# Official Journal C 179/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.179.eng |
| --- | --- |
| Official Journal
  of the European Union | C 179 |
| | |
| English edition | Information and Notices | Volume 5418 June 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.179.eng

Official Journal

of the European Union

C 179

English edition

Information and Notices

Volume 5418 June 2011

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 179/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 683, 11.6.2011 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2011/C 179/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 683, 11.6.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 179/02 | Case C-235/09: Judgment of the Court (Grand Chamber) of 12 April 2011 (reference for a preliminary ruling from the Cour de cassation — France) — DHL Express France SAS, formerly DHL International SA v Chronopost SA (Intellectual property — Community trade mark — Regulation (EC) No 40/94 — Article 98(1) — Prohibition against infringement, issued by a Community trade mark court — Territorial scope — Coercive measures attached to such a prohibition — Effect in the territory of Member States other than the Member State of the court seised) | 2 |
| 2011/C 179/03 | Joined Cases C-288/09 and C-289/09: Judgment of the Court (Second Chamber) of 14 April 2011 (references for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom)) — British Sky Broadcasting Group plc (C-288/09), Pace plc (C-289/09) v The Commissioners for Her Majesty's Revenue & Customs (Common Customs Tariff — Tariff classification — Combined Nomenclature — Digital satellite television receivers and decoders with a recording function — Community Customs Code — Article 12(5)(a)(i) and (6) — Period of validity of a binding tariff information) | 3 |
| 2011/C 179/04 | Case C-327/09: Judgment of the Court (Third Chamber) of 14 April 2011 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Mensch und Natur AG v Freistaat Bayern (Fourth paragraph of Article 249 EC — Measures adopted by the institutions — Commission decision addressed to a particular person — Regulation (EC) No 258/97 — Novel food or novel food ingredient — Decision 2000/196/EC — Stevia rebaudiana Bertoni: plants and dried leaves — Refusal to authorise placing on the market — Effects in relation to a person other than the addressee) | 4 |
| 2011/C 179/05 | Case C-331/09: Judgment of the Court (First Chamber) of 14 April 2011 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — State aid — Aid granted by the Republic of Poland to Technologie Buczek Group — Commission decision declaring that aid to be incompatible with the common market and ordering its recovery — Failure to implement within the prescribed period) | 4 |
| 2011/C 179/06 | Case C-522/09: Judgment of the Court (Fourth Chamber) of 14 April 2011 — European Commission v Romania (Failure of a Member State to fulfil obligations — Directive 79/409/EEC — Conservation of wild birds — Special protection areas — Areas designated insufficient in number and size — Irregularity of the pre-litigation procedure — Inadmissibility of the action) | 5 |
| 2011/C 179/07 | Joined Cases C-42/10, C-45/10 and C-57/10: Judgment of the Court (Third Chamber) of 14 April 2011 (reference for a preliminary ruling from the Raad van State (Belgium)) — Vlaamse Dierenartsenvereniging VZW (C-42/10, C-45/10 and C-57/10), Marc Janssens (C-42/10 and C-45/10) v Belgische Staat (Veterinary and zootechnical sector — Regulation (EC) No 998/2003 — Animal health conditions applicable to non-commercial movement of pet animals — Decision 2003/803/EC — Model passport for the intra-Community movements of dogs, cats and ferrets) | 5 |
| 2011/C 179/08 | Case C-343/10: Judgment of the Court (Eighth Chamber) of 14 April 2011 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 91/271/EEC — Pollution and nuisances — Treatment of urban waste water — Articles 3 and 4) | 6 |
| 2011/C 179/09 | Case C-390/10: Judgment of the Court (Eighth Chamber) of 14 April 2011 — European Commission v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2007/36/EC — Exercise of certain rights of shareholders in listed companies — Failure to transpose within the period prescribed) | 6 |
| 2011/C 179/10 | Case C-80/11: Reference for a preliminary ruling from the Baranya Megyei Biróság (Hungary) lodged on 22 February 2011 — Mahagében Kft v Nemzeti Adó és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága | 7 |
| 2011/C 179/11 | Case C-130/11: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 March 2011 — Neurim Pharmaceuticals (1991) Ltd v Comptroller-General of Patents | 7 |
| 2011/C 179/12 | Case C-131/11: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 17 March 2011 — Pfeifer & Langen KG v Hauptzollamt Aachen | 8 |
| 2011/C 179/13 | Case C-134/11: Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 18 March 2011 — Jürgen Blödel-Pawlik v HanseMerkur Reiseversicherung AG | 8 |
| 2011/C 179/14 | Case C-135/11 P: Appeal brought on 18 March 2011 by IFAW Internationaler Tierschutz-Fonds gGmbH against the judgment of the General Court (Eighth Chamber) delivered on 13 January 2011 in Case T-362/08: IFAW v European Commission | 8 |
| 2011/C 179/15 | Case C-137/11: Reference for a preliminary ruling from the Cour du travail de Bruxelles (Belgium) lodged on 21 March 2011 — Partena ASBL v Les Tartes de Chaumont-Gistoux SA | 9 |
| 2011/C 179/16 | Case C-139/11: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 21 March 2011 — Joan Cuadrench More v Koninklijke Luchtvaart Maatschappij NV (KLM) | 9 |
| 2011/C 179/17 | Case C-142/11: Reference for a preliminary ruling from the Jász-Nagykun-Szolnok County Court (Hungary) lodged on 23 March 2011 — Péter Dávid v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága | 10 |
| 2011/C 179/18 | Case C-149/11: Reference for a preliminary ruling from the Gerechtshof te ‘s-Gravenhage (Netherlands) lodged on 28 March 2011 — Leno Merken v Hagelkruis Beheer B.V. | 10 |
| 2011/C 179/19 | Case C-158/11: Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 1 April 2011 — Auto 24 SARL v Jaguar Land Rover France | 11 |
| 2011/C 179/20 | Case C-162/11: Reference for a preliminary ruling from the Bundeskommunikationssenat (Austria) lodged on 4 April 2011 — Publikumsrat des Österreichischen Rundfunks v Österreichischer Rundfunk | 11 |
| 2011/C 179/21 | Case C-163/11: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 4 April 2011 — Annex Customs BVBA v Belgische Staat and KBC Bank NV | 11 |
| 2011/C 179/22 | Case C-170/11: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 7 April 2011 — Maurice Robert Josse Marie Ghislain Lippens and Others v Hendrikus Cornelis Kortekaas and Others, other party: Ageas NV, previously Fortis N.V | 12 |
| 2011/C 179/23 | Case C-178/11: Action brought on 14 April 2011 — European Commission v Republic of Malta | 12 |
| 2011/C 179/24 | Case C-195/11 P: Appeal brought on 26 April 2011 by European Commission against the judgment of the General Court (Seventh Chamber) delivered on 17 February 2011 in Case T-122/09: Zhejiang Xinshiji Foods Co. Ltd, Hubei Xinshiji Foods Co. Ltd v Council of the European Union | 13 |
| 2011/C 179/25 | Case C-196/11 P: Appeal brought on 27 April 2011 by Formula One Licensing BV against the judgment of the General Court (Eighth Chamber) delivered on 17 February 2011 in Case T-10/09: Formula One Licensing BV v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Global Sports Media Ltd | 13 |
| | General Court |
| 2011/C 179/26 | Case T-129/09: Judgment of the General Court of 4 May 2011 — Bongrain v OHIM — apetito (APETITO) (Community trade mark — Opposition proceedings — Application for the Community word mark APETITO — Earlier Community word mark apetito — Relative ground for refusal — Likelihood of confusion — Similarity of the goods — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 15 |
| 2011/C 179/27 | Case T-291/10: Order of the General Court of 8 April 2011 — Martin v Commission (Access to documents — Regulation (EC) No 1049/2001 — Implied refusal of access — Explicit decision adopted after the action was brought — No need to adjudicate) | 15 |
| 2011/C 179/28 | Case T-413/10 R: Order of the President of the General Court of 13 April 2011 — Socitrel v Commission (Application for interim measures — Competition — Commission decision imposing a fine — Bank guarantee — Application for suspension of operation — Pecuniary damage — No exceptional circumstances — No urgency) | 16 |
| 2011/C 179/29 | Case T-184/11 P: Appeal brought on 28 March 2011 by Bart Nijs against the judgment of the Civil Service Tribunal of 13 January 2011 in Case F-77/09 Nijs v Court of Auditors | 16 |
| 2011/C 179/30 | Case T-208/11: Action brought on 11 April 2011 — LTTE v Council | 17 |
| 2011/C 179/31 | Case T-211/11: Action brought on 11 April 2011 — Timab Industries and CFPR v Commission | 18 |
| 2011/C 179/32 | Case T-214/11: Action brought on 11 April 2011 — ClientEarth and PAN Europe v EFSA | 18 |
| 2011/C 179/33 | Case T-218/11: Action brought on 21 April 2011 — Dagher v Council | 19 |
| | European Union Civil Service Tribunal |
| 2011/C 179/34 | Case F-4/11: Action brought on 31 March 2011 — AV v Commission | 21 |
| 2011/C 179/35 | Case F-26/11: Action brought on 8 March 2011 — ZZ v Council | 21 |
| 2011/C 179/36 | Case F-30/11: Action brought on 23 March 2011 — ZZ v Council | 21 |
| 2011/C 179/37 | Case F-36/11: Action brought on 5 April 2011 — ZZ v Commission | 22 |
| 2011/C 179/38 | Case F-38/11: Action brought on 5 April 2011 — ZZ v Parliament | 22 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 179/02

