Van v Commission (Appeal — Staff case — Officials — Appointment — Classification in grade — Withdrawal of an administrative measure — Protection of legitimate expectations — Reasonable time — Right to be heard) ...... 37
2010/C 179/64 Case T-492/08: Judgment of the General Court of 11 May 2010 — Wessang v OHIM — Greinwald (star foods) (Community trade mark — Opposition proceedings — Application for the figurative Community trade mark star foods — Earlier Community figurative and word marks STAR SNACKS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009)) ...... 37
2010/C 179/65 Case T-560/08 P: Judgment of the General Court of 12 May 2010 — European Commission v Meierhofer (Appeals — Civil service — Recruitment — Open competition — Decision that a candidate had failed the oral test — Commission’s refusal to comply with a measure of organisation of procedure) ...... 38
2010/C 179/66 Case T-108/09: Judgment of the General Court of 19 May 2010 — Ravensburger v OHIM — Educa Borras (MEMORY) (Community trade mark — Invalidity proceedings — Community word mark MEMORY — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and Article 75 of Regulation (EC) No 40/94 (now Article 7(1)(c) and Article 77 of Regulation (EC) No 207/2009)) 38
2010/C 179/67 Case T-100/08 P: Order of the General Court of 6 May 2010 — Kerelov v Commission (Appeal — Civil Service — Recruitment — General competition — Refusal by the Director of EPSO to communicate to a candidate information and documents relating to the admission test — Appeal in part manifestly inadmissible and in part manifestly unfounded) ...... 39
2010/C 179/68 Case T-410/09 R: Order of the President of the General Court of 7 May 2010 — Almamet v Commission (Interim measures — Competition — Commission decision imposing a fine — Bank guarantee — Application for suspension of operation of a measure — Financial loss — No exceptional circumstances — No urgency) ...... 39
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2010/C 179/69 Case T-30/10 R: Order of the President of the General Court of 12 May 2010 — Reagens v Commission (Application for interim measures — Competition — Commission decision imposing a fine — Bank guarantee — Application for suspension of operation of the decision — Financial loss — Absence of exceptional circumstances — No urgency) ...... 39
2010/C 179/70 Case T-71/10 R: Order of the President of the General Court of 30 April 2010 — Xeda International v European Commission (Application for interim measures — Directive 91/414/EEC — Decision concerning the non-inclusion of diphenylamine in Annex I to Directive 91/414 — Application for suspension of operation of a measure — Lack of urgency) ...... 40
2010/C 179/71 Case T-103/10 P(R)-R: Order of the President of the General Court of 28 April 2010 — Parliament v U (Interim measures — Civil Service — Officials — Decision to dismiss — Order of the President of the Civil Service Tribunal of the European Union made in proceedings for interim measures — Application to suspend the operation of a measure — No need to adjudicate) ...... 40
2010/C 179/72 Case T-173/10: Action brought on 19 April 2010 — Apotheke DocMorris v OHIM (Representation of a green cross) ...... 41
2010/C 179/73 Case T-174/10: Action brought on 12 April 2010 — ARA v OHIM — Allrounder (Representation of the letter ‘A’ with two horns) ...... 41
2010/C 179/74 Case T-181/10: Action brought on 23 April 2010 — Reagens v Commission ...... 42
2010/C 179/75 Case T-183/10: Action brought on 22 April 2010 — Sviluppo Globale v Commission ...... 42
2010/C 179/76 Case T-187/10: Action brought on 23 April 2010 — Emram v OHIM — Guccio Gucci (G) ...... 43
2010/C 179/77 Case T-189/10: Action brought on 20 April 2010 — GEA Group v Commission ...... 44
2010/C 179/78 Case T-191/10: Action brought on 20 April 2010 — Greenwood Houseware (Zhuhai) and others v Council ...... 44
2010/C 179/79 Case T-192/10: Action brought on 26 April 2010 — Ferracci v Commission ...... 45
2010/C 179/80 Case T-193/10: Action brought on 26 April 2010 — Scuola Elementare Maria Montessori v Commission ...... 46
2010/C 179/81 Case T-196/10: Action brought on 29 April 2010 — Apotheke DocMorris v OHIM (Representation of a green and white cross) ...... 46
2010/C 179/82 Case T-197/10: Action brought on 27 April 2010 — BVR v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppen Österreich) ...... 47
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2010/C 179/83 Case T-198/10: Action brought on 30 April 2010 — Maximuscle Limited v OHIM — Foreign Supplement Trade Mark Ltd (GAKIC) ...... 47
2010/C 179/84 Case T-199/10: Action brought on 27 April 2010 — DRV v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppe Österreich) ...... 48
2010/C 179/85 Case T-201/10: Action brought on 30 April 2010 — IVBN v Commission ...... 49
2010/C 179/86 Case T-202/10: Action brought on 29 April 2010 — Stichting Woonlinie and Others v Commission 50
2010/C 179/87 Case T-203/10: Action brought on 30 April 2010 — Stichting Woonpunt and Others v Commission 51
2010/C 179/88 Case T-204/10: Action brought on 3 May 2010 — Lancôme parfums et beauté & Cie v OHMI — Focus Magazin Verlag GmbH (COLOR FOCUS) ...... 51
2010/C 179/89 Case T-205/10: Action brought on 4 May 2010 — Cervecería Modelo v OHIM — Plataforma Conti nental (LA VICTORIA DE MEXICO) ...... 52
2010/C 179/90 Case T-206/10: Action brought on 30 April 2010 — Vesteda Groep v Commission ...... 53
2010/C 179/91 Case T-208/10: Action brought on 6 May 2010 — Cree v OHIM (TRUEWHITE) ...... 53
2010/C 179/92 Case T-209/10: Action brought on 5 May 2010 — Deutscher Ring v OHIM (Deutscher Ring Sach versicherungs-AG) ...... 54
2010/C 179/93 Case T-219/10: Action brought on 14 May 2010 — Autogrill España v Commission ...... 54
2010/C 179/94 Case T-221/10: Action brought on 18 May 2010 — Iberdrola v Commission ...... 55
2010/C 179/95 Case T-223/10: Action brought on 20 May 2010 — Regione Puglia v Commission ...... 56
2010/C 179/96 Case T-225/10: Action brought on 18 May 2010 — Banco Bilbao Vizcaya Argentaria v Commission 56
2010/C 179/97 Case T-43/08: Order of the General Court of 11 May 2010 — Shetland Islands Council v Commission 57
2010/C 179/98 Case T-44/08: Order of the General Court of 11 May 2010 — Shetland Islands Council v Commission 57 2010/C 179/99 Case T-197/08: Order of the General Court of 11 May 2010 — Polson and Others v Commission 57
EN (Continued overleaf) Notice No Contents (continued) Page
European Union Civil Service Tribunal
2010/C 179/100 Case F-26/10: Action brought on 6 May 2010 — Costa v Commission ...... 58
2010/C 179/101 Case F-27/10: Action brought on 5 May 2010 — Begue and Others v Commission ...... 58
2010/C 179/102 Case F-28/10: Action brought on 7 May 2010 — Mioni v Commission ...... 58
2010/C 179/103 Case F-29/10: Action brought on 11 May 2010 — Lorenzo v EESC ...... 59
2010/C 179/104 Case F-30/10: Action brought on 12 May 2010 — de Fays v Commission ...... 59
2010/C 179/105 Case F-31/10: Action brought on 14 May 2010 — Guittet v Commission ...... 59
2010/C 179/106 Case F-32/10: Action brought on 14 May 2010 — Wilk v Commission ...... 60
EN 3.7.2010 EN Official Journal of the European Union C 179/1
IV
(Notices)
NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
COURT OF JUSTICE OF THE EUROPEAN UNION
(2010/C 179/01)
Last publication of the Court of Justice in the Official Journal of the European Union
OJ C 161, 19.6.2010
Past publications OJ C 148, 5.6.2010 OJ C 134, 22.5.2010 OJ C 113, 1.5.2010 OJ C 100, 17.4.2010 OJ C 80, 27.3.2010 OJ C 63, 13.3.2010
These texts are available on: EUR-Lex: http://eur-lex.europa.eu C 179/2 EN Official Journal of the European Union 3.7.2010
V
(Announcements)
COURT PROCEEDINGS
COURT OF JUSTICE
Judgment of the Court (Fourth Chamber) of 6 May 2010 Interveners in support of the defendants: Athens Resort Casino AE (reference for a preliminary ruling from the Simvoulio tis Simmetokhon, Ellaktor AE, formerly Elliniki Tekhnodomiki TEV Epikratias (Greece)) — Club Hotel Loutraki AE, Athinaïki AE, Regency Entertainment Psikhagogiki kai Touristiki AE, Techniki AE, Evangelos Marinakis v Ethniko Simvoulio formerly Hyatt Regency Xenodokhiaki kai Touristiki (Ellas) Radiotileorasis, Ipourgos Epikratias (C-145/08) and Aktor AE, Leonidas Bompolas (C-145/08) Anonimi Tekhniki Etairia (Aktor ATE) v Ethniko Simvoulio Radiotileorasis (C-149/08) and (Joined Cases C-145/08 and C-149/08) ( 1)
(Directive 92/50/EEC — Public service contracts — Service concessions — Mixed contract — Contract including the Applicant: Aktor Anonimi Tekhniki Etairia (Aktor ATE) transfer of a block of shares in a public casino business — Contract under which the contracting authority entrusts to the contracting undertaking the management of a casino business Defendant: Ethniko Simvoulio Radiotileorasis and the execution of a development plan consisting in upgrading the casino premises and improving the surrounding area — Directive 89/665/EEC — Decision of the contracting authority — Effective and rapid remedies — National Intervening party: Mikhaniki AE (C-149/08) procedural law — Criteria for the award of damages — Prior annulment of the unlawful act or omission or a finding of its nullity by the competent court — Members of a consortium in a public procurement procedure — Decision Re: adopted in the context of that procedure by an authority other than the contracting authority — Action brought, indi Reference for a preliminary ruling — Simvoulio tis Epikratias — vidually, by some members of the consortium — Interpretation of Articles 3(2), 9, 14 and 16 of Council Admissibility) Directive 92/50/EEC of 18 June 1992 relating to the coor dination of procedures for the award of public service (2010/C 179/02) contracts (OJ 1992 L 209, p. 1) — Scope — Mixed agreement involving a contract for the sale of shares and a service concession — Interpretation of Articles 1(3) and 2 of Language of the case: Greek Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative Referring court provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ Simvoulio tis Epikratias 1989 L 395, p. 33) — National legislation prohibiting members of a consortium without legal personality that has submitted a tender from bringing individually legal actions against acts falling within the procedure for award of the contract Parties to the main proceedings Applicants: Club Hotel Loutraki AE, Athinaïki Techniki AE, Evangelos Marinakis Operative part of the judgment 1. A mixed contract of which the main object is the acquisition by an undertaking of 49 % of the capital of a public undertaking and the ancillary object, indivisibly linked with that main object, is the Defendants: Ethniko Simvoulio Radiotileorasis, Ipourgos Epik supply of services and the performance of works does not, as a ratias whole, fall within the scope of the directives on public contracts. 3.7.2010 EN Official Journal of the European Union C 179/3
2. European Union law, in particular the right to effective judicial coupling the sale of goods with a lottery which permits the protection, precludes a national rule, such as that at issue in the customer to participate in the draws of a national lottery main proceedings, interpreted as meaning that the members of a when he has accumulated a certain number of bonus points temporary association, tenderer in a public procurement procedure, obtained when purchasing goods — National legislation under are deprived of the possibility of seeking, individually, compen which a commercial practice whereby the participation of sation for the loss which they suffered individually as a result of consumers in a prize competition or lottery is conditional on a decision adopted by an authority, other than the contracting the purchase of goods or the supply of services is in principle authority, involved in that procedure in accordance with the unlawful, irrespective of whether the advertising in question applicable national rules, which is such as to influence the affects consumers’ interests conduct of that procedure.
1 Operative part of the judgment ( ) OJ C 142, 7.6.2008. Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Judgment of the Court (First Chamber) of 14 January 2010 Commercial Practices Directive’) must be interpreted as precluding (reference for a preliminary ruling from the national legislation, such as that at issue in the main proceedings, Bundesgerichtshof — Germany) — Zentrale zur which provides for a prohibition in principle, without taking account of Bekämpfung unlauteren Wettbewerbs eV v Plus the specific circumstances of individual cases, of commercial practices Warenhandelsgesellschaft mbH under which the participation of consumers in a prize competition or lottery is made conditional on the purchase of goods or the use of 1 (Case C-304/08) ( ) services.
(Directive 2005/29/EC — Unfair commercial practices — National legislation laying down a prohibition in principle of commercial practices which make the participation of consumers in a lottery conditional on the purchase of goods 1 or the use of services) ( ) OJ C 247, 27.9.2008.
(2010/C 179/03)
Language of the case: German
Referring court Judgment of the Court (Fourth Chamber) of 20 May 2010 Bundesgerichtshof — European Commission v Kingdom of Spain
(Case C-308/08) ( 1 )
Parties to the main proceedings (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Conservation of natural habitats — Wild Applicant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV fauna and flora — Protection arrangements before a habitat is placed on the list of sites of Community importance — Article 12(4) — Project for upgrading a country road) Defendant: Plus Warenhandelsgesellschaft mbH (2010/C 179/04)
Language of the case: Spanish Re: Reference for a preliminary ruling — Bundesgerichtshof — Parties Interpretation of Article 5(2) of Directive 2005/29/EC of the Applicant: European Commission (represented by: S. Pardo European Parliament and of the Council of 11 May 2005 Quintillán and D. Recchia, Agents concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Defendant: Kingdom of Spain (represented by: N. Díaz Abad, Council (OJ 2005 L 149, p. 22) — Commercial practice Agent) C 179/4 EN Official Journal of the European Union 3.7.2010
Re: Joined parties: AOK Westfalen-Lippe, BKK-Landesverband Nordrhein-Westfalen, Vereinigte IKK, Deutsche Rentenver Failure of a Member State to fulfil its obligations — sicherung Knappschaft-Bahn-See — Dezernat 0.63, Landwirts Infringement of Council Directive 92/43/EEC of 21 May 1992 chaftliche Krankenkasse NRW, Verband der Angestellten-Kran on the conservation of natural habitats and of wild fauna and kenkassen eV, AEV — Arbeiter-Ersatzkassen-Verband eV, flora (OJ 1992 L 206, p. 7), interpreted by the judgments of the Kassenzahnärtzliche Vereinigung Westfalen-Lippe Court of Justice on 13 January 2005 in Case C-117/03 and on 14 September 2006 in Case C-244/05, and the obligations stemming from Article 12(4) of that directive — Project for improvement of the rural path from Villamanrique de la Condesa (Seville) to El Rocio (Huelva) Re: Reference for a preliminary ruling — Sozialgericht Dortmund (Germany) — Interpretation of Article 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general Operative part of the judgment framework for equal treatment in employment and occupation The Court: (OJ 2000 L 303, p.16) — Prohibition of discrimination based on age — Concepts of ‘legitimate aim’ which may justify different treatment based on age and ‘appropriate and necessary means’ of achieving that aim — National provision 1. Dismisses the action; fixing a maximum age for a panel dentist, with the aim of protecting patients’ health
2. Orders the European Commission to pay the costs.
Operative part of the judgment 1. Article 2(5) of Council Directive 2000/78/EC of 27 November 1 ( ) OJ C 223, 30.8.2008. 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a national measure, such as that at issue in the main proceedings, setting a maximum age for practising as a panel dentist, in this case 68 years, where the sole aim of that measure is to protect the health of patients against the decline in performance of those Judgment of the Court (Grand Chamber) of 12 January dentists after that age, since that age limit does not apply to 2010 (reference for a preliminary ruling from the non-panel dentists.; Sozialgericht Dortmund — Germany) — Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe Article 6(1) of Directive 2000/78 must be interpreted as not precluding such a measure where its aim is to share out (Case C-341/08) ( 1 ) employment opportunities among the generations in the profession of panel dentist, if, taking into account the situation in the labour (Directive 2000/78/EC — Articles 2(5) and 6(1) — market concerned, the measure is appropriate and necessary for Prohibition of discrimination on grounds of age — achieving that aim. Provision of national law setting a maximum age of 68 for practice as a panel dentist — Aim pursued — Measure necessary for the protection of health — Consistency — Appropriateness of the measure) It is for the national court to identify the aim pursued by the measure laying down that age limit, by ascertaining the reason for (2010/C 179/05) maintaining the measure.
Language of the case: German 2. If legislation such as that at issue in the main proceedings, having Referring court regard to its objective, were contrary to Directive 2000/78, it would be for the national court hearing a dispute between an Sozialgericht Dortmund individual and an administrative body such as the Berufung sausschuss für Zahnärzte für den Bezirk Westfalen-Lippe to decline to apply that legislation, even if it were prior to that directive and national law made no provision for disapplying it. Parties to the main proceedings Applicant: Domnica Petersen
( 1 ) OJ C 260, 11.10.2008. Defendant: Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe 3.7.2010 EN Official Journal of the European Union C 179/5
Judgment of the Court (First Chamber) of 20 May 2010 Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Hoge Raad (reference for a preliminary ruling from the der Nederlanden — Netherlands) — Modehuis A. Verwaltungsgerichtshof (Austria)) — Agrana Zucker Zwijnenburg BV v Staatssecretaris van Financiën GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Case C-352/08) ( 1 ) (Case C-365/08) ( 1 ) (Approximation of laws — Directive 90/434/EEC — Common system of taxation applicable to mergers, divisions, (Sugar — Regulation (EC) No 318/2006 — Article 16 — transfers of assets and exchanges of shares concerning Calculation of the production charge — Inclusion of the companies of different Member States — Article 11(1)(a) quantity of quota sugar withdrawn from the market in the — Whether applicable to transaction tax) basis for assessment of the charge — Principles of proportionality and non-discrimination) (2010/C 179/06) (2010/C 179/07) Language of the case: Dutch Language of the case: German
Referring court Referring court Hoge Raad der Nederlanden Verwaltungsgerichtshof
Parties to the main proceedings Applicant: Modehuis A. Zwijnenburg BV Parties to the main proceedings Applicant: Agrana Zucker GmbH
Defendant: Staatssecretaris van Financiën Defendant: Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft
Re: Reference for a preliminary ruling — Hoge Raad der Neder landen Den Haag — Interpretation of Article 11(1)(a) of Re: Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, Reference for a preliminary ruling — Verwaltungsgerichtshof transfers of assets and exchanges of shares concerning (Austria) — Interpretation of Article 34 of the EC Treaty, companies of different Member States (OJ 1990 L 225, p.1) especially the principles of non-discrimination, the protection — Concept of tax evasion or tax avoidance — Transaction of legitimate expectations and proportionality — Interpretation aimed at escaping a national tax not referred to in the and validity of Article 16 of Council Regulation (EC) No Directive’s list of taxes which may not be levied 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (OJ 2006 L 58, p. 1) — Inclusion, for the purposes of calculating the production charge, of the quota subject to preventive withdrawal in accordance with Article 1 of Commission Regulation (EC) No 290/2007 Operative part of the judgment of 16 March 2007 establishing, for the 2007/2008 marketing Article 11(1)(a) of Council Directive 90/434/EEC of 23 July 1990 year, the percentage provided for in Article 19 of Regulation on the common system of taxation applicable to mergers, divisions, (EC) No 318/2006 (OJ 2007 L 78, p. 20) transfers of assets and exchanges of shares concerning companies of different Member States is to be interpreted as meaning that the favourable arrangements which that directive introduces may not be withheld from a taxpayer who has sought, by way of a legal stratagem involving a company merger, to avoid the levying of a tax such as that Operative part of the judgment at issue in the main proceedings, namely transaction tax, where that 1. Article 16 of Council Regulation (EC) No 318/2006 of 20 tax does not come within the scope of application of that directive. February 2006 on the common organisation of the markets in the sugar sector must be interpreted as meaning that the quantity of quota sugar withdrawn from the market pursuant to Article 19 of that regulation and Article 1 of Commission Regulation (EC) No 290/2007 of 16 March 2007 establishing, for the ( 1 ) OJ C 285, 08.11.2008. 2007/2008 marketing year, the percentage provided for in Article 19 of Regulation (EC) No 318/2006 is included in the basis for assessment of the production charge. C 179/6 EN Official Journal of the European Union 3.7.2010
2. Examination of the second question has not revealed anything from a programming machine to the electronic components to which might affect the validity of Article 16 of Regulation be programmed and containing a memory chip ensuring the No 318/2006. storage of the programming process — Possibility of classifi cation under heading 8471 of the Combined Nomenclature
( 1 ) OJ C 285, 8.11.2008. Operative part of the judgment An adapter, such as that at issue in the main proceedings, which performs the functions of the electrical connection between the programming machine and the components to be programmed and of the storage of the programming process, which can be retrieved later, fulfils the condition set out in Note 5(B)(c) to Chapter 84 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No Judgment of the Court (Second Chamber) of 20 May 2010 2658/87 of 23 July 1987 on the tariff and statistical nomenclature (reference for a preliminary ruling from the and on the Common Customs Tariff, as amended by Commission Bundesfinanzhof (Germany)) — Data I/O GmbH v Regulation (EC) No 1810/2004 of 7 September 2004 and must Hauptzollamt Hannover, formerly Bundesfinanzdirektion be classified under heading 8471 thereof as a ‘unit’ of an automatic Südost data-processing machine, in so far as its main function is to carry out data-processing. Where that function is absent, such an adapter must (Case C-370/08) ( 1 ) be classified under heading 8473 of the Combined Nomenclature as a ‘part’ or ‘accessory’ of a machine, as the case may be, if it is either (Common Customs Tariff — Tariff classification — essential to the functioning of that machine or constitutes a part or Combined Nomenclature — Chapter 84, Note 5(B) — device designed to adapt a machine for a particular operation or an Adapter containing a memory-chip and designed to provide element to perform a particular service relative to the main function of the electrical connection between an automatic programming that machine, which it is for the referring court to determine. Where machine and electrical components to be programmed — that adapter cannot be classified under either of the abovementioned Headings 8471, 8473 and 8536) headings, it must be considered to be an ‘electrical apparatus for making connections to or in electrical circuits’, and consequently to (2010/C 179/08) fall under heading 8536 of the Combined Nomenclature
Language of the case: German
Referring court ( 1 ) OJ C 285, 8.11.2008. Bundesfinanzhof
Parties to the main proceedings Applicant: Data I/O GmbH Judgment of the Court (First Chamber) of 20 May 2010 (reference for a preliminary ruling from the Oberlandesgericht Oldenburg (Germany)) — Arnold und Johann Harms als Gesellschaft bürgerlichen Rechts v Freerk Heidinga Defendant: Hauptzollamt Hannover, formerly Bundesfinanzdi rektion Südost (Case C-434/08) ( 1 )
(Common agricultural policy — Integrated administration and control system for certain aid schemes — Regulation (EC) No 1782/2003 — Single payment scheme — Transfer of Re: payment entitlements — Definitive transfer)
Reference for a preliminary ruling — Bundesfinanzhof — Inter (2010/C 179/09) pretation of Note 5(B) to Chapter 84 of the Combined Nomen clature of the Common Customs Tariff in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and Language of the case: German statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation Referring court (EC) No 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1) — Electrical adapter ensuring the transmission of data Oberlandesgericht Oldenburg 3.7.2010 EN Official Journal of the European Union C 179/7
Parties to the main proceedings Judgment of the Court (Grand Chamber) of 4 May 2010 (reference for a preliminary ruling from the Hoge Raad der Applicants: Arnold und Johann Harms als Gesellschaft bürger Nederlanden (Netherlands)) — TNT Express Nederland B.V. lichen Rechts v AXA Versicherung AG
(Case C-533/08) ( 1 )
(Judicial cooperation in civil and commercial matters — Juris Defendant: Freerk Heidinga diction and recognition and enforcement of judgments — Regulation (EC) No 44/2001 — Article 71 — Conventions concluded by the Member States in relation to particular matters — Convention on the Contract for the International Carriage of Goods by Road (CMR)) Re: (2010/C 179/10) Reference for a preliminary ruling — Oberlandesgericht Oldenburg — Interpretation of Article 46(2) of Council Regu Language of the case: Dutch lation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for Referring court farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, Hoge Raad der Nederlanden (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2007 L 270, p. 1) — Contractual clause, inserted into an agreement intended outwardly to effect a complete and definitive transfer of payment entitlements, according to Parties to the main proceedings which the transferee, as the formal owner of payment entitlements, is to activate those payment entitlements Appellant: TNT Express Nederland B.V. through cultivation of the corresponding land, but is to pass on to the seller a part of the payments received
Respondent: AXA Versicherung AG
Operative part of the judgment Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the Re: common agricultural policy and establishing certain support schemes Reference for a preliminary ruling — Hoge Raad der Neder for farmers and amending Regulations (EEC) No 2019/93, (EC) landen — Interpretation of Article 71(1) and (2)(a) and (b), No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, second subparagraph, of Council Regulation (EC) No 44/2001 (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, of 22 December 2000 on jurisdiction and the recognition and (EC) No 1673/2000, (EEC) No 2358/71 and (EC) enforcement of judgments in civil and commercial matters No 2529/2001 must be interpreted as not precluding a contractual (‘Brussels I’) (OJ 2001 L 12, p. 1) — Relationship with the arrangement, such as that at issue in the main proceedings, the object Convention on the Contract for the International Carriage of of which is to effect a definitive transfer of payment entitlements Goods by Road (CMR), signed at Geneva on 19 May 1956 — whereby the transferee, in his capacity as the person entitled to Lis pendens — Rules on concurrence them, is to activate the payment entitlements and to pass on to the transferor, without any limit in time, the full amount, or a part thereof, of the payments received on that basis, provided that the purpose of such an arrangement is not to permit the transferor to retain a part of the payment entitlements which he has formally transferred, but to determine, by reference to the value of that part Operative part of the judgment of the payment entitlements, the agreed price for the transfer of all the 1. Article 71 of Council Regulation (EC) No 44/2001 of 22 payment entitlements. December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in a case such as the main proceedings, the rules governing jurisdiction, recognition and enforcement that are laid down by a convention on a particular matter, such as the lis pendens rule set out in Article 31(2) of the 1 ( ) OJ C 44, 21.2.2009. Convention on the Contract for the International Carriage of Goods by Road, signed at Geneva on 19 May 1956, as amended by the Protocol signed at Geneva on 5 July 1978, and the rule relating to enforceability set out in Article C 179/8 EN Official Journal of the European Union 3.7.2010
31(3) of that convention, apply provided that they are highly cations networks and services (Framework Directive) (OJ 2002 predictable, facilitate the sound administration of justice and L 108, p. 33) — Imposing on an operator a requirement to enable the risk of concurrent proceedings to be minimised and obtain authorisation for the tariff for providing retail access that they ensure, under conditions at least as favourable as services to high-speed internet without a market analysis those provided for by the regulation, the free movement of having been carried out. judgments in civil and commercial matters and mutual trust in the administration of justice in the European Union (favor execu tionis).
