ISSN 1977-091X
Official Journal C 194
of the European Union
Volume 55
English edition 30 June 2012
Notice No Contents Page
IV Notices
NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
Court of Justice of the European Union
2012/C 194/01 Last publication of the Court of Justice of the European Union in the Official Journal of the European Union OJ C 184, 23.6.2012 ...... 1
V Announcements
COURT PROCEEDINGS
Court of Justice
2012/C 194/02 Case C-39/10: Judgment of the Court (Fourth Chamber) of 10 May 2012 — European Commission v Republic of Estonia (Failure of a Member State to fulfil obligations — Freedom of movement for workers — Income tax — Allowance — Retirement pensions — Effect on small pensions — Discrimi nation between resident and non-resident taxpayers) ...... 2
2012/C 194/03 Joined Cases C-357/10 to C-359/10: Judgment of the Court (Second Chamber) of 10 May 2012 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia (Italy)) — Duomo Gpa Srl (C-357/10), Gestione Servizi Pubblici Srl (C-358/10), Irtel Srl (C-359/10) v Comune di Baranzate (C-357/10 and C-358/10), Comune di Venegono Inferiore (C-359/10) (Articles 3 EC, 10 EC, 43 EC, 49 EC and 81 EC — Freedom of establishment — Freedom to provide services — Directive 2006/123/EC — Articles 15 and 16 — Concession relating to the assessment, verification and collection of taxes and other local authority revenue — National legislation — Minimum share capital — Obligation) ...... 2
Price: EN EUR 3 (Continued overleaf) Notice No Contents (continued) Page
2012/C 194/04 Case C-368/10: Judgment of the Court (Third Chamber) of 10 May 2012 — European Commission v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Directive 2004/18/EC — Procedures for the award of public works contracts, public supply contracts and public service contracts — Contract for the supply, installation and maintenance of dispensing machines for hot drinks, and the supply of tea, coffee and other ingredients — Article 23(6) and 23(8) — Technical specifications — Article 26 — Conditions for performance of the contract — Article 53(1) — Criteria for award of the contracts — Most economically advantageous tender — Products derived from organic agriculture and fair trade — Use of labels in the formulation of the technical specifications and the award criteria — Article 39(2) — Concept of ‘additional information’ — Article 2 — Principles for award of contracts — Principle of transparency — Articles 44(2) and 48 — Verification of the suitability and choice of participants — Minimum level of technical or professional abilities — Compliance with ‘criteria of sustainability of purchases and socially responsible business’) ...... 3
2012/C 194/05 Case C-100/11 P: Judgment of the Court (First Chamber) of 10 May 2012 — Helena Rubinstein, L’Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan Inc. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(5) — Community word marks BOTOLIST and BOTOCYL — Community and national figurative and word marks BOTOX — Declaration of invalidity — Relative grounds for refusal — Damage to reputation) ...... 4
2012/C 194/06 Joined Cases C-338/11 to C-347/11: Judgment of the Court (Third Chamber) of 10 May 2012 (reference for a preliminary ruling from the Tribunal administratif de Montreuil (France)) — Santander Asset Management SGIIC SA, on behalf of FIM Santander Top 25 Euro Fi (C-338/11) v Directeur des résidents à l’étranger et des services généraux and Santander Asset Management SGIIC SA, on behalf of Cartera Mobiliaria SA SICAV (C-339/11), Kapitalanlagegesellschaft mbH, on behalf of Alltri Inka (C-340/11), Allianz Global Investors Kapitalanlagegesellschaft mbH, on behalf of DBI-Fonds APT no 737 (C-341/11), SICAV KBC Select Immo (C-342/11), SGSS Deutschland Kapitalanlagege sellschaft mbH (C-343/11), International Values Series of the DFA Investment Trust Co. (C-344/11), Continental Small Co. Series of the DFA Investment Trust Co. (C-345/11), SICAV GA Fund B (C-346/11), Generali Investments Deutschland Kapitalanlagegesellschaft mbH, on behalf of AMB Generali Aktien Euroland (C-347/11) v Ministre du Budget, des Comptes publics, de la Fonction publique et de la Réforme de l’État (Articles 63 TFEU and 65 TFEU — Undertakings for collective investments in transferable securities (UCITS) — Different treatment of dividends paid to non-resident UCITS, subject to withholding tax, and dividends paid to resident UCITS, not subject to such tax — Whether it is necessary, for the purpose of determining whether the national measure is in conformity with the free movement of capital, to take account of the situation of shareholders — No such need) 4
2012/C 194/07 Case C-370/11: Judgment of the Court (Sixth Chamber) of 10 May 2012 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Articles 36 and 40 of the EEA Agreement — Discriminatory taxation of the capital gains obtained on the repurchase of shares in collective investment undertakings established in Norway or Iceland and not authorised under Directive 85/611/EEC) ...... 5
2012/C 194/08 Case C-92/12: Judgment of the Court (Second Chamber) of 26 April 2012 (Reference for a preliminary ruling from the High Court of Ireland) — Health Service Executive v SC, AC (Jurisdiction, recognition and enforcement of judgments in matrimonial matters and in the matters of parental responsibility — Regulation (EC) No 2201/2003 — Child habitually resident in Ireland, where the child has been placed in care on many occasions — Child’s behaviour aggressive and placing herself at risk — Judgment ordering placement of the child in a secure care institution in England — Material scope of the regulation — Article 56 — Procedures for consultation and consent — Obligation to recognise or declare enforceable the decision to place the child in a secure care institution — Provisional measures — Urgent preliminary ruling procedure) ...... 5
EN Notice No Contents (continued) Page
2012/C 194/09 Case C-529/10: Order of the Court (Eighth Chamber) of 29 March 2012 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell'Economia e delle Finanze, Agenzia delle Entrate v Safilo Spa (Article 104(3), first subparagraph, of the Rules of Procedure — Direct taxation — Conclusion of proceedings pending before the court giving judgment at final instance in tax matters — Abuse of rights — Article 4(3) TEU — Freedoms guaranteed by the Treaty — Principle of non-discrimination — State aid — Obligation to ensure the effective application of European Union law) ...... 6
2012/C 194/10 Case C-167/11 P: Order of the Court of 22 March 2012 — Cantiere navale De Poli SpA v European Commission (Appeal — Article 119 of the Rules of Procedure — State aid — Incompatibility with the common market — Commission Decision — Alteration to existing aid — Regulation (EC) No 794/2004 — Regulation (EC) No 1177/2002 — Temporary defensive mechanism for shipbuilding) 7
2012/C 194/11 Case C-200/11 P: Order of the Court of 22 March 2012 — Italian Republic v European Commission (Appeal — Article 119 of the Rules of Procedure — State aid — Incompatibility with the common market — Commission decision — Action for annulment — Regulation (EC) No 659/1999 — Article 1(c) — Alteration of existing aid — Regulation (EC) No 794/2004 — Article 4(1) — Temporary defensive mechanism for shipbuilding) ...... 7
2012/C 194/12 Case C-333/11: Order of the Court (Sixth Chamber) of 8 March 2012 (reference for a preliminary ruling from the Hof van Cassatie van België, Belgium) — Koninklijke Federatie van Belgische Trans porteurs en Logistiek Dienstverleners (Febetra) v Belgische Staat (Article 104(3), first subparagraph, of the Rules of Procedure — TIR Convention — Community Customs Code — Excise duties — Transport carried out under cover of a TIR carnet — Unlawful unloading — Determination of the place of the offence — Recovery of customs and excise duties — Jurisdiction) ...... 7
2012/C 194/13 Case C-334/11 P: Order of the Court (Fifth Chamber) of 29 March 2012 — Lancôme parfums et beauté & Cie v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Focus Magazin Verlag GmbH (Appeal — Community trade mark — Word mark ACNO FOCUS — Opposition by the proprietor of the national word mark FOCUS — Refusal of registration — Article 43(2) and (3) of Regulation (EC) No 40/94 — Earlier mark registered for not less than five years) ...... 8
2012/C 194/14 Case C-156/12: Reference for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 30 March 2012 — Freistaat Bayern v GREP GmbH ...... 9
2012/C 194/15 Case C-167/12: Reference for a preliminary ruling from Employment Tribunal Newcastle upon Tyne (United Kingdom) made on 3 April 2012 — C.D. v S.T...... 9
2012/C 194/16 Case C-172/12 P: Appeal brought on 5 April 2012 by EI du Pont de Nemours and Company against the judgment of the General Court (Seventh Chamber) delivered on 2 February 2012 in Case T-76/08: EI du Pont de Nemours and Company and others v European Commission ...... 10
2012/C 194/17 Case C-175/12: Reference for a preliminary ruling from the Finanzgericht München (Germany) lodged on 13 April 2012 — Sandler AG v Hauptzollamt Regensburg ...... 10
2012/C 194/18 Case C-180/12: Reference for a preliminary ruling from the Administrativen sad Sofia — grad (Bul garia) lodged on 16 April 2012 — Stoilov i Ko EOOD v Nachalnik na Mitnitsa Stolichna ...... 11
EN (Continued overleaf) Notice No Contents (continued) Page
2012/C 194/19 Case C-183/12 P: Appeal brought on 18 April 2012 by Chafiq Ayadi against the order of the General Court (Second Chamber) delivered on 31 January 2012 in Case T-527/09: Chafiq Ayadi v European Commission ...... 12
2012/C 194/20 Case C-187/12: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2012 — Società Fondiaria Industriale Romagnola (SFIR) SpA v Ministero delle Politiche Agricole Alimentari e Forestali ...... 13
2012/C 194/21 Case C-188/12: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2012 — Italia Zuccheri S.p.A. and Co.Pro.B. v AGEA and Ministero delle Politiche Agricole Alimentari e Forestali ...... 13
2012/C 194/22 Case C-189/12: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2012 — Eridania Sadam S.p.A. v AGEA and Ministero delle Politiche Agricole Alimentari e Forestali ...... 14
2012/C 194/23 Case C-198/12: Action brought on 26 April 2012 — European Commission v Republic of Bulgaria 14
2012/C 194/24 Case C-211/12: Reference for a preliminary ruling from the Corte di appello di Roma (Italy) lodged on 3 May 2012 — Martini SpA v Ministero delle Attività Produttive ...... 15
2012/C 194/25 Case C-214/12 P: Action of Land Burgenland against the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 Land Burgenland and Republic of Austria v European Commission, lodged on 8 May 2012 ...... 16
2012/C 194/26 Case C-223/12 P: Appeal brought on 14 May 2012 by the Republic of Austria against the judgment of the General Court (Sixth Chamber) delivered on 28 February 2012 in Joined Cases T-268/08 and T-281/08 Land Burgenland and Republic of Austria v European Commission ...... 17
General Court
2012/C 194/27 Case T-344/08: Judgment of the General Court of 22 May 2012 — EnBW Energie Baden-Württemberg v Commission (Access to documents — Regulation (EC) No 1049/2001 — Administrative file relating to cartel proceedings — Refusal of access — Exception relating to protection of the purpose of investigations — Exception concerning the protection of the commercial interests of a third party — Exception concerning the protection of the decision-making process — Obligation of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the request for access) ...... 18
2012/C 194/28 Case T-6/10: Judgment of the General Court of 22 May 2012 — Sviluppo Globale v Commission (Public service contracts — Call for tenders — Support for the customs and tax authorities in Kosovo — Rejection of a tenderer’s bid — Act not amenable to review — Confirmatory act — Inadmissibility — Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the call for tenders — Partial refusal of access — Exception concerning the protection of the commercial interests of a third party — Inadequate statement of reasons) ...... 18
2012/C 194/29 Case T-300/10: Judgment of the General Court of 22 May 2012 — Internationaler Hilfsfonds v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to contract LIEN 97 2011 — Partial refusal of access — Determination of the subject-matter of the initial application — Exception relating to the protection of privacy and the integrity of the individual — Exception relating to protection of the decision-making process — Principle of sound adminis tration — Concrete and individual examination — Duty to state reasons) ...... 19
EN Notice No Contents (continued) Page
2012/C 194/30 Case T-345/10: Judgment of the General Court (Fourth Chamber) of 22 May 2012 — Portugal v Commission (EAGGF — Guidance Section — Reduction of financial assistance — Measures to support investments in agricultural holdings — Effectiveness of controls) ...... 19
2012/C 194/31 Case T-580/10: Judgment of the General Court of 16 May 2012 — Wohlfahrt v OHIM — Ferrero (Kindertraum) (Community trade mark — Opposition proceedings — Application for Community word mark Kindertraum — Earlier national word mark Kinder — Relative ground for refusal — Proof of use of the earlier trade mark — Article 42(2) of Regulation (EC) No 207/2009 — Likelihood of confusion — Article 8(1)(b) of Regulation No 207/2009) ...... 19
2012/C 194/32 Case T-184/11 P: Judgment of the General Court of 15 May 2012 — Nijs v Court of Auditors (Appeal — Civil service — Officials — Disciplinary measures — Disciplinary procedure — Removal from post with entitlement to old-age pension — Articles 22a and 22b of the Staff Regulations — Requirement for precision in the appeal — New plea in law — Effective judicial protection — Article 47 of the Charter of Fundamental Rights — No obligation on the court to raise of its own motion a plea alleging infringement of the principle that action must be taken within a reasonable period) ...... 20
2012/C 194/33 Case T-280/11: Judgment of the General Court of 15 May 2012 — Ewald v OHIM — Kin Cosmetics (Keen) (Community trade mark — Opposition proceedings — Application for the Community word mark Keen — Community figurative mark KIN — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009) ...... 20
2012/C 194/34 Case T-144/12: Action brought on 30 March 2012 — Comsa v OHIM — COMSA (COMSA) ...... 20
2012/C 194/35 Case T-149/12: Action brought on 2 April 2012 — Investrónica v OHIM — Olympus Imaging (MICRO) ...... 21
2012/C 194/36 Case T-159/12: Action brought on 4 April 2012 — Pri v OHIM — Belgravia Investment Group (PRONOKAL) ...... 21
2012/C 194/37 Case T-161/12: Action brought on 11 April 2012 — Free v OHIM — Conradi + Kaiser (FreeLounge) 22
2012/C 194/38 Case T-166/12: Action brought on 10 April 2012 — Bolívar Cerezo v OHIM — Renovalia Energy (RENOVALIA) ...... 22
2012/C 194/39 Case T-170/12: Action brought on 10 April 2012 — Beyond Retro v OHIM — S&K Garments (BEYOND VINTAGE) ...... 23
2012/C 194/40 Case T-172/12: Action brought on 13 April 2012 — Brauerei Beck v OHIM — Aldi (Be Light) . . . . 23
2012/C 194/41 Case T-188/12: Action lodged on 30 April 2012 — Breyer v Commission ...... 24
2012/C 194/42 Case T-190/12: Action brought on 25 April 2012 — Tomana and Others v Council and Commission 25
2012/C 194/43 Case T-192/12: Action brought on 2 May 2012 — PAN Europe v Commission ...... 26
EN (Continued overleaf) Notice No Contents (continued) Page
2012/C 194/44 Case T-193/12: Action brought on 8 May 2012 — MIP Metro v OHIM — Holsten-Brauerei (H) . . . . 26
2012/C 194/45 Case T-207/12 P: Appeal brought on 11 May 2012 by Luigi Marcuccio against the order of the Civil Service Tribunal of 29 February 2012 in Case F-3/11, Marcuccio v Commission ...... 27
European Union Civil Service Tribunal
2012/C 194/46 Case F-109/10: Judgment of the Civil Service Tribunal (First Chamber) of 22 May 2012 — AU v European Commission (Civil Service — Contractual agents — Pensions — Severance grant) ...... 28
2012/C 194/47 Case F-54/12: Action brought on 15 May 2012 — ZZ v European Commission ...... 28
2012/C 194/48 Case F-27/08 RENV: Order of the Civil Service Tribunal of 15 May 2012 — Simões Dos Santos v OHIM ...... 28
EN 30.6.2012 EN Official Journal of the European Union C 194/1
IV
(Notices)
NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
COURT OF JUSTICE OF THE EUROPEAN UNION
(2012/C 194/01)
Last publication of the Court of Justice of the European Union in the Official Journal of the European Union
OJ C 184, 23.6.2012
Past publications OJ C 174, 16.6.2012 OJ C 165, 9.6.2012 OJ C 157, 2.6.2012 OJ C 151, 26.5.2012 OJ C 138, 12.5.2012 OJ C 133, 5.5.2012
These texts are available on: EUR-Lex: http://eur-lex.europa.eu C 194/2 EN Official Journal of the European Union 30.6.2012
V
(Announcements)
COURT PROCEEDINGS
COURT OF JUSTICE
Judgment of the Court (Fourth Chamber) of 10 May 2012 3. Orders the Kingdom of Spain, the Portuguese Republic, the — European Commission v Republic of Estonia Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the Federal Republic of Germany to bear (Case C-39/10) ( 1 ) their own costs.