Case C-235/09: Judgment of the Court (Grand Chamber) of 12 April 2011 (reference for a preliminary ruling from the Cour de cassation — France) — DHL Express France SAS, formerly DHL International SA v Chronopost SA (Intellectual property — Community trade mark — Regulation (EC) No 40/94 — Article 98(1) — Prohibition against infringement, issued by a Community trade mark court — Territorial scope — Coercive measures attached to such a prohibition — Effect in the territory of Member States other than the Member State of the court seised)

2

2011/C 179/03

Joined Cases C-288/09 and C-289/09: Judgment of the Court (Second Chamber) of 14 April 2011 (references for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom)) — British Sky Broadcasting Group plc (C-288/09), Pace plc (C-289/09) v The Commissioners for Her Majesty's Revenue & Customs (Common Customs Tariff — Tariff classification — Combined Nomenclature — Digital satellite television receivers and decoders with a recording function — Community Customs Code — Article 12(5)(a)(i) and (6) — Period of validity of a binding tariff information)

3

2011/C 179/04

Case C-327/09: Judgment of the Court (Third Chamber) of 14 April 2011 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Mensch und Natur AG v Freistaat Bayern (Fourth paragraph of Article 249 EC — Measures adopted by the institutions — Commission decision addressed to a particular person — Regulation (EC) No 258/97 — Novel food or novel food ingredient — Decision 2000/196/EC — Stevia rebaudiana Bertoni: plants and dried leaves — Refusal to authorise placing on the market — Effects in relation to a person other than the addressee)

4

2011/C 179/05

Case C-331/09: Judgment of the Court (First Chamber) of 14 April 2011 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — State aid — Aid granted by the Republic of Poland to Technologie Buczek Group — Commission decision declaring that aid to be incompatible with the common market and ordering its recovery — Failure to implement within the prescribed period)

4

2011/C 179/06

Case C-522/09: Judgment of the Court (Fourth Chamber) of 14 April 2011 — European Commission v Romania (Failure of a Member State to fulfil obligations — Directive 79/409/EEC — Conservation of wild birds — Special protection areas — Areas designated insufficient in number and size — Irregularity of the pre-litigation procedure — Inadmissibility of the action)

5

2011/C 179/07

Joined Cases C-42/10, C-45/10 and C-57/10: Judgment of the Court (Third Chamber) of 14 April 2011 (reference for a preliminary ruling from the Raad van State (Belgium)) — Vlaamse Dierenartsenvereniging VZW (C-42/10, C-45/10 and C-57/10), Marc Janssens (C-42/10 and C-45/10) v Belgische Staat (Veterinary and zootechnical sector — Regulation (EC) No 998/2003 — Animal health conditions applicable to non-commercial movement of pet animals — Decision 2003/803/EC — Model passport for the intra-Community movements of dogs, cats and ferrets)

5

2011/C 179/08

Case C-343/10: Judgment of the Court (Eighth Chamber) of 14 April 2011 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 91/271/EEC — Pollution and nuisances — Treatment of urban waste water — Articles 3 and 4)

6

2011/C 179/09

Case C-390/10: Judgment of the Court (Eighth Chamber) of 14 April 2011 — European Commission v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2007/36/EC — Exercise of certain rights of shareholders in listed companies — Failure to transpose within the period prescribed)

6

2011/C 179/10

Case C-80/11: Reference for a preliminary ruling from the Baranya Megyei Biróság (Hungary) lodged on 22 February 2011 — Mahagében Kft v Nemzeti Adó és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága

7

2011/C 179/11

Case C-130/11: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 March 2011 — Neurim Pharmaceuticals (1991) Ltd v Comptroller-General of Patents

7

2011/C 179/12

Case C-131/11: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 17 March 2011 — Pfeifer & Langen KG v Hauptzollamt Aachen

8

2011/C 179/13

Case C-134/11: Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 18 March 2011 — Jürgen Blödel-Pawlik v HanseMerkur Reiseversicherung AG

8

2011/C 179/14

Case C-135/11 P: Appeal brought on 18 March 2011 by IFAW Internationaler Tierschutz-Fonds gGmbH against the judgment of the General Court (Eighth Chamber) delivered on 13 January 2011 in Case T-362/08: IFAW v European Commission

8

2011/C 179/15

Case C-137/11: Reference for a preliminary ruling from the Cour du travail de Bruxelles (Belgium) lodged on 21 March 2011 — Partena ASBL v Les Tartes de Chaumont-Gistoux SA

9

2011/C 179/16

Case C-139/11: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 21 March 2011 — Joan Cuadrench More v Koninklijke Luchtvaart Maatschappij NV (KLM)

9

2011/C 179/17

Case C-142/11: Reference for a preliminary ruling from the Jász-Nagykun-Szolnok County Court (Hungary) lodged on 23 March 2011 — Péter Dávid v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

10

2011/C 179/18

Case C-149/11: Reference for a preliminary ruling from the Gerechtshof te ‘s-Gravenhage (Netherlands) lodged on 28 March 2011 — Leno Merken v Hagelkruis Beheer B.V.

10

2011/C 179/19

Case C-158/11: Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 1 April 2011 — Auto 24 SARL v Jaguar Land Rover France

11

2011/C 179/20

Case C-162/11: Reference for a preliminary ruling from the Bundeskommunikationssenat (Austria) lodged on 4 April 2011 — Publikumsrat des Österreichischen Rundfunks v Österreichischer Rundfunk

11

2011/C 179/21

Case C-163/11: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 4 April 2011 — Annex Customs BVBA v Belgische Staat and KBC Bank NV

11

2011/C 179/22

Case C-170/11: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 7 April 2011 — Maurice Robert Josse Marie Ghislain Lippens and Others v Hendrikus Cornelis Kortekaas and Others, other party: Ageas NV, previously Fortis N.V

12

2011/C 179/23

Case C-178/11: Action brought on 14 April 2011 — European Commission v Republic of Malta

12

2011/C 179/24

Case C-195/11 P: Appeal brought on 26 April 2011 by European Commission against the judgment of the General Court (Seventh Chamber) delivered on 17 February 2011 in Case T-122/09: Zhejiang Xinshiji Foods Co. Ltd, Hubei Xinshiji Foods Co. Ltd v Council of the European Union

13

2011/C 179/25

Case C-196/11 P: Appeal brought on 27 April 2011 by Formula One Licensing BV against the judgment of the General Court (Eighth Chamber) delivered on 17 February 2011 in Case T-10/09: Formula One Licensing BV v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Global Sports Media Ltd

13

General Court

2011/C 179/26

Case T-129/09: Judgment of the General Court of 4 May 2011 — Bongrain v OHIM — apetito (APETITO) (Community trade mark — Opposition proceedings — Application for the Community word mark APETITO — Earlier Community word mark apetito — Relative ground for refusal — Likelihood of confusion — Similarity of the goods — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