Operative part of the judgment The Court: 2. The Court of Justice of the European Union does not have juris diction to interpret Article 31 of the Convention on the Contract for the International Carriage of Goods by Road, as amended. 1. By regulating retail tariffs for access to high-speed internet without carrying out a prior market analysis, the Republic of Poland has failed to fulfil its obligations Articles 16 and 17 of Directive 2002/22/EC of the European Parliament and of the Council of ( 1 ) OJ C 44, 21.2.2009. 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) and Articles 16 and 27 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive);
Judgment of the Court (Third Chamber) of 6 May 2010 — European Commission v Republic of Poland 2. Orders the Republic of Poland to pay the costs.
(Case C-545/08) ( 1 )
(Failure of a Member State to fulfil obligations — Electronic communications — Directives 2002/21/EC and 2002/22/EC ( 1 ) OJ C 82 of 4.4.2009 — High-speed internet access provider — Obligation to obtain authorisation for the access tariffs to high-speed internet services and to fix those tariffs on the basis of the costs of the provision of such services — No market analysis)
(2010/C 179/11) Judgment of the Court (First Chamber) of 20 May 2010 — Language of the case: Polish Christos Gogos v European Commission
(Case C-583/08 P) ( 1 ) Parties Applicant: European Commission (represented by: A. Nijenhuis (Appeals — Officials — Internal competition for promotion and K. Mojzesowicz, acting as Agents) from one category to another — Appointment — Classifi cation in grade — Article 31(2) of the Staff Regulations — Unlimited jurisdiction — Dispute of a financial character — Length of proceedings before the General Court — Defendant: Republic of Poland (represented by: M. Dowgielewicz Reasonable time — Claim for equitable compensation) and M. Szpunar, acting as Agents) (2010/C 179/12)
Language of the case: Greek
Re: Parties Failure of a Member State to fulfil obligations — Infringement of Articles 16 and 17 of Directive 2002/22/EC of the European Appellant: Christos Gogos (represented by: N. Korogiannakis and Parliament and of the Council of 7 March 2002 on universal P. Katsimani, dikigoroi) service and users’ rights relating to electronic communications networks and services (Universal Service Directive)(OJ 2002 L 108, p. 51), and Articles 16 and 27 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 Other party to the proceedings: European Commission (represented on a common regulatory framework for electronic communi by: J. Currall, acting as Agent, assisted by P.I. Anestis, dikigoros) 3.7.2010 EN Official Journal of the European Union C 179/9
Re: Operative part of the judgment Appeal against the judgment of the Court of First Instance The Court: (Seventh Chamber) of 15 October 2008 in Case T-66/04 Gogos v Commission, by which the Court of First Instance dismissed an action for annulment of the Commission’s decision to place the applicant in Grade A 7 when he was 1. Declares that the Federal Republic of Germany has failed to fulfil appointed. its obligations under Article 8 and Titles III to VI of Council Directive 92/50/EEC of 18 June 1992 relating to the coor dination of procedures for the award of public service contracts, on the grounds that the municipality of Bonn and the Müllver Operative part of the judgment wertungsanlage Bonn GmbH awarded a public service contract on the disposal of bio-waste and green waste without carrying out a The Court: procedure for the award of public works including Europe-wide tendering.
1. Dismisses the appeal; 2. Orders the Federal Republic of Germany to pay the costs.
2. Orders Mr Gogos and the Commission to bear their own costs.
( 1 ) OJ C 69 of 21.03.2009
( 1 ) OJ C 44, 21.2.2009.
Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Commissione Judgment of the Court (Forth Chamber) of 21 January tributaria provinciale di Roma — Italy) — Emiliano Zanotti 2010 — European Commission v Federal Republic of v Agenzia delle Entrate — Ufficio Roma 2 Germany
(Case C-56/09) ( 1 ) (Case C-17/09) ( 1 ) (Freedom to provide services — Citizenship of the European (Public service contracts — Bio-waste and green waste Union — Articles 18 EC and 49 EC — National income tax disposal service — Award without an open public tender legislation — Right to deduct total tuition fees from gross tax procedure) up to a fixed percentage — University course attended in another Member State — Imposition of a quantitative limit (2010/C 179/13) — Deduction up to a maximum amount laid down for regis tration and course fees paid for similar tuition provided by Language of the case: German national State universities — Imposition of a territorial limit — Deduction up to a maximum amount laid down for regis tration and course fees paid for similar tuition provided by the Parties national State university nearest to the taxpayer’s residence Applicant: European Commission (represented by: B. Schima and for fiscal purposes) C. Zadra, acting as Agents) (2010/C 179/14)
Language of the case: Italian Defendant: Federal Republic of Germany (represented by: M. Lumma and B. Klein, acting as Agents) Referring court Commissione tributaria provinciale di Roma Re: Failure of a Member State to fulfil obligations — Infringement of Article 8 in conjunction with Titles III to VI of Council Directive 92/50/EEC of 18 June 1992 relating to the coor Parties to the main proceedings dination of procedures for the award of public service Applicant: Emiliano Zanotti contracts (OJ 1992 L 209, p. 1) — Failure to organise a formal European award procedure before the conclusion of a contract for bio-waste and green waste disposal services between the city of Bonn and a private company Defendant: Agenzia delle Entrate — Ufficio Roma 2 C 179/10 EN Official Journal of the European Union 3.7.2010
Re: Judgment of the Court (Third Chamber) of 6 May 2010 (reference for a preliminary ruling from the Juzgado de Reference for a preliminary ruling — Commissione tributaria lo Mercantil n o 4 de Barcelona — Spain) — Axel Walz v provinciale di Roma — Interpretation of Articles 149 EC and Clickair S.A. 151 EC — National income tax legislation — Deduction of the costs of attending secondary and university courses held abroad 1 from the gross tax payable in respect of taxable income — (Case C-63/09) ( ) Limitation of the recognition of costs (Air transport — Montreal Convention — Liability of carriers in respect of checked baggage — Article 22(2) — Limits of liability in case of destruction, loss, damage or delay of baggage — Concept of ‘damage’ — Material and non- material damage) Operative part of the judgment 1. Article 49 EC must be interpreted as: (2010/C 179/15)
Language of the case: Spanish
— precluding national legislation which allows taxpayers to Referring court deduct from gross tax the costs of attending university courses provided by universities situated in that Member Juzgado de lo Mercantil n o 4 de Barcelona State but excludes generally that possibility for university tuition fees incurred at a private university established in another Member State; Parties to the main proceedings Applicant: Axel Walz — not precluding national legislation which allows taxpayers to deduct from gross tax university tuition fees incurred at a private university established in another Member State up to Defendant: Clickair S.A. the maximum amount set for the corresponding costs of attending similar courses at the national State university nearest to the taxpayer’s residence for fiscal purposes. Re:
Reference for a preliminary ruling — Juzgado de lo Mercantil n o 4 (Barcelona) — Interpretation of Article 22(2) of the 2. Article 18 EC must be interpreted as: Convention for the Unification of Certain Rules for Inter national Carriage by Air (Montreal Convention), (Council Decision 2001/539/EC, OJ 2001 L 194, p. 39) — Jurisdiction of the Court — Interpretation of Article 3 of Council Regu — precluding national legislation which allows taxpayers to lation (EC) No 2027/97 of 9 October 1997 on air carrier deduct from gross tax the costs of attending university liability in the event of accidents (OJ 1997 L 285, p. 1) — courses provided by universities situated in that Member Air carrier liability in respect of the carriage of passengers State but excludes generally that possibility for university and their baggage by air — Limit of liability in case of tuition fees incurred at a university established in another destruction, loss, damage or delay of baggage — Material and Member State; non-material damage
— not precluding national legislation which allows taxpayers to Operative part of the judgment deduct from gross tax university tuition fees incurred at a The term ‘damage’, which underpins Article 22(2) of the Convention university established in another Member State up to the for the Unification of Certain Rules for International Carriage by Air, maximum amount set for the corresponding costs of concluded in Montreal on 28 May 1999, that sets the limit of an air attending similar courses at the national State university carrier’s liability for the damage resulting, inter alia, from the loss of nearest to the taxpayer’s residence for fiscal purposes. baggage, must be interpreted as including both material and non- material damage.
( 1 ) OJ C 90, 18.04.2009. ( 1 ) OJ C 102, 1.5.2009. 3.7.2010 EN Official Journal of the European Union C 179/11
Judgment of the Court (First Chamber) of 6 May 2010 — Judgment of the Court (Fourth Chamber) of 20 May 2010 European Commission v French Republic (reference for a preliminary ruling from the Okresní soud v Chebu — Czech Republic) — Česká podnikatelská (Case C-94/09) ( 1 ) pojišťovna as, Vienna Insurance Group v Michal Bilas
1 (Failure of a Member State to fulfil obligations — VAT — (Case C-111/09) ( ) Directive 2006/112/EC — Article 98(1) and (2) — Supply of services by undertakers — Application of a reduced rate to the (Regulation (EC) No 44/2001 — Action brought by an service involving transportation of a body by vehicle) insurer before the court of its place of domicile seeking the payment of an insurance premium by the policyholder, (2010/C 179/16) domiciled in a different Member State — Appearance of the defendant entered before the court seised — Jurisdiction not Language of the case: French contested and defence as to substance — Entering an appearance conferring jurisdiction)
Parties (2010/C 179/17) Applicant: European Commission (represented by: M. Afonso, Agent) Language of the case: Czech
Referring court Okresní soud v Chebu Defendant: French Republic (represented by: G. de Bergues and J.-S. Pilczer, Agents) Parties to the main proceedings Applicant: Česká podnikatelská pojišťovna as, Vienna Insurance Group Re: Failure of Member State to fulfil obligations — Infringement of Defendant: Michal Bilas Articles 96 to 99(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Activities of undertakers — Obligation to apply a single rate of tax to an indivisible complex service Re: provided by undertakers — Prohibition on applying variable Reference for a preliminary ruling — Okresní soud v Cheb — reduced rates of VAT Interpretation of Articles 13(1), 24 and 26 of Council Regu lation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Jurisdiction in insurance matters — Action seeking the payment of an Operative part of the judgment insurance premium by the policyholder, domiciled in a different Member State from the insurer — Defence of the The Court: policyholder’s case as to substance in the forum of the insurer’s domicile.
1. Dismisses the action. Operative part of the judgment Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the court seised, where the rules in Section 3 of 2. Orders the European Commission to pay the costs. Chapter II of that regulation were not complied with, must declare itself to have jurisdiction where the defendant enters an appearance and does not contest that court’s jurisdiction, since entering an appearance in that way amounts to a tacit prorogation of jurisdiction.
( 1 ) OJ C 113, 16.5.2009. ( 1 ) OJ C 141, 20.06.2009. C 179/12 EN Official Journal of the European Union 3.7.2010
Judgment of the Court (Fourth Chamber) of 20 May 2010 financial rules do not preclude that and that the budgetary (reference for a preliminary ruling from the Tribunale provision approved by the Commission of the European Commu ordinario di Palermo (Italy)) — Todaro Nunziatina & C. nities is not exceeded; Snc v Assessorato del Lavoro, della Previdenza Sociale, della Formazione Professionale e dell’Emigrazione della regione Sicilia 2. Article 1 of Commission Decision 2003/195/EC of 16 October 2002 on the scheme by which Italy plans to aid employment in (Case C-138/09) ( 1 ) the Region of Sicily — C 56/99 (ex N 668/97) must be inter preted as meaning that the aid scheme provided for in Article (Reference for a preliminary ruling — State aid — 11(1) of Regional Law No 16 of the Region of Sicily of 27 Commission decisions — Interpretation — Aid granted by May 1997 authorising expenditure for the use of the provisions the Region of Sicily to undertakings entering into training entered in the general funds of the budget of the Region for the and work-experience contracts or converting such contracts financial year 1997 constitutes new aid distinct from that into open-ended contracts — Time-limit for the grant of aid provided for in Article 10 of Regional Law No 27 of the — Budgetary limits — Default interest — Inadmissibility) Region of Sicily of 15 May 1991 providing for measures to promote employment. Article 1 of Decision 2003/195 precludes (2010/C 179/18) the grant of subsidies in respect of any employment of workers recruited under training or work-experience contracts or conversion of training and work-experience contracts into open-ended Language of the case: Italian contracts with effect from 1 January 1997;
Referring court 3. It is for the Member State concerned to determine which party to Tribunale ordinario di Palermo the proceedings has the burden of proving that the budgetary provision allocated for the aid measures referred to in Article 10(1)(a) and (b) of Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to aid employment Parties to the main proceedings and authorised by Decision SG (95) D/15975 has not been exhausted; Applicant: Todaro Nunziatina & C. Snc
4. The amount of statutory interest which may be due in the event of Defendant: Assessorato del Lavoro, della Previdenza Sociale, della late payment of the aid authorised by Decision SG (95) Formazione Professionale e dell’Emigrazione della regione Sicilia D/15975 for the period following that decision is not to be included in the amount of the budgetary provision authorised by that decision. The rate of interest and the detailed arrangements for applying that rate fall within the scope of national law.
Re: Reference for a preliminary ruling — Tribunale ordinario di 1 Palermo — State aid — Scope of Commission Decisions SG ( ) OJ C 153, 4.7.2009. (95) D/15975 of 21 December 1995 relating to Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to promote employment and 2003/195/EC of 16 October 2002 (OJ 2003 L 77, p. 57) on the aid granted by Sicily to companies entering into training and work experience contracts or converting training and work experience contracts Judgment of the Court (Fifth Chamber) of 20 May 2010 — into open-ended contracts European Commission v Kingdom of Spain
(Case C-158/09) ( 1 )
Operative part of the judgment (Failure of a Member State to fulfil obligations — Directive 2003/88/EC — Organisation of working time — Non-civilian 1. Commission Decision SG (95) D/15975 of 11 December 1995 personnel in public authorities — Failure to transpose within relating to Regional Law No 27 of the Region of Sicily of 15 the prescribed period) May 1991 providing for measures to promote employment (State aid NN 91/A/95) must be interpreted as having accepted, as (2010/C 179/19) being compatible with the common market, an aid scheme composed of two measures provided for in Article 10(1)(a) and (b) of abovementioned Regional Law No 27, which cannot be Language of the case: Spanish cumulative and the event giving rise to which, that is to say, the recruitment of a worker or the conversion of the contract into an Parties open-ended contract, must have taken place before 31 December 1996, but the payments to which they give rise may be made after Applicant: European Commission (represented by: I. Martinez del that date, on condition that the applicable national budgetary and Peral Cagigal and M. van Beek, acting as Agents) 3.7.2010 EN Official Journal of the European Union C 179/13
Defendant: Kingdom of Spain (represented by: B. Plaza Cruz, Parties to the main proceedings acting as Agent) Applicant: Ioannis Katsivardas — Nikolaos Tsitsikas OE
Re: Defendant: Ipourgos Ikonomikon Failure of a Member State to fulfil obligations — Infringement of Article 1(3) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) and Article 18(a) of Council Directive 93/104/EC Re: of 23 November 1993 concerning certain aspects of the organi Reference for a preliminary ruling — Simvoulio tis Epikratias — sation of working time (OJ 1993 L 307, p. 18) maintained by Interpretation of Article 4 of Council Regulation (EEC) Article 27(1) of Directive 2003/88, read in conjunction with No 1591/84 of 4 June 1984 concerning the conclusion of Annex I, Part B, of the same directive — Non-civilian personnel the Cooperation Agreement between the European Economic in public authorities Community, of the one part, and the Cartagena Agreement and the member countries thereof — Bolivia, Colombia, Ecuador, Peru and Venezuela — of the other part (OJ 1984 Operative part of the judgment L 153, p. 1) — Most-favoured-nation clause — Right of an individual seeking the refund of domestic tax to rely on the The Court: agreement in order to demonstrate the tax’s incompatibility with the agreement — Banana import regime
1. Declares that, by failing to adopt within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain Operative part of the judgment aspects of the organisation of working time, in respect of non- Article 4 of the Cooperation Agreement concluded between the civilian personnel in public authorities, the Kingdom of Spain has European Economic Community, of the one part, and the Cartagena failed to fulfil its obligations under Article 1(3) of that directive; Agreement and the member countries thereof — Bolivia, Colombia, Ecuador, Peru and Venezuela — of the other part, approved by Council Regulation (EEC) No 1591/84 of 4 June 1984, is not 2. Orders the Kingdom of Spain to bear the costs. such as to confer on individuals rights upon which they might rely before the courts of a Member State.
( 1 ) OJ C 180 of 1.8.2009.
( 1 ) OJ C 153, 4.7.2009.