(Failure of a Member State to fulfil obligations — Freedom of movement for workers — Income tax — Allowance — ( 1 ) OJ C 63, 13.3.2010. Retirement pensions — Effect on small pensions — Discrimination between resident and non-resident taxpayers)
(2012/C 194/02) Judgment of the Court (Second Chamber) of 10 May 2012 (reference for a preliminary ruling from the Tribunale Language of the case: Estonian amministrativo regionale per la Lombardia (Italy)) — Duomo Gpa Srl (C-357/10), Gestione Servizi Pubblici Srl Parties (C-358/10), Irtel Srl (C-359/10) v Comune di Baranzate (C-357/10 and C-358/10), Comune di Venegono Inferiore Applicant: European Commission (represented by: W. Mölls, K. (C-359/10) Saaremäel-Stoilov and R. Lyal, acting as Agents) Defendant: Republic of Estonia (represented by: M. Linntam, (Joined Cases C-357/10 to C-359/10) ( 1 ) acting as Agent) (Articles 3 EC, 10 EC, 43 EC, 49 EC and 81 EC — Freedom Interveners in support of the defendant: Kingdom of Spain (repre of establishment — Freedom to provide services — Directive sented by M. Muñoz Pérez and A. Rubio Gonzáles, acting as 2006/123/EC — Articles 15 and 16 — Concession relating to Agents), Portuguese Republic (represented by L. Inez Fernandes, the assessment, verification and collection of taxes and other acting as Agent), Kingdom of Sweden (represented by A. Falk, local authority revenue — National legislation — Minimum acting as Agent), United Kingdom of Great Britain and Northern share capital — Obligation) Ireland (represented by S. Ossowski, acting as Agent), Federal Republic of Germany (represented by J. Möller, C. Blaschke and (2012/C 194/03) B. Klein, acting as Agents) Re: Language of the case: Italian Failure of a Member State to fulfil obligations — Infringement Referring court of Article 45 TFEU and Article 28 of the EEA Agreement — Tribunale amministrativo regionale per la Lombardia Income tax on retirement pensions — National legislation not providing for the granting of exemption from income tax to non-residents whose total income is so small that they would Parties to the main proceedings be exempted from income tax if they were resident taxpayers Applicants: Duomo Gpa Srl (C-357/10), Gestione Servizi Operative part of the judgment: Pubblici Srl (C-358/10), Irtel Srl (C-359/10) The Court: Defendants: Comune di Baranzate (C-357/10 and C-358/10), 1. Declares that, by excluding non-resident pensioners from benefiting Comune di Venegono Inferiore (C-359/10) from the allowances laid down by the Law on income tax (Tulu Intervener in support of the defendants: Agenzia Italiana per le maksuseadus) of 15 December 1999, as amended by the Law of Pubbliche Amministrazioni SpA (AIPA) 26 November 2009, where, because of the modest amount of their pensions, they are not taxable in the Member State of residence under the tax legislation of that State, the Republic of Re: Estonia has failed to fulfil its obligations under Article 45 TFEU Reference for a preliminary ruling — Tribunale Amministrativo and Article 28 of the Agreement on the European Economic Area Regionale per la Lombardia — Interpretation of Articles 15 and of 2 May 1992; 16 of Directive 2006/123/EC of the European Parliament and 2. Orders the Republic of Estonia to pay the costs; of the Council of 12 December 2006 on services in the internal 30.6.2012 EN Official Journal of the European Union C 194/3 market (OJ 2006 L 376, p. 36) and Articles 3, 10, 43, 49 and Defendant: Kingdom of the Netherlands (represented by: C. 81 EC — Commercial communications by the regulated Wissels and M. de Ree, acting as Agents) professions — The award of services relating to the assessment, verification and collection of taxes and other local authority revenue — Minimum share capital required under national legislation Re: Failure to fulfil obligations — Infringement of Article 2, Article Operative part of the judgment 23(6) and (8), Article 44(2), Article 48(1) and (2) and Article 53(1) of Directive 2004/18/EC of the European Parliament and Articles 43 EC and 49 EC must be interpreted as precluding a of the Council of 31 March 2004 on the coordination of provision such as that at issue in the main proceedings, under which: procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Principles for the award of contracts — Technical — economic operators, except companies in which all or a majority of specifications — Verification of the capacity and choice of oper the share capital is in public ownership, are required, if necessary, ators, award of contracts — Technical or professional capacities to increase their fully paid up capital to a minimum of EUR 10 — Criteria for the award of contracts — Supply, installation million in order to be entitled to pursue the activities of and maintenance of coffee machines assessment, verification and collection of taxes and other local authority revenue;
Operative part of the judgment — the award of those services to operators who fail to satisfy the minimum requirement of share capital is to be null and void, and The Court:
— it is prohibited to obtain new contracts or participate in tender procedures for the operation of those services until the abovemen 1. On account of the fact that, in the tendering procedure for a public tioned requirement to adjust share capital has been met. contract for the supply and management of coffee machines, which was the subject of a contract notice published in the Official Journal of the European Union on 16 August 2008, the province of North Holland: ( 1 ) OJ C 260, 25.9.2010
— established a technical specification incompatible with Article 23(6) of Directive 2004/18 of the European Parliament and Judgment of the Court (Third Chamber) of 10 May 2012 — of the Council of 31 March 2004 on the coordination of European Commission v Kingdom of the Netherlands procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by (Case C-368/10) ( 1 ) Commission Regulation (EC) No 1422/2007 of 4 December (Failure of a Member State to fulfil obligations — Directive 2007, by requiring that certain products to be supplied were 2004/18/EC — Procedures for the award of public works to bear a specific eco-label, rather than using detailed specifi contracts, public supply contracts and public service cations; contracts — Contract for the supply, installation and main tenance of dispensing machines for hot drinks, and the supply of tea, coffee and other ingredients — Article 23(6) and 23(8) — established award criteria incompatible with Article 53(1)(a) — Technical specifications — Article 26 — Conditions for of Directive 2004/18 by providing that the fact that certain performance of the contract — Article 53(1) — Criteria for products to be supplied bore specific labels would give rise to award of the contracts — Most economically advantageous the grant of a certain number of points in the choice of the tender — Products derived from organic agriculture and fair most economically advantageous tender, without having listed trade — Use of labels in the formulation of the technical the criteria underlying those labels and without having allowed specifications and the award criteria — Article 39(2) — proof that a product satisfies those underlying criteria by all Concept of ‘additional information’ — Article 2 — Principles appropriate means; for award of contracts — Principle of transparency — Articles 44(2) and 48 — Verification of the suitability and choice of participants — Minimum level of technical or professional abilities — Compliance with ‘criteria of — established a minimum level of technical ability not authorised sustainability of purchases and socially responsible business’) by Articles 44(2) and 48 of Directive 2004/18 by requiring, on the basis of suitability requirements and minimum capacity (2012/C 194/04) levels stated in the specifications applicable in the context of that contract, that tenderers comply with the ‘criteria of Language of the case: Dutch sustainable purchasing and socially responsible business’ and Parties state how they comply with those criteria and ‘contribute to improving the sustainability of the coffee market and to envi Applicant: European Commission (represented by: C. Zadra and ronmentally, socially and economically responsible coffee F. Wilman, acting as Agents) production’, and C 194/4 EN Official Journal of the European Union 30.6.2012
— prescribed a clause contrary to the obligation of transparency Operative part of the judgment provided for in Article 2 of Directive 2004/18 by requiring that tenderers comply with ‘the criteria of sustainable The Court: purchasing and socially responsible business’ and state how 1. Dismisses the appeal; they comply with those criteria and ‘contribute to improving the sustainability of the coffee market and to environmentally, 2. Orders Helena Rubinstein SNC and L’Oréal SA to pay the costs. socially and economically responsible coffee production’,
the Kingdom of the Netherlands has failed to fulfil its obligations ( 1 ) OJ C 145, 14.5.2011. under the aforementioned provisions.
2. Dismisses the action as to the remainder; Judgment of the Court (Third Chamber) of 10 May 2012 3. Orders the Kingdom of the Netherlands to pay the costs. (reference for a preliminary ruling from the Tribunal administratif de Montreuil (France)) — Santander Asset Management SGIIC SA, on behalf of FIM Santander Top ( 1 ) OJ C 328, 4.12.2010. 25 Euro Fi (C-338/11) v Directeur des résidents à l’étranger et des services généraux and Santander Asset Management SGIIC SA, on behalf of Cartera Mobiliaria SA SICAV (C-339/11), Kapitalanlagegesellschaft mbH, on behalf of Judgment of the Court (First Chamber) of 10 May 2012 — Alltri Inka (C-340/11), Allianz Global Investors Helena Rubinstein, L’Oréal SA v Office for Harmonisation Kapitalanlagegesellschaft mbH, on behalf of DBI-Fonds in the Internal Market (Trade Marks and Designs), Allergan APT no 737 (C-341/11), SICAV KBC Select Immo Inc. (C-342/11), SGSS Deutschland Kapitalanlagegesellschaft mbH (C-343/11), International Values Series of the DFA 1 (Case C-100/11 P) ( ) Investment Trust Co. (C-344/11), Continental Small Co. Series of the DFA Investment Trust Co. (C-345/11), (Appeal — Community trade mark — Regulation (EC) SICAV GA Fund B (C-346/11), Generali Investments No 40/94 — Article 8(5) — Community word marks Deutschland Kapitalanlagegesellschaft mbH, on behalf of BOTOLIST and BOTOCYL — Community and national figu AMB Generali Aktien Euroland (C-347/11) v Ministre du rative and word marks BOTOX — Declaration of invalidity Budget, des Comptes publics, de la Fonction publique et de — Relative grounds for refusal — Damage to reputation) la Réforme de l’État
(2012/C 194/05) (Joined Cases C-338/11 to C-347/11) ( 1 )
Language of the case: English (Articles 63 TFEU and 65 TFEU — Undertakings for collective investments in transferable securities (UCITS) — Parties Different treatment of dividends paid to non-resident Appellants: Helena Rubinstein, L’Oréal SA (represented by: A. UCITS, subject to withholding tax, and dividends paid to von Mühlendahl, Rechtsanwalt) resident UCITS, not subject to such tax — Whether it is necessary, for the purpose of determining whether the Other parties to the proceedings: Office for Harmonisation in the national measure is in conformity with the free movement Internal Market (Trade Marks and Designs) (represented by: A. of capital, to take account of the situation of shareholders Folliard-Monguiral, acting as Agent), Allergan Inc. (represented — No such need) by: F. Clark, Barrister) (2012/C 194/06)
Re: Language of the case: French Appeal brought against the judgment of the General Court (Third Chamber) of 16 December 2010 in Joined Cases Referring court T-345/08 and T-357/08 Rubinstein and l’Oréal v OHIM — Tribunal administratif de Montreuil Allergan (Botolist and Botocyl), by which the General Court dismissed an action for annulment brought by the proprietor Parties to the main proceedings of the Community word mark ‘BOTOLIST’ for goods classified in Class 3, against Decision R 863/2007-1 of the First Board of Applicants: Santander Asset Management SGIIC SA, on behalf of Appeal of the Office for Harmonisation in the Internal Market FIM Santander Top 25 Euro Fi (C-338/11), Santander Asset (OHIM) of 28 May 2008, which set aside the decision of the Management SGIIC SA, on behalf of Cartera Mobiliaria SA Cancellation Division rejecting the application for a declaration SICAV (C-339/11), Kapitalanlagegesellschaft mbH, on behalf of invalidity of that mark, submitted by the proprietor of the of Alltri Inka (C-340/11), Allianz Global Investors Kapitalanla Community and national figurative and word marks ‘BOTOX’ gegesellschaft mbH, on behalf of DBI-Fonds APT n o 737 for goods classified in Classes 5 and 16 and services classified in (C-341/11), SICAV KBC Select Immo (C-342/11), SGSS Class 42 — Interpretation and application of Art. 8(4) of Regu Deutschland Kapitalanlagegesellschaft mbH (C-343/11), Inter lation (EC) No 40/94 (now Art. 8(4) of Regulation (EC) No national Values Series of the DFA Investment Trust Co. 207/2009) — Relative grounds for refusal — Damage to repu (C-344/11), Continental Small Co. Series of the DFA Investment tation — Interpretation and application of Art. 73 of Regulation Trust Co. (C-345/11), SICAV GA Fund B (C-346/11), Generali No 40/94 (now Art. 75 of Regulation No 207/2009) — Investments Deutschland Kapitalanlagegesellschaft mbH, on Obligation to state reasons behalf of AMB Generali Aktien Euroland (C-347/11) 30.6.2012 EN Official Journal of the European Union C 194/5
Defendants: Directeur des résidents à l’étranger et des services relating to undertakings for collective investment in transferable généraux, Ministre du Budget, des Comptes publics, de la securities (UCITS), are not taxable where those undertakings are Fonction publique et de la Réforme de l’État established in Belgium, whereas the capital gains obtained on the repurchase of shares in such undertakings established in Norway or Re: Iceland are taxable, the Kingdom of Belgium failed to fulfil its Reference for a preliminary ruling — Tribunal administratif de obligations under Article 40 of the Agreement on the European Montreuil — Interpretation of Articles 63 and 65 TFEU — Economic Area of 2 May 1992. Different tax treatment of non-resident undertakings for collective investments in transferable securities (UCITS), subject to withholding tax, and resident undertakings, not 2. Orders the Kingdom of Belgium to pay the costs. subject to such tax — Obstacle to the free movement of capital — Whether it is necessary, for the purpose of deter mining whether withholding tax is in conformity with that 1 principle, also to take account of the situation of shareholders ( ) OJ C 290, 1.10.2011. Operative part of the judgment Articles 63 TFEU and 65 TFEU must be interpreted as precluding the legislation of a Member State which provides for the taxation, by means of withholding tax, of nationally-sourced dividends when they Judgment of the Court (Second Chamber) of 26 April 2012 are received by undertakings for collective investments in transferable (Reference for a preliminary ruling from the High Court of securities resident in another State, whereas such dividends are exempt Ireland) — Health Service Executive v SC, AC from tax when received by undertakings for collective investments in (Case C-92/12) ( 1 ) transferable securities resident in the Member State in question. (Jurisdiction, recognition and enforcement of judgments in 1 ( ) OJ C 269, 10.9.2011. matrimonial matters and in the matters of parental responsi bility — Regulation (EC) No 2201/2003 — Child habitually resident in Ireland, where the child has been placed in care on Judgment of the Court (Sixth Chamber) of 10 May 2012 — many occasions — Child’s behaviour aggressive and placing European Commission v Kingdom of Belgium herself at risk — Judgment ordering placement of the child in a secure care institution in England — Material scope of the 1 (Case C-370/11) ( ) regulation — Article 56 — Procedures for consultation and consent — Obligation to recognise or declare enforceable the (Failure of a Member State to fulfil obligations — Articles 36 decision to place the child in a secure care institution — and 40 of the EEA Agreement — Discriminatory taxation of Provisional measures — Urgent preliminary ruling procedure) the capital gains obtained on the repurchase of shares in collective investment undertakings established in Norway or (2012/C 194/08) Iceland and not authorised under Directive 85/611/EEC) Language of the case: English (2012/C 194/07) Referring court Language of the case: French High Court of Ireland Parties Applicant: European Commission (represented by: W. Mölls, Agent) Parties to the main proceedings Defendant: Kingdom of Belgium (represented by: J.-C. Halleux Applicant: Health Service Executive and M. Jacobs, Agents)