15

2011/C 179/27

Case T-291/10: Order of the General Court of 8 April 2011 — Martin v Commission (Access to documents — Regulation (EC) No 1049/2001 — Implied refusal of access — Explicit decision adopted after the action was brought — No need to adjudicate)

15

2011/C 179/28

Case T-413/10 R: Order of the President of the General Court of 13 April 2011 — Socitrel v Commission (Application for interim measures — Competition — Commission decision imposing a fine — Bank guarantee — Application for suspension of operation — Pecuniary damage — No exceptional circumstances — No urgency)

16

2011/C 179/29

Case T-184/11 P: Appeal brought on 28 March 2011 by Bart Nijs against the judgment of the Civil Service Tribunal of 13 January 2011 in Case F-77/09 Nijs v Court of Auditors

16

2011/C 179/30

Case T-208/11: Action brought on 11 April 2011 — LTTE v Council

17

2011/C 179/31

Case T-211/11: Action brought on 11 April 2011 — Timab Industries and CFPR v Commission

18

2011/C 179/32

Case T-214/11: Action brought on 11 April 2011 — ClientEarth and PAN Europe v EFSA

18

2011/C 179/33

Case T-218/11: Action brought on 21 April 2011 — Dagher v Council

19

European Union Civil Service Tribunal

2011/C 179/34

Case F-4/11: Action brought on 31 March 2011 — AV v Commission

21

2011/C 179/35

Case F-26/11: Action brought on 8 March 2011 — ZZ v Council

21

2011/C 179/36

Case F-30/11: Action brought on 23 March 2011 — ZZ v Council

21

2011/C 179/37

Case F-36/11: Action brought on 5 April 2011 — ZZ v Commission

22

2011/C 179/38

Case F-38/11: Action brought on 5 April 2011 — ZZ v Parliament

22

| EN | |
| --- | --- |

EN

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 18.6.2011 | EN | Official Journal of the European Union | C 179/1 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/1

---

2011/C 179/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European Union

OJ C 173, 11.6.2011

Past publications

OJ C 160, 28.5.2011

OJ C 152, 21.5.2011

OJ C 145, 14.5.2011

OJ C 139, 7.5.2011

OJ C 130, 30.4.2011

OJ C 120, 16.4.2011

These texts are available on:

EUR-Lex: http://eur-lex.europa.eu

---

V Announcements

COURT PROCEEDINGS

Court of Justice

| 18.6.2011 | EN | Official Journal of the European Union | C 179/2 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/2

---

Judgment of the Court (Grand Chamber) of 12 April 2011 (reference for a preliminary ruling from the Cour de cassation — France) — DHL Express France SAS, formerly DHL International SA v Chronopost SA

(Case C-235/09) (1)

(Intellectual property - Community trade mark - Regulation (EC) No 40/94 - Article 98(1) - Prohibition against infringement, issued by a Community trade mark court - Territorial scope - Coercive measures attached to such a prohibition - Effect in the territory of Member States other than the Member State of the court seised)

2011/C 179/02

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: DHL Express France SAS, formerly DHL International SA

Defendant: Chronopost SA

Re:

Reference for a preliminary ruling — Cour de cassation — Interpretation of Article 98 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), in conjunction with Articles 1, 14 and 94 of that regulation — Trade mark infringement action — Territorial scope of a prohibition issued by a Community trade mark court — Whether such a court may attach coercive measures to that prohibition that are applicable on the territory of all the Member States in which the injunction prohibiting the infringing acts takes effect

Operative part of the judgment

| 1. | Article 98(1) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as amended by Council Regulation (EC) No 3288/94 of 22 December 1994, must be interpreted as meaning that the scope of the prohibition against further infringement or threatened infringement of a Community trade mark, issued by a Community trade mark court whose jurisdiction is based on Articles 93(1) to (4) and 94(1) of that regulation, extends, as a rule, to the entire area of the European Union. |
| --- | --- |

1.

Article 98(1) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as amended by Council Regulation (EC) No 3288/94 of 22 December 1994, must be interpreted as meaning that the scope of the prohibition against further infringement or threatened infringement of a Community trade mark, issued by a Community trade mark court whose jurisdiction is based on Articles 93(1) to (4) and 94(1) of that regulation, extends, as a rule, to the entire area of the European Union.

| 2. | Article 98(1), second sentence, of Regulation No 40/94, as amended by Regulation No 3288/94, must be interpreted as meaning that a coercive measure, such as a periodic penalty payment, ordered by a Community trade mark court by application of its national law, in order to ensure compliance with a prohibition against further infringement or threatened infringement which it has issued, has effect in Member States to which the territorial scope of such a prohibition extends other than the Member State of that court, under the conditions laid down, in Chapter III of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, with regard to the recognition and enforcement of judgments. Where the national law of one of those other Member States does not contain a coercive measure similar to that ordered by the Community trade mark court, the objective pursued by that measure must be attained by the competent court of that other Member State by having recourse to the relevant provisions of its national law which are such as to ensure that the prohibition is complied with in an equivalent manner. |
| --- | --- |

2.

Article 98(1), second sentence, of Regulation No 40/94, as amended by Regulation No 3288/94, must be interpreted as meaning that a coercive measure, such as a periodic penalty payment, ordered by a Community trade mark court by application of its national law, in order to ensure compliance with a prohibition against further infringement or threatened infringement which it has issued, has effect in Member States to which the territorial scope of such a prohibition extends other than the Member State of that court, under the conditions laid down, in Chapter III of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, with regard to the recognition and enforcement of judgments. Where the national law of one of those other Member States does not contain a coercive measure similar to that ordered by the Community trade mark court, the objective pursued by that measure must be attained by the competent court of that other Member State by having recourse to the relevant provisions of its national law which are such as to ensure that the prohibition is complied with in an equivalent manner.

---

(1)  OJ C 205, 29.8.2009.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/3 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/3

---

Judgment of the Court (Second Chamber) of 14 April 2011 (references for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom)) — British Sky Broadcasting Group plc (C-288/09), Pace plc (C-289/09) v The Commissioners for Her Majesty's Revenue & Customs

(Joined Cases C-288/09 and C-289/09) (1)

(Common Customs Tariff - Tariff classification - Combined Nomenclature - Digital satellite television receivers and decoders with a recording function - Community Customs Code - Article 12(5)(a)(i) and (6) - Period of validity of a binding tariff information)

2011/C 179/03

Language of the case: English

Referring court

First-tier Tribunal (Tax Chamber)

Parties to the main proceedings

Applicants: British Sky Broadcasting Group plc (C-288/09), Pace plc (C-289/09)

Defendant: The Commissioners for Her Majesty’s Revenue & Customs

Re:

Reference for a preliminary ruling — First-tier Tribunal (Tax Chamber) — Interpretation of the Combined Nomenclature — Subheadings No 8528 71 13 (‘Apparatus with a microprocessor-based device incorporating a modem for gaining access to the Internet, and having a function of interactive information exchange, capable of receiving television signals (“set-top boxes with communication function”)’ and No 8521 90 00 (‘Other’, comprising ‘apparatus without a screen capable of receiving television signals, so-called “set-top boxes”, which incorporate a device performing a recording or reproducing function (for example, a hard disk or DVD drive)’ — ‘Set-top boxes’ (‘STBs’), designed to receive and to decode digital television signals by satellite, having a function of communication and which incorporate a hard disk

Operative part of the judgment

| 1. | The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1549/2006 of 17 October 2006 and Commission Regulation (EC) No 1214/2007 of 20 September 2007, must be interpreted as meaning that set-top boxes with a communication function and a hard disk drive, such as the Sky+ box, model DRX 280, are to be classified under subheading 8528 71 13 despite the Explanatory Notes to the Combined Nomenclature. |
| --- | --- |

1.