Judgment of the Court (Third Chamber) of 20 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Ioannis Katsivardas — Nikolaos Tsitsikas OE v Ipourgos Ikonomikon Judgment of the Court (Third Chamber) of 20 May 2010 (reference for a preliminary ruling from the Cour (Case C-160/09) ( 1 ) administrative d’appel de Nantes (France)) — Scott SA, Kimberly Clark SNC, now Kimberly Clark SAS v Ville (Regulation (EEC) No 1591/84 — Cooperation Agreement d’Orléans between the European Economic Community, of the one 1 part, and the Cartagena Agreement and the member (Case C-210/09) ( ) countries thereof, Bolivia, Colombia, Ecuador, Peru and Venezuela, of the other part — Most-favoured-nation clause (State aid — Regulation (EC) No 659/1999 — Article 14(3) — Direct effect — Excise duty on the import of bananas into — Recovery of aid — Principle of effectiveness — Greece) Assessments vitiated by a procedural defect — Annulment)
(2010/C 179/20) (2010/C 179/21)
Language of the case: Greek Language of the case: French
Referring court Referring court Simvoulio tis Epikratias Cour administrative d’appel de Nantes C 179/14 EN Official Journal of the European Union 3.7.2010
Parties to the main proceedings Defendant: Republic of Poland (represented by: M. Dowgielewicz und M. Szpunar, acting as Agents) Applicants: Scott SA, Kimberly Clark SNC, now Kimberly Clark SAS
Re: Defendant: Ville d’Orléans Failure of a Member State to fulfil obligations — Infringement of Articles 73, 168 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added Re: tax (OJ 2006 L 347, p. 1) — International carriage of persons by road — National rules requiring transporters domiciled Reference for a preliminary ruling — Cour administrative abroad to pay VAT under a flat-rate system based only on d’appel de Nantes — Interpretation of Article 14(3) of the number of persons transported to the national territory Council Regulation No 659/1999 of 22 March 1999, laying and which does not allow any right to deduct down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1) — Aid granted by the French authorities in favour of Scott SA and Kimberly Clark — Obli gation to recover immediately the aid declared incompatible Operative part of the judgment with the common market — Effect on that obligation of possible annulment, on grounds of procedural defect, of the The Court: assessments issued by the national authorities for the recovery of that aid 1. Declares that, by charging value added tax in the manner set out in Chapter 13, Paragraph 35(1), (3), (4) and (5), of the Regu Operative part of the judgment lation of the Minister for Finance of 27 April 2004 on the implementation of certain provisions of the Law on the taxation Article 14(3) of Council Regulation (EC) No 659/1999 of 22 of goods and services, the Republic of Poland has failed to fulfil its March 1999 laying down detailed rules for the application of obligations under Articles 73, 168 and 273 of Council Directive Article [88] of the EC Treaty is to be interpreted as not precluding, 2006/112/EC of 28 November 2006 on the common system of in circumstances in which amounts corresponding to the aid in value added tax; question have already been recovered, annulment by the national court of assessments issued in order to recover the unlawful State aid on grounds of there being a procedural defect, where it is 2. Orders the Republic of Poland to pay the costs. possible to rectify that procedural defect under national law. That provision does, however, preclude those amounts being paid once again, even provisionally, to the beneficiary of that aid.
( 1 ) OJ C 256 of 24.10.2009.
( 1 ) OJ C 205, 29.8.2009.
Order of the Court (Seventh Chamber) of 18 March 2010 (reference for a preliminary ruling from the Arios Pagos — Judgment of the Court (Third Chamber) of 6 May 2010 — Greece) — Organismos Sillogikis Diakhirisis Dimiourgon Commission of the European Communities v Republic of Theatrikon kai Optikoakoustikon Ergon v Divani Poland Acropolis Hotel and Tourism AE
(Case C-311/09) ( 1 ) (Case C-136/09) ( 1 )
(Failure of a Member State to fulfil obligations — Taxation (Article 104(3) of the Rules of Procedure — Copyright and — VAT — International carriage of persons — Flat-rate related rights in the information society — Directive taxation of transporters domiciled outside the national 2001/29/EC — Article 3 — Concept of ‘communication to territory) the public’ — Works communicated by means of television sets installed in hotel rooms) (2010/C 179/22) (2010/C 179/23) Language of the case: Polish Language of the case: Greek
Parties Referring court Applicant: European Commission (represented by: I. Martinez del Peral Cagigal and M. van Beek, acting as Agents) Arios Pagos 3.7.2010 EN Official Journal of the European Union C 179/15
Parties to the main proceedings Defendant: Staatssecretaris van Financiën Applicant: Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon
Questions referred Defendant: Divani Acropolis Hotel and Tourism AE 1. Must Community law, and in particular Article 12(2) and (5) and Article 217(1) of the CCC ( 1 ), and Article 11 of the CCIR ( 2) in conjunction with Article 243 of the CCC, be Intervener in support of the defendant: Hellenic Chamber of Hotels interpreted to mean that a person involved in proceedings concerning customs duties which have been imposed may challenge their imposition by producing binding tariff information issued in another Member State for the same goods, which information was still the subject of a legal Re: dispute at that time, but was eventually revised? Reference for a preliminary ruling — Arios Pagos — Interpre tation of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmon isation of certain aspects of copyright and related rights in the 2. If the answer to Question 1 is in the affirmative, can the information society (OJ 2001 L 167, p. 10) — Concept of person declaring the goods to customs in his own name and ‘communication to the public’ — Works transmitted by for his own account successfully rely in a case such as this, means of television sets installed in hotel rooms and when making customs declarations for release for free circu connected to the central antenna of the hotel with no other lation, on binding tariff information whose holder is not action by the hotel to ensure reception of a signal by hotel that person, but an associated firm on whose instructions customers that person made the customs declarations?
Operative part of the order 3. If the answer to Question 2 is in the negative, does Community law preclude a person in a case such as this The hotelier, by installing televisions in his hotel rooms and by from successfully relying on a national policy decision in connecting them to the central antenna of the hotel, thereby, and which the national authorities raise the expectation that, in without more, carries out an act of communication to the public respect of the tariff classification of the goods declared, it within the meaning of Article 3(1) of Directive 2001/29/EC of the can rely on tariff information issued to a third party for the European Parliament and of the Council of 22 May 2001 on the same goods? harmonisation of certain aspects of copyright and related rights in the information society.
( 1 ) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab lishing the Community Customs Code (OJ 1992 L 302, p. 1) ( 1 ) OJ C 141, of 20.06.2009. ( 2 ) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1)
Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 1 April 2010 — Sony Logistics Europe B.V. v Staatssecretaris van Financiën Appeal brought on 1 April 2010 by Nokia Oyj against the (Case C-153/10) judgment of the General Court (Eighth Chamber) delivered on 20 January 2010 in Case T-460/07 Nokia Oyj v Office (2010/C 179/24) for Harmonisation in the Internal Market (Trade Marks and Designs) Language of the case: Dutch (Case C-154/10 P) Referring court (2010/C 179/25) Hoge Raad der Nederlanden Language of the case: Finnish
Parties to the main proceedings Parties Applicant: Sony Logistics Europe B.V. Appellant: Nokia Oyj (represented by C. Rehaag, asianajaja) C 179/16 EN Official Journal of the European Union 3.7.2010
Other parties to the proceedings: Office for Harmonisation in the Parties to the main proceedings Internal Market (Trade Marks and Designs) (OHIM), Medion AG Applicant: Banco Bilbao Vizcaya Argentaria S.A.
Form of order sought Defendant: Administración General del Estado — set aside the judgment in Case T-460/07;
Question referred
— order OHIM to pay the costs. Must Articles 63 and 65 of the Treaty on the Functioning of the European Union be interpreted as meaning that they preclude national rules (enacted unilaterally or under a bilateral convention for the avoidance of double taxation) which, in the context of corporation tax and within the framework of Pleas in law and main arguments provisions for the avoidance of such double taxation, prohibit The appellant claims that the judgment of the General Court in the deduction of amounts of tax due in other Member States of Case T-460/07 should be set aside on the ground that the the European Union on income subject to corporation tax and General Court wrongly considered in that judgment that there obtained in their territory where those amounts, though due, was a likelihood of confusion between the marks LIFE and LIFE are not paid by virtue of an exemption, a credit or any other tax BLOG and thus applied incorrectly Article 8(1)(b) of Regulation benefit? No 40/94. ( 1 ) The applicant submits that by so doing the judgment infringed European Union law.
The General Court indeed found, as regards the similarity of the Reference for a preliminary ruling from the Juzgado de lo marks, that the subjects of comparison were the marks LIFE and Contencioso-Administrativo No 12 de Sevilla (Spain) LIFE BLOG, but then proceeded in a manner that clearly contra lodged on 7 April 2010 — Francisco Javier Rosado dicted that finding, by assessing only the component LIFE of the Santana v Consejería de la Justicia y Administración composite mark LIFE BLOG in order to justify the conclusion Pública de la Junta de Andalucía that the marks were similar. (Case C-177/10)
In that connection the General Court incorrectly examined the (2010/C 179/27) questions of what kind of consumers belonged to the relevant group and how the consumers understood the mark, and Language of the case: Spanish thereby infringed the principles recognised in the case-law of the Court of Justice. Referring court Juzgado de lo Contencioso-Administrativo No 12 de Sevilla
( 1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1). Parties to the main proceedings Applicant: Francisco Javier Rosado Santana
Defendant: Consejería de la Justicia y Administración Pública de Reference for a preliminary ruling from the Tribunal la Junta de Andalucía Supremo (Spain) lodged on 2 April 2010 — Banco Bilbao Vizcaya Argentaria S.A. v Administración General del Estado Questions referred (Case C-157/10) 1. Is [Council Directive 1999/70/EC of 28 June 1999 (2010/C 179/26) concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP] ( 1 ) to be interpreted as meaning that, if the Constitutional Court of a Member Language of the case: Spanish State has ruled that the establishment of different rights for temporary civil servants and career civil servants of that Referring court State might not be contrary to its Constitution, that necessarily means that the directive is excluded from Tribunal Supremo applying in the sphere of that State’s civil service? 3.7.2010 EN Official Journal of the European Union C 179/17
2. Is Directive 1999/70 to be interpreted as meaning that it Question referred precludes a national court from interpreting the principles of equal treatment and non-discrimination in a manner Is a natural person who carried out an agricultural activity on which generally excludes from their scope the placing of land and subsequently, on account of a change to urban temporary civil servants and career civil servants on an management plans which occurred for reasons beyond his equal footing? control, ceased that activity and reclassified his property as private property, divided it into smaller parts (land designated for a holiday home development) and began to dispose of it, on that basis a taxable person for VAT within the meaning of 1 3. Is Clause 4 to be interpreted as meaning that it precludes a Article 9(1) of Directive 2006/112/EC ( ) and Article 4(1) and 2 refusal to take into account as length of service, in attaining (2) of Sixth Directive 77/388/EEC ( ) who is liable for payment the status of member of the permanent staff, previous of VAT on the basis of a trading activity? periods of service as a temporary employee, specifically for the purposes of remuneration, grading and career advancement in the civil service? ( 1 ) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1). ( 2 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the 4. Does Clause 4 require an interpretation of the national legis harmonisation of the laws of the Member States relating to lation to the effect that it does not exclude from the calcu turnover taxes — Common system of value added tax: uniform lation of length of service of civil servants periods worked basis of assessment (OJ 1977 L 145, p. 1). under a temporary employment relationship?
5. Is Clause 4 to be interpreted as meaning that, even though the rules of a public selection process were published and Reference for a preliminary ruling from the Naczelny Sąd were not contested by the applicant, the national court must Administracyjny (Poland) lodged on 9 April 2010 — examine whether those rules are contrary to the Community Emilian Kuć and Halina Jeziorska-Kuć v Dyrektor Izby legislation and, in that case, must the national court refrain Skarbowej w Warszawie from applying those rules or the national provision on which they are based in so far as they conflict with that (Case C-181/10) clause? (2010/C 179/29)
Language of the case: Polish ( 1 ) OJ L 175, p. 43
Referring court Naczelny Sąd Administracyjny
Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 9 April 2010 — Parties to the main proceedings Jarosław Słaby v Minister Finansów Applicants: Emilian Kuć and Halina Jeziorska-Kuć (Case C-180/10)
(2010/C 179/28) Defendant: Dyrektor Izby Skarbowej w Warszawie
Language of the case: Polish Questions referred Referring court 1. Is a flat-rate farmer within the meaning of Article 295(1)(3) Naczelny Sąd Administracyjny of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax ( 1) … who sells plots of land used for his agricultural activity which are designated in a municipality’s urban management plan for residential and service development and were purchased as Parties to the main proceedings agricultural land (VAT-free) covered by Article 16 of that Applicant: Jarosław Słaby directive, which regards the application of business assets for the taxable person’s private use or for purposes other than those of his business as a supply of goods for consideration only where the tax on those assets was wholly or partly Defendant: Minister Finansów deductible? C 179/18 EN Official Journal of the European Union 3.7.2010
2. Must a flat-rate farmer within the meaning of Article Philips, Les amis de la Forêt de Soignes ASBL, Association des 295(1)(3) of Directive 2006/112/EC who sells plots of Riverains et Habitants des Communes Proches de l’Aéroport land previously used for his agricultural activity which are B.S.C.A. (Brussels South Charleroi Airport) ASBL, Grégoire designated in a municipality’s urban management plan for Stassin, André Gilliard, Société Wallone des Aéroports SA residential and service development and were purchased as (SOWAER), Paul Fastrez, Henriette Fastrez, Infrabel SA, Jean- agricultural land (VAT-free) be regarded as a taxable person Pierre Olivier, Pierre Deneye, Paul Thiry, Antoine Boxus, Willy who is required to account for VAT on that sale under the Roua, Gouvernement flamand, Inter-Environnement Wallonie general rules? ASBL, Sartau SA, Charleroi South Air Pur ASBL, Pierre Grymonprez, Philippe Grisard de la Rochette, Nicole Laloux, Annabelle Denoël-Gevers, Marc Traversin, Joseph Melard, Chantal Michiels, Thierry Regout, René Canfin, Georges Lahaye, Jeanine Postelmans, Christophe Dehousse, Christine ( 1 ) OJ 2006 L 347, p. 1. Lahaye, Jean-Marc Lesoinne, Jacques Teheux, Anne-Marie Larock, Berbadette Mestdag, Jean-François Serrafin, Françoise Mahoux, Ferdinand Wallraf, Jeanne Mariel, Agnès Fortemps, Georges Serrafin, Jeannine Melen, Groupement Cerexhe- Heuseux/Beaufays ASBL, Action et Défense de l’Environnement de la vallée de la Senne et de ses affluents ASBL, Réserves Reference for a preliminary ruling from the Cour naturelles RNOB ASBL, Stéphane Banneux, Zénon Darquenne, Constitutionnelle (Belgium) lodged on 9 April 2010 — Guido Durlet, Société régionale wallonne du transport SRWT, Marie-Noëlle Solvay, Le Poumon vert de la Hulpe ASBL, Philippe Daras, Bernard Croiselet, Bernard Page, Intercom Jacques Solvay de la Hulpe, Jean-Marie Solvay de la Hulpe, munale du Brabant Wallon SCRL, Codic Belgique SA, Fédéral La Hulpe — Notre village ASBL, Alix Walsh, André Philips, Express European Services Inc. Les amis de la Forêt de Soignes ASBL, Association des Riverains et Habitants des Communes Proches de l’Aéroport B.S.C.A. (Brussels South Charleroi Airport) ASBL, Grégoire Stassin, André Gilliard, Société Wallone Defendant: Walloon Region des Aéroports SA (SOWAER), Paul Fastrez, Henriette Fastrez, Infrabel SA, Jean-Pierre Olivier, Pierre Deneye, Paul Thiry, Antoine Boxus, Willy Roua, Gouvernement flamand, Inter-Environnement Wallonie ASBL, Sartau SA, Charleroi South Air Pur ASBL, Pierre Grymonprez, Questions referred Philippe Grisard de la Rochette, Nicole Laloux, Annabelle Denoël-Gevers, Marc Traversin, Joseph Melard, Chantal 1. Must Articles 2(2) and 9(4) of the Aarhus Convention on Michiels, Thierry Regout, René Canfin, Georges Lahaye, access to information, public participation in decision- Jeanine Postelmans, Christophe Dehousse, Christine making and access to justice in environmental matters ( 1 ) Lahaye, Jean-Marc Lesoinne, Jacques Teheux, Anne-Marie be interpreted in accordance with the guidance provided Larock, Berbadette Mestdag, Jean-François Serrafin, in the Aarhus Convention Implementation Guide? Françoise Mahoux, Ferdinand Wallraf, Jeanne Mariel, Agnès Fortemps, Georges Serrafin, Jeannine Melen, Groupement Cerexhe-Heuseux/Beaufays ASBL, Action et Défense de l’Environnement de la vallée de la Senne et 2. (a) Must Article 2(2) of the Aarhus Convention be inter de ses affluents ASBL, Réserves naturelles RNOB ASBL, preted as excluding from its application legislative acts Stéphane Banneux, Zénon Darquenne, Guido Durlet, such as the town-planning and environmental consents Société régionale wallonne du transport SRWT, Philippe granted in accordance with the procedure established by Daras, Bernard Croiselet, Bernard Page, Intercommunale Articles 1 to 4 of the Decree of the Walloon Region of du Brabant Wallon SCRL, Codic Belgique SA, Fédéral 17 July 2008 on certain consents for which there are Express European Services Inc. v Walloon Region overriding reasons in the general interest?
(Case C-182/10)
(2010/C 179/30) (b) Must Article 2(2) of the Aarhus Convention be inter preted as excluding from its application legislative acts Language of the case: French such as the ratifications of town-planning and environ mental consents contained in Articles 5 to 9 and 14 to 17 of the decree in question? Referring court Cour Constitutionnelle (c) Must Article 1(5) of Directive 85/337/EEC on the assessment of the effects of certain public and private 2 Parties to the main proceedings projects on the environment ( ) be interpreted as excluding from its application legislative acts such as Applicants: Marie-Noëlle Solvay, Le Poumon vert de la Hulpe the town-planning and environmental consents granted ASBL, Jacques Solvay de la Hulpe, Jean-Marie Solvay de la in accordance with the procedure established by Articles Hulpe, La Hulpe — Notre village ASBL, Alix Walsh, André 1 to 4 of the decree in question? 3.7.2010 EN Official Journal of the European Union C 179/19
(d) Must Article 1(5) of Directive 85/337/EEC be interpreted the impact assessment carried out in that connection has as excluding from its application legislative acts such as been held by the Council of State, in a judgment given the ratifications of town-planning and environmental under the emergency procedure, to be incomplete and consents contained in Articles 5 to 9 and 14 to 17 of even though the assessment has been contradicted in an the decree in question? Opinion of the authority of the Walloon Region responsible for the ecological management of the natural environment?
3. (a) Must Articles 3(9) and 9(2), (3) and (4) of the Aarhus 6. In the event of a negative reply to Question 5, must Article Convention and Article 10a of Directive 85/337/EEC be 6(4) of Directive 92/43/EEC be interpreted as permitting the interpreted as precluding a procedure such as that estab creation of infrastructure designed to accommodate the lished by Articles 1 to 4 of the decree in question, under administrative centre of a private company and a large which the regional legislator grants town-planning and number of employees to be regarded as an imperative environmental consents which have been prepared by an reason of overriding public interest? administrative authority and which are amenable only to the legal actions mentioned in paragraphs B.6. and B.7 of this order that may be brought before the Constitu tional Court and the ordinary courts?
( 1 ) The Aarhus Convention was concluded on 25 June 1998 and approved, on behalf of the European Community, by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) ( 2 ) Council Directive 85/337/EEC of 27 June 1985 on the assessment (b) Must Articles 3(9) and 9(2), (3) and (4) of the Aarhus of the effects of certain public and private projects on the Convention and Article 10a of Directive 85/337/EEC be environment (OJ 1985 L 175, p. 40) 3 interpreted as precluding the adoption of legislative acts ( ) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, such as the retroactive ratifications contained in Articles p. 63) 5 to 9 and 14 to 17 of the decree in question, which are amenable only to the legal actions mentioned in paragraphs B.6. and B.7 of this order that may be brought before the Constitutional Court and the ordinary courts?
Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 14 April 4. (a) Must Article 6(9) of the Aarhus Convention and Article 2010 — Mathilde Grasser v Freistaat Bayern 9(1) of Directive 85/337/EEC be interpreted as precluding a procedure such as that established by (Case C-184/10) Articles 1 to 4 of the decree in question, under which a decree granting town-planning and environmental (2010/C 179/31) consents need not itself contain all the information necessary to establish whether those consents are Language of the case: German based on an adequate prior evaluation carried out in accordance with the requirements of the Aarhus Convention and Directive 85/337/EEC? Referring court Bayerischer Verwaltungsgerichtshof
(b) Must Article 6(9) of the Aarhus Convention and Article 9(1) of Directive 85/337/EEC be interpreted as precluding the adoption of legislative acts such as the Parties to the main proceedings ratifications contained in Articles 5 to 9 and 14 to 17 of Applicant: Mathilde Grasser the decree in question, which do not themselves contain all the information necessary to establish whether those consents are based on an adequate prior evaluation carried out in accordance with the requirements of the Defendant: Freistaat Bayern Aarhus Convention and Directive 85/337/EEC?
Question referred 5. Must Article 6(3) of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna Are Articles 1(2) and 8(2) and (4) of Directive 91/439/EEC ( 1) to and flora ( 3) be interpreted as permitting a legislative be interpreted as meaning that a host Member State is entitled authority to authorise projects such as those referred to in to refuse to recognise a driving licence issued by another Articles 16 and 17 of the decree in question, even though Member State where entries appearing in the driving licence C 179/20 EN Official Journal of the European Union 3.7.2010 show that Article 7(1)(b) of that directive has been infringed, if Defendant: Republic of Estonia the host Member State has not previously applied to the holder of the licence a measure under Article 8(2) of Directive 91/439/EEC? Form of order sought — declare that the Republic of Estonia has failed to transpose 1 ( ) Council Directive 91/439/EEC of 29 July 1991 on driving licences; correctly Articles 8(a)(iv) and 10 of Council Directive OJ 1991 L 237, p. 1. 1 1999/31/EC of 26 April 1999 on the landfill of waste; ( )
— order the Republic of Estonia to pay the costs. Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 15 April 2010 — Tural Oguz v Secretary of State for the Home Department Pleas in law and main arguments Paragraph 91(5) of the Jäätmeseadus (Law on waste) does not (Case C-186/10) provide for the security to be kept as long as required by main tenance and after-care operation of the landfill site in (2010/C 179/32) accordance with Article 13(d), nor is any requirement laid down to cover the costs of after-care of the site for a period Language of the case: English of at least 30 years.
Referring court ( 1 ) OJ 1999 L 182, p. 1. Court of Appeal (England & Wales) (Civil Division)
Parties to the main proceedings Applicant: Tural Oguz Reference for a preliminary ruling from the Corte d’appello di Milano (Italy) lodged on 23 April 2010 — Cassina SpA v Defendant: Secretary of State for the Home Department Alivar Srl and Galliani Host Arredamenti Srl
(Case C-198/10) Question referred Where a Turkish national, having leave to remain in the United (2010/C 179/34) Kingdom on condition that he does not engage in any business or profession, enters into self-employment in breach of that Language of the case: Italian condition and then applies to the national authorities for further leave to remain on the basis of the business which he has now established, is he entitled to the benefit of Article 41(1) Referring court of the Additional Protocol to the Agreement establishing an Corte d’appello di Milano Association between the European Economic Community and Turkey?