Re: Defendants: SC, AC Failure of a Member State to fulfil obligations — Infringement of Articles 36 and 40 of the Agreement on the European Economic Area — Discriminatory taxation of the capital gains In the presence of: Attorney General obtained on the repurchase of shares in collective investment undertakings established in Norway or Iceland and not auth orised under Directive 85/611/EC Re: Operative part of the judgment Reference for a preliminary ruling — High Court of Ireland — Interpretation of Article 56 of Council Regulation No The Court: 2201/2003 of 27 November 2003 concerning jurisdiction 1. Declares that, by maintaining rules according to which the capital and the recognition and enforcement of judgments in matri gains obtained on the repurchase of shares in collective investment monial matters and the matters of parental responsibility, undertakings, more than 40 % of the assets of which is invested in repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, debt securities, and which are not authorised under Council p. 1) — Material scope — Decision by an Irish court to place Directive 85/611/EEC of 20 December 1985 on the coor a child, habitually resident in Ireland, in secure care in a thera dination of laws, regulations and administrative provisions peutic and educational care institution in the United Kingdom C 194/6 EN Official Journal of the European Union 30.6.2012
— Procedures for consultation and consent to ensure the Order of the Court (Eighth Chamber) of 29 March 2012 effective protection of the child — Requirement that the (reference for a preliminary ruling from the Corte Suprema decision to place the child in secure care be recognised di Cassazione — Italy) — Ministero dell'Economia e delle and/or declared enforceable prior to placement? Finanze, Agenzia delle Entrate v Safilo Spa
(Case C-529/10) ( 1 )
(Article 104(3), first subparagraph, of the Rules of Procedure Operative part of the judgment — Direct taxation — Conclusion of proceedings pending 1. A judgment of a court of a Member State which orders the before the court giving judgment at final instance in tax placement of child in a secure institution providing therapeutic matters — Abuse of rights — Article 4(3) TEU — and educational care situated in another Member State and Freedoms guaranteed by the Treaty — Principle of non- which entails that, for her own protection, the child is deprived discrimination — State aid — Obligation to ensure the of her liberty for a specified period, falls within the material scope effective application of European Union law) of Council Regulation No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of (2012/C 194/09) judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. Language of the case: Italian Referring court Corte Suprema di Cassazione 2. The consent referred to in Article 56(2) of Regulation No 2201/2003 must be given, prior to the making of the judgment on placement of a child, by a competent authority, governed by public law. The fact that the institution where the child is to be placed gives its consent is not sufficient. In circum Parties to the main proceedings stances such as those of the main proceedings, where a court of a Member State which made the judgment on placement is uncertain Applicants: Ministero dell’Economia e delle Finanze, Agenzia whether a consent was validly given in the requested Member delle Entrate State, because it was not possible to identify with certainty the competent authority in the latter State, an irregularity may be corrected in order to ensure that the requirement of consent imposed by Article 56 of Regulation No 2201/2003 has been fully complied with. Defendant: Safilo Spa
3. Regulation No 2201/2003 must be interpreted as meaning that a judgment of a court of a Member State which orders the Re: compulsory placement of a child in a secure care institution Reference for a preliminary ruling — Corte Suprema di situated in another Member State must, before its enforcement Cassazione — Taxation of companies — National legislation in the requested Member State, be declared to be enforceable in under which the tax rate applied to company dividends varies that Member State. In order not to deprive that regulation of its according to the location of the company seat — Commercial effectiveness, the decision of the court of the requested Member transaction involving companies with their seat in Italy and State on the application for a declaration of enforceability must be companies resident elsewhere — Decision by the tax authorities made with particular expedition and appeals brought against such treating as applicable the tax due in the case of the companies a decision of the court of the requested Member State must not resident outside Italy — Notion of abuse of rights, as defined in have a suspensive effect. Case C-255/02 Halifax and Others [2006] ECR I-1609 — Whether that doctrine applies in the context of non-harmonised domestic taxes such as direct taxes 4. Where a consent to placement under Article 56(2) of Regulation No 2201/2003 has been given for a specified period of time, that consent does not apply to orders which are intended to extend the duration of the placement. In such circumstances, an application for a new consent must be made. A judgment on placement made Operative part of the order in a Member State, declared to be enforceable in another Member European Union law, in particular the principle of the prohibition of State, can be enforced in that other Member State only for the abuse of rights, Article 4(3) TEU, the freedoms guaranteed by the period stated in the judgment on placement. FEU Treaty, the principle of non-discrimination, the rules on State aid and the obligation to ensure the effective application of European Union law, must be interpreted as not precluding the application, in a case such as that in the main proceedings relating to direct taxation, of a provision of national law which provides for proceedings pending 1 ( ) OJ C 133, 5.5.2012. before the court giving judgment at final instance in tax matters to be concluded in return for payment of a sum equivalent to 5 % of the value of the claim, where those proceedings originate in an application 30.6.2012 EN Official Journal of the European Union C 194/7 made at first instance more than 10 years before the date of entry into Order of the Court of 22 March 2012 — Italian Republic v force of that provision and the tax authorities have been unsuccessful European Commission at first and second instance. (Case C-200/11 P) ( 1 )
(Appeal — Article 119 of the Rules of Procedure — State aid ( 1 ) OJ C 30, 29.1.2011. — Incompatibility with the common market — Commission decision — Action for annulment — Regulation (EC) No 659/1999 — Article 1(c) — Alteration of existing aid — Regulation (EC) No 794/2004 — Article 4(1) — Temporary defensive mechanism for shipbuilding) Order of the Court of 22 March 2012 — Cantiere navale De Poli SpA v European Commission (2012/C 194/11) Language of the case: Italian (Case C-167/11 P) ( 1 )
(Appeal — Article 119 of the Rules of Procedure — State aid Parties — Incompatibility with the common market — Commission Appellant: Italian Republic (represented by: G. Palmieri, agent, P. Decision — Alteration to existing aid — Regulation (EC) Gentili, avvocato dello Stato) No 794/2004 — Regulation (EC) No 1177/2002 — Temporary defensive mechanism for shipbuilding) Other party to the proceedings: European Commission (represented by: V. Di Bucci and C. Urraca Caviedes, agents) (2012/C 194/10)
Language of the case: Italian Re:
Parties Appeal against the judgment of the General Court (Eighth Chamber) of 3 February 2011 in Case T-3/09 Italy v Appellant: Cantiere navale De Poli SpA (represented by: A. Abate Commission, by which the General Court dismissed an appli and A. Franchi, avvocati) cation for annulment of Commission Decision 2010/38/EC of 21 October 2008 on State aid C 20/08 (ex N 62/08) which Italy is planning to implement through a modification of Other party to the proceedings: European Commission (represented scheme N 59/04 concerning a temporary defensive by: V. Di Bucci and C. Urraca Caviedes, Agents) mechanism for shipbuilding (OJ 2010 L 17, p. 50)
Operative part of the order Intervener in support of the applicant: Italian Republic (represented by: G. Palmieri, Agent, P. Gentili, avvocato dello Stato) 1. The appeal is dismissed.
2. The Italian Republic is ordered to pay the costs. Re:
Appeal brought against the judgment of the General Court ( 1 ) OJ C 204, 9.7.2011. (Eighth Chamber) of 3 February 2011 in Case T-584/08 Cantieri Navale De Poli v Commission, by which the Court dismissed the action for annulment of Commission Decision 2010/38/EC of 21 October 2008 on State aid C-20/08 (ex Order of the Court (Sixth Chamber) of 8 March 2012 N 62/08) which Italy is planning to implement through a (reference for a preliminary ruling from the Hof van modification of scheme N 59/04 concerning a temporary Cassatie van België, Belgium) — Koninklijke Federatie van defensive mechanism for shipbuilding (OJ 2010 L 17, p. 50) Belgische Transporteurs en Logistiek Dienstverleners (Febetra) v Belgische Staat
(Case C-333/11) ( 1 ) Operative part of the order 1. The appeal is dismissed. (Article 104(3), first subparagraph, of the Rules of Procedure — TIR Convention — Community Customs Code — Excise duties — Transport carried out under cover of a TIR carnet 2. Cantiere navale De Poli SpA is ordered to pay the costs. — Unlawful unloading — Determination of the place of the offence — Recovery of customs and excise duties — Jurisdiction) 3. The Italian Republic is to bear its own costs. (2012/C 194/12)
Language of the case: Netherlands
1 ( ) OJ C 173, 11.6.2011. Referring court Hof van Cassatie van België C 194/8 EN Official Journal of the European Union 30.6.2012
Parties to the main proceedings Order of the Court (Fifth Chamber) of 29 March 2012 — Lancôme parfums et beauté & Cie v Office for Applicant: Koninklijke Federatie van Belgische Transporteurs en Harmonisation in the Internal Market (Trade Marks and Logistiek Dienstverleners (Febetra) Designs), Focus Magazin Verlag GmbH
(Case C-334/11 P) ( 1 ) Defendant: Belgische Staat (Appeal — Community trade mark — Word mark ACNO FOCUS — Opposition by the proprietor of the national word mark FOCUS — Refusal of registration — Article Re: 43(2) and (3) of Regulation (EC) No 40/94 — Earlier mark Reference for a preliminary ruling — Hof van Cassatie van registered for not less than five years) België — Interpretation of Article 454(3), second subparagraph, of Commission Regulation (EEC) No 2454/93 of 2 July 1993 (2012/C 194/13) laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Language of the case: English Customs Code (OJ 1992 L 253, p. 1), of Articles 6(1) and Parties 7(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty Appellant: Lancôme parfums et beauté & Cie (represented by: A. and on the holding, movement and monitoring of such von Mühlendahl, Rechtsanwalt) products (OJ 1992 L 76, p. 1) and of Article 37 of the Customs Convention on the International Transport of Goods under cover of TIR carnets (TIR Convention) — Offences or irregularities — Place of the offence or irregularity — Place Other parties to the proceedings: Office for Harmonisation in the deemed to be where the offence or irregularity is detected, Internal Market (Trade Marks and Designs) (represented by: G. where it is impossible to determine the place where it was Schneider, acting as Agent), Focus Magazin Verlag GmbH (rep committed resented by: R. Schweizer and J. Berlinger, Rechtsanwälte)
Operative part of the order Re: 1. Article 454(3) of Commission Regulation (EEC) No 2454/93 of Appeal against the judgment of the General Court (Eighth 2 July 1993 laying down provisions for the implementation of Chamber) of 14 April 2011 in Case T-466/08 Lancôme v Council Regulation (EEC) No 2913/92 establishing the OHIM by which that Court dismissed an action for Community Customs Code, as amended by Commission Regu annulment brought by the applicant for the word mark lation (EC) No 1662/1999 of 28 July 1999, must be interpreted ‘ACNO FOCUS’ for goods in Class 3 against the decision of as meaning that a guaranteeing association may prove the place the First Board of Appeal of the Office for Harmonisation in where an offence or irregularity was committed by relying on the the Internal Market (OHIM) of 29 July 2008 in Case place where the TIR carnet was accepted and/or where the seals R 1796/2007-1 dismissing the appeal against the Opposition were affixed. If that association succeeds in reversing the Division’s decision refusing registration of that mark in the presumption of jurisdiction of the customs authorities of the opposition proceedings brought by the proprietor of the Member State on the territory of which an offence or irregularity national word mark ‘FOCUS’ for goods and services in Classes was detected in the course of transport under cover of a TIR carnet 3, 5, 6, 7, 8, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30, in favour of those of the Member State on the territory of which 33, 34, 36, 38, 39, 41 and 42 — Interpretation and application that offence or irregularity was actually committed — which is for of Article 43(2) and (3) of Regulation No 40/94 (now Article the referring court to determine — the customs authorities of that 42(2) and (3) of Regulation No 207/2009) — Meaning of latter State assume jurisdiction to recover the customs debt. genuine use of a trade mark
2. Articles 6(1) and 7(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject Operative part of the order to excise duty and on the holding, movement and monitoring of The Court (Fifth Chamber): such products, as amended by Council Directive 96/99/EC of 30 December 1996, must be interpreted as meaning that the customs authorities of the Member State on the territory of which the goods were discovered, seized and confiscated enjoy jurisdiction to 1. Dismisses the appeal; recover the excise duty, even if those goods were introduced into the territory of the European Union in another Member State, in so far as those goods are held for commercial purposes, which is for 2. Orders Lancôme parfums et beauté & Cie to pay the costs. the referring court to establish.