The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1549/2006 of 17 October 2006 and Commission Regulation (EC) No 1214/2007 of 20 September 2007, must be interpreted as meaning that set-top boxes with a communication function and a hard disk drive, such as the Sky+ box, model DRX 280, are to be classified under subheading 8528 71 13 despite the Explanatory Notes to the Combined Nomenclature.

| 2. | Article 12(5)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, and Article 12(1) and (2)(a), third indent, of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 12/97 of 18 December 1996, must be interpreted as meaning that customs authorities are obliged to issue binding tariff informations that are in conformity with the Explanatory Notes to the Combined Nomenclature. If a disagreement arises between those authorities and economic operators as to whether those notes are in conformity with the Combined Nomenclature and on the classification of goods, it is for the economic operators to bring proceedings before the competent authority pursuant to Article 243 of Regulation No 2913/92, as amended. The court seised shall rule on the classification of the product, if necessary after making a preliminary reference to the Court of Justice as provided in Article 267 TFEU. Furthermore, the Member State to which those authorities belong may call upon the committee provided for in Article 247 of Regulation No 2913/92, as amended, in accordance with the procedure referred to in Article 8 of Regulation No 2658/87, as amended by Council Regulation (EC) No 254/2000 of 31 January 2000. |
| --- | --- |

2.

Article 12(5)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, and Article 12(1) and (2)(a), third indent, of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 12/97 of 18 December 1996, must be interpreted as meaning that customs authorities are obliged to issue binding tariff informations that are in conformity with the Explanatory Notes to the Combined Nomenclature. If a disagreement arises between those authorities and economic operators as to whether those notes are in conformity with the Combined Nomenclature and on the classification of goods, it is for the economic operators to bring proceedings before the competent authority pursuant to Article 243 of Regulation No 2913/92, as amended. The court seised shall rule on the classification of the product, if necessary after making a preliminary reference to the Court of Justice as provided in Article 267 TFEU. Furthermore, the Member State to which those authorities belong may call upon the committee provided for in Article 247 of Regulation No 2913/92, as amended, in accordance with the procedure referred to in Article 8 of Regulation No 2658/87, as amended by Council Regulation (EC) No 254/2000 of 31 January 2000.

| 3. | Article 12(5)(a)(i) of Regulation 2913/92, as amended by Regulation No 82/97, is to be interpreted as meaning that Regulation No 1549/2006 must be considered a regulation within the meaning of that provision. A binding tariff information which no longer conformed to the Combined Nomenclature because of the entry into force of Regulation No 1549/2006 ceased to be valid after that date of entry into force. |
| --- | --- |

3.

Article 12(5)(a)(i) of Regulation 2913/92, as amended by Regulation No 82/97, is to be interpreted as meaning that Regulation No 1549/2006 must be considered a regulation within the meaning of that provision. A binding tariff information which no longer conformed to the Combined Nomenclature because of the entry into force of Regulation No 1549/2006 ceased to be valid after that date of entry into force.

| 4. | Article 12(6) of Regulation No 2913/92, as amended by Regulation No 82/97, is to be interpreted as meaning that, where, pursuant to Article 12 of Regulation No 2658/87, as amended by Regulation No 254/2000, a regulation updating the Combined Nomenclature is adopted and that regulation does not set a time-period during which the holder of a binding tariff information which has ceased to be valid can none the less continue to rely on it, that holder is not entitled to continue relying on that binding tariff information. |
| --- | --- |

4.

Article 12(6) of Regulation No 2913/92, as amended by Regulation No 82/97, is to be interpreted as meaning that, where, pursuant to Article 12 of Regulation No 2658/87, as amended by Regulation No 254/2000, a regulation updating the Combined Nomenclature is adopted and that regulation does not set a time-period during which the holder of a binding tariff information which has ceased to be valid can none the less continue to rely on it, that holder is not entitled to continue relying on that binding tariff information.

---

(1)  OJ C 256, 24.10.2009.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/4 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/4

---

Judgment of the Court (Third Chamber) of 14 April 2011 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Mensch und Natur AG v Freistaat Bayern

(Case C-327/09) (1)

(Fourth paragraph of Article 249 EC - Measures adopted by the institutions - Commission decision addressed to a particular person - Regulation (EC) No 258/97 - Novel food or novel food ingredient - Decision 2000/196/EC - ‘Stevia rebaudiana Bertoni: plants and dried leaves’ - Refusal to authorise placing on the market - Effects in relation to a person other than the addressee)

2011/C 179/04

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Mensch und Natur AG

Defendant: Freistaat Bayern

Re:

Reference for a preliminary ruling — Bayerischer Verwaltungsgerichtshof — Interpretation of the fourth paragraph of Article 249 EC and of Commission Decision 2000/196/EC of 22 February 2000 refusing the placing on the market of ‘Stevia rebaudiana Bertoni: plants and dried leaves’ as a novel food or novel food ingredient in accordance with European Parliament and Council Regulation (EC) No 258/97 (OJ 2000 L 61, p. 14) — Commission decision addressed to a particular person — Effect in relation to a person other than the addressee

Operative part of the judgment

A Commission decision taken on the basis of Article 7 of Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients and refusing authorisation to place on the market of the European Union a food or food ingredient is not binding on any persons other than the person or persons whom that decision specifies as its addressees. By contrast, the competent authorities of a Member State must establish whether a product marketed in the territory of that Member State, the characteristics of which appear to match those of the product which was the subject-matter of that Commission decision, is a novel food or novel food ingredient within the meaning of Article 1(2) of that regulation and, where necessary, they must require the person concerned to comply with the provisions of that regulation.

---

(1)  OJ C 282, 21.11.2009.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/4 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/4

---

Judgment of the Court (First Chamber) of 14 April 2011 — European Commission v Republic of Poland

(Case C-331/09) (1)

(Failure of a Member State to fulfil obligations - State aid - Aid granted by the Republic of Poland to Technologie Buczek Group - Commission decision declaring that aid to be incompatible with the common market and ordering its recovery - Failure to implement within the prescribed period)

2011/C 179/05

Language of the case: Polish

Parties

Applicant: European Commission (represented by: K. Gross and A. Stobiecka-Kuik, acting as Agents)

Defendant: Republic of Poland (represented by: M. Krasnodębska-Tomkiel, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt or notify, within the period prescribed, the provisions necessary to ensure compliance with the Commission Decision of 23 October 2007 on State Aid C 23/06 (ex NN 35/06) which Poland has implemented for the steel producer Technologie Buczek Group (State aid C(2007) 5087) (OJ 2008 L 116, p. 26) — No immediate and effective implementation of that decision — Implementation not absolutely impossible

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to take, within the period prescribed, all the measures necessary to implement Commission Decision 2008/344/EC of 23 October 2007 on State Aid C 23/06 (ex NN 35/06) which Poland has implemented for steel producer Technologie Buczek Group, the Republic of Poland has failed to comply with the provisions of the fourth subparagraph of Article 249 EC and Articles 3 and 4 of that decision; |
| --- | --- |

1.

Declares that, by failing to take, within the period prescribed, all the measures necessary to implement Commission Decision 2008/344/EC of 23 October 2007 on State Aid C 23/06 (ex NN 35/06) which Poland has implemented for steel producer Technologie Buczek Group, the Republic of Poland has failed to comply with the provisions of the fourth subparagraph of Article 249 EC and Articles 3 and 4 of that decision;

| 2. | Orders the Republic of Poland to pay the costs. |
| --- | --- |

2.

Orders the Republic of Poland to pay the costs.

---

(1)  OJ C 312, 19.12.2009.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/5 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/5

---

Judgment of the Court (Fourth Chamber) of 14 April 2011 — European Commission v Romania

(Case C-522/09) (1)

(Failure of a Member State to fulfil obligations - Directive 79/409/EEC - Conservation of wild birds - Special protection areas - Areas designated insufficient in number and size - Irregularity of the pre-litigation procedure - Inadmissibility of the action)

2011/C 179/06

Language of the case: Romanian

Parties

Applicant: European Commission (represented by: D. Recchia and L. Bouyon, acting as Agents)

Defendant: Romania (represented by: A. Popescu, L.-E. Batagoi, M.-L. Colonescu, A.-R. Arșinel and J.S. Smaranda)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) — Classification as special protection areas of areas insufficient in number and size, failing in part to have regard to the sites identified in the IBA Inventory — Alteration without scientific basis

Operative part of the judgment

The Court:

| 1. | Dismisses the action as inadmissible; |
| --- | --- |

1.

Dismisses the action as inadmissible;

| 2. | Orders the European Commission to pay the costs. |
| --- | --- |

2.