Parties to the main proceedings Applicant: Cassina SpA Action brought on 21 April 2010 — European Commission v Republic of Estonia Defendant: Alivar Srl and Galliani Host Arredamenti Srl (Case C-195/10)
(2010/C 179/33) Question referred Language of the case: Estonian 1. Must Articles 17 and 19 of Directive 98/71/EC ( 1) be inter preted as meaning that the discretion accorded to the Parties Member State to establish independently the extent to which, and the conditions under which, protection is Applicant: European Commission (represented by A. Marghelis conferred may include discretion to preclude such and E. Randvere, acting as Agents) protection where a third party — without authorisation 3.7.2010 EN Official Journal of the European Union C 179/21
from the design copyright holder– had already produced tunities’ and to order the Commission to pay the Applicant's and marketed in that State products based on the designs legal and other costs and expenses incurred in connection in question — those designs being in the public domain — with the initial procedure, even if the current Appeal is before the date on which the national implementing legis rejected as well as those of the current Appeal, in case it lation entered into force? is accepted.
2. Must Articles 17 and 19 of Directive 98/71/EC be inter Pleas in law and main arguments preted as meaning that the discretion accorded to the Member State to establish independently the extent to The Appellant submits that the General Court did not give a which, and the conditions under which, protection is sufficiently clear statement of reasons for rejecting the a series conferred may include discretion to preclude such of arguments put forward by the Appellant. protection where a third party — without authorisation from the design copyright holder — has already produced and marketed in that State products based on the designs in The Appellant submits the General Court committed an error in question, where protection is precluded within the limits of law in adopting a wrong interpretation of the wording of article prior use? 7 (6) of the contract which refers to the obligation of the contractors to take appropriate action to cancel or reduce their commitments upon receipt of the letter from the 1 ( ) OJ 1998 L 289, p. 28. Commission notifying them of the termination of the contract.
Appeal brought on 26 April 2010 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Appeal brought on 28 April 2010 by Enercon GmbH Tilematikis AE against the judgment of the General Court against the judgment of the General Court (Sixth (Fourth Chamber) delivered on 9 February 2010 in Case Chamber) delivered on 3 February 2010 in Case T-340/07: Evropaïki Dynamiki — Proigmena Systimata T-472/07: Enercon GmbH v Office for Harmonisation in Tilepikoinonion Pliroforikis kai Tilematikis AE v the Internal Market (Trade Marks & Designs) European Commission (Case C-204/10 P) (Case C-200/10 P) (2010/C 179/36) (2010/C 179/35) Language of the case: English Language of the case: English Parties Parties Appellant: Enercon GmbH (represented by: J. Mellor, Barrister, R. Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepi Böhm, Rechtsanwalt) koinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis, Δικηγόρος) Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Hasbro Inc. Other party: European Commission
Form of order sought The appellant claims that the Court should: Form of order sought The appellant claims that the Court should: — allow the Appeal against the Judgment of the General Court and annul the Judgment of the General Court, to annul the decision of the fourth Board of Appeal and, as appropriate, — Set aside the decision of the General Court, to order the the decision of the Opposition Division; Commission to make good the damage suffered by the Appellant as a result of its failure to comply with contractual obligations in the context of the performance of the EDC-53007 EEBO/27873 contract relating to the — (as appropriate) remit this case to the Office for a fresh project entitled ‘e-Content Exposure and business Oppor consideration of the issues on this Opposition; C 179/22 EN Official Journal of the European Union 3.7.2010
— order the intervener and the Office to pay the Appellant's Germany is the competent Member State, upon the costs of this Appeal recipient being resident or habitually resident in the German Land concerned, the Federal Republic of Germany has, on the basis of national legislation, failed to fulfil its obligations under Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement Pleas in law and main arguments for workers within the Community ( 1) and Article 4(1)(a), in The Appellant submits that the General Court failed to conjunction with Title III, Chapter 1 (sickness and recognise the errors in the decision of the Board of Appeal, maternity), of Council Regulation (EEC) No 1408/71 of based, as it was, on the illegitimate decision of the Opposition 14 June 1971 on the application of social security Division. In particular there was a complete failure to recognise schemes to employed persons, to self-employed persons (a) that the Medion ( 1 ) judgment concerned an exceptional and to members of their families moving within the situation in which the usual rule that the average consumer Community; ( 2) normally perceives a trade mark as a matter of overall impression is displaced but (b) no circumstances existed in this case sufficient to justify such an exceptional approach. No part of the earlier mark in this case had an ‘independent distinctive role’. — order the Federal Republic of Germany to pay the costs.
Furthermore the Appellant submits that, due to the incorrect application of a Medion type principle at the earlier stage of the Pleas in law and main arguments assessment of similarity, no proper consideration was given to The present action concerns the incompatibility with Regulation the global assessment of the likelihood of confusion. (EEC) No 1408/71 and Regulation (EEC) No 1612/68 of German Länder legislation under which the grant of benefits to blind and disabled persons is conditional upon the recipients being resident or habitually resident in the German Land ( 1 ) OJ C 106, 30.04.2004, p. 31 concerned.
Regulation No 1408/71 is designed to coordinate national social security legislations within the framework of freedom Action brought on 30 April 2010 — European of movement in accordance with the objectives of Article 42 Commission v Federal Republic of Germany of the EC Treaty (now Article 48 TFEU). Under Article 4(2b), Regulation No 1408/71 is not to apply to the provisions in the legislation of a Member State concerning special non- (Case C-206/10) contributory benefits, referred to in Annex II, Section III, the validity of which is confined to part of its territory. The German (2010/C 179/37) benefits at issue are listed as special benefits in Annex II, Section III to Regulation No 1408/71. Language of the case: German
Parties The Commission nevertheless takes the view that the mere entry Applicant: European Commission (represented by: V. Kreuschitz, of a benefit in the list in Annex II to Regulation No 1408/71 is acting as Agent) not sufficient for a benefit to be excluded as a ‘special non- contributory benefit’ from the scope of that regulation. As an exemption, Article 4(2b) of Regulation No 1408/71 must be narrowly interpreted; it can only apply to benefits which satisfy Defendant: Federal Republic of Germany the criteria set out in that provision cumulatively. Accordingly, the provision covers only benefits which are both special and non-contributory benefits, which are referred to in Annex II, Section III to Regulation No 1408/71 and which are introduced Form of order sought by legislation the validity of which is confined to part of the territory of a Member State. — Declare that, by making the grant of benefits for the blind and the disabled, including the deaf (Blindengeld or Land esblindengeld, Blindenbeihilfe or Landesblindenbeihilfe (State and Länder benefits and allowances for blind persons), Pflegegeld (care allowance) or assistance for deaf/blind The benefits at issue which are governed by Länder legislation persons, Blinden- und Gehörlosengeld (deaf/blind person’s do not, however, satisfy all those criteria, inasmuch as they allowance) etc), under Länder legislation conditional, in should be categorised as ‘sickness benefits’ instead of as ‘special respect of persons for whom the Federal Republic of non-contributory benefits’ for the following reasons. 3.7.2010 EN Official Journal of the European Union C 179/23
First, the Länder benefits at issue are granted on the basis of take into account the consequences for workers who work in circumstances laid down by law, without any assessment of Germany but who live in a different Member State. There is, personal need. They serve to compensate for the additional therefore, no adequate reason why those benefits should not be expenditure incurred as a result of a disability and are regarded as social advantages within the meaning of Regulation intended to improve the state of health and the living No 1612/68. conditions of the disabled. Consequently, they are intended, essentially, to be ancillary to sickness insurance benefits. The fact that care allowances granted under German Federal legis lation count towards the benefits paid by the Länder for the Frontier workers who work in Germany and members of their blind and the disabled proves, moreover, that both benefits families should, therefore, even if they do not live in Germany, cover the same risk — the risk of sickness-related additional be entitled to benefits granted to the disabled and the blind expenditure — and that it is not a question of ‘supplementary, under Länder legislation. The condition requiring them to be substitute or ancillary cover against the risks’. resident or habitually resident in the Land concerned therefore infringes Regulation No 1612/68.
Second, the classification of a certain benefit in accordance with the domestic constitution of a Member State does not ( 1 ) OJ, English Special Edition 1968(II), p. 475. determine whether that benefit is to be regarded as a social ( 2 ) OJ, English Special Edition 1971(II), p. 416. security benefit for the purposes of Regulation No 1408/71.
Moreover, from a substantive point of view, the Länder legis lation at issue here does not represent an ancillary advantage Reference for a preliminary ruling from the Højesteret that is valid only on a regional basis. Instead, this benefit forms part of the system of cover against the risk of additional (Denmark) lodged on 30 April 2010 — Paranova sickness-related expenditure that has been established Danmark A/S, Paranova Pack A/S v Merck Sharp & throughout Germany and which, by virtue of reciprocal Dohme Corp., Merck Sharp & Dohme B.V. and Merck Sharp & Dohme crediting, is closely connected with Federal law. (Case C-207/10)
(2010/C 179/38) It follows from this that the Länder benefits concerned should be categorised as sickness benefits, not as special benefits. The inclusion of those benefits in Annex II, Section III to Regulation Language of the case: Danish (EEC) No 1408/71 is, therefore, unlawful; they fall within the scope of that regulation. Referring court Højesteret
Further, the residence requirement imposed under German law infringes Regulation No 1612/68 in so far as it prevents frontier workers and members of their families from receiving those Parties to the main proceedings benefits. Applicants: Paranova Danmark A/S, Paranova Pack A/S
The Court of Justice has clearly confirmed that a Member State Defendants: Merck Sharp & Dohme Corp., Merck Sharp & cannot make the grant of a social advantage contingent upon Dohme and Merck Sharp & Dohme BV the recipient’s residence in that State. The Court’s conclusion applies to all social advantages within the meaning of Article 7(2) of Regulation No 1612/68.
Questions referred
1. Are Article 7(2) of Council Directive 89/104/EEC ( 1) of 21 ‘Social advantage’ is a very broad concept. It covers not only the December 1988 to approximate the laws of the Member advantages associated with an employment contract, but all States relating to trade marks and the associated case-law, in advantages which a Member State grants to its citizens and particular the judgments of the Court of Justice in Cases thus also to workers. In the Commission’s opinion, the fact 102/77 Hoffmann-La Roche v Centrafarm ( 2) and 1/81 Pfizer that the grant of the benefits concerned is determined neither v Eurim-Pharm ( 3) and Joined Cases C-427/93, C-429/93 and by the employment nor the financial resources of the person C-436/93 Bristol-Myers Squibb and Others v Paranova ( 4 ), to concerned or of his family, and is thus made purely on the basis be interpreted as meaning that a trade mark proprietor may of residence in the Land in question, cannot justify the failure to rely on these provisions in order to prevent a parallel C 179/24 EN Official Journal of the European Union 3.7.2010
importer’s marketing company, which is the holder of a 6. Is it of significance in answering Question (i) that the repac marketing authorisation for a medicinal product in a kaging company is indicated as the manufacturer in the Member State, from selling that product with an indication package leaflet? that the product is repackaged by the marketing company, although the marketing company has the physical repac kaging carried out by another company, the repackaging company, to which the marketing company gives ( 1 ) OJ L 40, 11.2.1989. instructions for the purchasing and repackaging of the ( 2 ) [1978] ECR 1139. product, for the detailed design of the product’s packaging ( 3 ) [1981] ECR 2913. and for other arrangements in relation to the product, and ( 4 ) [1996] ECR I-3457. which holds the repackaging authorisation and reaffixes the trade mark on the new package in the course of repac kaging?
Action brought on 30 April 2010 — European 2. Is it of significance in answering Question (i) that an Commission v Portuguese Republic assumption might be made that the consumer or end-user is not misled with regard to the origin of the product and (Case C-208/10) will not be led to believe that the trade mark proprietor is responsible for the repackaging through the indication by the parallel importer of the manufacturer’s name on the (2010/C 179/39) packaging along with the indication as described of the undertaking responsible for the repackaging? Language of the case: Portuguese
Parties 3. Is it only the risk that the consumer or end-user might be Applicant: European Commission (represented by: A. Nijenhuis misled into assuming that the trade mark proprietor is and M. Teles Romão, Agents) responsible for the repackaging which is of significance in answering Question (i), or are other considerations regarding the trade mark proprietor also relevant, for example (a) that Defendant: Portuguese Republic the entity which in fact undertakes the purchasing and repackaging and reaffixes the trade mark proprietor’s trade mark on the product’s packaging thereby potentially infringes independently the trade mark proprietor’s trade mark rights, and that that may be due to factors for Form of order sought which the entity that physically carried out the repackaging — Declare that, by failing to bring into force the laws, regu is responsible that (b) the repackaging affects the original lations and administrative provisions necessary to comply condition of the product or that (c) the presentation of the with Directive 2007/44/EC ( 1) of the European Parliament repackaged product is of such a kind that it may be and of the Council of 5 September 2007 amending Council assumed to harm the trade mark or its proprietor’s repu Directive 92/49/EEC and Directives 2002/83/EC, tation? 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of holdings in the financial sector and, in any event, by failing to communicate 4. If, in answering Question (iii), the Court finds that it is also them to the Commission, the Portuguese Republic has failed relevant to take account of the fact that the repackaging to fulfil its obligations under Directive 2007/44/EC. company potentially infringes independently the trade mark rights of the trade mark proprietor, the Court is asked to indicate whether it is of significance to this answer that the marketing company and repackaging — Order the Portuguese Republic to pay the costs. company of the parallel importer are jointly and severally liable under national law for the infringement of the trade mark proprietor’s trade mark rights? Pleas in law and main arguments The period prescribed for transposing the directive expired on 20 March 2009. 5. Is it of significance in answering Question (i) that the parallel importer which holds the marketing authorisation and has indicated itself as being responsible for repackaging,
at the time of the notification of the trade mark proprietor 1 prior to the intended sale of the repackaged medicinal ( ) OJ 2007 L 247, p. 1. product, belongs to the same group as the company which undertook the repackaging (sister company)? 3.7.2010 EN Official Journal of the European Union C 179/25
Reference for a preliminary ruling from the Højesteret Parties to the main proceedings (Denmark) lodged on 3 May 2010 — Post Danmark A/S v Konkurrencerådet Appellant: Doris Povse
(Case C-209/10) Respondent: Mauro Alpago (2010/C 179/40)
Language of the case: Danish
Questions referred Referring court 1. Is a ‘judgment on custody that does not entail the return of Højesteret the child’ within the meaning of Article 10(b)(iv) of Regu lation (EC) No 2201/2003 (‘Brussels II bis’) ( 1) also to be understood as meaning a provisional settlement by which ‘parental responsibility’, in particular the right to determine Parties to the main proceedings the place of residence, is awarded to the abducting parent Applicant: Post Danmark A/S pending the final judgment on custody?
Defendant: Konkurrencerådet 2. Does a return order fall within the scope of Article 11(8) of Brussels II bis only where the court orders return on the basis of a judgment on custody delivered by that court? Intervener: Forbruger-Kontakt a-s
3. If Question 1 or 2 is answered in the affirmative: Questions referred 1. Is Article 82 EC to be interpreted as meaning that selective price reductions on the part of a dominant postal under taking that has a universal service obligation to a level lower 3.1. Can the lack of jurisdiction of the court of origin than the postal undertaking’s average overall costs, but (Question 1) or the inapplicability of Article 11(8) of higher than the provider’s average incremental costs, can Brussels II bis (Question 2) in the second State be relied constitute exclusionary abuse, if it is established that the on as against the enforcement of a judgment in respect prices are not set at that level for the purpose of eliminating of which the court of origin has issued a certificate in a competitor? accordance with Article 42(2) of Brussels II bis?
2. If the answer to question 1 is that a selective price reduction in the circumstances outlined in question 1 can, in certain 3.2. Or, in such circumstances, must the defendant apply circumstances, constitute exclusionary abuse, what are the for that certificate to be revoked in the Member State circumstances that the national court should take into of origin, on the assumption that enforcement in the account? second State may be stayed pending the decision of the State of origin?
4. If Questions 1 and 2 or Question 3.1. are/is answered in the Reference for a preliminary ruling from the Oberster negative: Gerichtshof (Austria) lodged on 3 May 2010 — Doris Povse v Mauro Alpago
(Case C-211/10) Does a judgment delivered by a court in the second State and regarded as enforceable under the law of that State, by (2010/C 179/41) which provisional custody was awarded to the abducting parent preclude an earlier return order made by the first State under Article 11(8) of Brussels II bis, in accordance Language of the case: German with Article 47(2) of Brussels II bis, even if it did not prevent the enforcement of a return order made by the Referring court second State under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Oberster Gerichtshof (the ‘Hague Convention’)? C 179/26 EN Official Journal of the European Union 3.7.2010
5. If Question 4 is also answered in the negative: in the Internal Market (Trademarks & Designs) (OHIM) of 7 June 2007 upholding the decision of the Opposition Division, by which the opposition directed against Community trademark application 002 933 356 was 5.1. Can the second State refuse to enforce a judgment in rejected; respect of which the court of origin has issued a certificate under Article 42(2) of Brussels II bis if, since its delivery, the circumstances have changed in such a way that enforcement would now constitute a — following the conclusion of the written proceedings, serious risk to the best interests of the child? schedule an oral hearing before the Court of Justice;
5.2. Or must the defendant invoke that change of circum — order the Defendant to pay the costs of the proceedings. stances in the State of origin, on the assumption that enforcement in the second State may be stayed pending the decision of the State of origin? Pleas in law and main arguments The appellant submits that the judgment of the General Court ( 1 ) Council Regulation (EC) No 2201/2003 of 27 November 2003 should be set aside on the following grounds: concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000; OJ 2003 L 338, p. 1. — the General Court incorrectly upheld the Board of Appeal's assessment pertaining to the criteria of likelihood of confusion pursuant to article 8(1)(b) of the Community Trademark Regulation ( 1 ) (CTMR);
Appeal brought on 6 May 2010 by Lufthansa AirPlus — the General Court was incorrect in not dealing with the Servicekarten GmbH against the judgment of the General appellant's opposition based upon article 8(5) CTMR; Court (Sixth Chamber) delivered on 3 March 2010 in Case T-321/07: Lufthansa AirPlus Servicekarten GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) — the General Court infringed art 75 CTMR when it held that the Board of Appeal was entitled not to conduct a full (Case C-216/10 P) examination of the appellant's remaining arguments, in particular those pertaining to the distinctiveness of the (2010/C 179/42) appellant's prior trademark registration, ‘for reasons of economy of procedure’; Language of the case: English
— the judgment under appeal breaches article 76 CTMR; Parties Appellant: Lufthansa AirPlus Servicekarten GmbH (represented by: R. Kunze, G. Würtenberger, Rechtsanwälte) — the General Court was wrong when it accepted that the fact that OHIM did not notify the appellant of the change in the owner of the Community Trademark applications, thus Other parties to the proceedings: Office for Harmonisation in the depriving it of the opportunity to comment on the Internal Market (Trade Marks and Designs); Applus Servicios change of party, did not give rise to a serious breach of Tecnológicos, SL the appellant's right to a fair hearing;
— the General Court issued an Order for costs which was not Form of order sought in compliance with the pertinent provisions of European The appellant claims that the Court should: Union law.
— set aside the judgment of the General Court of 3 March 1 2010 in Case T-321/07 Lufthansa AirPlus Servicekarten ( ) Council Regulation (EC) No 40/94 of 20 December 1993 on the GmbH v. OHIM — Applus Servicios Tecnológicos, SL Community trade mark (The Judgement under Appeal), by which that court OJ L 11, p. 1 dismissed the action brought against the decision of the Second Board of Appeal of the Office for Harmonization 3.7.2010 EN Official Journal of the European Union C 179/27
Action brought on 10 May 2010 — European Commission Order of the President of the Court of 25 March 2010 — v Republic of Estonia European Commission v Kingdom of Belgium
(Case C-231/10) (Case C-315/09) ( 1 )
(2010/C 179/43) (2010/C 179/44)
Language of the case: Estonian Language of the case: French The President of the Court has ordered that the case be removed Parties from the register. Applicant: European Commission (represented by S. Pardo Quin tillán and E. Randvere, acting as Agents) ( 1 ) OJ C 256, 24.10.2009. Defendant: Republic of Estonia
Form of order sought — declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose Directive Order of the President of the Third Chamber of the Court 2006/118/EC of the European Parliament and of the of 3 April 2010 (reference for a preliminary ruling from Council of 12 December 2006 on the protection of 1 the Korkein oikeus (Finland)) — Virallinen syyttäjä v Malik groundwater against pollution and deterioration ( ) and/or Gataev, Khadizhat Gataeva by failing to inform the Commission thereof, the Republic of Estonia has failed to fulfil its obligations under the 1 directive; (Case C-105/10 PPU) ( )
— order the Republic of Estonia to pay the costs. (2010/C 179/45)
Pleas in law and main arguments Language of the case: Finnish The period prescribed for transposing the directive into national The President of the Third Chamber has ordered that the case law expired on 16 January 2009. be removed from the register.
( 1 ) OJ 2006 L 372, p. 19.