1 ( 1 ) OJ C 269, 10.9.2011. ( ) OJ C 282, 24.9.2011. 30.6.2012 EN Official Journal of the European Union C 194/9
Reference for a preliminary ruling from the Landesgericht Reference for a preliminary ruling from Employment Salzburg (Austria) lodged on 30 March 2012 — Freistaat Tribunal Newcastle upon Tyne (United Kingdom) made Bayern v GREP GmbH on 3 April 2012 — C.D. v S.T.
(Case C-156/12) (Case C-167/12)
(2012/C 194/14) (2012/C 194/15)
Language of the case: German Language of the case: English
Referring court Referring court Landesgericht Salzburg Employment Tribunal Newcastle upon Tyne
Parties to the main proceedings Parties to the main proceedings Applicant: Freistaat Bayern Applicant: C.D.
Defendant: GREP GmbH Defendant: S.T.
Third Party: Revisor beim Landesgericht Salzburg Questions referred In each of the following questions: Questions referred 1. Is the first sentence of Article 51(1) of the Charter of Fundamental Rights of the European Union to be inter (a) The phrase ‘an intended mother who has a baby through a preted as meaning that proceedings for a declaration of surrogacy arrangement’ shall refer to circumstances where enforceability of judgments given in a Member State the intended mother in question is a worker and has not pursuant to Article 38 et seq. of Council Regulation No herself, at any material time, been pregnant, or given birth 44/2001 ( 1 ) also fall within the scope of the Charter? to the child in question.
2.a) If so, does the principle of effective judicial protection (b) The phrase ‘surrogate mother’ shall refer to circumstances enshrined in Article 47 of the Charter cover a claim for where a woman has been pregnant and given birth to a exemption from the payment of court costs, in particular a child on behalf of an intended mother. fixed fee payable on lodging an appeal, and/or fees for the assistance of a lawyer in proceedings of the kind referred to in question 1? 1. Do Article 1(1) and/or Article 2(c) and/or Article 8(1) and/or Article 11(2)(b) of the Pregnant Workers Directive 92/85/EEC ( 1) provide a right to receive 2.b) Does this apply also to enforcement proceedings to be maternity leave to an intended mother who has a conducted in accordance with national law or, at least, baby through a surrogacy arrangement? to simultaneous appeal proceedings concerning consent to enforcement if the court has given a decision on the application for a declaration of enforceability and consent to enforcement together in one order? 2. Does the Pregnant Workers Directive 92/85/EEC provide a right to receive maternity leave to an intended mother who has a baby through a surrogacy arrangement, in 3. Does a right to legal aid in the above sense arise at least in circumstances where she: the alternative from Article 43(1) of Regulation No 44/2001 and/or Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental (a) may breastfeed following birth and/or Freedoms where national law requires a party to be repre sented before the court by a lawyer for the lodging of the appeal in question? (b) does breastfeed following birth?
3. Is it a breach of Article 14, taken with Article 2(l)(a) ( 1 ) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in and/or (b) and/or 2(2)(c) of the Recast Equal Treatment civil and commercial matters, OJ L 12, p. 1. Directive 2006/54/EC ( 2 ) for an employer to refuse to provide maternity leave to an intended mother who has a baby through a surrogacy arrangement? C 194/10 EN Official Journal of the European Union 30.6.2012
4. Is it by reason of the employee's association with the Other parties to the proceedings: DuPont Performance Elastomers surrogate mother of the baby a potential breach of LLC, DuPont Performance Elastomers SA, European Article 14, taken with Article 2(l)(a) and/or (b) and/or Commission 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC to refuse to provide maternity leave to an intended mother who has a baby through a surrogacy Form of order sought arrangement? The appellant claims that the Court should:
5. Is it by reason of the intended mother's association with the surrogate mother of the baby a potential breach of — set aside the judgment of the General Court in Case T-76/08 Article 14, taken with Article 2(l)(a) and/or (b) and/or insofar as it upheld the Commission's finding that the 2(2)(c) of the Recast Equal Treatment Directive Appellant was a party to the infringement and liable to 2006/54/EC to subject an intended mother who has a pay a fine; baby through a surrogacy arrangement to less favourable treatment? — order the Commission to pay the costs of the present proceedings. 6. If the answer to questions 4 is ‘yes’, is the intended mother's status as intended mother sufficient to entitle her to maternity leave on the basis of her association Pleas in law and main arguments with the surrogate mother of the baby? The appellant’s grounds of appeal are that the General Court erred in law in finding that the appellant was liable for infringements by DuPont Dow Elastomers (‘DDE’). Insofar as 7. If the answer to any of questions 1,2,3 and 4 is ‘yes’:- the appellant is successful on this ground of appeal, it follows that:
7.1. Is the Pregnant Workers Directive 92/85/EEC, in the relevant respects, directly effective; and — as regards the period prior to the establishment of DDE (when the chloroprene rubber business had been owned by the appellant) the General Court erred in law in not 7.2. Is the Recast Equal Treatment Directive ruling that the Commission was time-barred from 2006/54/EC, in the relevant respects directly imposing a fine on the appellant in respect of participation effective. by its subsidiaries, and
— in circumstances where the Commission was time-barred
( 1 ) Council Directive 92/85/EEC of 19 October 1992 on the intro from imposing a fine and failed to demonstrate a legitimate duction of measures to encourage improvements in the safety and interest for issuing a decision against the appellant, the health at work of pregnant workers and workers who have recently General Court erred in law in ruling that the appellant given birth or are breastfeeding (tenth individual Directive within the was liable for participation by its subsidiaries in the period meaning of Article 16 (1) of Directive 89/391/EEC) prior to the establishment of DDE. OJ L 348, p. 1 ( 2 ) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) OJ L 204, p. 23 Reference for a preliminary ruling from the Finanzgericht München (Germany) lodged on 13 April 2012 — Sandler AG v Hauptzollamt Regensburg
(Case C-175/12) Appeal brought on 5 April 2012 by EI du Pont de Nemours and Company against the judgment of the (2012/C 194/17) General Court (Seventh Chamber) delivered on 2 February 2012 in Case T-76/08: EI du Pont de Nemours Language of the case: German and Company and others v European Commission Referring court (Case C-172/12 P) Finanzgericht München (2012/C 194/16)
Language of the case: English Parties to the main proceedings
Parties Applicant: Sandler AG Appellant: EI du Pont de Nemours and Company (represented by: J. Boyce, A. Lyle-Smythe, Solicitors) Defendant: Hauptzollamt Regensburg 30.6.2012 EN Official Journal of the European Union C 194/11
Questions referred 5. In the event that an EUR.1 movement certificate issued retrospectively is presented pursuant to Article 16 of 1. Is the second indent of the first subparagraph of Article Protocol 1 to Annex V of the Cotonou Agreement, is the 1 889(1) of the Customs Code Implementing Provisions ( ) repayment of already recovered and paid import duties to be interpreted as only regulating cases of requests for under Article 889 of the Customs Code Implementing repayment where goods were first released for free circu Provisions possible only if the preferential tariff rate still lation at the third-country duty rate and it subsequently applies at the time of the request for repayment? transpires that at the time when the customs declaration was accepted a reduced or zero rate of import duty (here: preferential tariff rate) actually existed, but had already expired again when the request for repayment is made, 1 with the result that the expiry of a temporary preferential ( ) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying tariff arrangement cannot be invoked against an operator in down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code OJ connection with submission of a request for repayment L 253, 11.10.1993, p. 1, Commission Regulation (EC) No 214/2007 where the preferential tariff rate is granted during of 28 February 2007 amending Regulation (EEC) No 2454/93 laying clearance and preferential treatment is refused and the down provisions for the implementation of Council Regulation third-country duty rate applied only upon post-clearance (EEC) No 2913/92 establishing the Community Customs Code (OJ recovery by the administration? 2007 L 62, p. 6). ( 2 ) 2000/483/EC: Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, 2. Are Article 16(1)(b) and Article 32 of Protocol 1 to Annex signed in Cotonou on 23 June 2000 (OJ 2000 L 317, p. 3). V of the Cotonou Agreement ( 2) to be interpreted to the ( 3 ) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab effect that, if the exporting State endorses an EUR.1 lishing the Community Customs Code (OJ 1992 L 302, p. 1). movement certificate with a stamp other than the specimen impression of the stamp notified to the Commission, the customs authorities of the importing State may treat such a variation, in cases of doubt, as a technical deficiency for the purposes of Article 16(1)(b) of Reference for a preliminary ruling from the Protocol 1 to Annex V of the Cotonou Agreement and thus Administrativen sad Sofia — grad (Bulgaria) lodged on 16 declare invalid the EUR.1 movement certificate without the April 2012 — Stoilov i Ko EOOD v Nachalnik na Mitnitsa participation of the customs authorities of the exporting Stolichna State? (Case C-180/12)
3. If the answer to Question 2 is in the affirmative: (2012/C 194/18)
Language of the case: Bulgarian (a) Is Article 16(1)(b) of Protocol 1 to Annex V of the Cotonou Agreement applicable even where the Referring court technical deficiency is not detected immediately at importation, but only during the subsequent verification Administrativen sad Sofia — grad by the customs authorities?
Parties to the main proceedings (b) Can Article 16(4) and (5) of Protocol 1 to Annex V of the Cotonou Agreement be interpreted to the effect that Applicant: Stoilov i Ko EOOD a technical deficiency is considered to be rectified where, in the case of an EUR.1 movement certificate issued retrospectively, one of the indications provided for in Article 16(4) of Protocol 1 to Annex V of the Defendant: Nachalnik na Mitnitsa Stolichna Cotonou Agreement has not been entered, in its precise wording, in the ‘Remarks’ box, but only a phrase to the effect that the preference certificate was Questions referred issued retrospectively? 1. Is the article — rolled-up strips out of non-woven fabric for the production of interior blinds — to be assigned the NC 4. If Question 2 is answered in the negative: Code 5407 61 30 depending on the characteristics of the article as ‘woven fabric’ or the NC Code 6303 92 10 corresponding to its single intended purpose — for Is Article 236(1) ( 3 ) of the Customs Code to be interpreted interior blinds — for the purposes of the tariff classification to the effect that import duties were not legally owed and according to the Combined Nomenclature 2009, which is were therefore wrongly recovered pursuant to Article 220(1) formed by Annex I to Commission Regulation (EC) No of the Customs Code where the EUR.1 movement 1031/2008 ( 1) of 19 September 2008 amending Annex I certificates originally used could not be declared invalid by to Council Regulation (EEC) No 2658/87 on the tariff and the customs authorities of the importing country without statistical nomenclature and on the Common Customs the involvement of the customs authorities of the exporting Tariff, whereat the following is to be taken into consider country? ation: C 194/12 EN Official Journal of the European Union 30.6.2012
(a) the term ‘made-up article’ within the meaning of note 7 same time and it constitutes an enforcement order for the to Chapter 63 (‘Other made-up textile articles; sets; worn collection of duties according to the national law of the clothing and worn textile articles; rags’) in Section XI Member State? (‘Textiles and textile articles’) of the Combined Nomen clature 2009, interpreted in conjunction with point 2(a) 4. Are Articles 41(2)(a) and 47 of the Charter of Fundamental of [Section A] of the general rules of nomenclature Rights of the European Union to be interpreted as meaning concerning the terms ‘incomplete or unfinished article’ that, when an application for the gathering of evidence by having regard to the case mentioned in point (c) of note means of an independent expert’s report, which was 7, the characteristics of the article in question in the requested by the obligated party after its briefing in current proceedings and the possibility that a single accordance with Article 221(1) of Regulation No end-product is produced from it; 2913/92, was not expressly acknowledged by a customs authority and was not discussed in the grounds for later decisions, an unrecoverable infringement of the right to (b) the question of whether the term ‘woven fabric’ good administration and the right to a defence in adminis according to Chapter 54, subheading 5407 61 30 of trative proceedings occurs, which can no longer be remedied the Combined Nomenclature 2009 covers fabric strips, in the court proceedings because the person concerned in which, like the end-product forming their single the circumstances of the main proceedings only has the intended purpose — interior blinds —, also comes chance to prove his objections regarding the tariff classifi with fixed edges on the long side and, to be more cation of the article in the proceedings before the first- precise, in view of the express reference to that instance court by posing questions to the independent product in subheading 6303 92 10 of the nomen expert? clature?
( 1 ) OJ 2008 L 291, p. 1. 2. Does a reasonable ground exist for the assumption that a legitimate expectation with regard to the tariff classification of the article arose for the declarant and obligated party due to the importation of the article and that, according to Appeal brought on 18 April 2012 by Chafiq Ayadi against Article 71(2) of Council Regulation (EEC) No 2913/92 of the order of the General Court (Second Chamber) 12 October 1992 establishing the Community Customs delivered on 31 January 2012 in Case T-527/09: Chafiq Code and with regard to the basic principle of legitimate Ayadi v European Commission expectations, the customs tariff number of the article which is stated in the customs declaration is to be applied if, (Case C-183/12 P) according to the facts of the case in the main proceedings at the time of the making of the customs declaration, the (2012/C 194/19) following circumstances were existent: Language of the case: English
Parties (a) With respect to a customs declaration which was made earlier of the same articles with the same customs tariff Appellant: Chafiq Ayadi (represented by: H.A.S. Miller, Solicitor) number, no samples were taken for analysis by the customs authorities after an examination of the articles Other parties to the proceedings: European Commission, Council of recorded in a protocol, including an examination with the European Union regard to the tariff classification, and the conclusion was drawn that the articles were consistent with the information in the declaration; Form of order sought The Appellant seeks the following order if successful on both pleas: (b) no later examination took place after the allocation of the articles to five other customs declarations of the same articles with the same customs tariff number, — the order of the General Court dated 31 January 2012 is which had also been made earlier, and, to be more quashed precise, before and after the date of the protocol regarding the customs examination, in which it was — it is declared that the action for annulment is not devoid of established that the customs tariff number was correct? purpose
— the matter be remitted back to the General Court for it to 3. Is Article 243(1) of Regulation No 2913/92 with regard to determine the annulment application the protection of the basic principle of legal effect to be interpreted as meaning that an appeal can only be lodged against the act according to Article 232(1)(a) of that regu — The Commission do pay the costs of this appeal and the lation, if that act was issued due to a payment which was costs of defending the Commission's application to find the not made within the period prescribed, by means of which annulment action devoid of purpose before the General the amount of the import duty levied is established at the Court. 30.6.2012 EN Official Journal of the European Union C 194/13
Pleas in law and main arguments production of sugar, isoglucose and inulin syrup, and not left unused but used for other activities such as, in this case, pack The Appellant raises the following two pleas in law: aging, and not subject to the obligation of removal for envi ronmental reasons be kept, because they are not subject to the A. The General Court erred when it failed to: dismantling obligation under the above Community regulations?