Orders the European Commission to pay the costs.

---

(1)  OJ C 51, 27.2.2010.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/5 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/5

---

Judgment of the Court (Third Chamber) of 14 April 2011 (reference for a preliminary ruling from the Raad van State (Belgium)) — Vlaamse Dierenartsenvereniging VZW (C-42/10, C-45/10 and C-57/10), Marc Janssens (C-42/10 and C-45/10) v Belgische Staat

(Joined Cases C-42/10, C-45/10 and C-57/10) (1)

(Veterinary and zootechnical sector - Regulation (EC) No 998/2003 - Animal health conditions applicable to non-commercial movement of pet animals - Decision 2003/803/EC - Model passport for the intra-Community movements of dogs, cats and ferrets)

2011/C 179/07

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: Vlaamse Dierenartsenvereniging VZW, Marc Janssens (C-42/10, C-45/10 and C-57/10), Marc Janssens (C-42/10 and C-45/10)

Defendant: Belgische Staat

Intervening party: Luk Vangheluwe (C-42/10)

Re:

Reference for a preliminary ruling — Raad van State — Interpretation of Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation (EC) No 998/2003 of the European Parliament and of the Council of 26 May 2003 on the animal health requirements applicable to the non-commercial movement of pet animals and amending Council Directive 92/65/EEC (OJ 2003 L 146, p. 1) and of Commission Decision 2003/803/EC of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets (OJ 2003 L 312, p. 1) — National provisions requiring the inclusion in every passport of a unique number consisting of 13 characters (ISO code, followed by the identification number of the distributor and a serial number) — Means of proof of identification and registration of dogs — Data relating to the owner of the animal

Operative part of the judgment

| 1. | Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation No 998/2003 of the European Parliament and of the Council of 26 May 2003 on the animal health requirements applicable to the non-commercial movement of pet animals and amending Council Directive 92/65/EEC and the articles of and annexes to Commission Decision 2003/803/EC of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets must be interpreted as meaning that they do not preclude national legislation which lays down a numbering system for pet passports comprising a unique number consisting of the two-letter ISO code for the Member State concerned followed by the identification number of the authorised distributor consisting of two digits and a serial number consisting of nine digits, provided that that legislation guarantees the uniqueness of that identification number. |
| --- | --- |

1.

Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation No 998/2003 of the European Parliament and of the Council of 26 May 2003 on the animal health requirements applicable to the non-commercial movement of pet animals and amending Council Directive 92/65/EEC and the articles of and annexes to Commission Decision 2003/803/EC of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets must be interpreted as meaning that they do not preclude national legislation which lays down a numbering system for pet passports comprising a unique number consisting of the two-letter ISO code for the Member State concerned followed by the identification number of the authorised distributor consisting of two digits and a serial number consisting of nine digits, provided that that legislation guarantees the uniqueness of that identification number.

| 2. | Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation No 998/2003 and the articles of and annexes to Decision 2003/803 must be interpreted as:






  — | not precluding legislation, such as that at issue in the main proceedings, under which a pet passport is used not only as a travel document pursuant to European Union legislation but also as proof of identification and registration of dogs at a national level, |
| --- | --- | --- |

2.

Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation No 998/2003 and the articles of and annexes to Decision 2003/803 must be interpreted as:

—

not precluding legislation, such as that at issue in the main proceedings, under which a pet passport is used not only as a travel document pursuant to European Union legislation but also as proof of identification and registration of dogs at a national level,

| — | precluding legislation, such as that at issue in the main proceedings, under which only one field is available in the pet passport for entry of the identity and address of the owner of the animal and to which any later amendments are made by affixing self-adhesive stickers. |
| --- | --- |

—

precluding legislation, such as that at issue in the main proceedings, under which only one field is available in the pet passport for entry of the identity and address of the owner of the animal and to which any later amendments are made by affixing self-adhesive stickers.

| 3. | National provisions, such as those in the legislation at issue in the main proceedings, concerning the pet passport and relating to its use as proof of identification and registration of dogs, and to the use of self-adhesive stickers to amend the identity details of the owner and the animal, on the one hand, and to those relating to the determination of a unique number for cats and ferrets, on the other, do not constitute technical standards within the meaning of Article 1 of Directive 98/34 of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, which, in accordance with Article 8 thereof, must be communicated in advance to the Commission. |
| --- | --- |

3.

National provisions, such as those in the legislation at issue in the main proceedings, concerning the pet passport and relating to its use as proof of identification and registration of dogs, and to the use of self-adhesive stickers to amend the identity details of the owner and the animal, on the one hand, and to those relating to the determination of a unique number for cats and ferrets, on the other, do not constitute technical standards within the meaning of Article 1 of Directive 98/34 of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, which, in accordance with Article 8 thereof, must be communicated in advance to the Commission.

---

(1)  OJ C 100, 17.4.2010.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/6 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/6

---

Judgment of the Court (Eighth Chamber) of 14 April 2011 — European Commission v Kingdom of Spain

(Case C-343/10) (1)

(Failure of a Member State to fulfil obligations - Directive 91/271/EEC - Pollution and nuisances - Treatment of urban waste water - Articles 3 and 4)

2011/C 179/08

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: S. Pardo Quintillán, acting as Agent)

Defendant: Kingdom of Spain (represented by: F. Díez Moreno, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 3 and 4 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ L 135, p. 40)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to ensure that:






  — | urban waste water from the agglomerations with a population equivalent of more than 15 000 of Valle de Güimar, Noreste (Valle Guerra), Valle de la Orotava, Arenys de Mar, Alcossebre and Cariño is collected in conformity with Article 3 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, and |
| --- | --- | --- |

1.

Declares that, by failing to ensure that:

—

urban waste water from the agglomerations with a population equivalent of more than 15 000 of Valle de Güimar, Noreste (Valle Guerra), Valle de la Orotava, Arenys de Mar, Alcossebre and Cariño is collected in conformity with Article 3 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, and

| — | urban waste water from the agglomerations with a population equivalent of more than 15 000 of Arroyo de la Miel, Arroyo de la Víbora, Estepota (San Pedro de Alcántara), Alhaurín el Grande, Coín, Barbate, Chipiona, Isla Cristina, Matalascañas, Nerja, Tarifa, Torrox Costa, Vejer de la Frontera, Gijón-Este, Llanes, Valles de Güimar, Noreste (Valle Guerra), Los Llanos de Aridane, Arenys de Mar, Pineda de Mar, Ceuta, Alcossebre, Benicarló, Elx (Arenales), Peñíscola, Teulada Moraira (Rada Moraira), Vinaròs, A Coruña, Cariño, Tui, Vigo, Aguiño-Carreira-Ribeira, Baiona, Noia, Santiago, Viveiro and Irán (Hondarribia) is treated in conformity with Article 4(1), (3) and, where applicable (4), of Directive 91/271, |
| --- | --- |

—

urban waste water from the agglomerations with a population equivalent of more than 15 000 of Arroyo de la Miel, Arroyo de la Víbora, Estepota (San Pedro de Alcántara), Alhaurín el Grande, Coín, Barbate, Chipiona, Isla Cristina, Matalascañas, Nerja, Tarifa, Torrox Costa, Vejer de la Frontera, Gijón-Este, Llanes, Valles de Güimar, Noreste (Valle Guerra), Los Llanos de Aridane, Arenys de Mar, Pineda de Mar, Ceuta, Alcossebre, Benicarló, Elx (Arenales), Peñíscola, Teulada Moraira (Rada Moraira), Vinaròs, A Coruña, Cariño, Tui, Vigo, Aguiño-Carreira-Ribeira, Baiona, Noia, Santiago, Viveiro and Irán (Hondarribia) is treated in conformity with Article 4(1), (3) and, where applicable (4), of Directive 91/271,

the Kingdom of Spain has failed to fulfil its obligations under the cited provisions of Directive 91/271/EEC.

| 2. | Orders the Kingdom of Spain to pay the costs. |
| --- | --- |

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 234, 28.8.2010.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/6 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/6

---

Judgment of the Court (Eighth Chamber) of 14 April 2011 — European Commission v Grand Duchy of Luxembourg