( 1 ) OJ C 100, 17.4.2010. C 179/28 EN Official Journal of the European Union 3.7.2010
GENERAL COURT
Judgment of the General Court of 21 May 2010 — France Operative part of the judgment v Commission The Court:
(Case T-425/04, T-444/04, T-450/04 and T-456/04) ( 1 )
(State aid — Financial measures in favour of France Télécom — Draft shareholder’s advance — Public declarations by a 1. Annuls Article 1 of Commission Decision 2006/621/EC of 2 member of the French Government — Decision declaring the August 2004 on the State Aid implemented by France for France aid incompatible with the common market and not ordering Télécom; its recovery — Action for annulment — Interest in bringing proceedings — Admissibility — Meaning of State Aid — Advantage — State resources — Duty to state reasons)
(2010/C 179/46) 2. Declares that it is no longer necessary to adjudicate on the claims for annulment of Article 2 of Decision 2006/621; Language of the case: French
Parties 3. In Cases T-425/04 and T-444/04, orders the European Applicants: (in Case T-425/04) French Republic (represented by: Commission to bear its own costs and to pay those incurred by initially, G. de Bergues, R. Abraham and S. Ramet, subsequently, the French Republic and by France Télécom SA; E. Belliard, M. de Bergues and S. Ramet and lastly, E. Belliard, M. de Bergues, A.-L. Vendrolini and J.-C. Niollet, Agents); (in Case T-444/04) France Télécom SA (Paris, France) (represented by: initially, A. Gosset-Grainville and S. Hautbourg, subsequently, S. Hautbourg, lawyers); (in Case T-450/04) Bouygues SA (Paris); 4. In Cases T-425/04 and T-444/04, orders Bouygues SA and Bouygues Télécom SA (Boulogne-Billancourt, France) (repre Bouygues Télécom SA to bear their own costs; sented by: J. Vogel, F. Sureau, D. Théophile and J. Blouet Gaillard, lawyers); and (in Case T-456/04) Association française des opérateurs de réseaux et services de telecommuni cations (AFORS Télécom) (Paris) (represented by O. Fréget, F. Herrenschmidt, M. Struys and L. Eskenazi, lawyers) 5. In Cases T-450/04, orders Bouygues SA and Bouygues Télécom SA to bear their own costs and to pay half of the costs incurred by the Commission;
Defendant: European Commission (represented by: C. Giolito and J. Buendía Sierra and subsequently C. Giolito and D. Grespan, Agents) 6. In Case T-450/04, orders the Commission to bear half of its own costs;
Interveners in support of the defendant: (in Cases T-450/04 and T-456/04) French Republic (represented by: (in Case 7. In Case T-456/04, orders the Association française des opérateurs T-450/04) E. Belliard, M. de Bergues, A.-L. Vendrolini and J.-C de réseaux et services de télécommunications (AFORS Télécom) Niollet, and (in Case T-456/04) M. de Bergues, Agents); (in Case and the Commission to bear their own costs; T-444/04) Bouygues SA (Paris); Bouygues Télécom SA (Boulogne-Billancourt) (represented by: J. Vogel, F. Sureau, D. Théophile and J. Blouet Gaillard, lawyers); and (in Cases T-450/04 and T-456/04) France Télécom SA (Paris) (represented by: initially, A. Gosset-Grainville and S. Hautbourg, 8. In Cases T-450/04 and T-456/04, orders French Republic and subsequently, by S. Hautbourg, lawyers) France Télécom to bear their own costs.
Re: ( 1 ) OJ C 19, 22.1.2005. Actions for annulment of Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom (OJ 2006 L 257, p. 11). 3.7.2010 EN Official Journal of the European Union C 179/29
Judgment of the General Court of 19 May 2010 — 5. Orders the Council of the European Union to bear its own costs. Wieland-Werke and Others v Commission
(Case T-11/05) ( 1) ( 1 ) OJ C 93, 16.4.2005. (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Ne bis in idem principle — Fines — Actual impact on the market — Size of the relevant market — Duration of the infringement — Judgment of the General Court of 19 May 2010 — IMI and Attenuating circumstances) Others v Commission
(2010/C 179/47) (Case T-18/05) ( 1)
Language of the case: German (Competition — Agreements, decisions and concerted practices — Copper plumbing tubes sector — Decision finding an infringement of Article 81 EC — Continuous and Parties multiform infringement — Interruption of participation — Fines — Limited participation in the cartel) Applicants: Wieland-Werke AG (Ulm, Germany); Buntmetall Amstetten GmbH (Amstetten, Austria); and Austria Buntmetall AG (Enzesfeld, Austria); (represented by: R. Bechtold and U. (2010/C 179/48) Soltész, lawyers) Language of the case: English
Defendant: European Commission (represented by: F. Castillo de Parties la Torre and É. Gippini Fournier, Agents, and by G. Eickstädt, lawyer) Applicants: IMI plc (Birmingham, Warwickshire, United Kingdom); IMI Kynoch Ltd (Birmingham); and Yorkshire Copper Tube (Liverpool, Merseyside, United Kingdom) (repre Intervener in support of the defendant: Council of the European sented by: M. Struys and D. Arts, lawyers) Union (represented by: J. Huber and G. Kimberley, Agents)
Defendant: European Commission (represented by: É. Gippini Fournier and S. Noë, Agents) Re: Application, first, for annulment of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Re: Agreement (Case COMP/E-1/38.069 — Copper plumbing Application for (1) annulment of Article 1(h) to (j) and Article tubes); second, in the alternative, for reduction of the fines 2(f) of Commission Decision C(2004) 2826 of 3 September imposed on the applicants by that decision; and third, by way 2004 relating to a proceeding pursuant to Article 81 [EC] of counterclaim by the Commission, for those fines to be and Article 53 of the EEA Agreement (Case COMP/ increased. E-1/38.069 — Copper plumbing tubes); and (2) in the alter native, reduction in the amount of the fine imposed on the applicants by that decision. Operative part of the judgment The Court: Operative part of the judgment The Court: 1. Dismisses the action;
1. Annuls Article 1(h) to (j) of Commission Decision C(2004) 2. Dismisses the European Commission’s counterclaim; 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes) in so far as it 3. Orders Wieland-Werke AG, Buntmetall Amstetten GmbH and relates to the period from 1 December 1994 to 11 April 1996; Austria Buntmetall AG to bear their own costs and to pay 90 % of the costs incurred by the Commission; 2. Determines the amount of the fine imposed jointly and severally on IMI plc, IMI Kynoch Ltd and Yorkshire Copper Tube in Article 4. Orders the Commission to bear 10 % of its own costs; 2(f) of Decision C(2004) 2826 at EUR 38.556 million; C 179/30 EN Official Journal of the European Union 3.7.2010
3. Dismisses the action as to the remainder; Operative part of the judgment The Court:
4. Orders the European Commission to pay its own costs and 40 % of the costs incurred by IMI, IMI Kynoch and Yorkshire Copper 1. Dismisses the action; Tube;
2. Dismisses the European Commission’s counterclaim; 5. Orders IMI, IMI Kynoch and Yorkshire Copper Tube to bear 60 % of their own costs.
3. Orders Boliden AB, Outokumpu Copper Fabrication AB and Outokumpu Copper BCZ SA to bear their own costs and to pay 90 % of the costs incurred by the Commission; ( 1 ) OJ C 69, 19.3.2005.
4. Orders the Commission to bear 10 % of its own costs.
Judgment of the General Court of 19 May 2010 — Boliden 1 and Others v Commission ( ) OJ C 82, 2.4.2005.
(Case T-19/05) ( 1)
(Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Continuous and Judgment of the General Court of 19 May 2010 — multiform infringement — Fines — Limitation period — Outokumpu and Luvata v Commission Cooperation) (Case T-20/05) ( 1) (2010/C 179/49) (Competition — Agreements, decisions and concerted practices Language of the case: English — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Fines — Size of the relevant market — Aggravating circumstance — Repeat Parties infringement) Applicants: Boliden AB (Stockholm, Sweden); Outokumpu Copper Fabrication AB, formerly Boliden Fabrication AB (2010/C 179/50) (Västerås, Sweden); Outokumpu Copper BCZ SA, formerly Boliden Cuivre & Zinc SA (Liège, Belgium) (represented: Language of the case: English initially by C. Wetter and O. Rislund and subsequently by C. Wetter and M. Johansson, lawyers) Parties Applicants: Outokumpu Oyj (Espoo, Finland); and Luvata Oy, formerly Outokumpu Copper Products Oy (Espoo) (represented Defendant: European Commission (represented by: É. Gippini by: J. Ratliff, Barrister, F. Distefano and J. Luostarinen, lawyers) Fournier and S. Noë, Agents)
Defendant: European Commission (represented by: É. Gippini Re: Fournier and S. Noë, Agents) Application (i) for annulment of Article 1(a) to (c) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding under Article 81 [EC] and Article 53 Re: of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes) in so far as it was thereby found that the Application for cancellation or reduction of the fine imposed on applicants participated in an infringement between 1 July the applicants under Article 2(j) of Commission Decision 1995 and 27 August 1998 and between 10 December 1998 C(2004) 2826 of 3 September 2004 relating to a proceeding and 7 October 1999; (ii) for reduction of the fine imposed on pursuant to Article 81 [EC] and Article 53 of the EEA the applicants by that decision; and (iii) by way of counterclaim Agreement (Case COMP/E-1/38.069 — Copper plumbing by the Commission, for the amount of that fine to be increased. tubes). 3.7.2010 EN Official Journal of the European Union C 179/31
Operative part of the judgment 2. Dismisses the action as to the remainder; The Court: 3. Orders Chalkor Epexergasias Metallon and the European 1. Dismisses the action; Commission to bear their own costs.
2. Orders Outokumpu Oyj and Luvata Oy to pay the costs. ( 1 ) OJ C 82, 2.4.2005.
( 1 ) OJ C 82, 2.4.2005.
Judgment of the General Court of 19 May 2010 — KME Germany and Others v Commission
Judgment of the General Court of 19 May 2010 — Chalkor (Case T-25/05) ( 1) v Commission (Competition — Agreements, decisions and concerted practices 1 (Case T-21/05) ( ) — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Fines — Actual impact (Competition — Agreements, decisions and concerted practices on the market — Size of the relevant market — Duration — Copper plumbing tube industry — Decision finding an of the infringement — Ability to pay — Cooperation) infringement of Article 81 EC — Continuous and multiform infringement — Fines — Limited participation in (2010/C 179/52) the cartel — Geographic extent of the relevant market — Duration of the infringement — Cooperation) Language of the case: English
(2010/C 179/51) Parties Language of the case: English Applicants: KME Germany AG, formerly KM Europa Metal AG (Osnabrück, Germany); KME France SAS, formerly Tréfimétaux SA (Courbevoie, France); and KME Italy SpA, formerly Europa Parties Metalli SpA (Florence, Italy) (represented by: M. Siragusa, A. Applicant: Chalkor AE Epexergasias Metallon (Athens, Greece) Winckler, G.C. Rizza, T. Graf, M. Piergiovanni, lawyers, and R. (represented by: I. Forrester QC, A. Schulz and A. Komninos, Elderkin, Barrister) lawyers)
Defendant: European Commission (represented by: É. Gippini Defendant: European Commission (represented by: P. Oliver and Fournier, S. Noë and C. Thomas, Agents) S. Noë, Agents)
Re: Re: Application, first, for reduction of the fines imposed on the Application for cancellation or reduction of the fine imposed on applicants under Article 2(g), (h) and (i) of Commission the applicant by Commission Decision C(2004) 2826 of 3 Decision C(2004) 2826 of 3 September 2004 relating to a September 2004 relating to a proceeding pursuant to Article proceeding pursuant to Article 81 [EC] and Article 53 of the 81 [EC] and Article 53 of the EEA Agreement (Case COMP/ EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing E-1/38.069 — Copper plumbing tubes). tubes) and, second, by way of counterclaim by the Commission, for those fines to be increased.
Operative part of the judgment The Court: Operative part of the judgment The Court: 1. Orders that the fine imposed on Chalkor AE Epexergasias Metallon under Article 2(d) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant 1. Dismisses the action; to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes) shall be set at EUR 8,2467 million. 2. Dismisses the European Commission’s counterclaim; C 179/32 EN Official Journal of the European Union 3.7.2010
3. Orders KME Germany AG, KME France SAS and KME Italy Spa Judgment of the General Court of 20 May 2010 — to bear their own costs and to pay 50 % of the costs incurred by Germany v Commission the Commission; (Case T-258/06) ( 1) 4. Orders the Commission to bear 50 % of its own costs. (Provisions applicable to public procurement — Contract awards not subject, or not subject in full, to the Public Procurement Directives — Interpretative communication of ( 1 ) OJ C 82, 2.4.2005. the Commission — Actionable measure — Measure intended to produce legal effects)
(2010/C 179/54)
Judgment of the General Court of 12 May 2010 — EMC Language of the case: German Development v Commission Parties (Case T-432/05) ( 1) Applicant: Federal Republic of Germany (represented by: M. (Competition — Agreements, decisions and concerted practices Lumma and C. Schulze-Bahr, Agents) — European cement market — Decision rejecting a complaint — Harmonised standard for cement — Binding nature — Guidelines on the applicability of Article 81 EC to horizontal Defendant: European Commission (represented by: X. Lewis and cooperation agreements) B. Schima, Agents)
(2010/C 179/53) Interveners in support of the applicant: French Republic (represented Language of the case: English initially by: G. de Bergues, subsequently by G. de Bergues and J.- C. Gracia, and finally by G. de Bergues and J.-S. Pilczer, Agents); Republic of Austria (represented by: M. Fruhmann, C. Pesen Parties dorfer and C. Mayr, Agents); Republic of Poland (represented Applicant: EMC Development AB (Luleå, Sweden) (represented initially by E. Ośniecka-Tamecka, subsequently by T. Nowa by: M. Elvinger and W. -N. Schelp, lawyers) kowski, subsequently by M. Dowgielewicz, subsequently by M. Dowgielewicz, K. Rokicka and K. Zawisza, and finally by M. Szpunar, Agents); Kingdom of the Netherlands (represented Defendant: European Commission (represented by: initially É. initially by: H. Sevenster, subsequently by C. Wissels and M. Gippini Fournier and B. Doherty, and subsequently by É. de Grave, and finally by C. Wissels, M. de Grave and Y. de Gippini Fournier and J. Bourke, acting as Agents) Vries, Agents); European Parliament (represented by U. Rösslein and J. Rodrigues, Agents); Hellenic Republic (repre sented by: D. Tsagkaraki and M. Tassopoulou, Agents); United Re: Kingdom of Great Britain and Northern Ireland (represented initially by: Z. Bryanston-Cross, and subsequently by L. Application for annulment of Commission Decision SG-Greffe Seeboruth, Agents) (2005) D/205249 of 28 September 2005 rejecting the complaint brought by the applicant against European Portland cement producers, the European Cement Association (Cembureau) and the European Committee for Standardisation Re: (CEN) in relation to the European cement market. Action for the annulment of the Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Operative part of the judgment Procurement Directives (OJ 2006 C 179, p. 2). The Court:
1. Dismisses the action; Operative part of the judgment The Court: 2. Orders EMC Development AB to bear its own costs and to pay the costs incurred by the European Commission. 1. Dismisses the action as inadmissible;
( 1 ) OJ C 36, 11.2.2006. 2. Orders the Federal Republic of Germany to bear its own costs and to pay those incurred by the European Commission; 3.7.2010 EN Official Journal of the European Union C 179/33
3. Orders the French Republic, the Republic of Austria, the Republic Judgment of the General Court of 12 May 2010 — Beifa of Poland, the Kingdom of the Netherlands, the European Group v OHIM — Schwan-Stabilo Schwanhaüßer Parliament, the Hellenic Republic and the United Kingdom of (Instrument for writing) Great Britain and Northern Ireland to bear their own costs. (Case T-148/08) ( 1)
(Community design — Invalidity proceedings — Registered 1 ( ) OJ C 294, 2.12.2006. Community design representing an instrument for writing — Earlier national figurative mark — Ground for invalidity — Use in the Community design of an earlier sign the holder of which has the right to prohibit such use — Article 25(1)(e) of Regulation (EC) No 6/2002 — Request for proof of genuine use of the earlier mark made for the first time Judgment of the General Court of 11 May 2010 — before the Board of Appeal) PC-Ware Information Technologies v Commission (2010/C 179/56) (Case T-121/08) ( 1) Language of the case: English (Public supply contracts — Community tendering procedure — Acquisition of software products and licences — Rejection of a tender — Abnormally low tender — Obligation to state Parties reasons) Applicant: Beifa Group Co. Ltd (Ningbo, Zhejiang, China) (repre sented by: R. Davis, Barrister, and N. Cordell, Solicitor) (2010/C 179/55)
Language of the case: Dutch Defendant: Office for Harmonisation in the Internal Market Parties (Trade Marks and Designs) (OHIM) (represented by: A. Folliard Monguiral, acting as Agent) Applicant: PC-Ware Information Technologies BV (Amsterdam, Netherlands) (represented by: L. Devillé and B. Maerevoet, lawyers) Other party to the proceedings before the Board of Appeal of OHIM: Schwan-Stabilo Schwanhaüßer GmbH & Co. KG (Heroldsberg, Defendant: European Commission (represented by: E. Manhaeve, Germany) (represented by: U. Blumenröder and H. Gauß, Agent, and P. Wytinck, lawyer) lawyers)
Re: APPLICATION, principally, for annulment of the Commission’s Re: decision of 11 January 2008 rejecting the tender submitted by the applicant in public procurement procedure DIGIT/ Action brought against the decision of the Third Board of R2/PO/2007/022 and, in the alternative, for compensation for Appeal of OHIM of 31 January 2008 (Case R 1352/2006-3) the loss allegedly suffered by the applicant as a result of the relating to invalidity proceedings between Schwan-Stabilo Commission’s conduct. Schwanhaüßer GmbH & Co. KG and Ningo Beifa Group Co., Ltd in respect of a Community design.
Operative part of the judgment
The Court: Operative part of the judgment The Court: 1. Dismisses the action;
2. Orders PC-Ware Information Technologies BV to pay the costs. 1. Annuls the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 31 January 2008 (Case R 1352/2006-3);
( 1 ) OJ C 116, 9.5.2008.
2. Dismisses the action as to the remainder; C 179/34 EN Official Journal of the European Union 3.7.2010
3. Orders OHIM to bear its own costs and to pay those incurred by Judgment of the General Court of 19 May 2010 — Tay Za Beifa Group Co. Ltd, and orders Schwan Stabilo Schwanhaüßer v Council GmbH & Co. KG to bear its own costs. (Case T-181/08) ( 1)
(Common foreign and security policy — Restrictive measures ( 1 ) OJ C 142, 7.6.2008. against Myanmar — Freezing of funds — Action for annulment — Joint legal basis of Articles 60 EC and 301 EC — Obligation to state the reasons on which a decision is based — Rights of the defence — Right to effective judicial review — Right to respect for property — Proportionality)
Order of the General Court of 19 May 2010 — (2010/C 179/58) Arbeitsgemeinschaft Golden Toast v OHIM (Golden Toast) Language of the case: English
(Case T-163/08) ( 1) Parties (Community trade mark — Application for the Community word mark Golden Toast — Absolute ground for refusal — Applicant: Pye Phyo Tay Za (Yangon, Myanmar) (represented by: Descriptive character — Article 7(1)(c) of Regulation (EC) No D. Anderson QC, M. Lester, Barrister, and G. Martin, Solicitor) 40/94 (now Article 7(1)(c) of Regulation No 207/2009))
(2010/C 179/57) Defendant: Council of the European Union (represented by: M. Language of the case: German Bishop and E. Finnegan, Agents)
Parties Applicant: Arbeitsgemeinschaft Golden Toast e.V. (Düsseldorf, Germany) (represented by: A. Späth and G. Hasselblatt, lawyers) Interveners in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented initially by S. Behzadi- Spencer, acting as Agent, and subsequently by I. Rao, acting as Agent, and by D. Beard, Barrister); and European Commission Defendant: Office for Harmonisation in the Internal Market (represented by: A. Bordes, P. Aalto and S. Boelaert, Agents) (Trade Marks and Designs) (OHIM) (represented by: S. Schäffner, Agent)
Re: Re: Action brought against the decision of the First Board of Appeal Application for annulment of Council Regulation (EC) No of OHIM of 31 January 2008 (Case R 761/2007-1) relating to 194/2008 of 25 February 2008 renewing and strengthening an application to register the word sign Golden Toast as a the restrictive measures in respect of Burma/Myanmar and Community trade mark. repealing Regulation (EC) No 817/2006 (OJ 2008 L 66, p. 1), in so far as the applicant’s name appears on the list of persons, entities or bodies to which the regulation applies.
Operative part of the order The Court Operative part of the judgment The Court: 1. Dismisses the action;
2. Orders the Arbeitsgemeinschaft Golden Toast e.V. to pay the costs. 1. Dismisses the application.
( 1 ) OJ C 171, 5.7.2008. 2. Orders Pye Phyo Tay Za to bear his own costs and to pay those incurred by the Council of the European Union. 3.7.2010 EN Official Journal of the European Union C 179/35
3. Orders the United Kingdom of Great Britain and Northern Ireland 2. Orders Abadía Retuerta, SA, to pay the costs. and the European Commission to bear their own costs.
( 1 ) OJ C 272, 25.10.2008.
( 1 ) OJ C 171, 5.7.2008.
Judgment of the General Court of 19 May 2010 — Ravensburger v OHIM — Educa Borras (EDUCA Memory game) Judgment of the General Court of 11 May 2010 — Abadía 1 Retuerta v OHIM (CUVÉE PALOMAR) (Case T-243/08) ( )
(Case T-237/08) ( 1) (Community trade mark — Invalidity proceedings — Community figurative mark EDUCA Memory game — Earlier national and international word marks MEMORY — (Community trade mark — Application for the Community Relative ground for refusal — Lack of similarity between the word mark CUVÉE PALOMAR — Absolute ground for signs — Articles 8(1)(b) and (5), 74 and 75 of Regulation refusal — Trade marks for wines containing geographical (EC) No 40/94 (now Articles 8(1)(b) and (5), 76 and 77 of indications — TRIPS Agreement — Article 7(1)(j) of Regu Regulation (EC) No 207/2009)) lation (EC) No 40/94 (now Article 7(1)(j) of Regulation (EC) No 207/2009)) (2010/C 179/60) (2010/C 179/59) Language of the case: English Language of the case: Spanish Parties Parties Applicant: Ravensburger AG (Ravensburg, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers) Applicant: Abadía Retuerta, SA (Sardón de Duero, Spain) (repre sented by: X. Fàbrega Sabaté and M-l. Curell Aguilà, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: D. Botis, Agent) Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: J. Crespo Carrillo, Agent) Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Educa Borras, SA (Barcelona, Spain) (represented by: I. Valdelomar Serrano, lawyer)
Re: Action brought against the decision of the First Board of Appeal of OHIM of 2 April 2008 (Case R 1185/2007-1), concerning Re: registration of the word sign CUVÉE PALOMAR as a Action brought against the decision of the Second Board of Community trade mark. Appeal of OHIM of 8 April 2008 (Case R 597/2007-2) relating to invalidity proceedings between Ravensburger AG and Educa Borras, SA.