(a) hear from the Advocate-General and/or
( 1 ) OJ L 58, p. 42. 2 (b) invite representations from the Appellant as to whether ( ) OJ L 176, p. 32. the oral procedure ought to be opened and/or
(c) open the oral procedure on the question as to whether the application to annul was devoid of purpose. Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2012 — Italia Zuccheri B. The General Court erred in finding that the action for S.p.A. and Co.Pro.B. v AGEA and Ministero delle annulment was not capable of conferring material Politiche Agricole Alimentari e Forestali advantage upon the Appellant. (Case C-188/12)
(2012/C 194/21)
Reference for a preliminary ruling from the Consiglio di Language of the case: Italian Stato (Italy) lodged on 23 April 2012 — Società Fondiaria Industriale Romagnola (SFIR) SpA v Ministero delle Referring court Politiche Agricole Alimentari e Forestali Consiglio di Stato (Case C-187/12)
(2012/C 194/20) Parties to the main proceedings Language of the case: Italian Appellants: Italia Zuccheri S.p.A. and Cooperativa Produttori Bieticoli società cooperativa agricola (Co.Pro.B.) Referring court Consiglio di Stato Respondents: Agenzia per le Erogazioni in Agricoltura (AGEA), Ministero delle Politiche Agricole Alimentari e Forestali Parties to the main proceedings Appellant: Società Fondiaria Industriale Romagnola (SFIR) SpA Questions referred Respondents: Ministero delle Politiche Agricole Alimentari e 1. Are Articles 3 and 4 of Council Regulation (EC) No Forestali AGEA — Agenzia per le Erogazioni in Agricoltura 320/2006 of 20 February 2006 ( 1) and Article 4 of Commission Regulation (EC) No 968/2006 of 27 June 2006 ( 2 ) to be interpreted as meaning that the phrase ‘pro Questions referred duction facilities’ does not include facilities used by sugar Must the full dismantling of the production facilities for sugar, companies for storing, packing or packaging sugar for the isoglucose and inulin syrup, pursuant to Article 3 of Council purposes of marketing it and that, therefore, in the case of facilities such as silos, it is necessary to complete a case-by- Regulation (EC) No 320/2006, ( 1 ) the detailed rules for the implementation of which are set out in Commission Regulation case analysis in order to establish whether those facilities are connected with the ‘production line’ or whether they are (EC) No 968/2006, ( 2) be interpreted as meaning that the facilities to be dismantled are those necessary for production, connected with other activities, different from production? as specifically laid down in the abovementioned Article 3 of the Council regulation, in accordance with which the Commission regulation must itself be interpreted, failing which the latter 2. In particular, is Article 4 of Commission Regulation No regulation will be invalid? Consequently, pursuant to the above 968/2006 of 27 June 2006 to be interpreted as meaning mentioned Article 3 of Council Regulation No 320/2006 and that facilities — such as silos — which are used by sugar Article 4 of Commission Regulation No 968/2006, do the companies for storing, packing or packaging sugar purely facilities to be dismantled include only those intended for the for the purposes of marketing it, being independent from production of sugar, isoglucose and inulin syrup, and the other the production cycle, are part of the facilities referred to in facilities referred to in Article 4(1)(c) of Regulation No Article 4(1)(c), rather than Article 4(1)(a) and (b), in 968/2006, including packaging facilities, that have been left accordance with the wording and objectives of Regulation unused and must be dismantled and removed for environmental No 320/2006 and Regulation No 968/2006, in particular reasons? Consequently, may those facilities not linked to the Recital 4 in the preamble to the latter? C 194/14 EN Official Journal of the European Union 30.6.2012
3. In the alternative, with regard to Articles 3 and 4 of Council establish whether those facilities are connected with the Regulation (EC) No 320/2006 of 20 February 2006 and ‘production line’ or whether they are connected with other with regard to the higher rules and principles of EU activities, different from production, such as packaging? primary law, is Article 4 of Commission Regulation (EC) No 968/2006 of 27 June 2006 invalid if interpreted as 2. In the alternative, with regard to Articles 3 and 4 of Council also including among the facilities referred to in Article Regulation (EC) No 320/2006 of 20 February 2006 and 4(1)(a) and (b) of Regulation No 968/2006 those facilities with regard to the higher rules and principles of EU used by sugar companies for storing, packing or packaging primary law, is Article 4 of Commission Regulation (EC) sugar for the purposes of marketing it, given that it is clear No 968/2006 of 27 June 2006 invalid if interpreted as that the objective of Regulation No 320/2006 is to reduce also including among the facilities referred to in Article the production capacity of the sugar company and not to 4(1)(a) and (b) of Regulation No 968/2006 those facilities prevent the company from being able to operate in the used by sugar companies for packaging sugar for the sector of the mere marketing of the product, using sugar purposes of marketing it, given that it is clear that the obtained relying on production quotas belonging to other objective of Regulation No 320/2006 is to reduce the facilities or businesses? production capacity of the sugar company and not to prevent the company from being able to operate in the 4. In the further alternative, in any event, are Articles 3 and 4 sector of the mere marketing of the product, using sugar of Council Regulation (EC) No 320/2006 of 20 February obtained relying on production quotas belonging to other 2006 and Article 4 of Commission Regulation (EC) [No facilities or businesses? 968/2006] of 27 June 2006 valid, by the yardstick of the higher rules and principles of EU primary law, if interpreted 3. In the further alternative, in any event, are Articles 3 and 4 as including in the concept of ‘production facilities’ or of Council Regulation (EC) No 320/2006 of 20 February facilities ‘directly related to … production’ those facilities 2006 and Article 4 of Commission Regulation (EC) [No used by sugar companies for storing, packing or 968/2006] of 27 June 2006 valid, by the yardstick of the packaging sugar for the purposes of marketing it? higher rules and principles of EU primary law, if interpreted as including in the concept of ‘production facilities’ or facilities ‘directly related to … production’ those facilities ( 1 ) OJ 2006 L 58, p. 42 used by sugar companies for packaging sugar for the ( 2 ) OJ 2006 L 176, p. 32 purposes of marketing it?
( 1 ) OJ 2006 L 58, p. 42 2 Reference for a preliminary ruling from the Consiglio di ( ) OJ 2006 L 176, p. 32 Stato (Italy) lodged on 23 April 2012 — Eridania Sadam S.p.A. v AGEA and Ministero delle Politiche Agricole Alimentari e Forestali Action brought on 26 April 2012 — European (Case C-189/12) Commission v Republic of Bulgaria
(2012/C 194/22) (Case C-198/12)
Language of the case: Italian (2012/C 194/23)
Referring court Language of the case: Bulgarian
Consiglio di Stato Parties Applicant: European Commission (represented by: T. Scharf, O. Parties to the main proceedings Beynet, and S. Petrova, acting as Agents) Appellant: Eridania Sadam S.p.A. Defendant: Republic of Bulgaria Respondents: Agenzia per le Erogazioni in Agricoltura (AGEA), Ministero delle Politiche Agricole Alimentari e Forestali Form of order sought The applicant claims that the Court should: Questions referred — declare that, the Republic of Bulgaria has infringed its 1. Are Articles 3 and 4 of Council Regulation (EC) No obligations, resulting from Article 14(1) of Regulation (EC) 320/2006 of 20 February 2006 ( 1 ) and Article 4 of No 715/2009 ( 1) in conjunction with Article 16(1) and Commission Regulation (EC) No 968/2006 of 27 June (2)(b) thereof, to provide maximum capacity to all market 2006 ( 2 ) to be interpreted as meaning that the phrase ‘pro participants and, in particular, services for virtual reverse duction facilities’ does not include facilities used by sugar flow gas transport; companies for packaging sugar for the purposes of marketing it and that, therefore, in the case of facilities such as silos, it is necessary to complete a case-by-case analysis in order to — order the Republic of Bulgaria to pay the costs. 30.6.2012 EN Official Journal of the European Union C 194/15
Pleas in law and main arguments Parties to the main proceedings By the present action, the Commission seeks a declaration that Applicant: Martini SpA the Republic of Bulgaria has infringed its obligations resulting from Article 14(1) of Regulation (EC) No 715/2009 in conjunction with Article 16(1) and (2)(b) thereof, which Defendant: Ministero delle Attività Produttive replace Article 14(1) and Article 5(1) and (2) of Regulation (EC) No 1775/2005.
Questions referred Those obligations are the following: 1. Must Article 35 of Commission Regulation (EC) No 1291/2000 of 9 June 2000 ( 1 ) be interpreted as meaning — The obligations resulting from Article 14(1) of Regulation that the essential aim underlying the penalty laid down (EC) No 715/2009 in conjunction with Article 16(1) and therein — consisting in total forfeiture of the security (2)(b) thereof to provide maximum capacity to all market required from Community economic operators which have participants and, in particular, services for virtual reverse obtained an import or export licence for a product governed flow gas transport. by the common organisation of the market for cereals — is to deter those operators from failing to comply with a primary obligation (such as the actual importation or expor According to the Bulgarian authorities, the reason why the tation of the cereals covered by the relevant licence) which abovementioned obligation to provide maximum capacity they are required to fulfil with regard to the operation in was not fulfilled is that there is no physical connection respect of which they have been granted the licence and between the transit system and the national gas transport lodged the relevant security? system of the Republic of Bulgaria, and that those systems are subject to different regulations. 2. Must Article 35(4) of Regulation (EC) No 1291/2000, in so far as it lays down the time-limits and procedure for the A further reason why that obligation was not fulfilled, claim release of the security lodged at the time when an import the Bulgarian authorities, is that there are three interstate licence is issued, be interpreted as meaning that, where there agreements in force between the Republic of Bulgaria and is a failure to comply with a secondary obligation — the Government of the USSR, which were concluded in consisting, in particular, in the late production of proof 1986 and 1989. that the product has been correctly imported (and, consequently, the late submission of the related application for release of the security lodged) — the amount of the The Commission contends that, if the interstate trade penalty to be imposed must be determined independently agreement of 27 April 1998 between OOO Gazprom and of the amount of the specific security the forfeiture of which Bulgartransgaz EAD impedes the fulfilment by the Bulgarian must be ordered for non-compliance with a primary authorities of their obligation to provide maximum capacity, obligation in relation to those same imports, and must the Republic of Bulgaria is required, pursuant to Article the amount of the penalty be determined, in particular, by 351(2) of the Treaty on the Functioning of the European reference to the normal amount of security applicable to Union, to take all appropriate steps to eliminate such most imports of products of the same type carried out incompatibilities with the provisions of European Union during the reference period? law.
3. Must Article 35(4)(c) of Commission Regulation (EC) No 1291/2000, in so far as it provides that ‘.... where, for a ( 1 ) Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural given product, there are licences or certificates with different gas transmission networks and repealing Regulation (EC) No levels of security, the [lowest] rate applicable to imports … 1775/2005 (OJ 2009 L 211, p. 36). shall be used to calculate the amount to be forfeited.’, be interpreted as meaning that, where cereals have been correctly imported by a Community economic operator, non-compliance with the time-limit laid down for producing proof that the product has actually been Reference for a preliminary ruling from the Corte di imported into the European Community must be subject appello di Roma (Italy) lodged on 3 May 2012 — Martini to a penalty calculated by reference to the lowest amount SpA v Ministero delle Attività Produttive of security in force during the same period in which that product was imported, irrespective of the specific duty (Case C-211/12) applicable (as argued by Martini) or only where the same duty applies (as argued by the Italian State)? (2012/C 194/24)
Language of the case: Italian
( 1 ) OJ 2000 L 152, p. 1. Referring court Corte di appello di Roma C 194/16 EN Official Journal of the European Union 30.6.2012
Action of Land Burgenland against the judgment of the to the General Court in its observations on the Report for the General Court (Sixth Chamber) of 28 February 2012 in Hearing because they were not contained in the Report for the Joined Cases T-268/08 and T-281/08 Land Burgenland and Hearing. Republic of Austria v European Commission, lodged on 8 May 2012 2. Infringement of Article 107(1) TFEU through the (Case C-214/12 P) finding that, during the evaluation of the offers, the Commission did not err in law in not taking account (2012/C 194/25) of the risks arising from Ausfallhaftung for the Province of Burgenland (Land Burgenland) Language of the proceedings: German In that respect, the General Court wrongly relied on case-law Parties which is not applicable to the present case or, if the case-law were applicable at least in principle, it is in conflict with the Appellant: Land Burgenland (represented by: U. Soltész and P. considerations of the General Court. Melcher, Rechtsanwälte, supported by A. Egger, Rechtsanwalt)
Other parties: European Commission, Republic of Austria In addition, the General Court did not take account of other case-law which is in conflict with its arguments.
Form of order sought by the appellant Finally, the General Court wrongly considered that the risks — Set aside the judgment of the General Court of 28 February arising from Ausfallhaftung were not relevant, although Ausfall 2012 in Joined Cases T-268/08 and T-281/08; haftung constitutes existing and therefore lawful aid.
— Give final judgment in the case and annul Decision 2008/719/EC of the European Commission of 30 April 3. Infringement of Article 107(1) TFEU through the 2008 on State aid C 56/06 (ex NN 77/06) implemented finding that the Commission did not err in law in by Austria for the privatisation of Bank Burgenland (OJ relying on the offer of the Consortium in order to 2008 L 239, p. 32) and order the European Commission determine the market value of Bank Burgenland to pay the costs of the proceedings before the General Court The General Court wrongly concluded that there was no and the Court of Justice; manifest error of assessment in the choice and application of the methods for determining the market value of Bank — In the alternative to the second form of order, refer the case Burgenland by the Commission. back to the General Court for a decision in keeping with the legal assessment in the judgment of the Court of Justice and In addition, the General Court considered that the tender reserve the costs. procedure carried out for the sale of Bank Burgenland was unconditional, contrary to the unambiguous conclusions of Pleas in law and main arguments the Commission, and, without checking, relied on the incorrect conclusion of the Commission that the ‘deficient’ By the present appeal, the appellant challenges the judgment of conditions had no effect on the amount of the offers. the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 in which it dismissed the action of the appellant against Commission Decision Furthermore, the General Court considered that the taking into 2008/719/EC of 30 April 2008 on State aid implemented by account by the Commission of the clearly excessive offer of the Austria for the privatisation of Bank Burgenland. Consortium was without fault although the determination of the excess was decisively based on the fact that Ausfallhaftung did not apply and that the risks arising from Ausfallhaftung were The appellant relies on four grounds of appeal: not to be taken into account.