(Case C-390/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2007/36/EC - Exercise of certain rights of shareholders in listed companies - Failure to transpose within the period prescribed)

2011/C 179/09

Language of the case: French

Parties

Applicant: European Commission (represented by: G. Braun and de Schietere de Lophem, acting as Agents)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to take or communicate, within the prescribed period, the measures necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (OJ L 184, p. 17)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

| 2. | Orders the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 274, 9.10.2010.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/7 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/7

---

Reference for a preliminary ruling from the Baranya Megyei Biróság (Hungary) lodged on 22 February 2011 — Mahagében Kft v Nemzeti Adó és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága

(Case C-80/11)

2011/C 179/10

Language of the case: Hungarian

Referring court

Baranya Megyei Biróság

Parties to the main proceedings

Applicant: Mahagében Kft

Defendant: Nemzeti Adó és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága

Questions referred

| 1. | Must Directive 2006/112/EC (1) be interpreted as meaning that a taxable person who fulfils the material conditions for the right to deduct VAT in accordance with the provisions of that Directive may be deprived of his right to deduct by national legislation or practice that prohibits deductions in respect of VAT paid when a product is bought, where the invoice is the only valid document that confirms that the product was sold, and the taxable person is not in possession of any document from the issuer of the invoice which certifies that it was in possession of the product, and could have supplied it or satisfied its obligations as regards declaration? May a Member State require the recipient of the invoice to be in possession of a document proving that it is in possession of the product, or that the product was supplied or delivered to it, to ensure the correct collection of VAT and to prevent evasion under Article 273 of the Directive? |
| --- | --- |

1.

Must Directive 2006/112/EC (1) be interpreted as meaning that a taxable person who fulfils the material conditions for the right to deduct VAT in accordance with the provisions of that Directive may be deprived of his right to deduct by national legislation or practice that prohibits deductions in respect of VAT paid when a product is bought, where the invoice is the only valid document that confirms that the product was sold, and the taxable person is not in possession of any document from the issuer of the invoice which certifies that it was in possession of the product, and could have supplied it or satisfied its obligations as regards declaration? May a Member State require the recipient of the invoice to be in possession of a document proving that it is in possession of the product, or that the product was supplied or delivered to it, to ensure the correct collection of VAT and to prevent evasion under Article 273 of the Directive?

| 2. | Is the concept of due diligence set out in Paragraph 44(5) of the Hungarian Law on VAT compatible with the principles of neutrality and proportionality already upheld several times by the European Court of Justice in connection with the application of the Directive if, in applying that concept, the tax authority and established case-law require the recipient of the invoice to ascertain whether the issuer of the invoice is a taxable person, whether it has entered goods purchased in its records and is in possession of the purchase invoice, and whether it has satisfied its obligations as to declaration and payment of VAT ? |
| --- | --- |

2.

Is the concept of due diligence set out in Paragraph 44(5) of the Hungarian Law on VAT compatible with the principles of neutrality and proportionality already upheld several times by the European Court of Justice in connection with the application of the Directive if, in applying that concept, the tax authority and established case-law require the recipient of the invoice to ascertain whether the issuer of the invoice is a taxable person, whether it has entered goods purchased in its records and is in possession of the purchase invoice, and whether it has satisfied its obligations as to declaration and payment of VAT ?

| 3. | Must Articles 167 and 178(a) of the Directive 2006/112/EC on the common system of value added tax be interpreted as meaning that they preclude national legislation or practice that requires a taxable person receiving an invoice to verify compliance with the law by the company issuing the invoice in order for the former to assert his right to deduct? |
| --- | --- |

3.

Must Articles 167 and 178(a) of the Directive 2006/112/EC on the common system of value added tax be interpreted as meaning that they preclude national legislation or practice that requires a taxable person receiving an invoice to verify compliance with the law by the company issuing the invoice in order for the former to assert his right to deduct?

---

(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/7 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/7

---

Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 March 2011 — Neurim Pharmaceuticals (1991) Ltd v Comptroller-General of Patents

(Case C-130/11)

2011/C 179/11

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicant: Neurim Pharmaceuticals (1991) Ltd

Defendant: Comptroller-General of Patents

Questions referred

| 1. | In interpreting Article 3 of Regulation EEC No. 1768/92 (1) [now Regulation (BC) No. 469/2009 (2)] (‘the SPC Regulation’), when a marketing authorisation (A) has been granted for a medicinal product comprising an active ingredient, is Article 3(d) to be construed as precluding the grant of an SPC based on a later marketing authorisation (B) which is for a different medicinal product comprising the same active ingredient where the limits of the protection conferred by the basic patent do not extend to placing the product the subject of the earlier MA on the market within the meaning of Article 4? |
| --- | --- |

1.

In interpreting Article 3 of Regulation EEC No. 1768/92 (1) [now Regulation (BC) No. 469/2009 (2)] (‘the SPC Regulation’), when a marketing authorisation (A) has been granted for a medicinal product comprising an active ingredient, is Article 3(d) to be construed as precluding the grant of an SPC based on a later marketing authorisation (B) which is for a different medicinal product comprising the same active ingredient where the limits of the protection conferred by the basic patent do not extend to placing the product the subject of the earlier MA on the market within the meaning of Article 4?

| 2. | If the grant of the SPC is not precluded, does it follow that in interpreting Article 13(1) of the SPC Regulation, ‘the first authorisation to place the product on the market in the Community’ needs to be an authorisation to place a medicinal product on the market within the limits of the protection conferred by the basic patent within the meaning of Article 4? |
| --- | --- |

2.

If the grant of the SPC is not precluded, does it follow that in interpreting Article 13(1) of the SPC Regulation, ‘the first authorisation to place the product on the market in the Community’ needs to be an authorisation to place a medicinal product on the market within the limits of the protection conferred by the basic patent within the meaning of Article 4?

| 3. | Are the answers to the above questions different if the earlier marketing authorisation has been granted for a veterinary medicinal product for a particular indication and the later marketing authorisation has been granted for a medicinal product for human use for a different indication? |
| --- | --- |

3.

Are the answers to the above questions different if the earlier marketing authorisation has been granted for a veterinary medicinal product for a particular indication and the later marketing authorisation has been granted for a medicinal product for human use for a different indication?

| 4. | Are the answers to the above questions different if the later marketing authorisation required a full application for marketing approval in accordance with Article 8(3) of Directive 2001/83/EC (3) (formerly a full application under Article 4 of Directive 65/65/EEC (4))? |
| --- | --- |

4.

Are the answers to the above questions different if the later marketing authorisation required a full application for marketing approval in accordance with Article 8(3) of Directive 2001/83/EC (3) (formerly a full application under Article 4 of Directive 65/65/EEC (4))?

| 5. | Are the answers to the above questions different if the product covered by authorisation (A) to place the corresponding medicinal product on the market is within the scope of protection of a different patent which belongs to a different registered proprietor from the SPC applicant? |
| --- | --- |

5.

Are the answers to the above questions different if the product covered by authorisation (A) to place the corresponding medicinal product on the market is within the scope of protection of a different patent which belongs to a different registered proprietor from the SPC applicant?

---

(1)  Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, OJ L 182, p. 1

(2)  Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products, OJ L 152, p. 1

(3)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, OJ L311, p. 67

(4)  Council Directive 65/65/EEC OF 26 January 1965 on the approximation of provisions laid down by Law, Regulation or Administrative Action relating to proprietary medicinal products, OJ 22, p. 369 (English special edition: Series I Chapter 1965-1966, p. 24)

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/8 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/8

---

Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 17 March 2011 — Pfeifer & Langen KG v Hauptzollamt Aachen

(Case C-131/11)

2011/C 179/12

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Pfeifer & Langen KG

Defendant: Hauptzollamt Aachen

Question referred

Must Article 3(4) of Commission Regulation (EEC) No 1443/82 (1) of 8 June 1982 laying down detailed rules for the application of the quota system in the sugar sector be interpreted as extending also to the additional quantities subsequently found by the authorities in the context of an inspection at the producer’s premises?