Operative part of the judgment Operative part of the judgment The Court: The Court:
1. Dismisses the action; 1. Dismisses the action. C 179/36 EN Official Journal of the European Union 3.7.2010
2. Orders Ravensburger AG to pay the costs. Judgment of the General Court of 19 May 2010 — Zeta Europe v OHIM (Superleggera)
(Case T-464/08) ( 1)
( 1 ) OJ C 209, 15.8.2008. (Community trade mark — Application for the figurative Community trade mark Superleggera — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) — Examination of the facts of its own motion — Article 74 of Regulation No Judgment of the General Court of 19 May 2010 — Nexus 40/94 (now Article 76 of Regulation No 207/2009) — Obli Europe (Ireland) v Commission gation to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009)) (Case T-424/08) ( 1) (2010/C 179/62) (Arbitration clause — Fifth framework programme for research, technological development and demonstration Language of the case: Italian activities — Macro-Economic and Urban Trends in Europe’s Information Society (MUTEIS) Project — Loss caused by amending a contract in relation to the system for reimbursing Parties costs incurred by a participant in the project) Applicant: Zeta Europe BV (Arnhem, Netherlands) (represented by: V. Bilardo, C. Bacchini and M. Mazzitelli, lawyers) (2010/C 179/61)
Language of the case: English
Defendant: Office for Harmonisation in the Internal Market Parties (Trade Marks and Designs) (OHIM) (represented by: A. Sempio Applicant: Nexus Europe (Ireland) Ltd (Dublin, Ireland) (repre and O. Montalto, acting as Agents) sented by: M. Noonan, Barrister)
Defendant: European Commission (represented by: R. Lyal and Re: A. Sauka, Agents) Action brought against the decision of the First Board of Appeal of OHIM of 17 July 2008 (Case R 666/2008-1), concerning an application for the registration of the figurative sign Super Re: leggera as a Community trade mark Application for compensation for the loss allegedly suffered by the applicant as a consequence of the Commission obtaining certain amendments to the contract MUTEIS IST-2000-30117, concluded on 31 October 2001. Operative part of the judgment The Court:
Operative part of the judgment The Court: 1. Dismisses the action;
1. Dismisses the action;
2. Orders Zeta Europe BV to pay the costs. 2. Orders Nexus Europe (Ireland) Ltd to pay the costs.
( 1 ) OJ C 313 of 6.12.2008 ( 1 ) OJ C 6, 10.1.2009. 3.7.2010 EN Official Journal of the European Union C 179/37
Judgment of the General Court of 12 May 2010 — Bui Van Judgment of the General Court of 11 May 2010 — v Commission Wessang v OHIM — Greinwald (star foods)
(Case T-491/08 P) ( 1 ) (Case T-492/08) ( 1)
(Appeal — Staff case — Officials — Appointment — Clas (Community trade mark — Opposition proceedings — Appli sification in grade — Withdrawal of an administrative cation for the figurative Community trade mark star foods — measure — Protection of legitimate expectations — Earlier Community figurative and word marks STAR Reasonable time — Right to be heard) SNACKS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation No 40/94 (now (2010/C 179/63) Article 8(1)(b) of Regulation No 207/2009))
Language of the case: French (2010/C 179/64)
Language of the case: German Parties
Appellant: Philippe Bui Van (Hettange-Grande, France) (repre Parties sented by: P. Nelissen Grade, lawyer) Applicant: Nicolas Wessang (Zimmerbach, France) (represented by: A. Grolée, lawyer)
Other party to the proceedings: European Commission (represented by: J. Currall and G. Berscheid, Agents) Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: A. Führer and G. Schneider, acting as Agents) Re: Appeal against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 September 2008 in Case F-51/07 Bui Van v Commission, not yet published in the Other party to the proceedings before the Board of Appeal of OHIM: ECR, for annulment of that judgment. Greinwald GmbH (Kempten, Germany) (represented by: A. Schulz, lawyer)
Operative part of the judgment The Court: Re: Action brought against the decision of the Fourth Board of Appeal of OHIM of 17 September 2008 (Case R 1408/ 2007-4) relating to opposition proceedings between Nicolas 1. Annuls the judgment of the European Union Civil Service Wessang and Greinwald GmbH Tribunal (Second Chamber) of 11 September 2008 in Case F-51/07 Bui Van v Commission inasmuch as it awards Philippe Bui Van damages of EUR 1 500;
Operative part of the judgment 2. Dismisses the appeal and the remainder of the claims in the cross- The Court: appeal;
1. Annuls the decision of the Fourth Board of Appeal of the Office 3. Remits the case to the Civil Service Tribunal for it to give for Harmonisation in the Internal Market (Trade Marks and judgment on the action for damages; Designs) (OHIM) of 17 September 2008 (Case R 1408/2007-4);
4. Reserves the costs.
2. orders Greinwald GmbH to bear its own costs and to pay a third of Nicolas Wessang’s costs;
( 1 ) OJ C 32, 7.2.2009.
3. orders Wessang to bear two-thirds of his own costs; C 179/38 EN Official Journal of the European Union 3.7.2010
4. orders OHIM to bear its own costs. 3. Reserves the costs.
1 ( 1 ) OJ C 32 of 7.2.2009 ( ) OJ C 55, 7.3.2009.
Judgment of the General Court of 19 May 2010 — Judgment of the General Court of 12 May 2010 — Ravensburger v OHIM — Educa Borras (MEMORY) European Commission v Meierhofer
(Case T-108/09) ( 1) (Case T-560/08 P) ( 1 ) (Community trade mark — Invalidity proceedings — (Appeals — Civil service — Recruitment — Open competition Community word mark MEMORY — Absolute ground for — Decision that a candidate had failed the oral test — refusal — Descriptive character — Article 7(1)(c) and Commission’s refusal to comply with a measure of organi Article 75 of Regulation (EC) No 40/94 (now Article sation of procedure) 7(1)(c) and Article 77 of Regulation (EC) No 207/2009))
(2010/C 179/65) (2010/C 179/66)
Language of the case: German Language of the case: English
Parties Parties Appellant: European Commission (represented by: J. Currall and Applicant: Ravensburger AG (Ravensburg, Germany) (represented B. Eggers, acting as Agents, assisted by B. Wägenbaur, lawyer) by: G. Würtenberger and R. Kunze, lawyers)
Other party to the proceedings: Stefan Meierhofer (Munich, Defendant: Office for Harmonisation in the Internal Market Germany) (represented by: H. -G. Schiessl, lawyer) (Trade Marks and Designs) (OHIM) (represented by: D. Botis, agent)
Re: Other party to the proceedings before the Board of Appeal of OHIM, APPEAL against the judgment of the European Union Civil intervening before the General Court: Educa Borras, SA (Barcelona, Service Tribunal (First Chamber) of 14 October 2008 in Case Spain) (represented by: I. Valdelomar Serrano, lawyer) F-74/07 Meierhofer v Commission [2008] ECR-SC I A 1-0000 and II A-1-0000 seeking to have that judgment set aside
Re: Action brought against the decision of the Second Board of Operative part of the judgment Appeal of OHIM of 8 January 2009 (Case R 305/2008-2), relating to invalidity proceedings between Educa Borras, SA The Court: and Ravensburger AG.
1. Sets aside the judgment of the Civil Service Tribunal of 14 October 2008 in Case F-74/07 Meirehofer v Commission Operative part of the judgment [2008] ECR-SC A-I-1-0000 and II-A-1-0000; The Court:
2. Refers the case back to the Civil Service Tribunal. 1. Dismisses the action; 3.7.2010 EN Official Journal of the European Union C 179/39
2. Orders Ravensburger AG to pay the costs. Order of the President of the General Court of 7 May 2010 — Almamet v Commission
(Case T-410/09 R)
( 1 ) OJ C 129, 6.6.2009. (Interim measures — Competition — Commission decision imposing a fine — Bank guarantee — Application for suspension of operation of a measure — Financial loss — No exceptional circumstances — No urgency)
(2010/C 179/68) Order of the General Court of 6 May 2010 — Kerelov v Commission Language of the case: English
1 (Case T-100/08 P) ( ) Parties
(Appeal — Civil Service — Recruitment — General Applicant: Almamet GmbH Handel mit Spänen und Pulvern aus competition — Refusal by the Director of EPSO to Metall (Ainring, Germany) (represented by: S. Hautbourg and C. communicate to a candidate information and documents Renner, lawyers) relating to the admission test — Appeal in part manifestly inadmissible and in part manifestly unfounded) Defendant: European Commission (represented by: N. Khan, V. Bottka and N. von Lingen, agents) (2010/C 179/67)
Language of the case: French Re: APPLICATION for suspension of the operation of the Parties Commission Decision of 22 July 2009 relating to a proceeding Appellant: Georgi Kerelov (Pazardzhik, Bulgaria) (represented by: under Article 81 [EC] and Article 53 of the EEA Agreement A. Kerelov, lawyer) (Case COMP/F-1/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries)
Other party to the proceedings: European Commission (represented Operative part of the order by: B. Eggers and K. Herrmann, Agents) 1. The application for interim measures is dismissed.
2. Costs are reserved. Re: Appeal brought against the order of the Civil Service Tribunal of the European Union (Second Chamber) of 12 December 2007 in Case F-110/07 Kerelov v Commission, not published in the ECR, asking for that order to be set aside. Order of the President of the General Court of 12 May 2010 — Reagens v Commission
(Case T-30/10 R)
Operative part of the order (Application for interim measures — Competition — 1. The appeal is dismissed. Commission decision imposing a fine — Bank guarantee — Application for suspension of operation of the decision — Financial loss — Absence of exceptional circumstances — No urgency) 2. Georgi Kerelov is ordered to bear his own costs and pay the costs incurred by the Commission in the context of the present (2010/C 179/69) proceedings. Language of the case: English
Parties ( 1 ) OJ C 69 of 21.3.2009 Applicant: Reagens SpA (San Giorgio di Piano, Italy) (represented by: B. O’Connor, Solicitor, and L. Toffoletti, D. Gullo and E. De Giorgi, lawyers) C 179/40 EN Official Journal of the European Union 3.7.2010
Defendant: European Commission (represented by: J. Bourke and Operative part of the order F. Ronkes Agerbeek, acting as Agents) 1. The application for interim measures is dismissed.
Re: 2. Costs are reserved. APPLICATION for suspension of operation of the Commission decision of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (COMP/38.589 — heat stabilisers)
Operative part of the order Order of the President of the General Court of 28 April 2010 — Parliament v U 1. The application for interim measures is dismissed. (Case T-103/10 P(R)-R)
2. Costs are reserved. (Interim measures — Civil Service — Officials — Decision to dismiss — Order of the President of the Civil Service Tribunal of the European Union made in proceedings for interim measures — Application to suspend the operation of a measure — No need to adjudicate)
(2010/C 179/71)
Language of the case: French Order of the President of the General Court of 30 April 2010 — Xeda International v European Commission Parties (Case T-71/10 R) Appellant: European Parliament (represented by: S. Seyr and K. Zejdová, Agents) (Application for interim measures — Directive 91/414/EEC — Decision concerning the non-inclusion of diphenylamine in Annex I to Directive 91/414 — Application for suspension of operation of a measure — Lack of urgency) Respondent: U (Luxembourg, Luxembourg) (represented by: F. Moyse and A. Salerno, lawyers) (2010/C 179/70)
Language of the case: English
Re: Parties Application to suspend the application of the order of the Applicant: Xeda International SA (Saint-Andiol, France) (repre President of the Civil Service Tribunal of the European Union sented by: C. Mereu, K. Van Maldegem, lawyers, and P. Sellar, of 18 December 2009 in Case F-92/09 R U v Parliament [2009] Solicitor) ECR I-0000.
Defendant: European Commission (represented by: D. Bianchi and L. Parpala, acting as Agents, assisted by J. Stuyck, lawyer) Operative part of the order 1. There is no longer a need to adjudicate on the application for interim measures made by the European Parliament.
Re: APPLICATION for suspension of operation of Commission 2. The costs are reserved. Decision 2009/859/EC of 30 November 2009 concerning the non-inclusion of diphenylamine in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2009 L 314, p. 79) pending judgment in the main proceedings. 3.7.2010 EN Official Journal of the European Union C 179/41
Action brought on 19 April 2010 — Apotheke DocMorris Action brought on 12 April 2010 — ARA v OHIM — v OHIM (Representation of a green cross) Allrounder (Representation of the letter ‘A’ with two horns) (Case T-173/10) (Case T-174/10) (2010/C 179/72) (2010/C 179/73) Language in which the application was lodged: German Language in which the application was lodged: German
Parties Parties Applicant: Apotheke DocMorris Holding GmbH (Stuttgart, Germany) (represented by Y. Dick, lawyer) Applicant: ara AG (Langenfeld, Germany) (represented by: M. Gail, lawyer)
Defendant: Office for Harmonisation in the Internal Market Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Form of order sought Allrounder SARL (Saarburg, France) — Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 February 2010 in Case R 1606/2008-4; and Form of order sought — Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 in case — Order the defendant to pay the costs. R 481/2009-1; and
— Order the Office for Harmonisation in the Internal Market Pleas in law and main arguments (Trade Marks and Designs) to pay the costs. Community trade mark concerned: Figurative mark, representing a green cross, for goods and services in Classes 3, 5, 8, 9, 10, 11, 16, 21, 25, 29, 30, 32, 35 to 42 and 44 (Application No 5 930 946). Pleas in law and main arguments Applicant for a Community trade mark: Allrounder SARL.
Decision of the Examiner: Rejection of the application. Community trade mark concerned: Figurative mark, representing the letter ‘A’ with two horns, for goods in Classes 18 and 25.
Decision of the Board of Appeal: Dismissal of the appeal. Proprietor of the mark or sign cited in the opposition proceedings: The applicant. Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 207/2009 ( 1 ), as the Board of Appeal’s finding of distinc tiveness was in several respects incorrect. Mark or sign cited in opposition: In particular, a word mark ‘A’ for goods in Classes 18 and 25.
( 1 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Decision of the Opposition Division: Opposition rejected. Community trade mark (OJ 2009 L 78, p. 1).
Decision of the Board of Appeal: Action dismissed. C 179/42 EN Official Journal of the European Union 3.7.2010
Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) In support of its submissions, the applicant puts forward the No 207/2009, ( 1 ) since there is a likelihood of confusion following pleas in law: between the opposing marks.
The Commission made a manifest error in law applying in an extensive manner the exceptions under Article 4 of Regulation No 1049/2001. ( 1 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
In addition, the Commission made a manifest error in law rejecting the request of access to documents on the basis of a defence of the commercial interests of the undertakings and to protect the purpose of the investigation. Action brought on 23 April 2010 — Reagens v Commission Furthermore, the Commission breached the right of the applicant to have access to the non confidential versions of (Case T-181/10) the documents under Regulation No 1049/2001, by the denial of granting partial access. (2010/C 179/74)
Language of the case: English Finally, the Commission breached the principles of sound administration, legitimate expectations, as well as the principle that the administration should be lawful, by denying access to Parties the information needed in order to establish how the Applicant: Reagens SpA (San Giorgio di Piano, Italy) (represented Commission applies paragraph 35 of the Guidelines on the 2 by: B. O'Connor, Solicitor and L. Toffoletti, D. Gullo and E. De method of setting fines ( ). Giorgi, lawyers)
( 1 ) Regulation (EC) No 1049/2001 of the European Parliament and of Defendant: European Commission the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, p. 43. ( 2 ) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, OJ C 210, p. 2.
Form of order sought — Annul Commission Decision of 23 February 2010 rendered in the framework of the confirmatory application for access to documents GESTDEM 2009/5145 (SG.E.3/HP/cr-Ares (2010)95823); Action brought on 22 April 2010 — Sviluppo Globale v Commission
(Case T-183/10) — Require the Commission to make the documents listed on page 3 of the contested decision publicly available (in their (2010/C 179/75) non confidential form); and Language of the case: Italian
— Order the Commission to pay the costs. Parties Applicant: Sviluppo Globale GEIE (Rome, Italy) (represented by: F. Sciaudone, lawyer, R. Sciaudone, lawyer, and A. Neri, lawyer) Pleas in law and main arguments
By means of its application, the applicant seeks, pursuant to Defendant: European Commission Article 263 TFUE, the annulment of Commission Decision of 23 February 2010 rendered in the framework of the confirmatory application for access to documents GESTDEM 2009/5145 (SG.E.3/HP/cr-Ares (2010)95823), relating to a Form of order sought proceeding under Regulation (EC) No 1049/2001 ( 1). The decision concerned the request for access to documents — Annul the Commission decision of 14 February 2010; relating to applications for inability to pay a fine imposed on the applicant for an infringement of Articles 81 EC and 53 EEA (Case COMP/38589 — Heat Stabilisers). — Order the Commission to pay the costs. 3.7.2010 EN Official Journal of the European Union C 179/43
Pleas in law and main arguments Form of order sought The present action has been brought against the Commission’s — annulment of the decision of OHIM in Case R 1281/ decision of 14 February 2010 by which the Commission, in its 2008-1; capacity as contracting authority, notified Sviluppo Globale GEIE, the applicant, that it had excluded the consortium led by it from the short list drawn up for the restricted procedure EuropeAid/129038/C/SER/SY for the supply to the Syrian Government of technical assistance services designed to — reject the opposition to the filing of the trade mark G line facilitate decentralisation and local development. No 2421402 of Gucci spa;
In support of its action for annulment, Sviluppo Globale GEIE — consequently, order OHIM to pay the costs; alleges manifest error in the interpretation and application of the selection criteria laid down in the tender specifications. In particular, it argues, the Commission misapplied the selection criteria laid down in the tender specifications in respect of technical capability, thereby excluding the consortium led by — order Gucci spa to pay the costs or expenses of the Sviluppo Globale GEIE from the short list, despite the fact proceedings before OHIM. that it fulfilled the requirements laid down in those specifi cations. Such a manifest error on the part of the contracting authority can be seen clearly simply by comparing the technical capability requirements laid down for admission to the short list in question, on the one hand, with the actual technical capa Pleas in law and main arguments bility of the consortium led by Sviluppo Globale GEIE, on the Applicant for a Community trade mark: Maurice Emram. other.
Moreover, and in any event, Sviluppo Globale GEIE submits that Community trade mark concerned: Figurative trade mark “G” for the reasons stated for the exclusionary decision of 14 February goods in Classes 9, 18 and 25 — Application No 2 421 402. 2010 are inadequate, in that no explanation is given as to why its tender does not satisfy the selection criteria relating to technical capability as laid down in the tender specifications. Proprietor of the mark or sign cited in the opposition proceedings: Guccio Gucci SpA.
Mark or sign cited in opposition: Community and national figurate Action brought on 23 April 2010 — Emram v OHIM — trade marks “G” for goods in Classes 9, 18 and 25. Guccio Gucci (G)
(Case T-187/10) Decision of the Opposition Division: Rejection of the opposition. (2010/C 179/76)
Language in which the application was lodged: French
Decision of the Board of Appeal: Annulment of the decision of the Parties Opposition Division and refusal to register the mark applied for. Applicant: Maurice Emram (Marseille, France) (represented by: M. Benavï, lawyer)
Pleas in law: Infringement of Articles 8 and 75 of Regulation No 40/94 (now Articles 8 and 77 of Regulation No 207/2009) Defendant: Office for Harmonisation in the Internal Market inasmuch as the Board of Appeal failed to apply the legal (Trade Marks and Designs) provisions concerned correctly and carried out too brief an analysis of the evidence raised by the applicant.
Other party to the proceedings before the Board of Appeal of OHIM: Guccio Gucci SpA (Florence, Italy) C 179/44 EN Official Journal of the European Union 3.7.2010
Action brought on 20 April 2010 — GEA Group v some addressees or has been invoked before the courts. By its Commission fourth plea in law, the applicant argues that the alteration of the fine to its detriment is not permitted. Finally, the applicant (Case T-189/10) argues that time-bar applies, because the amending decision was adopted after the expiry of the limitation period laid (2010/C 179/77) down in Article 25(6) of Regulation No 1/2003.
Language of the case: German
( 1 ) Council Regulation (EC) No 1/2003 of 16 December 2002 on the Parties implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). Applicant: GEA Group AG (Bochum, Germany) (represented by: A. Kallmayer, I. du Mont and G. Schiffers, lawyers)
Defendant: European Commission Action brought on 20 April 2010 — Greenwood Houseware (Zhuhai) and others v Council
(Case T-191/10) Form of order sought — Annul Article 1 of the amending decision, to the extent that (2010/C 179/78) it imposes a fine on the applicant; Language of the case: English
Parties — In the alternative, reduce the fine imposed on the applicant in Article 1 of the amending decision; Applicants: Greenwood Houseware (Zhuhai) Ltd (Zhuhai City, China), Brabantia S&S Ltd (Hong Kong, China), Brabantia S&L Belgium NV (Overpelt, Belgium), Brabantia Belgium NV (Overpelt, Belgium), Brabantia Netherlands BV (Valkenswaard, — Order the defendant to pay the costs. Netherlands) and Brabantia (U.K.) Ltd (Bristol, United Kingdom), (represented by: E. Vermulst and Y. van Gerven, lawyers)
Pleas in law and main arguments Defendant: Council of the European Union The applicant contests Commission Decision C(2010) 727 final of 8 February 2010, by which the Commission amended its Decision C(2009) 8682 final of 11 November 2009 in Case COMP/38589 — Heat Stabilisers, in relation inter alia to the Form of order sought applicant (‘the amending decision’). The amendment concerns Article 2 Nos 31 and 32 of Commission Decision C(2009) — Annul Council Implementing Regulation (EU) No 77/2010 8682 final concerning the applicant’s joint and several liability. of 19 January 2010 ( 1);
— Order the Council to pay the costs of the proceedings; and In support of its claim, the applicant relies on five pleas in law.
— Order the interveners, if any, to pay their own costs. First, the applicant claims that its rights of defence have been infringed because it was not heard before the amending decision was adopted or allowed to participate in the procedure in any other way. By its second plea in law, the applicant complains Pleas in law and main arguments that the reasoning of the amending decision is defective, as it is based only on the failure to comply with the maximum limit By means of its application, the applicants seek, pursuant to under Article 23(2) of Regulation (EC) No 1/2003 ( 1 ) which Article 263 TFUE, the annulment of Council Implementing must be respected ex officio, and does not contain any Regulation (EU) No 77/2010 of 19 January 2010 amending specific justification with regard to the applicant. By its third Regulation (EC) No 452/2007 imposing a definitive anti- plea in law, the applicant complains that there is no legal basis dumping duty on imports of ironing boards originating, inter for the amending decision, which has already become final for alia, in the People’s Republic of China. 3.7.2010 EN Official Journal of the European Union C 179/45
In support of its submissions, the applicants put forward the on the part of the Union institutions in the assessment of all the following pleas in law: relevant aspects concerning the application of criteria 2 and 3 of Article 2(7)(c) of the said regulation.