1. Infringement by the General Court of the right to be heard through the failure to appraise an essential part 4. Infringement of Article 107(1) TFEU through the of the eighth plea in law finding that the Commission did not err in law in deter mining that neither the outcome nor the length of the In the submissions that were not appraised, the appellant procedure before the Finanzmarktaufsichtbehörde criticised the fact that the Commission exclusively took (authority responsible for the supervision of financial account of the advantage associated with the ‘additional markets, ‘FMA’) justified the sale of Bank Burgenland to bonds’ in the amount of EUR 380 million and thereby Grazer Wechselseitige Versicherung disregarded the advantage which was associated with the bonds in the amount of EUR 320 million and thus the The General Court considered that the finding of the absence of any ‘aid element’ in the sale of Bank Burgenland Commission that nothing indicated that the FMA was going to Grazer Wechselseitige Versicherung. to prohibit the sale to the Consortium was without fault but in so doing incorrectly assumed that the evidence put forward by the appellant was not relevant for the authorisation Those submissions were not acknowledged by the General procedure before the FMA and had not been taken into Court although the appellant had expressly pointed them out account by the FMA. 30.6.2012 EN Official Journal of the European Union C 194/17
In addition, in finding that nothing indicated that the length of mented by Austria for the privatisation of Bank Burgenland. the procedure before the FMA had seriously compromised the chances of privatisation of Bank Burgenland, the General Court ignored the hard evidence put forward by the applicant. The appellant submits two grounds of appeal: Finally, the General Court applied an incorrect standard of examination and review. 1. Infringement of Article 107(1) TFEU in so far as it was determined that the Commission did not err in law in Appeal brought on 14 May 2012 by the Republic of its evaluation of the offers by failing to consider the Austria against the judgment of the General Court (Sixth risks arising for the Land Burgenland from the Ausfall Chamber) delivered on 28 February 2012 in Joined Cases haftung (deficiency liability) T-268/08 and T-281/08 Land Burgenland and Republic of Austria v European Commission The General Court wrongly relies on case-law that is not applicable to the present case or — inasmuch as it is applicable, (Case C-223/12 P) at least in principle — is inconsistent with the General Court’s considerations. (2012/C 194/26)
Language of the case: German The General Court moreover failed to consider other case-law that is inconsistent with its considerations. Parties Appellant: Republic of Austria (represented by: C. Pesendorfer, Agent) Lastly, the General Court erred in taking the view that the risks arising from the Ausfallhaftung could not be taken into account, Other parties to the proceedings: European Commission, Land even though the Ausfallhaftung constitutes existing and thus Burgenland lawful aid.
Form of order sought — Set aside the judgment of the General Court of 28 February 2. Infringement of Article 107(1) TFEU in so far as it was 2012 in Joined Cases T-268/08 and T-281/08; determined that the Commission did not err in law in finding that neither the outcome nor the length of the procedure before the Austrian Financial Market — give final judgment itself in the matter and annul Authority (FMA) justified the sale of Bank Burgenland Commission Decision 2008/719/EC of 30 April 2008 on to Grazer Wechselseitige Versicherung State aid C 56/06 (ex NN 77/06) implemented by Austria for the privatisation of Bank Burgenland (OJ 2008 L 239, The General Court considered the Commission’s conclusion that p. 32) and order the European Commission to pay the costs there was no indication that the FMA would forbid the purchase of the proceedings before the General Court and the Court by the consortium to be correct, but erred in proceeding on the of Justice; assumption that the information supplied by the appellant had not been relevant to the FMA approval process and had not — in the alternative to the second head of claim above, refer been taken into account by the FMA. the case back to the General Court for determination in line with the legal assessment contained in the judgment of the Court of Justice, and reserve its decision on costs. The General Court also overlooked specific evidence adduced by the appellant when it found that there was no indication that Pleas in law and main arguments the length of the FMA procedure had seriously jeopardised the chances of privatising Bank Burgenland. By the present appeal the appellant challenges the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 by which the General Court dismissed the appellant’s action against Commission Lastly, the General Court applied the wrong standard of Decision 2008/719/EC of 30 April 2008 on State aid imple assessment and review. C 194/18 EN Official Journal of the European Union 30.6.2012
GENERAL COURT
Judgment of the General Court of 22 May 2012 — EnBW Judgment of the General Court of 22 May 2012 — Energie Baden-Württemberg v Commission Sviluppo Globale v Commission
(Case T-344/08) ( 1) (Case T-6/10) ( 1)
(Access to documents — Regulation (EC) No 1049/2001 — (Public service contracts — Call for tenders — Support for Administrative file relating to cartel proceedings — Refusal of the customs and tax authorities in Kosovo — Rejection of a access — Exception relating to protection of the purpose of tenderer’s bid — Act not amenable to review — Confirmatory investigations — Exception concerning the protection of the act — Inadmissibility — Access to documents — Regulation commercial interests of a third party — Exception concerning (EC) No 1049/2001 — Documents relating to the call for the protection of the decision-making process — Obligation of tenders — Partial refusal of access — Exception concerning the institution concerned to carry out a concrete, individual the protection of the commercial interests of a third party — examination of the content of the documents covered by the Inadequate statement of reasons) request for access) (2012/C 194/28) (2012/C 194/27) Language of the case: Italian Language of the case: German Parties Parties Applicant: Sviluppo Globale GEIE (Rome, Italy) (represented by: Applicant: EnBW Energie Baden-Württemberg AG (Karlsruhe, F. Sciaudone, R. Sciaudone and A. Neri, lawyers) Germany) (represented by: A. Bach and A. Hahn, lawyers) Defendant: European Commission (represented by: P. Costa de Defendant: European Commission (represented: initially by P. Oliveira and F. Erlbacher, acting as Agents, and P. Manzini, Costa de Oliveira, A. Antoniadis and O. Weber and lawyer) subsequently by A. Bouquet, P. Costa de Oliveira and A. Anto niadis, Agents) Re: Interveners in support of the applicant: Kingdom of Sweden (rep resented by: K. Petkovska, S. Johannesson and A. Falk, acting as Application, first, for annulment of the Commission’s decision Agents) of 10 November 2009 rejecting the tender submitted by the consortium of which the applicant is a member in call for Intervener in support of the defendant: Siemens AG (Berlin and tenders EuropAid/127843/D/SER/KOS for the provision of Munich, Germany) (represented by: I. Brinker, C. Steinle and support services to the customs and tax authorities in Kosovo M. Holm-Hadulla, lawyers); and ABB Ltd (Zurich, Switzerland) (OJ 2009/S 4-003683) and, second, for annulment of the (represented: initially by J. Lawrence, Solicitor, and E. Whiteford, Commission’s decision of 26 November 2009 refusing the Barrister, and subsequently by J. Lawrence and D. Howe, consortium access to certain documents relating to the call Solicitor) for tenders.
Re: Operative part of the judgment Application for annulment of Commission Decision SG.E.3/ The Court: MV/psi D(2008) 4931 of 16 June 2008 refusing access to the case-file in Case COMP/F/38.899 — Gas insulated switchgear 1. Dismisses the action as inadmissible in so far as it is directed against the Commission’s decision of 10 November 2009 rejecting Operative part of the judgment the tender submitted by the consortium of which the applicant is a The Court: member in call for tenders EuropAid/127843/D/SER/KOS for the provision of support services to the customs and tax authorities 1. Annuls Commission Decision SG.E.3/MV/psi D(2008) 4931 of in Kosovo. 16 June 2008 refusing access to the case-file in Case COMP/ F/38.899 — Gas insulated switchgear; 2. Annuls the Commission’s decision of 26 November 2009 concerning access to certain documents relating to that call for 2. Orders the European Commission to bear its own costs and to pay tenders, in so far as it refuses to grant access, in the disclosed those incurred by EnBW Energie Baden-Württemberg AG; version of the evaluation report, to the scores awarded by the evaluation committee as set out on pages 3 to 5 of that report. 3. Orders the Kingdom of Sweden, ABB Ltd and Siemens AG to bear their own costs. 3. Dismisses the action as to the remainder.
( 1 ) OJ C 272, 25.10.2008. 4. Dismissed the applicant’s application for the instigation of measures of inquiry. 30.6.2012 EN Official Journal of the European Union C 194/19
5. Orders Sviluppo Globale GEIE to bear its own costs relating to the Judgment of the General Court (Fourth Chamber) of 22 main proceedings and to pay three quarters of the costs incurred by May 2012 — Portugal v Commission the Commission in those proceedings. Orders the Commission to bear one quarter of its costs relating to the main proceedings. (Case T-345/10) ( 1)
6. Orders Sviluppo Globale to bear all the costs relating to the (EAGGF — Guidance Section — Reduction of financial application for interim relief in Case T-6/10 R. assistance — Measures to support investments in agricultural holdings — Effectiveness of controls)
( 1 ) OJ C 51, 27.2.2010. (2012/C 194/30)
Language of the case: Portuguese
Judgment of the General Court of 22 May 2012 — Parties Internationaler Hilfsfonds v Commission Applicant: Portuguese Republic (represented by: L. Inez (Case T-300/10) ( 1) Fernandes and J. Saraiva de Almeida, agents, and by M. Figueiredo, lawyer) (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to contract LIEN 97 2011 — Partial refusal of access — Determination of the subject-matter of Defendant: European Commission (represented by: P. Guerra e the initial application — Exception relating to the protection Andrade and G. von Rintelen, agents) of privacy and the integrity of the individual — Exception relating to protection of the decision-making process — Re: Principle of sound administration — Concrete and individual examination — Duty to state reasons) Annulment of Commission Decision C(2010) 4255 of 29 June 2010 concerning the application of financial corrections to (2012/C 194/29) assistance from the EAGGF, Guidance Section, allocated to Operational Programme No CCI 1999.PT.06.1.PO.007 Language of the case: German (Portugal — National Objective 1 programme) for the measure ‘Investments in agricultural holdings’. Parties Applicant: Internationaler Hilfsfonds eV (Rosbach, Germany) Operative part of the judgment (represented by: H. Kaltenecker, lawyer) The Court: Defendant: European Commission (represented by: P. Costa de Oliveira and T. Scharf, Agents, assisted by R. van der Hout, lawyer) 1. Dismisses the action;
Re: 2. Orders the Portuguese Republic to pay the costs. Application for annulment of the Commission’s decision of 29 April 2010 refusing the applicant full access to the file relating to contract LIEN 97 2011 ( 1 ) OJ C 301, 6.11.2010
Operative part of the judgment The Court: Judgment of the General Court of 16 May 2012 — 1. Annuls the decision of the European Commission of 29 April Wohlfahrt v OHIM — Ferrero (Kindertraum) 2010 in so far as it impliedly refuses access to the documents 1 which it sent to the colleague of the European Ombudsman, other (Case T-580/10) ( ) than those identified by the latter in files 1 to 4 of the file relating (Community trade mark — Opposition proceedings — Appli to contract LIEN 97 2011; cation for Community word mark Kindertraum — Earlier 2. Also annuls the Commission’s decision of 29 April 2010 in so national word mark Kinder — Relative ground for refusal far as it expressly or impliedly refuses access to the documents of — Proof of use of the earlier trade mark — Article 42(2) the file relating to contract LIEN 97 2011 referred to in para of Regulation (EC) No 207/2009 — Likelihood of confusion graphs 106, 134, 194 and 196 of this judgment; — Article 8(1)(b) of Regulation No 207/2009)
3. Dismisses the action as to the remainder; (2012/C 194/31)
4. Orders the Commission to bear its own costs and four fifths of the Language of the case: German costs incurred by Internationaler Hilfsfonds eV. Parties Applicant: Harald Wohlfahrt (Rothenburg ob der Tauber, ( 1 ) OJ C 246, 11.9.2010. Germany) (represented initially by N. Scholz Recht, then by G. Huβlein-Stich, latterly by M. Loschelder, lawyers) C 194/20 EN Official Journal of the European Union 30.6.2012
Defendant: Office for Harmonisation in the Internal Market Judgment of the General Court of 15 May 2012 — Ewald v (Trade Marks and Designs) (represented by A. Pohlmann, then OHIM — Kin Cosmetics (Keen) D. Walicka, agents) (Case T-280/11) ( 1) Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Ferrero SpA (Alba, Italy) (rep (Community trade mark — Opposition proceedings — Appli resented by: F. Jacobacci and L. Ghedina, lawyers) cation for the Community word mark Keen — Community Re: figurative mark KIN — Relative ground for refusal — Like lihood of confusion — Similarity of the signs — Article Action brought against the decision of the Fourth Board of 8(1)(b) of Regulation (EC) No 207/2009) Appeal of OHIM of 20 October 2010 (Case R 815/2009-4) relating to opposition proceedings between Ferrero SpA and (2012/C 194/33) Mr Harald Wohlfahrt. Language of the case: German Operative part of the judgment Parties The Court: 1. Dismisses the action; Applicant: Rita Ewald (Frauenwald, Germany) (represented by: S. Reinhardt, lawyer) 2. Orders Mr Harald Wohlfahrt to pay the costs. Defendant: Office for Harmonisation in the Internal Market 1 ( ) OJ C 63, 26.2.2011 (Trade Marks and Designs) (represented by: G. Schneider, acting as Agent)
Judgment of the General Court of 15 May 2012 — Nijs v Other party to the proceedings before the Board of Appeal of OHIM: Court of Auditors Kin Cosmetics, S.A. (Sant Feliu de Guixols, Spain)
(Case T-184/11 P) ( 1 ) Re: (Appeal — Civil service — Officials — Disciplinary measures — Disciplinary procedure — Removal from post with Action brought against the decision of the First Board of Appeal entitlement to old-age pension — Articles 22a and 22b of of OHIM of 3 March 2011 (Case R 1383/2010-1), relating to the Staff Regulations — Requirement for precision in the opposition proceedings between Kin Cosmetics, S.A. and Ms appeal — New plea in law — Effective judicial protection Rita Ewald — Article 47 of the Charter of Fundamental Rights — No obligation on the court to raise of its own motion a plea Operative part of the judgment alleging infringement of the principle that action must be taken within a reasonable period) The Court:
(2012/C 194/32) 1. dismisses the action;
Language of the case: French 2. orders Ms Rita Ewald to pay the costs. Parties 1 Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by: F. ( ) OJ C 238, 13.8.2011. Rollinger and P.-F. Onimus, lawyers) Other party to the proceedings: Court of Auditors of the European Union (represented by: T. Kennedy, J. Vermer and K. Zavřelová, Action brought on 30 March 2012 — Comsa v OHIM — Agents) COMSA (COMSA) Re: (Case T-144/12) Appeal against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 13 January 2011 in Case (2012/C 194/34) F-77/09 Nijs v Court of Auditors, not published in the ECR, seeking to have that judgment set aside. Language in which the application was lodged: Spanish Operative part of the judgment Parties The Court: Applicant: Comsa, SA (Barcelona, Spain) (represented by: M. 1. Dismisses the appeal; Aznar Alonso, lawyer) 2. Orders Mr Bart Nijs to bear his own costs and to pay the costs Defendant: Office for Harmonisation in the Internal Market incurred by the Court of Auditors of the European Union in the (Trade Marks and Designs) appeal proceedings. Other party to the proceedings before the Board of Appeal: 1 ( ) OJ C 179, 18.6.2011. Constructora de obras municipales, SA (COMSA) (Madrid, Spain) 30.6.2012 EN Official Journal of the European Union C 194/21
Form of order sought that, pursuant to Article 8(1)(b) of the Community trade mark regulation, the trade mark applicant’s appeal before — Uphold the action and declare that points 2, 3 and 5 of OHIM ought to have been dismissed and the Opposition the decision of the Second Board of Appeal of 10 January Division’s decision refusing trade mark application No 2012 in Joined Cases R 518/2011-2 and R 795/2011-2 are 7 014 392 ‘MICRO’ (mixed) in its entirety upheld; not consistent with Council Regulation (EC) No 40/94 on the Community trade mark (now Regulation (EC) No 207/2009); — order the party or parties which oppose this action to pay the costs. — order the defendant and, where appropriate the intervener, to pay all the costs of the proceedings. Pleas in law and main arguments Pleas in law and main arguments Applicant for a Community trade mark: Olympus Imaging Corporation Applicant for a Community trade mark: Constructora de obras municipales, SA (COMSA) Community trade mark concerned: Figurative mark ‘MICRO’, in Community trade mark concerned: Word mark ‘COMSA’ for goods black and white, for goods in Class 9 (Application No and services in Classes 19, 35, 36, 37, 39 and 42 — 7 014 392) Community trade mark application No 7 091 051 Proprietor of the mark or sign cited in the opposition proceedings: The Proprietor of the mark or sign cited in the opposition proceedings: The applicant applicant
Mark or sign cited in opposition: Company name (business name) Mark or sign cited in opposition: Spanish figurative mark ‘micro’, ‘COMSA S.A.’ and unregistered mark ‘COMSA’ in light blue and dark blue, for goods and services in Classes 9, 38 and 42 (Mark No 2736947)
Decision of the Opposition Division: Opposition upheld in part Decision of the Opposition Division: Opposition upheld and appli Decision of the Board of Appeal: The appeals of the applicant and cation for registration of the mark applied for refused of the defendant upheld in part Decision of the Board of Appeal: Appeal upheld and decision Pleas in law: Infringement of Article 8(4) of Regulation under appeal which refused the mark applied for annulled No 207/2009
Plea in law: Misapplication of Article 8(1)(b) of Regulation No 207/2009 given that there is a likelihood of confusion between the signs at issue. Action brought on 2 April 2012 — Investrónica v OHIM — Olympus Imaging (MICRO)
(Case T-149/12)
(2012/C 194/35) Action brought on 4 April 2012 — Pri v OHIM — Belgravia Investment Group (PRONOKAL) Language in which the application was lodged: Spanish (Case T-159/12) Parties (2012/C 194/36) Applicant: Investrónica, SA (Madrid, Spain) (represented by: E. Seijo Veiguela and J. L. Rivas Zurdo, lawyers) Language in which the application was lodged: Spanish
Parties Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) Applicant: Pri SA (Clémency, Luxembourg) (represented by: C. Marí Aguilar and F.J. Márquez Martín, lawyers) Other party to the proceedings before the Board of Appeal: Olympus Imaging Corp. (Tokyo, Japan) Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) Form of order sought — Annul the decision of 31 January 2012 of the Fourth Board Other party to the proceedings before the Board of Appeal: Belgravia of Appeal of OHIM, in Case R 347/2011-4, and declare Investment Group Ltd (Tortola, Islas Vírgenes Británicas) C 194/22 EN Official Journal of the European Union 30.6.2012
Form of order sought — annul in part the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade The applicant claims that the Court should: Marks and Designs) of 25 January 2012 in Case R 437/2011-2; — annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 December 2011 in Case — rule that the application for registration of the disputed R 311/2011-2 which dismissed the action brought by Pri mark should be rejected in its entirety on the basis of SA and granted, in part, the registration of Community Article 8(1)(b) of Regulation No 207/2009; and trade mark No 57644099 ‘PRONOKAL’ in Classes 5, 29, 30 and 32, of which BELGRAVIA is the proprietor, and — order the other party to the proceedings before the Board of reject in its entirety the registration of (BELGRAVIA’s) Appeal to pay the costs of the proceedings, both before the Community trade mark No 5744099 ‘PRONOKAL’ in Court and before OHIM. Classes 5, 29, 30 and 32 for infringement of the rights of Pri SA; Pleas in law and main arguments — order the defendant to pay the costs, in accordance with Applicant for a Community trade mark: the other party to the Article 87(2) and (3) of the Rules of Procedure. proceedings before the Board of Appeal
Pleas in law and main arguments Community trade mark concerned: the word mark ‘FreeLounge’ for Applicant for a Community trade mark: Belgravia Investment goods and services in Classes 16, 35 and 41 — application for Group Ltd registration No 8442832
Community trade mark concerned: word mark ‘PRONOKAL’ for Proprietor of the mark or sign cited in the opposition proceedings: the goods in Classes 5, 29, 30 and 32 — Trade mark application applicant No 5744099 Mark or sign cited in opposition: the French figurative mark No Proprietor of the mark or sign cited in the opposition proceedings: the 99785839 ‘free LA LIBERTÉ N’A PAS DE PRIX’ for goods and applicant services in Classes 9 and 38; the French word mark No 1734391 ‘FREE’ for services in Class 38; the company name Mark or sign cited in opposition: Spanish word mark and trade ‘FREE’ used in the course of trade in France; the domain name name ‘PRONOKAL’ for goods in Class 30 ‘FREE.FR’ used in the course of trade Decision of the Opposition Division: rejection in part of the opposition and registration in part of the mark applied for Decision of the Opposition Division: rejection of the application for the Community trade mark Decision of the Board of Appeal: dismissal of the appeal Decision of the Board of Appeal: Partial annulment of the Pleas in law: infringement of Article 8(2)(c) of Regulation No contested decision 207/2009 Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
Action brought on 11 April 2012 — Free v OHIM — Conradi + Kaiser (FreeLounge)
(Case T-161/12) Action brought on 10 April 2012 — Bolívar Cerezo v OHIM — Renovalia Energy (RENOVALIA) (2012/C 194/37) (Case T-166/12) Language in which the application was lodged: French (2012/C 194/38) Parties Applicant: Free (Paris, France) (represented by: Y. Coursin, Language in which the application was lodged: Spanish lawyer) Parties Defendant: Office for Harmonisation in the Internal Market Applicant: Juan Bolívar Cerezo (Granada, Spain) (represented by: (Trade Marks and Designs) I.M. Barroso Sánchez-Lafuente, lawyer)
Other party to the proceedings before the Board of Appeal: Conradi + Kaiser GmbH (Kleinmaischeid, Germany) Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) Form of order sought Other party to the proceedings before the Board of Appeal: Renovalia The applicant claims that the Court should: Energy, SA (Villarobledo, Spain) 30.6.2012 EN Official Journal of the European Union C 194/23
Form of order sought Form of order sought The applicant claims that the Court should: — Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade — annul the decision of the First Board of Appeal of 26 Marks and Designs) of 31 January 2012 joined cases January 2012 of the Office for Harmonisation in the R 493/2011-4 and R 548/2011-4; and Internal Market (Trade Marks and Designs) in Case R 663/2011-1, resulting in the registration of Community — Order the Office and the other party to the proceedings trade mark No 8 631 814 ‘RENOVALIA’ for ‘Insurance; before the Board of Appeal to bear their own costs and financial affairs; monetary affairs; real estate affairs’ in pay those of the applicant. Class 36;
— order the defendant to pay the costs. Pleas in law and main arguments Applicant for a Community trade mark: The other party to the Pleas in law and main arguments proceedings before the Board of Appeal Applicant for a Community trade mark: the applicant Community trade mark concerned: International Registration of the Community trade mark concerned: Word mark ‘RENOVALIA’ for word mark ‘BEYOND VINTAGE’, for goods and services in goods and services in Classes 11, 25, 35, 36, 37 and 41 — classes 14, 18 and 25 — Community trade mark application application for Community trade mark No 8 631 814 No W 994046
Proprietor of the mark or sign cited in the opposition proceedings: Proprietor of the mark or sign cited in the opposition proceedings: The Renovalia Energy, SA applicant
Mark or sign cited in opposition: Spanish word marks ‘RENOVA Mark or sign cited in opposition: Community trade mark regis ENERGY’ and ‘RENOVAENERGY’ and trade name ‘RENOVALIA’ tration No 5629035 of the word mark ‘BEYOND RETRO’, for for services in Class 36 goods and services in classes 25 AND 35
Decision of the Opposition Division: opposition upheld in part Decision of the Opposition Division: Upheld the opposition in part Decision of the Board of Appeal: appeal dismissed Decision of the Board of Appeal: Dismissed the applicant’s appeal Pleas in law: There is a likelihood of confusion between the in case R 548/2011-4 and annulled the decision of the applicant’s priority Spanish mark No 2 715 975 ‘RENOVALIA’ opposition division in case R 493/2011-4 and the opposing Spanish marks. An action for annulment is to be brought before the competent Spanish national court against Pleas in law: Infringement of Article 8(1)(b) of Council Regu the opposing Spanish marks, as a result of which those marks lation No 207/2009. will no longer be able to be relied on to oppose the registration of the Community trade mark applied for
Action brought on 13 April 2012 — Brauerei Beck v Action brought on 10 April 2012 — Beyond Retro v OHIM — Aldi (Be Light) OHIM — S&K Garments (BEYOND VINTAGE) (Case T-172/12) (Case T-170/12) (2012/C 194/40) (2012/C 194/39) Language in which the application was lodged: English Language in which the application was lodged: English Parties Parties Applicant: Brauerei Beck GmbH & Co. KG (Bremen, Germany) Applicant: Beyond Retro Ltd (London, United Kingdom) (repre (represented by: G. Hasselblatt and V. Töbelmann, lawyers) sented by: S. Malynicz, Barrister)
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: S&K Other party to the proceedings before the Board of Appeal: Aldi Garments, Inc. (New York, United States) GmbH & Co. KG (Mülheim an der Ruhr, Germany) C 194/24 EN Official Journal of the European Union 30.6.2012
Form of order sought — Annul the Decision of the Commission of 3 April 2012 on Az. Ares(2012)399467 in so far as access to the written — Annul the decision of the First Board of Appeal of submissions of Austria in proceedings C-189/09 has not the Office for Harmonisation in the Internal Market been granted; (Trade Marks and Designs) of 19 January 2012 in case R 2258/2010-1; — Order the Commission to pay the costs. — Order the defendant to bear its own costs as well as the costs of the applicant; Pleas in law and main arguments In support of the action, the applicant claims with regard to the — Order the other party to the proceedings before the Board Decision of the Commission of 16 March 2012: of Appeal to bear its own costs, in the event it intervenes before the General Court. 1. First plea in law, alleging incorrect application of the second indent of Article 4(2) of Regulation (EC) No 1049/2001 ( 1 ) Pleas in law and main arguments (protection of legal advice) Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal — According to the applicant, it does not adversely affect the protection of legal advice to publish legal opinion Ares(2010) 828204 of the Commission’s legal service, Community trade mark concerned: The figurative mark ‘Be Light’, which discusses the question of whether Directive for goods in classes 29, 30 and 32 — Community trade mark 2006/24/EC ( 2) can be amended so that it is left to application No 7165351 Member States of the European Union whether or not to ‘retain’ telecommunications data of all citizens Proprietor of the mark or sign cited in the opposition proceedings: The without suspicion and cause for a hypothetical case of applicant need.
— In any case, the public interest outweighs the knowledge Mark or sign cited in opposition: Community trade mark regis of the opinion. tration No 135285 of the word mark ‘BECK’s’, for goods in class 32 2. Second plea in law, alleging incorrect application of Article 4(3) first sub paragraph of Regulation No 1049/2001 (pro Decision of the Opposition Division: Upheld the opposition for all tection of the decision-making process) the contested goods in class 32 and allowed the contested trade mark to proceed for the remaining goods — According to the applicant, it does not adversely affect the protection of the decision-making process of the Decision of the Board of Appeal: Annulled the decision of the Commission to publish the legal opinion mentioned Opposition Division above of the Commission’s legal service.
Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council — In any case, the public interest outweighs the knowledge Regulation No 207/2009. of the opinion.
In support of the action, with regard to the Decision of the Commission of 3 April 2012, the applicant pleads the incorrect application of Article 2(3) of Regulation No 1049/2001. In that Action lodged on 30 April 2012 — Breyer v Commission regard, the applicant claims that, contrary to the view of the (Case T-188/12) Commission, the written submissions of a Member State (here: Austria) to the European Court of Justice (here: in proceedings (2012/C 194/41) C-189/09), copies of which the Commission received as a party to the proceedings, are subject to the scope of application of Language of the proceedings: German Regulation No 1049/2001.