---

(1)  OJ 1982 L 158, p. 17.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/8 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/8

---

Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 18 March 2011 — Jürgen Blödel-Pawlik v HanseMerkur Reiseversicherung AG

(Case C-134/11)

2011/C 179/13

Language of the case: German

Referring court

Landgericht Hamburg

Parties to the main proceedings

Applicant: Jürgen Blödel-Pawlik

Defendant: HanseMerkur Reiseversicherung AG

Question referred

Does Article 7 of Directive 90/314/EEC (1) of 13 June 1990 on package travel, package holidays and package tours also apply when the travel operator becomes insolvent because from the beginning with fraudulent intent it used all the money collected from the travellers for an improper purpose and it was never intended that the trip would be organised?

---

(1)  Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/8 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/8

---

Appeal brought on 18 March 2011 by IFAW Internationaler Tierschutz-Fonds gGmbH against the judgment of the General Court (Eighth Chamber) delivered on 13 January 2011 in Case T-362/08: IFAW v European Commission

(Case C-135/11 P)

2011/C 179/14

Language of the case: English

Parties

Appellant: IFAW Internationaler Tierschutz-Fonds gGmbH (represented by: S. Crosby, Advocaat, S. Santoro, Avvocato)

Other parties to the proceedings: European Commission, Kingdom of Denmark, Republic of Finland, Kingdom of Sweden

Form of order sought

The appellant claims that the Court should:

| — | find that the contested judgment is vitiated by errors of law and to set it aside accordingly; |
| --- | --- |

—

find that the contested judgment is vitiated by errors of law and to set it aside accordingly;

| — | annul the Commission's decision refusing access to the Schröder letter and |
| --- | --- |

—

annul the Commission's decision refusing access to the Schröder letter and

| — | order the Commission to pay the Appellant's costs in both proceedings pursuant to Article 69 of the Rules of Procedure of the Court of Justice. |
| --- | --- |

—

order the Commission to pay the Appellant's costs in both proceedings pursuant to Article 69 of the Rules of Procedure of the Court of Justice.

Pleas in law and main arguments

The Appellant contends that the General Court, in the contested judgment, erred in law by:

| — | not recognizing that the Commission has to conduct a full review of whether the grounds relied upon by the Member State for not disclosing a document fall under one of the exceptions of Article 4 of Regulation 1049/2001 (1) by testing the exceptions against the content of the document; and |
| --- | --- |

—

not recognizing that the Commission has to conduct a full review of whether the grounds relied upon by the Member State for not disclosing a document fall under one of the exceptions of Article 4 of Regulation 1049/2001 (1) by testing the exceptions against the content of the document; and

| — | ruling that it was able in law to conduct a full review of the refusal to disclose without sight of the document in question. |
| --- | --- |

—

ruling that it was able in law to conduct a full review of the refusal to disclose without sight of the document in question.

---

(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, p. 43

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/9 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/9

---

Reference for a preliminary ruling from the Cour du travail de Bruxelles (Belgium) lodged on 21 March 2011 — Partena ASBL v Les Tartes de Chaumont-Gistoux SA

(Case C-137/11)

2011/C 179/15

Language of the case: French

Referring court

Cour du travail de Bruxelles

Parties to the main proceedings

Applicant: Partena ASBL

Defendant: Les Tartes de Chaumont-Gistoux SA

Questions referred

| 1. | For the purposes of applying Article 13 et seq. of Regulation No 1408/71 (1) and, more specifically, Article 14c thereof, may a Member State, within the framework of its powers to define the conditions for coverage by its social security scheme for self-employed persons, treat the ‘management from abroad of a company which is liable to tax in that State’ in the same way as the exercise of an activity within its territory?; |
| --- | --- |

1.

For the purposes of applying Article 13 et seq. of Regulation No 1408/71 (1) and, more specifically, Article 14c thereof, may a Member State, within the framework of its powers to define the conditions for coverage by its social security scheme for self-employed persons, treat the ‘management from abroad of a company which is liable to tax in that State’ in the same way as the exercise of an activity within its territory?;

| 2. | Is subparagraph 4 of Article 3(1) of Decree No 38 of 27 July 1967 organising the social security scheme for self-employed persons compatible with the law of the European Union and, in particular, with freedom of movement and of residence as guaranteed by Article 21 of the Treaty on the Functioning of the European Union, in so far as it does not allow a person who is resident in another Member State and who manages from abroad a company which is liable to Belgian tax to rebut the presumption that he is covered by the social security scheme for self-employed persons, whereas an agent who is resident in Belgium and who does not manage such a company from abroad has the right to rebut that presumption and to adduce evidence that he is not carrying on an activity as a self-employed person for the purposes of subparagraph 1 of Article 3(1) of Royal Decree No 38? |
| --- | --- |

2.

Is subparagraph 4 of Article 3(1) of Decree No 38 of 27 July 1967 organising the social security scheme for self-employed persons compatible with the law of the European Union and, in particular, with freedom of movement and of residence as guaranteed by Article 21 of the Treaty on the Functioning of the European Union, in so far as it does not allow a person who is resident in another Member State and who manages from abroad a company which is liable to Belgian tax to rebut the presumption that he is covered by the social security scheme for self-employed persons, whereas an agent who is resident in Belgium and who does not manage such a company from abroad has the right to rebut that presumption and to adduce evidence that he is not carrying on an activity as a self-employed person for the purposes of subparagraph 1 of Article 3(1) of Royal Decree No 38?

---

(1)  Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and to members of their families moving within the Community (OJ L 149, p. 2).

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/9 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/9

---

Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 21 March 2011 — Joan Cuadrench More v Koninklijke Luchtvaart Maatschappij NV (KLM)

(Case C-139/11)

2011/C 179/16

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Applicant: Joan Cuadrench More

Defendant: Koninklijke Luchtvaart Maatschappij NV (KLM)

Question referred

Is Regulation (EC) No [261]/2004 (1) of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 to be interpreted as meaning that, as regards time-limits for bringing proceedings, Article 35 of the Montreal Convention, establishing a two year period, is applicable, or must some other Community provision or the relevant domestic law be regarded as applicable?

---

(1)  OJ 2004 L 46, p. 1.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/10 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/10

---

Reference for a preliminary ruling from the Jász-Nagykun-Szolnok County Court (Hungary) lodged on 23 March 2011 — Péter Dávid v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

(Case C-142/11)

2011/C 179/17

Language of the case: Hungarian

Referring court

Jász-Nagykun-Szolnok County Court

Parties to the main proceedings

Applicant: Péter Dávid

Defendant: Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

Questions referred

| 1. | Are the provisions relating to VAT deductions in Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2001/115/EC (2) of 20 December 2001 (‘the Sixth Directive’) and, as regards 2007, in Council Directive 2006/112/EC (3) of 28 November 2006 on the common system of value added tax to be interpreted as meaning that the right of deduction of a taxable person may be restricted or prohibited by the tax authority, on the basis of strict liability, if the invoice issuer cannot guarantee that the involvement of further subcontractors complied with the rules? |
| --- | --- |

1.

Are the provisions relating to VAT deductions in Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2001/115/EC (2) of 20 December 2001 (‘the Sixth Directive’) and, as regards 2007, in Council Directive 2006/112/EC (3) of 28 November 2006 on the common system of value added tax to be interpreted as meaning that the right of deduction of a taxable person may be restricted or prohibited by the tax authority, on the basis of strict liability, if the invoice issuer cannot guarantee that the involvement of further subcontractors complied with the rules?

| 2. | Where the tax authority does not dispute that the economic activity detailed in the invoice actually took place, nor that the form of the invoice complies with the legal provisions, may the authority lawfully prohibit a VAT refund if the identity of the other subcontractors used by the invoice issuer cannot be determined, or invoices have not been issued in accordance with the rules by the latter? |
| --- | --- |

2.

Where the tax authority does not dispute that the economic activity detailed in the invoice actually took place, nor that the form of the invoice complies with the legal provisions, may the authority lawfully prohibit a VAT refund if the identity of the other subcontractors used by the invoice issuer cannot be determined, or invoices have not been issued in accordance with the rules by the latter?

| 3. | Is a tax authority which prohibits the exercise of the right of deduction in accordance with paragraph 2 obliged to ensure during its procedures that the taxable person with the right of deduction was aware of unlawful conduct, possibly engaged in for the purpose of tax avoidance, of the companies behind the subcontracting chain, or even colluded in such conduct? |
| --- | --- |

3.