( 1 ) Council Implementing Regulation (EU) No 77/2010 of 19 January Firstly, by issuing the additional disclosure after the publication 2010 amending Regulation (EC) No 452/2007 imposing a definitive of the contested regulation, the Council violated Article 20(4) of anti-dumping duty on imports of ironing boards originating, inter the Council Regulation (EC) No 1225/2009 ( 2 ) and the rights of alia, in the People’s Republic of China (OJ L 24, p. 1). defence of the applicants. The institutions of the European ( 2 ) Council Regulation (EC) No 1225/2009 of 30 November 2009 on Union failed to inform the applicants before the contested regu protection against dumped imports from countries not members of lation was finalized and sent to the Council for adoption, about the European Community (OJ L 343, p. 51). the new facts and considerations underlying the change in the anti-dumping duty and did not provide the applicants any opportunity to present new arguments or to clarify the previously provided information which could have led to a further reduction of the anti-dumping duty.
Action brought on 26 April 2010 — Ferracci v Commission
(Case T-192/10) Secondly, the Council made a manifest error of appraisal and violated Articles 2(9) and 11(10) of Council Regulation (EC) No (2010/C 179/79) 1225/2009 while constructing the export price. The Union institutions erroneously deducted the 38,1 % anti-dumping Language of the case: Italian duty in the process of construction of the export price because the requirement of Article 11(10) of the said regulation is not to be proved in case of a new exporter. Moreover, the Parties Union institutions’ assessment of the deduction of the anti- Applicant: Pietro Ferracci (San Cesareo, Italy) (represented by: A. dumping duty was based on an erroneous appreciation of the Nucara, lawyer) facts.
Defendant: European Commission
Thirdly, the Council committed a manifest error of appraisal, breached the principles of diligence and sound administration and non-discrimination, and erred in the application of Article Form of order sought 2(10) of Council Regulation (EC) No 1225/2009 by making — Annul the Commission decision contained in the letter of incorrect adjustments to the export price and normal value. 15 February 2010, by which the Commission dismissed the The Union institutions erroneously deducted from the export applicant’s complaint; price direct costs not paid by the applicants in relation to a portion of the exports of the product concerned, and wrongly increased the normal value to account for the non-refundable VAT on export sales, even though no such adjustment was made in the original investigation. — Order the Commission to pay the costs.
Pleas in law and main arguments
Finally, the Union institutions committed a manifest error of The present action has been brought against the decision appraisal, breached the principles of diligence and sound admin contained in the letter of 15 February 2010, by which the istration, and non-discrimination, and erred in the application applicant’s complaint was dismissed. of Articles 2(7)(b), 2(7)(c) of Council Regulation (EC) No 1225/2009, by denying market economy treatment to Greenwood Houseware (Zhuhai) Ltd. The Union institutions’ refusal of market economy treatment to the applicant That complaint concerned the exemption from municipal taxes Greenwood Houseware (Zhuhai) Ltd. was based on an on immovable property provided for in Article 7(1)(i) of erroneous appraisal of facts and evidence submitted. Decree-Law No 504/1992 which, under Article 7(2a) of Furthermore, there was an absence of diligence and due care Decree-Law No 203/2005 as converted into law, is intended C 179/46 EN Official Journal of the European Union 3.7.2010 to apply to the activities referred to in Article 7(1)(i) of Decree- Action brought on 26 April 2010 — Scuola Elementare Law No 504/1992, regardless of their potentially commercial Maria Montessori v Commission nature. In the applicant’s submission, that rule constitutes State aid in favour of ecclesiastical bodies and non-profit making (Case T-193/10) organisations in so far as they pursue commercial activities, or at least economic activities for the purposes of the (2010/C 179/80) Community case-law. Language of the case: Italian
The applicant puts forward two pleas in support of his action: Parties Applicant: Scuola Elementare Maria Montessori (Rome, Italy) (represented by: A. Nucara, lawyer)
First of all, the applicant submits that the contested decision is Defendant: European Commission vitiated because it infringes and misapplies, through incorrect interpretation, Article 108(3) TFEU. In fact, on the basis of the applicant’s complaint received on 14 June 2006, the Commission initiated a very lengthy preliminary investigation Form of order sought procedure characterised by an intense exchange of letters with — Annul the decision of the Commission contained in the the applicant and requests for information from the national letter of 15 February 2010 by which the defendant authorities, only to conclude finally in the contested decision rejected the applicant’s complaints. that there was no doubt that the measures in question did not constitute State aid for the purposes of Article 107 TFEU. — Order the defendant to pay the costs of the present proceedings.
In the applicant’s submission, it is clear from the extraordinarily long period which elapsed before the preliminary investigation Pleas in law and main arguments was closed that the Commission was unable to address the doubts raised in the complaint which it ought to have The present action is brought against the decision contained in addressed, and that it should at least have pursued the matter the letter of 15 February 2010 rejecting the applicant’s in depth by ordering a formal investigation procedure as complaint. provided for under Article 108(2) TFEU. That complaint concerns not only the exemption from the Imposta Comunale sugli Immobili (Communal Tax on Immovable Property), as in Case T-192/10 Pietro Ferracci v Moreover, a careful reading of the aforementioned decision on Commission, but also the partial exemption (at the rate of the current tax can only give cause to believe that the 50 %) from payment of the Imposta sul reddito delle persone Commission had doubts as to whether the disputed measures giuridiche (tax on the income of legal persons) provided for constituted State aid, but ultimately decided to dismiss the under Italian tax law. complaint without opening the formal investigation procedure, thereby infringing the applicant’s right to submit observations The pleas in law and main arguments are similar to those relied on any justifications which the Italian authorities might have on in Case T-192/10. submitted to the Commission in the context of the formal investigation procedure pursuant to Article 108 TFEU and preventing the necessary examination as to compatibility which the Commission would have had to undertake in order to assess the extent to which competition was distorted as a result of the preferential tax regime which was the subject of the Action brought on 29 April 2010 — Apotheke DocMorris complaint. v OHIM (Representation of a green and white cross)
(Case T-196/10)
The applicant submits, secondly, that the contested decision (2010/C 179/81) should be annulled on grounds of failure to provide an adequate statement of reasons, contrary to Article 296 TFEU Language of the case: German (formerly Article 253 EC).
Parties Applicant: Apotheke DocMorris Holding GmbH (Stuttgart, Germany) (represented by Y. Dick, lawyer) 3.7.2010 EN Official Journal of the European Union C 179/47
Defendant: Office for Harmonisation in the Internal Market Form of order sought (Trade Marks and Designs) — Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 February 2010 (Case Form of order sought R 248/2009-1); — Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 February 2010 in Case — Order the defendant to pay the costs. R 470/2009-4;
— Order the defendant to pay the costs. Pleas in law and main arguments Applicant for a Community trade mark: Austria Leasing GmbH.
Pleas in law and main arguments Community trade mark concerned: Figurative mark containing the Community trade mark concerned: Figurative mark representing a word elements ‘Austria Leasing Gesellschaft m.b.H. Mitglied der green and white cross, in respect of goods and services in Raiffeisen-Bankengruppen Österreich’, in respect of services in Classes 3, 5, 8, 9, 10, 11, 16, 21, 25, 29, 30, 32, 35-42 and Classes 35, 36 and 37. 44 — Application No 5 930 979.
Decision of the Examiner: Refusal of the application. Proprietor of the mark or sign cited in the opposition proceedings: BVR.
Decision of the Board of Appeal: Dismissal of the appeal. Mark or sign cited in opposition: inter alia, a figurative mark registered in Germany which contains the word element ‘Raif Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) feisen’, in respect of services in Classes 36, 39 and 42. No 207/2009 ( 1 ), as the Board of Appeal’s assessment in relation to establishing distinctiveness was incorrect in a number of respects. Decision of the Opposition Division: Rejection of the opposition.
( 1 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Decision of the Board of Appeal: Dismissal of the appeal. Community trade mark (OJ 2009 L 78, p. 1).
Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, ( 1) as there is a likelihood of confusion between the marks at issue. Action brought on 27 April 2010 — BVR v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppen Österreich) ( 1 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the (Case T-197/10) Community trade mark (OJ 2009 L 78, p. 1).
(2010/C 179/82)
Language in which the application was lodged: German Action brought on 30 April 2010 — Maximuscle Limited v OHIM — Foreign Supplement Trade Mark Ltd (GAKIC) Parties Applicant: Bundesverband der Deutschen Volksbanken und Raif (Case T-198/10) feisenbanken eV (BVR) (Berlin, Germany) (represented by: I. Rinke, lawyer) (2010/C 179/83)
Defendant: Office for Harmonisation in the Internal Market Language in which the application was lodged: English (Trade Marks and Designs) Parties Other party to the proceedings before the Board of Appeal of OHIM: Applicant: Maximuscle Ltd (Hertfordshire, United Kingdom) Austria Leasing GmbH (Frankfurt, Germany) (represented by: N. Phillips, Solicitor and G. Fernando, Barrister) C 179/48 EN Official Journal of the European Union 3.7.2010
Defendant: Office for Harmonisation in the Internal Market it related to a website connected with the applicant, (v) had an (Trade Marks and Designs) inconsistent approach, given the finding that GAKIC was an abbreviated form of glycine-alpha-ketoisocaproic acid, (vi) mischaracterised evidence and failed to give proper weight to evidence showing that ‘GAKIC’ was the natural abbreviation of Other party to the proceedings before the Board of Appeal: Foreign glycine [(G)]-alpha [(A)]-ketoisocaproic [(KIC)] acid, and (vii) Supplement Trademark Ltd (Oakville, Canada) wrongly found trade mark significance in the capitalisation of the words ‘GAKIC’.
Form of order sought — Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 in case Action brought on 27 April 2010 — DRV v OHIM — R 1621/2008-1, and remit the matter alternatively altered; Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppe Österreich)
— In the alternative, alter the decision of the First Board of (Case T-199/10) Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 in (2010/C 179/84) case R 1621/2008-1; Language in which the application was lodged: German
— Order the defendant to bear the costs incurred in these Parties proceedings as well as those incurred before OHIM. Applicant: Deutscher Raiffeisenverband eV (DRV) (Bonn, Germany) (represented by: I. Rinke, lawyer)
Pleas in law and main arguments Registered Community trade mark subject of the application for a Defendant: Office for Harmonisation in the Internal Market declaration of invalidity: The word mark “GAKIC” for goods in (Trade Marks and Designs) classes 5, 30 and 32.
Other party to the proceedings before the Board of Appeal of OHIM: Proprietor of the Community trade mark cited in the invalidity Austria Leasing GmbH (Frankfurt, Germany) proceedings: The other party to the proceedings before the Board of Appeal Form of order sought
Party requesting the declaration of invalidity of the Community trade — Annul the decision of the First Board of Appeal of the mark: The applicant Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 February 2010 (Case R 253/2009-1);
Decision of the Cancellation Division: Rejected the request for a declaration of invalidity — Order the defendant to pay the costs.
Decision of the Board of Appeal: Dismissed the appeal and, as a result, rejected the request for a declaration of invalidity of the Pleas in law and main arguments registered Community trade mark in question Applicant for a Community trade mark: Austria Leasing GmbH.
Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Community trade mark concerned: Figurative mark which contains Regulation No 207/2009, as the Board of Appeal: (i) repeated the word elements ‘Austria Leasing Gesellschaft m.b.H. Mitglied the error of the Cancellation Division and wrongly considered der Raiffeisen-Bankengruppe Österreich’, in respect of services in the case as if made under Article 7(1)(d), (ii) wrongly found Classes 35, 36 and 37. significance in the fact that glycine-alpha-ketoisocaproic acid, of which GAKIC is an abbreviated form, is a patented compound in the United States, (iii) failed to consider material after the registration date, on the basis that it had no Proprietor of the mark or sign cited in the opposition proceedings: probative value, (iv) failed to consider evidence on the basis that DRV. 3.7.2010 EN Official Journal of the European Union C 179/49
Mark or sign cited in opposition: inter alia, a figurative mark aid E 2/2005 and N 642/2009 (Netherlands) — Existing and registered in Germany which contains the word element ‘Raif special project aid to housing corporations. The applicant relies feisen’, in respect of services in Classes 35, 36, 37, 38, 39, 40, on three pleas in law in support of its application. 41 and 42.
Decision of the Opposition Division: Rejection of the opposition. First, the applicant alleges infringement of Articles 18 and 19 of Regulation No 659/1999, ( 1 ) Articles 106(2) TFEU, 107 TFEU and 108 TFEU and the obligation to state reasons. According to the applicant, the Commission’s presentation of the facts Decision of the Board of Appeal: Dismissal of the appeal. concerning the obligation on the part of housing corporations to charge rents below the appropriate rental rates set by the State is inaccurate. Furthermore, according to the applicant, the definition of the target group for social housing provision is Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) unsubstantiated and incorrect. The Commission also erred in 1 No 207/2009, ( ) as there is a likelihood of confusion between failing to set an objective limit on the construction costs of the marks at issue. housing that is to be funded by aid and on the intrinsic quality of such rental accommodation, as reflected in the amount of rent. Furthermore, the safeguards against overcom pensation are inadequate, with the result that the Commission is also in breach of Article 5 of the Decision relating to services of ( 1 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the 2 Community trade mark (OJ 2009 L 78, p. 1). general economic interest. ( ) Finally, the applicant submits in that regard that the Commission failed to address the applicant’s complaint concerning the role of the Woningsinvesteringsfonds (Housing Investment Fund) and the Nederlandse Water schapsbank.
Action brought on 30 April 2010 — IVBN v Commission Second, the applicant alleges infringement of Article 1(c) of (Case T-201/10) Regulation No 659/1999, Article 4(1) of Regulation No 794/2004 ( 3) and the obligation to state reasons. According (2010/C 179/85) to the applicant, the Commission failed to carry out a thorough and detailed examination and to establish that all or Language of the case: Dutch at least a substantial part of the aid to housing corporations referred to in case E 2/2005 is to be regarded as new aid instead of as existing aid. Parties Applicant: Vereniging van Institutionele Beleggers in Vastgoed, Nederland (IVBN) (Voorburg, Netherlands) (represented by: M. Meulenbelt, lawyer) Finally, the applicant submits that the Commission infringed Articles 106(2) TFEU, 107 TFEU and 108 TFEU by neglecting to initiate the formal investigation procedure provided for under Article 108(2) TFEU, in conjunction with Articles 4 and 6 of Defendant: European Commission Regulation No 659/1999, as a result of which the applicant’s procedural rights under those provisions have also been infringed.
Form of order sought — Declare the action admissible;
( 1 ) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). — annul the contested decision of the Commission; ( 2 ) Commission Decision 2005/842/EC of 28 November 2005 on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic — order the Commission to pay the costs. interest (notified under document number C(2005) 2673) (OJ 2005 L 312, p. 67). ( 3 ) Commission Regulation (EC) No 794/2004 of 21 April 2004 imple menting Council Regulation (EC)No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 Pleas in law and main arguments L 140, p. 1). The applicant seeks annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State C 179/50 EN Official Journal of the European Union 3.7.2010
Action brought on 29 April 2010 — Stichting Woonlinie service of general economic interest in the current Netherlands and Others v Commission system of social housing funding.
(Case T-202/10) Third, the Commission’s assessment was erroneous and (2010/C 179/86) negligent in so far as it concluded that the letting of social housing to persons with a relatively high income is part of Language of the case: Dutch the public service mission of social housing corporations.
Parties Fourth, the Commission erred in law and abused its powers by Applicants: Stichting Woonlinie (Woudrichem, Netherlands), demanding that the Netherlands State redefine ‘social housing Stichting Allee Wonen (Roosendaal, Netherlands), Woning provision’. According to the applicants, the Commission exceeds stichting Volksbelang (Wijk bij Duurstede, Netherlands), its powers by putting forward its own definition of social Stichting WoonInvest (Leidschendam-Voorburg, Netherlands), housing provision as a service of general economic interest, Stichting Woonstede (Ede, Netherlands) (represented by: E. notwithstanding the fact that the Netherlands must be Henny, T. Ottervanger and P. Glazener, lawyers) regarded as having a wide discretion to determine its own policy in that area.
Defendant: European Commission Fifth, the Commission erred in law by failing to distinguish between the definition of a service of general economic interest and the manner in which it is financed.
Form of order sought
— Annul the Commission’s decision concerning existing aid, in Sixth, the Commission disregarded Decision 2005/842/EG ( 2) in accordance with Article 263 TFEU; that it demanded a specific description of the service of general economic interest. According to the applicants, the Commission erroneously decided that a Member State must define the service of general economic interest on the basis of an income — order the Commission to pay the costs. threshold.
Seventh, the Commission made an error of assessment and Pleas in law and main arguments disregarded Article 5 of Decision 2005/842/EC in so far as it did not find that the manner in which the service of general The applicants seek annulment of Commission Decision economic interest was financed was manifestly inappropriate. C(2009) 9963 final of 15 December 2009 relating to State According to the applicants, the Commission failed to aid E 2/2005 and N 642/2009 (Netherlands) — Existing and ascertain whether, taking into account the definition of the special project aid to housing corporations. The applicants rely service of general economic interest, there was any possibility on eight pleas in law in support of their application. of overcompensation.
Eighth, the Commission abused the procedure for the First, the Commission erred in its application of the law by assessment of existing aid schemes by requiring, on the basis deeming all the measures to form part of an aid scheme. of that procedure, an exhaustive list of buildings which are to According to the applicants, the third and fourth measures be categorised as social property, as a result of which buildings referred to by the Commission were erroneously regarded as that are not included in that list no longer fall within the forming part of an existing aid scheme within the meaning of category of a service of general economic interest. Article 1(d) of Regulation No 659/1999, ( 1) irrespective of whether those measures constitute aid within the meaning of Article 107(1) TFEU. Consequently, the Commission exceeded its powers by including both measures in its examination of the compatibility of an existing aid scheme with the common ( 1 ) Council Regulation (EC) No 659/1999 of 22 March 1999 laying market. down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). ( 2 ) Commission Decision 2005/842/EC of 28 November 2005 on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings Second, the Commission’s decision in case E 2/2005 was based entrusted with the operation of services of general economic on an incomplete and manifestly incorrect assessment of the interest (notified under document number C(2005) 2673) (OJ national legislation applicable and of the relevant facts. 2005 L 312, p. 67). According to the applicants, the Commission did not examine whether there is actually a manifest error in the definition of 3.7.2010 EN Official Journal of the European Union C 179/51
Action brought on 30 April 2010 — Stichting Woonpunt had not been satisfied inasmuch as housing corporations are and Others v Commission not chosen by means of a public procurement procedure. According to the applicants, the Commission should have (Case T-203/10) confined itself to checking that the measure did not lead to inefficiency. (2010/C 179/87)
Language of the case: Dutch Third, the applicants claim that the Commission should have considered whether there was any overcompensation for the Parties service of general economic interest. Applicants: Stichting Woonpunt (Beek, Netherlands), Stichting Com.wonen (Rotterdam, Netherlands), Woningstichting Haag Wonen (The Hague, Netherlands), Stichting Woonbedrijf SWS.Hhvl (Eindhoven, Netherlands) (represented by: E. Henny, ( 1 ) Council Regulation (EC) No 659/1999 of 22 March 1999 laying T. Ottervanger and P. Glazener, lawyers) down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). ( 2 ) Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I 7747. Defendant: European Commission
Form of order sought — Annul the Commission’s decision concerning existing aid, in accordance with Article 263 TFEU; Action brought on 3 May 2010 — Lancôme parfums et beauté & Cie v OHMI — Focus Magazin Verlag GmbH (COLOR FOCUS) — annul the Commission’s decision concerning new aid, in accordance with Article 263 TFEU; (Case T-204/10)
(2010/C 179/88) — order the Commission to pay the costs. Language in which the application was lodged: English
Pleas in law and main arguments Parties The applicants seek annulment of Commission Decision Applicant: Lancôme parfums et beauté & Cie (Paris, France) C(2009) 9963 final of 15 December 2009 relating to State (represented by: A. von Mühlendahl and S. Abel, lawyers) aid E 2/2005 and N 642/2009 (Netherlands) — Existing and special project aid to housing corporations. Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) The applicants put forward eight pleas in law in support of the first head of claim. Those pleas are the same as the pleas which the applicants put forward in Case T-202/10 Stichting Woonlinie and Others v Commission. Other party to the proceedings before the Board of Appeal: Focus Magazin Verlag GmbH (Munich, Germany)
The applicants put forward three further pleas in support of their second head of claim.
Form of order sought First, according to the applicants, the Commission infringed — Annul the decision of the Second Board of Appeal of the Articles 107 TFEU and 108 TFEU and Regulation No Office for Harmonisation in the Internal Market (Trade 1 659/1999 ( ) by deeming project aid for declining urban areas Marks and Designs) of 11 February 2010 in case to be part of an existing aid scheme, and by imposing R 238/2009-2; mandatory requirements without following the procedure laid down under Regulation No 659/1999.
— Annul the decision of the Cancellation Division of the Office Second, the applicants submit that the Commission erroneously for Harmonisation in the Internal Market (Trade Marks and took the view that the fourth criterion referred to in Altmark ( 2 ) Designs) of 16 December 2008 in case 990 C; C 179/52 EN Official Journal of the European Union 3.7.2010
— Dismiss the request introduced by the other party to the the contested decision is lacking an essential element in its proceedings before the Board of Appeal for a declaration of reasoning. invalidity of the applicant's CTM No 1327410 COLOR FOCUS to the extent the request is based on the Community trade mark FOCUS No 453720; By its second plea, the applicant considers that the contested decision failed to take into account a general principle of law that no person is entitled to rely on a formal legal position — Order the defendant to pay the costs of the proceedings, when it constitutes an abuse of right. including those incurred by the applicant before the Board of Appeal; and
— Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including Action brought on 4 May 2010 — Cervecería Modelo v those incurred by the applicant before the Board of OHIM — Plataforma Continental (LA VICTORIA DE Appeal, should it become an intervening party in this case. MEXICO)
(Case T-205/10) Pleas in law and main arguments (2010/C 179/89) Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘COLOR FOCUS’ for Language in which the application was lodged: Spanish goods in class 3 — Community trade mark registration No 1327410 Parties Applicant: Cervecería Modelo, SA de CV (represented by: C. Proprietor of the Community trade mark: The applicant Lema Devesa, lawyer)
Party requesting the declaration of invalidity of the Community trade Defendant: Office for Harmonisation in the Internal Market mark: The other party to the proceedings before the Board of (Trade Marks and Designs) Appeal
Other party to the proceedings before the Board of Appeal of OHIM: Trade mark right of the party requesting the declaration of invalidity: Plataforma Continental, SL (Madrid, Spain) Community trade mark registration No 453720 of the word mark ‘FOCUS’ for goods and services in classes 3, 6, 7, 9, 14, 16, 21, 25, 28, 29, 32, 33, 35, 38, 39, 41, 42; German mark registration No 39407564 of the word mark ‘FOCUS’, for a Form of order sought wide variety of goods and services in a total of 24 classes — Annul partially the decision of 5 March 2010 (Case R/322/2009-2) of the Second Board of Appeal of the Decision of the Cancellation Division: Declaration of invalidity of Office for Harmonisation in the Internal Market, solely to the Community trade mark the extent that it refuses registration of the mark ‘LA VICTORIA DE MÉXICO’ for goods in Class 32 of the Clas sification and, consequently declare that its registration can proceed, and Decision of the Board of Appeal: Dismissal of the appeal
— order the defendant to pay the costs. Pleas in law:
The applicant advances two pleas in law in support of its Pleas in law and main arguments application. Applicant for a Community trade mark: Cervecería.