Parties 1 Applicant: Patrick Breyer (Wald-Michelbach, Germany) (repre ( ) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European sented by: M. Starostik, lawyer) Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). ( 2 ) Directive 2006/24/EC of the European Parliament and of the Defendant: European Commission Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications Form of order sought by the applicant networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54). — Annul the Decision of the Commission of 16 March 2012 on Az. Ares(2012)313186; 30.6.2012 EN Official Journal of the European Union C 194/25
Action brought on 25 April 2012 — Tomana and Others v Sibanda (Harare); David Sigauke (Harare); Absolom Sikosana Council and Commission (Harare); Nathaniel Charles Tarumbwa (Harare); Edmore Veterai (Harare); Patrick Zhuwao (Harare); Paradzai Willings (Case T-190/12) Zimondi (Harare); Cold Comfort Farm Cooperative Trust (Harare); Comoil (Private) Ltd (Harare); Divine Homes (Private) (2012/C 194/42) Ltd (Harare); Famba Safaris (Private) Ltd (Harare); Jongwe Printing and Publishing Company (Private) Ltd (Harare); M & Language of the case: English S Syndicate (Private) Ltd (Harare); Osleg (Private) Ltd (Harare); Swift Investments (Private) Ltd (Harare); Zidco Holdings (Private) Parties Ltd (Harare); Zimbabwe Defence Industries (Private) Ltd (Harare); Applicants: Johannes Tomana (Harare, Zimbabwe); Titus Zimbabwe Mining Development Corp. (Harare) (represented by: Mehliswa Johna Abu Basutu (Harare); Happyton Mabhuya D. Vaughan, QC (Queen’s Counsel), M. Lester and R. Lööf, Bonyongwe (Harare); Flora Buka (Harare); Wayne Bvudzijena Barristers, and M. O’Kane, Solicitor) (Harare); David Chapfika (Harare); George Charamba (Harare); Faber Edmund Chidarikire (Harare); Tinaye Chigudu (Harare); Aeneas Soko Chigwedere (Harare); Phineas Chihota (Harare); Defendants: European Commission, Council of the European Augustine Chihuri (Harare); Patrick Anthony Chinamasa Union (Harare); Edward Takaruza Chindori-Chininga (Harare); Joseph Chinotimba (Harare); Tongesai Shadreck Chipanga (Harare); Augustine Chipwere (Harare); Constantine Chiwenga (Harare); Form of order sought Ignatius Morgan Chiminya Chombo (Harare); Martin Dinha (Harare); Nicholas Tasunungurwa Goche (Harare); Gideon — Annul Council Decision 2012/97/CFSP of 17 February Gono (Harare); Cephas T. Gurira (Harare); Stephen Gwekwerere 2012 amending Decision 2011/101/CFSP concerning (Harare); Newton Kachepa (Harare); Mike Tichafa Karakadzai restrictive measures against Zimbabwe (OJ 2012 L 47, (Harare); Saviour Kasukuwere (Harare); Jawet Kazangarare p. 50), in so far as it concerns the applicants; (Harare); Sibangumuzi Khumalo (Harare); Nolbert Kunonga (Harare); Martin Kwainona (Harare); R. Kwenda (Harare); Andrew Langa (Harare); Musarashana Mabunda (Harare); Jason — Annul Commission Implementing Regulation (EU) No Max Kokerai Machaya (Harare); Joseph Mtakwese Made (Harare); 151/2012 of 21 February 2012 amending Council Regu Edna Madzongwe (Harare); Shuvai Ben Mahofa (Harare); Titus lation (EC) No 314/2004 concerning certain restrictive Maluleke (Harare); Paul Munyaradzi Mangwana (Harare); Reuben measures in respect of Zimbabwe (OJ 2012 L 49, p. 2), Marumahoko (Harare); G. Mashava (Harare); Angeline Masuku in so far as it concerns the applicants; (Harare); Cain Ginyilitshe Ndabazekhaya Mathema (Harare); Thokozile Mathuthu (Harare); Innocent Tonderai Matibiri (Harare); Joel Biggie Matiza (Harare); Brighton Matonga — Annul Council Implementing Decision 2012/124/CFSP of (Harare); Cairo Mhandu (Harare); Fidellis Mhonda (Harare); 27 February 2012 implementing Decision 2011/101/CFSP Amos Bernard Midzi (Harare); Emmerson Dambudzo concerning restrictive measures against Zimbabwe (OJ 2012 Mnangagwa (Harare); Kembo Campbell Dugishi Mohadi L 54, p. 20), in so far as it concerns the applicants; and (Harare); Gilbert Moyo (Harare); Jonathan Nathaniel Moyo (Harare); Sibusio Bussie Moyo (Harare); Simon Khaya Moyo (Harare); S. Mpabanga (Harare); Obert Moses Mpofu (Harare); Cephas George Msipa (Harare); Henry Muchena (Harare); — Order the defendants to pay the costs of the applicants. Olivia Nyembesi Muchena (Harare); Oppah Chamu Zvipange Muchinguri (Harare); C. Muchono (Harare); Tobaiwa Mudede (Harare); Isack Stanislaus Gorerazvo Mudenge (Harare); Pleas in law and main arguments Columbus Mudonhi (Harare); Bothwell Mugariri (Harare); Joyce Teurai Ropa Mujuru (Harare); Isaac Mumba (Harare); Simbarashe In support of the action, the applicants rely on five pleas in law. Simbanenduku Mumbengegwi (Harare); Herbert Muchemwa Murerwa (Harare); Munyaradzi Musariri (Harare); Christopher Chindoti Mushohwe (Harare); Didymus Noel Edwin Mutasa 1. First plea in law, alleging that the defendants have included (Harare); Munacho Thomas Alvar Mutezo (Harare); Ambros individuals and entities without a proper legal basis for Mutinhiri (Harare); S. Mutsvunguma (Harare); Walter Mzembi doing so. Neither the Council nor the Commission has (Harare); Morgan S. Mzilikazi (Harare); Sylvester Nguni the power to impose restrictive measures on non-state (Harare); Francis Chenayimoyo Dunstan Nhema (Harare); John actors in Zimbabwe on the sole grounds of unsubstantiated Landa Nkomo (Harare); Michael Reuben Nyambuya (Harare); allegations of criminal misconduct in Zimbabwe. The Magadzire Hubert Nyanhongo (Harare); Douglas Nyikayaramba unsubstantiated allegations are in many cases alleged to (Harare); Sithembiso Gile Glad Nyoni (Harare); David Pagwese have taken place even before the Government of National Parirenyatwa (Harare); Dani Rangwani (Harare); Engelbert Abel Unity was formed. The institutions have acted beyond their Rugeje (Harare); Victor Tapiwe Chashe Rungani (Harare); limited competence in penal matters, and the measures in Richard Ruwodo (Harare); Stanley Urayayi Sakupwanya question are inappropriate and disproportionate to any (Harare); Tendai Savanhu (Harare); Sydney Tigere Sekeramayi legitimate Common Foreign and Security Policy objective. (Harare); Lovemore Sekeremayi (Harare); Webster Kotiwani Shamu (Harare); Nathan Marwirakuwa Shamuyarira (Harare); Perence Samson Chikerema Shiri (Harare); Etherton Shungu 2. Second plea in law, alleging that the defendants erred mani (Harare); Chris Sibanda (Harare); Jabulani Sibanda (Harare); festly in considering that the criteria for listing set out in the Misheck Julius Mpande Sibanda (Harare); Phillip Valerio contested measures were fulfilled, because: C 194/26 EN Official Journal of the European Union 30.6.2012
— The defendants were not lawfully entitled to include — Instruct the Commission to assess, nonetheless, the applicants on the sole basis of assertions that they are substance of the request for internal review, within a a ZANU-PF member of the Government of Zimbabwe period of time determined by the Court; and or an associate of such a person; and
— Order the Commission to pay the costs of the proceedings. — The defendants were not lawfully entitled to include applicants on the basis of vague unsupported allegations of misconduct stated to have taken place in the past, in Pleas in law and main arguments many cases before the Government of National Unity was formed. In support of the action, the applicant relies on two pleas in law. 3. Third plea in law, alleging that the defendants failed to give adequate or sufficient reasons for including individuals and 1. First plea in law, alleging that the defendant erred when it entities in the contested measures. found that the applicant did not comply with the conditions of eligibility set out in Article 11 of Regulation (EC) No 1367/2006, as the applicant already existed for more than 4. Fourth plea in law, alleging that the defendants failed to two years when it made its request for internal review. safeguard the applicants’ rights of defence and to effective judicial review, in that: 2. Second plea in law, alleging that the defendant erred when it 2 — The defendants provided no particulars or evidence in stated that Implementing Regulation (EU) No 1143/2011 ( ) support of their vague assertions of serious misconduct, cannot be considered an administrative act within the and meaning of Article 10 of Regulation (EC) No 1367/2006, as it is defined in Article 2(1)(g) of that Regulation, as the decision to approve prochloraz is sufficiently individual in — The defendants provided no opportunity for the its effects and content to make it an administrative act as is applicants to comment on the case and evidence meant in Article 10(1) of Regulation (EC) No 1367/2006. against them.
5. Fifth plea in law, alleging that the defendants infringed, ( 1 ) Regulation (EC) No 1367/2006 of the European Parliament and of without justification or proportion, the applicants’ funda the Council of 6 September 2006 on the application of the mental rights, including their right to protection of their provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in property, business, reputation and private and family life. Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13) ( 2 ) Commission Implementing Regulation (EU) No 1143/2011 of 10 November 2011 approving the active substance prochloraz, in accordance with Regulation (EC) No 1107/2009 of the European Action brought on 2 May 2012 — PAN Europe v Parliament and of the Council concerning the placing of plant Commission protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 and Commission Decision 2008/934/EC (OJ 2011 L 293, p. 26) (Case T-192/12)
(2012/C 194/43)
Language of the case: English Action brought on 8 May 2012 — MIP Metro v OHIM — Parties Holsten-Brauerei (H) Applicant: Pesticide Action Network Europe (PAN Europe) (Case T-193/12) (Brussels, Belgium) (represented by: J. Rutteman, lawyer) (2012/C 194/44)
Defendant: European Commission Language in which the application was lodged: German
Parties Form of order sought Applicant: MIP Metro Group Intellectual Property GmbH & Co. — Declare the Commission’s Decision of 9 March 2012, which KG (Düsseldorf, Germany) (represented by: J.-C. Plate and R. found a request made by the applicant for internal review to Kaase, lawyers) be inadmissible, contrary to Regulation (EC) No 1367/2006/EC ( 1 ) and the Convention on Access to Information, Public Participation in Decision-making and Defendant: Office for Harmonisation in the Internal Market Access to Justice in Environmental Matters (‘Aarhus Conven (Trade Marks and Designs) tion’); Other party to the proceedings before the Board of Appeal: Holsten- — Annul the Commission’s Decision of 9 March 2012; Brauerei AG (Hamburg, Germany) 30.6.2012 EN Official Journal of the European Union C 194/27
Form of order sought Other party to the proceedings: European Commission The applicant claims that the Court should: Form of order sought by the appellant — annul the decision of the First Board of Appeal of the Office — Annul in its entirety and without exception whatsoever the for Harmonisation in the Internal Market (Trade Marks and order under appeal; Designs) of 23 February 2012 in Case R 2340/2010-1 on the basis of incompatibility with Article 8(1)(b) of Regu — Grant all the appellant’s claims in the proceedings at first lation (EC) No 40/94 on the Community Trade Mark, in instance under appeal; so far as it upheld the opposition against the extension of protection of international registration No 984 017; — Order the defendant to pay to the appellant all the costs incurred by him in the appeal proceedings; — order the defendant to pay the costs, including the costs of the appeal procedure. — In the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision Pleas in law and main arguments on each of the claims referred to in the preceding para Applicant for a Community trade mark: the applicant graphs.
Community trade mark concerned: the international registration Pleas in law and main arguments which has effect in the European Union of a figurative mark The present appeal is brought against the order of 29 February representing an escutcheon with the letter ‘H’ for goods in Class 2012 in Case F-3/11 rejecting as manifestly inadmissible an 32 — No 984 017 action seeking, first, annulment of the alleged refusal on the part of the European Commission to place a document on Proprietor of the mark or sign cited in the opposition proceedings: the file relating to his accident and, second, an order that the Holsten-Brauerei AG Commission pay to the appellant the sum of EUR 1 000 by way of compensation for the damage alleged. Mark or sign cited in opposition: the German figurative mark representing a knight on horseback with a shield bearing the letter ‘H’ for goods in Class 32 The appellant relies on two grounds of appeal.
Decision of the Opposition Division: the opposition was upheld 1. First ground, alleging absolute failure to state reasons for the ruling that the action was manifestly inadmissible and Decision of the Board of Appeal: the appeal was dismissed manifest uncertainty, inconsistent reasoning, distortion and misrepresentation of the facts, self-evident, illogical, Pleas in law: infringement of Article 8(1)(b) of Regulation irrelevant and unreasonable reasoning, infringement of the No 207/2009 obligation of clare loqui, failure to rule on one of the appel lant’s claims, and incorrect and unreasonable interpretation and application of:
Appeal brought on 11 May 2012 by Luigi Marcuccio Articles 26 and 26a of the Staff Regulations of Officials of against the order of the Civil Service Tribunal of 29 the European Union; February 2012 in Case F-3/11, Marcuccio v Commission the rules of law relating to the concept of an actionable (Case T-207/12 P) measure (in particular, at paragraphs 30 to 47 of the order under appeal); (2012/C 194/45) the rules of law concerning the processing of and access by Language of the case: Italian the individual to personal data affecting him which is held by a European Union institution; Parties 2. Second ground, alleging that the court at first instance’s Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. rulings on costs are unlawful (between paragraphs 47 and Cipressa, lawyer) 48 of the order under appeal). C 194/28 EN Official Journal of the European Union 30.6.2012
EUROPEAN UNION CIVIL SERVICE TRIBUNAL
Judgment of the Civil Service Tribunal (First Chamber) of Subject-matter and description of the proceedings 22 May 2012 — AU v European Commission Annulment of the decision of the selection board of (Case F-109/10) ( 1) competition EPSO/AST/117/11 not to admit the applicant to the second stage of that competition on the ground that he did (Civil Service — Contractual agents — Pensions — Severance not meet the admission requirements laid down in the grant) competition notice.
(2012/C 194/46) Form of order sought Language of the case: German — Annul the decision taken by the EPSO selection board refusing the applicant admission to the second stage of open competition EPSO/AST/117/11 — Assistants in the Parties secretarial field (AST 1) on the ground of the alleged Applicant: AU (represented by: R. Oehmen, lawyer) failure to meet the admission requirements laid down in section III of Notice of open competition EPSO/AST/117/11 and, in particular, because he does not have a level of post- Defendant: European Commission (represented by: D. Martin secondary education in the secretarial field attested by a and B. Eggers, acting as Agents) diploma or, alternatively, a level of secondary education attested by a diploma giving access to post-secondary Re: education followed by professional experience in the secre tarial field of at least three years, the tasks in which are Action for annulment of the decision of the Commission directly linked to the secretarial function as described in refusing to pay the applicant a severance grant Title 1 of the competition notice;
Operative part of the judgment — Annul all other subsequent acts and, if necessary, all other measures which the selection board will adopt in connection The Tribunal: with the exclusion of the applicant from the competition in question; 1. Dismisses the action; — In the alternative, in the event that it may not be possible for the applicant to take part in the second stage of the 2. Orders AU to bear his own costs and to pay those incurred by the competition, order the defendant to pay the applicant the European Commission. provisional sum ex aequo et bono of EUR 10 000 as compen sation for material and non-material loss and in respect of harm to his career, together with late-payment interest at 1 ( ) OJ C 13, 15.1.2011, p. 43. the legal rate with effect from the lodging of the action.
— Order the Commission to pay the costs. Action brought on 15 May 2012 — ZZ v European Commission Order of the Civil Service Tribunal of 15 May 2012 — Simões Dos Santos v OHIM (Case F-54/12)
(Case F-27/08 RENV) ( 1) (2012/C 194/47) (2012/C 194/48) Language of the case: French Language of the case: French Parties Applicant: ZZ (represented by: M. Condinanzi, D. Bono and C.A. The President of the First Chamber has ordered that the case be Chiorino, lawyers) removed from the register, following amicable settlement.
Defendant: European Commission ( 1 ) OJ C 158, 21.6.2008, p. 25.
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