On the basis of its first plea, the applicant claims that the contested decision violates Article 53(1)(a) in conjunction with Community trade mark concerned: Word mark ‘LA VICTORIA DE Article 8(1)(b) of Council Regulation (EC) No 207/2009 (here MÉXICO’ (application for registration No 4 551 214) for goods inafter ‘the CTMR’) in finding a likelihood of confusion between and services in Classes 25, 32 and 43. ‘COLOR FOCUS’ and ‘FOCUS’. According to the applicant, the Board of Appeal failed by not providing a specific assessment of such a finding, which requires an analysis of the degree of Proprietor of the mark or sign cited in the opposition proceedings: distinctiveness and of the degree of similarity, in a way that PLATAFORMA CONTINENTAL S.L. 3.7.2010 EN Official Journal of the European Union C 179/53
Mark or sign cited in opposition: Community figurative mark According to the applicant, the Commission made errors of containing the word element ‘VICTORIA’ (No 2 632 271) for assessment, its examination of the changes to that system was goods in Classes 31, 32 and 33; and Spanish word mark inadequate and it gave insufficient reasons for the contested ‘VICTORIA’ (No 1 648 564) for goods in Class 32. decision.
Decision of the Opposition Division: Rejection of the opposition in its entirety Second, according to the applicant, the Commission erred in law in the contested decision in accepting on the basis of Article 19 of Regulation No 659/1999 the measures Decision of the Board of Appeal: Partial annulment of the decision proposed by the Netherlands as referred to in Article 19(1) of under appeal and partial refusal of the application for regis Regulation No 659/1999. The appropriate measures accepted tration. by the Commission are inadequate and/or are not suitable for ensuring that the existing aid is compatible with Articles 107 TFEU and 106 TFEU. Furthermore, the Commission applied the Pleas in law: Incorrect interpretation and application of Article requirements of Article 106(2) TFEU incorrectly and gave insuf 8(1)(b) of Regulation No 207/2009 on the Community trade ficient reasons for its decision. mark.
Third, the applicant submits that the Commission erred in law in neglecting to initiate the procedure provided for under Article 108(2) TFEU and Article 4(4) of Regulation No 659/1999. Action brought on 30 April 2010 — Vesteda Groep v Commission
(Case T-206/10) ( 1 ) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC (2010/C 179/90) Treaty (OJ 1999 L 83, p. 1).
Language of the case: Dutch
Parties
Applicant: Vesteda Groep BV (Maastricht, Netherlands) (repre Action brought on 6 May 2010 — Cree v OHIM sented by: G. van der Wal and T. Boesman, lawyers) (TRUEWHITE)
(Case T-208/10) Defendant: European Commission (2010/C 179/91)
Form of order sought Language in which the application was lodged: German — Annul the Commission’s decision of 15 December 2009; Parties — order the Commission to pay the costs. Applicant: Cree Inc (Durham, USA) (represented by V. Schiller, lawyer)
Pleas in law and main arguments Defendant: Office for Harmonisation in the Internal Market The applicant seeks annulment of Commission Decision (Trade Marks and Designs) C(2010) 26 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 (Netherlands) — Existing and special project aid to housing corporations. The applicant relies on three pleas in law in support of its application. Form of order sought — Annul the decision of the Second Board of Appeal of the First, the applicant submits that, at paragraphs 25 to 37 of the Office for Harmonisation in the Internal Market (Trade contested decision, the Commission erred in law in finding that Marks and Designs) of 17 February 2010 in Case the Netherlands system of financing social housing and all R 985/2009-2; changes to that system since the introduction of the EEC Treaty constitute existing aid and that, on that basis, the Commission’s assessment is made in the context of Article 108(1) TFEU and Chapter 5 of Regulation No 659/1999. ( 1 ) — Order the defendant to pay the costs. C 179/54 EN Official Journal of the European Union 3.7.2010
Pleas in law and main arguments Pleas in law and main arguments Community trade mark concerned: the word mark ‘TRUEWHITE’ Community trade mark concerned: Word mark ‘Deutscher Ring for goods in Classes 9 and 11. Sachversicherungs-AG’ for services in Class 36.
Decision of the Examiner: Rejection of the application. Decision of the Examiner: Rejection of the application
Decision of the Board of Appeal: Dismissal of the appeal Decision of the Board of Appeal: Dismissal of the appeal.
Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation 1 Pleas in law: Infringement of Article 4, Article 7(1)(b) and Article (EC) No 207/2009, ( ) since the Community trade mark 7(2) of Regulation (EC) No 207/2009, ( 1) because the trade concerned is distinctive and not merely descriptive. mark concerned is distinctive.
( 1 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Infringement of Article 7(1)(c) and Article 7(2) of Regulation Community trade mark (OJ 2009 L 78, p. 1). (EC) No 207/2009, ( 2 ) because the trade mark concerned is not descriptive.
( 1 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Action brought on 14 May 2010 — Autogrill España v Community trade mark (OJ 2009 L 78, p. 1). Commission ( 2 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1). (Case T-219/10)
(2010/C 179/93)
Language of the case: Spanish
Action brought on 5 May 2010 — Deutscher Ring v OHIM (Deutscher Ring Sachversicherungs-AG) Parties Applicant: Autogrill España, SA (Madrid, Spain) (represented by: (Case T-209/10) J. Buendía Sierra, E. Abad Valdenebro, M. Muñoz de Juan and R. Calvo Salinero, lawyers) (2010/C 179/92)
Language in which the application was lodged: German Defendant: European Commission
Parties Applicant: Deutscher Ring Sachversicherungs-AG (Hamburg, Form of order sought Germany) (represented by A. Busse, lawyer) — that the pleas for annulment contained in the application be admitted and upheld;
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) — that Article 1(1) be annulled in so far as it states that Article 12(5) of the Amended Law on Corporation Tax (TRLIS) contains elements of State aid;
Form of order sought — in the alternative, that Article 4 be annulled in so far as it — Annul the decision of the First Board of Appeal of the makes the recovery order applicable to transactions which Office for Harmonisation in the Internal Market (Trade were completed prior to the publication, in the Official Marks and Designs) of 11 March 2010 in Case Journal of the European Union, of the final decision which is R 1290/2009-1 and register the trade mark applied for; and the subject-matter of this action; and
— Order the defendant to pay the costs of the proceedings. — that the Commission be ordered to pay the costs. 3.7.2010 EN Official Journal of the European Union C 179/55
Pleas in law and main arguments In the alternative, although it considers that Article 12(5) TRLIS contains elements of State aid, the Commission ought The contested decision in the present case finds the aid scheme to have carried out an exhaustive economic analysis to introduced by Spain, in accordance with Article 12(5) TRLIS, ascertain who the beneficiaries of the aid scheme were. incompatible with the common market, as regards aid granted The applicant claims, in any event, that the beneficiaries to beneficiaries to make intra-Community acquisitions. In that of the aid (in the form of an inflated purchase price for regard, it states that the aforementioned provision allows for the the shares) were those selling the shares and not, as the deduction for tax purposes of amortization of the financial Commission alleges, the Spanish firms who applied that goodwill resulting from a foreign shareholding acquisition of measure. greater than 5 %.
3. Lastly, the applicant claims breach of the principle of In support of its claims, the applicant submits the followings protection of legitimate expectations with respect to the pleas: breadth of the temporal scope of the recovery order.
1. The contested decision infringes Article 107(1) TFEU in that it finds that the measure at issue constitutes State aid. The applicant contends, in that regard, that the Commission has not proved that the tax measure examined favours ‘specific Action brought on 18 May 2010 — Iberdrola v undertakings or the production of specific goods’, as required Commission under Article 107(1) TFEU. The Commission merely assumes that the measure is selective on the basis of the (Case T-221/10) fact that it applies only to the acquisition of shareholdings in foreign companies and not in domestic companies. The (2010/C 179/94) applicant considers that reasoning to be erroneous and circular: the fact that application of the measure examined — as for any other tax rule — depends on the fulfilment of Language of the case: Spanish certain objective requirements does not render it, in law or fact, a selective measure. In fact, the mechanical nature of Parties the Commission’s reasoning would result in every tax measure being considered to be prima facie selective. Applicant: Iberdrola, SA (Bilbao, Spain) (represented by: J. Ruiz Calzado, M. Núñez Müller and J. Domínguez Pérez, lawyers)
For the sake of completeness, both a legal analysis of the Defendant: European Commission measure, and the statistics produced by the Kingdom of Spain, show that Article 12(5) TRLIS is a general measure open, in law and fact, to all undertakings which are subject to Spanish corporation tax irrespective of their size, nature, Form of order sought sector or origin. — Annulment of Article 1(1) of the Decision;
Second, the prima facie different treatment under Article — Order the Commission to pay all of the costs arising from 12(5) TRLIS, far from constituting a selective advantage the proceedings. serves to place all transactions for the acquisition of shares on an equal tax footing, be those shares national or foreign; as, if, owing to the impossibility to complete cross-border mergers, the amortization of financial Pleas in law and main arguments goodwill can only be carried out at a national level to the extent that there are rules in the tax system which allow it, The decision which is the subject-matter of the present case is Article 12(5) TRLIS does no more than extend that possi the same as in Case T-219/10 Autogrill España v Commission. bility to the purchase of shares in foreign companies.
The pleas and main arguments are similar to those relied on in that case. In particular, the applicant claims: In the alternative, the Commission’s decision is dispropor tionate, since, its application in cases where control is taken of foreign undertakings should be, at least, equivalent to cases of national mergers and therefore justified by the — that the Commission committed a manifest error of nature and broad logic of the Spanish system. assessment by finding that the measure in Article 12(5) TRLIS constitutes State aid which is incompatible with the internal market, given that it did not take account of the positive effects resulting from that measure and ignored the 2. Infringement of Article 107(1) TFEU resulting from an error beneficial effect of that measure for the attainment of of law in identifying the beneficiaries of the measure. objectives pursued by other rules in the Treaty; C 179/56 EN Official Journal of the European Union 3.7.2010
— that the Commission breached the principles of protection Decision C(2009) 10350 of 22 December 2009 concerning the of legitimate expectations and of equal treatment by cancellation of part of the contribution from the European departing from the guidelines in the Communication on Regional Development Fund (ERDF) allocated to the operational direct taxation and its administrative practice adopted in programme POR Puglia Obiettivo 1 2000-2006. That decision line with that communication; was challenged by the Regione Puglia and by Italy in Case T-84/10 ( 1) and Case T-117/10 ( 2) respectively. — that the Commission breached the principle of sound administration — which requires it to examine, in a diligent, detailed and impartial manner, all aspects relevant In support of its claims, the applicant puts forward the to the case — by not continuing the proceeding (as it has following pleas: done in respect of extra-Community acquisitions) to establish the alleged selectivity of the measure and verify, before making a finding in that regard, the precise extent of — Decision C(2009) 10350 of 22 December 2009 is unlawful, the practical obstacles to an intra-Community commercial on the basis of the pleas in law and main arguments already merger; relied on in Case T-84/10.
— that the Commission has infringed its obligation to respect the scheme of the Treaty and to ensure the consistent appli — Infringement of Article 7(2) of Commission Regulation (EC) cation of the rules relating to supervision of State aid and No 448/2001 of 2 March 2001 laying down detailed rules those relating to other principles and freedoms contained in for the implementation of Council Regulation (EC) No the Treaty such as the free movement of capital and the 1260/1999 as regards the procedure for making financial creation of the internal market; corrections to assistance granted under the Structural Funds, ( 3 ) which provides for the application of a rate of interest of 1,5 % above the rate applied by the European — that the contested decision lacks sufficient reasoning in Central Bank in its main refinancing operations, since the relation to specific significant aspects of the Commission’s contested debit note provides that the rate of interest to be assessment of the measure’s selectivity and its effect on charged is that published in the OJEU on 1 April 2010, competition and trade between Member States. increased by 3,5 %.
( 1 ) OJ C 113, 1.5.10, p. 58. ( 2 ) Not yet published in the OJ. Action brought on 20 May 2010 — Regione Puglia v ( 3 ) OJ L 64, 6.3.2001, p. 13. Commission
(Case T-223/10)
(2010/C 179/95) Action brought on 18 May 2010 — Banco Bilbao Vizcaya Language of the case: Italian Argentaria v Commission
(Case T-225/10) Parties Applicant: Regione Puglia (Bari, Italy) (represented by: F. Brunelli (2010/C 179/96) and A. Aloia, lawyers) Language of the case: Spanish Defendant: European Commission Parties Applicant: Banco Bilbao Vizcaya Argentaria, SA (Bilbao, Spain) Form of order sought (represented by: J. Buendía Sierra, E. Abad Valdenebro, M. — Annul Debit Note No 3241001630 of the European Muñoz de Juan and R. Calvo Salinero, lawyers) Commission of 26 February 2010.
Defendant: European Commission — Order the Commission to pay the costs, including a fixed amount for general costs.
Form of order sought Pleas in law and main arguments — Annulment of Article 1(1) of the contested decision in so The present action is brought against the debit note issued by far as it states that Article 12(5) TRLIS (Amended Law on the Commission on 26 February 2010 in implementation of Corporation Tax) contains elements of State aid; 3.7.2010 EN Official Journal of the European Union C 179/57
— In the alternative, annulment of Article 1(1) of the contested Order of the General Court of 11 May 2010 — Shetland decision in so far as it states that Article 12(5) TRLIS Islands Council v Commission contains elements of State aid where it applies to share acquisitions which result in acquisition of control; and (Case T-44/08) ( 1) — Order the Commission to pay the costs of the proceedings. (2010/C 179/98) Pleas in law and main arguments Language of the case: English The decision against which the present action is brought is the same as that contested in Cases T-219/10 Autogrill España v The President of the Third Chamber has ordered that the case Commission and T-221/10 Iberdrola v Commission. be removed from the register. The pleas and main arguments are similar to those relied on in the context of those cases.
They allege, in essence, errors of law both in the legal classifi ( 1 ) OJ C 107, 26.4.2008. cation of the measure as State aid and in identifying the bene ficiaries of that measure.
Order of the General Court of 11 May 2010 — Shetland Order of the General Court of 11 May 2010 — Polson and Islands Council v Commission Others v Commission
1 (Case T-43/08) ( 1) (Case T-197/08) ( )
(2010/C 179/97) (2010/C 179/99)
Language of the case: English Language of the case: English The President of the Third Chamber has ordered that the case The President of the Third Chamber has ordered that the case be removed from the register. be removed from the register.
( 1 ) OJ C 92, 12.4.2008.
( 1 ) OJ C 209, 15.8.2008. C 179/58 EN Official Journal of the European Union 3.7.2010
EUROPEAN UNION CIVIL SERVICE TRIBUNAL
Action brought on 6 May 2010 — Costa v Commission Action brought on 5 May 2010 — Begue and Others v Commission (Case F-26/10) (Case F-27/10) (2010/C 179/100) (2010/C 179/101) Language of the case: French Language of the case: French
Parties Parties Applicant: Antonino Costa (Thionville, France) (represented by: L. Levi and M. Vandenbussche, lawyers) Applicants: Christian Begue (Marcy, France) and Others (repre sented by: A. Woimant, lawyer)
Defendant: European Commission Defendant: European Commission
Subject-matter and description of the proceedings
Subject-matter and description of the proceedings Annulment of the decision refusing the applicants payment with retroactive effect of the allowance for standby duty Annulment of the decision to exclude the applicant from the referred to in Article 56b of the Staff Regulations. 2009 promotion exercise and order that the defendant pay to him a sum of compensation for non-material damage. Form of order sought The applicants claim that the Tribunal should:
Form of order sought — annul the decision of the appointing authority, known to — Annul the decision (No R/467/09) of the authority auth the applicant on 22 November 2009, to exclude him from orised to conclude contracts rejecting the applicants the 2009 promotion exercise; ‘complaints’ against the rejection of 3 September 2009 concerning the application for payment with retroactive effect of the allowance for standby duty referred to in Article 56b of the Staff Regulations of Officials;
— so far as necessary, annul the decision of 27 January 2010 rejecting the complaint; — Order the European Commission to pay the costs.
— consequently, oblige the defendant to recommence properly the 2009 promotion exercise, in which the applicant should be included; Action brought on 7 May 2010 — Mioni v Commission
(Case F-28/10)
— order the defendant to pay a sum of EUR 25 000 in (2010/C 179/102) compensation for non-material damage; Language of the case: French
Parties — order the European Commission to pay the costs. Applicant: Gaëtan Barthélémy Maxence Mioni (Brussels, Belgium) (represented by: L. Vogel, lawyer)
Defendant: European Commission 3.7.2010 EN Official Journal of the European Union C 179/59
Subject-matter and description of the proceedings — Order the defendant to pay the costs. Annulment of the decision terminating the payment of the expatriation allowance previously granted to the applicant.
Form of order sought Action brought on 12 May 2010 — de Fays v Commission
The applicant claims that the Tribunal should: (Case F-30/10)
(2010/C 179/104) — Annul the decision adopted by the authority authorised to conclude contracts (AACC) on 18 June 2009, by which the payment of the expatriation allowance which had been Language of the case: French previously granted to the applicant, under Article 4 of Annex VII to the Staff Regulations, was terminated, and Parties the decision adopted by the AACC on 28 January 2010 by which the complaint brought by the applicant on 2 Applicant: Philippe de Fays (Malèves Sainte Marie Wastinnes, October 2009 was rejected; Belgium) (represented by: N. Soldatos, lawyer)
— Order the European Commission to pay the costs. Defendant: European Commission
Subject-matter and description of the proceedings Annulment of the decision refusing to recognise the occupa Action brought on 11 May 2010 — Lorenzo v EESC tional nature of the disease suffered by the applicant.
(Case F-29/10) Form of order sought (2010/C 179/103) — annul the decisions of the appointing authority of 8 September 2009 and 12 February 2010 and recognise Language of the case: French that the applicant has been unfit to work because of occu pational disease since 15 May 2005; Parties Applicant: Guillermo Lorenzo (Brussels, Belgium) (represented — alternatively and secondarily, again appoint a medical by: N. Lhoëst, lawyer) committee consisting of doctors with expertise in diseases caused by ionising radiation with the task of establishing whether, in the course of carrying out his professional Defendant: European Economic and Social Committee duties, the applicant was exposed to the risk of contracting a disease caused by ionising radiation;
Subject-matter and description of the proceedings — order the European Commission to pay the costs. Annulment of the decision not to include the applicant among the officials promoted to grade AD13 under the 2009 promotion procedure.
Action brought on 14 May 2010 — Guittet v Commission Form of order sought (Case F-31/10) The applicant claims that the Tribunal should: (2010/C 179/105) — Annul the decision of the EESC appointing authority, adopted and published on 30 June 2009, not to include Language of the case: French the applicant’s name on the list of officials promoted to grade AD 13 under the 2009 promotion procedure; Parties Applicant: Christian Guittet (Cannes, France) (represented by: L. — So far as necessary, annul the EESC appointing authority’s Levi, lawyer) decision of 5 February 2010 rejecting the complaint brought by the applicant under Article 90(2) of the Staff Regulations; Defendant: European Commission C 179/60 EN Official Journal of the European Union 3.7.2010
Subject-matter and description of the proceedings Action brought on 14 May 2010 — Wilk v Commission First, annulment of the decision to close the oral procedure opened under Article 73 of the Staff Regulations, granting the (Case F-32/10) applicant a rate of permanent invalidity of 64.5 %, and, secondly, an application for compensation for the material (2010/C 179/106) and non-material harm suffered. Language of the case: French Form of order sought The applicant claims that the Tribunal should: Parties — annul the decision of the appointing authority of 27 July Applicant: Christian Wilk (Trier, Germany) (represented by: R. 2009 closing the procedure opened under Article 73 of the Adam, lawyer) Staff Regulations following the applicant’s accident of 8 December 2003; Defendant: European Commission — so far as necessary, annul the decision of 16 February 2010 rejecting the applicant’s complaint; Subject-matter and description of the proceedings — as a result, conclude that the rate of permanent partial Annulment of decisions ordering recovery of one half of the invalidity (PPI) be evaluated on the basis of the rules and installation allowance paid to the applicant following his the scale for evaluation in force at the date of the accident divorce, and an application for damages. and until 1 January 2006, that the application brought by the applicant under Article 73 of the Staff Regulations be re- examined by a medical committee made up of an impartial, Form of order sought independent and neutral body which can work quickly, with — annul the Commission decisions of 20 August 2009 and 8 complete independence and without bias; September 2009 ordering recovery of alleged overpayment; — order the defendant to pay default interest on the capital due under Article 73 of the Staff Regulations at a rate of — annul the Commission decision of 15 February 2010 12 % over a period which opened at the latest on 8 upholding that recovery; December 2004, until complete payment of the capital; — order the Commission to repay the sum taken back by the — order the defendant to pay damages, fixed on equitable Commission with interest at the statutory rate from the date principles at EUR 50 000, in respect of the non-material of recovery until settlement; harm suffered as a result of the decision taken; — order the defendant to pay damages, fixed at EUR 15 000, — order the Commission to pay damages for having seriously in respect of the material harm suffered as a result of the damaged the applicant’s image and reputation; decision taken; — alternatively, reserve to the applicant the right to claim — order the European Commission to pay the costs. additional damages for the harm suffered;
— order the European Commission to pay the costs.
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