Is a tax authority which prohibits the exercise of the right of deduction in accordance with paragraph 2 obliged to ensure during its procedures that the taxable person with the right of deduction was aware of unlawful conduct, possibly engaged in for the purpose of tax avoidance, of the companies behind the subcontracting chain, or even colluded in such conduct?

---

(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

(2)  Council Directive 2001/115/EC of 20 December 2001 amending Directive 77/388/EEC with a view to simplifying, modernising and harmonising the conditions laid down for invoicing in respect of value added tax (OJ 2002 L 15, p. 24).

(3)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/10 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/10

---

Reference for a preliminary ruling from the Gerechtshof te ‘s-Gravenhage (Netherlands) lodged on 28 March 2011 — Leno Merken v Hagelkruis Beheer B.V.

(Case C-149/11)

2011/C 179/18

Language of the case: Dutch

Referring court

Gerechtshof te‘s-Gravenhage

Parties to the main proceedings

Applicant: Leno Merken

Defendant: Hagelkruis Beheer B.V.

Question referred

| 1. | Must Article 15(1) of Regulation (EC) No 207/2009 (1) on the Community trade mark be interpreted as meaning that use of a Community trade mark within the borders of a single Member State is sufficient to constitute genuine use of that trade mark, provided that, had it been a national trade mark, such use would have been regarded as genuine use in that Member State (cf. Joint Statement No 10 regarding Article 15 of Council Regulation (EC) No 40/94 (2) of 20 December 1993 and the Opposition Guidelines of the OHIM)? |
| --- | --- |

1.

Must Article 15(1) of Regulation (EC) No 207/2009 (1) on the Community trade mark be interpreted as meaning that use of a Community trade mark within the borders of a single Member State is sufficient to constitute genuine use of that trade mark, provided that, had it been a national trade mark, such use would have been regarded as genuine use in that Member State (cf. Joint Statement No 10 regarding Article 15 of Council Regulation (EC) No 40/94 (2) of 20 December 1993 and the Opposition Guidelines of the OHIM)?

| 2. | If question 1 is answered in the negative, can the use of a Community trade mark within a single Member State as described above never be regarded as genuine use in the Community as referred to in Article 15(1) of Regulation (EC) No 207/2009? |
| --- | --- |

2.

If question 1 is answered in the negative, can the use of a Community trade mark within a single Member State as described above never be regarded as genuine use in the Community as referred to in Article 15(1) of Regulation (EC) No 207/2009?

| 3. | If the use of a Community trade mark within a single Member State can never be regarded as genuine use in the Community, what requirements must be laid down — in addition to the other factors — in respect of the territorial scope of the use of a Community trade mark when assessing genuine use in the Community? |
| --- | --- |

3.

If the use of a Community trade mark within a single Member State can never be regarded as genuine use in the Community, what requirements must be laid down — in addition to the other factors — in respect of the territorial scope of the use of a Community trade mark when assessing genuine use in the Community?

| 4. | Alternatively — contrary to what has been stated above — must Article 15 of the Regulation on the Community trade mark be interpreted as meaning that the assessment of genuine use in the Community should be done wholly in the abstract, without reference to the borders of the territory of the individual Member States (and that, for example, market share (product markets/geographic markets) should be taken as the point of reference))? |
| --- | --- |

4.

Alternatively — contrary to what has been stated above — must Article 15 of the Regulation on the Community trade mark be interpreted as meaning that the assessment of genuine use in the Community should be done wholly in the abstract, without reference to the borders of the territory of the individual Member States (and that, for example, market share (product markets/geographic markets) should be taken as the point of reference))?

---

(1)  OJ 2009 L 78, p. 1.

(2)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark. OJ 1994 L 11, p. 1).

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/11 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/11

---

Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 1 April 2011 — Auto 24 SARL v Jaguar Land Rover France

(Case C-158/11)

2011/C 179/19

Language of the case: French

Referring court

Cour de Cassation

Parties to the main proceedings

Applicant: Auto 24 SARL

Defendant: Jaguar Land Rover France

Question referred

What is to be understood by the words ‘specified criteria’ in Article 1(1)(f) of Regulation No 1400/2002 (1) as regards a quantitative selective distribution?

---

(1)  Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (OJ 2002 L 203, p. 30).

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/11 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/11

---

Reference for a preliminary ruling from the Bundeskommunikationssenat (Austria) lodged on 4 April 2011 — Publikumsrat des Österreichischen Rundfunks v Österreichischer Rundfunk

(Case C-162/11)

2011/C 179/20

Language of the case: German

Referring court

Bundeskommunikationssenat

Parties to the main proceedings

Applicant: Publikumsrat des Österreichischen Rundfunks

Defendant: Österreichischer Rundfunk

Question referred

Are Articles 1(c), 10, 11 and 18(3) of Council Directive 89/552/EEC of 3 October 1989 (1) on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council of 19 June 1997 amending Directive 89/552 (2) to be interpreted as meaning that announcements of any kind made by a television broadcaster in its programmes and broadcasts and relating to its own (free-to-air) programmes and broadcasts are covered by the term ‘television advertising’ (Article 1(c)), and are, inter alia, the provisions on separation between editorial content and advertising and the recognisable nature of advertising in Article 10 and on the insertion of advertising in Article 11 consequently also applicable to such announcements?

---

(1)  OJ 1989 L 298, p. 23.

(2)  OJ 1989 L 202, p. 60.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/11 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/11

---

Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 4 April 2011 — Annex Customs BVBA v Belgische Staat and KBC Bank NV

(Case C-163/11)

2011/C 179/21

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Antwerpen

Parties to the main proceedings

Applicant: Annex Customs BVBA

Defendants:

| | Belgische Staat |
| --- | --- |

Belgische Staat

| | KBC Bank NV |
| --- | --- |

KBC Bank NV

Questions referred

| 1. | Should Article 450c(1)(b) of Commission Regulation (EEC) No 2454/93 (1) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as added by Article 1, point 53, of Commission Regulation (EC) No 2787/2000 (2) of 15 December 2000, be interpreted as meaning that the notification referred to therein is only enforceable if it states the precise amounts that could possibly be claimed from the guarantor? |
| --- | --- |

1.

Should Article 450c(1)(b) of Commission Regulation (EEC) No 2454/93 (1) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as added by Article 1, point 53, of Commission Regulation (EC) No 2787/2000 (2) of 15 December 2000, be interpreted as meaning that the notification referred to therein is only enforceable if it states the precise amounts that could possibly be claimed from the guarantor?

| 2. | Should Article 450c(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as added by Article 1, point 53, of Commission Regulation (EC) No 2787/2000 of 15 December 2000, be interpreted as meaning that the guarantor who, after having received a notification as referred to in Article 450c(1)(a) within three years of the date of acceptance of the transit declaration, receives a notification in which other amounts are mentioned than the amounts which are later claimed from him, is released from his obligations? |
| --- | --- |

2.

Should Article 450c(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as added by Article 1, point 53, of Commission Regulation (EC) No 2787/2000 of 15 December 2000, be interpreted as meaning that the guarantor who, after having received a notification as referred to in Article 450c(1)(a) within three years of the date of acceptance of the transit declaration, receives a notification in which other amounts are mentioned than the amounts which are later claimed from him, is released from his obligations?

---

(1)  OJ 1993 L 253, p. 1.

(2)  Commission Regulation (EC) No 2787/2000 of 15 December 2000 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (Text with EEA relevance) (OJ 1993 L 330, p. 1).

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/12 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/12

---

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 7 April 2011 — Maurice Robert Josse Marie Ghislain Lippens and Others v Hendrikus Cornelis Kortekaas and Others, other party: Ageas NV, previously Fortis N.V

(Case C-170/11)

2011/C 179/22

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicants:

| | Maurice Robert Josse Marie Ghislain Lippens |
| --- | --- |

Maurice Robert Josse Marie Ghislain Lippens

| | Gilbert Georges Henri Mittler |
| --- | --- |

Gilbert Georges Henri Mittler

| | Jean Paul François Caroline Votron |
| --- | --- |

Jean Paul François Caroline Votron

Defendants:

| | Hendrikus Cornelis Kortekaas |
| --- | --- |

Hendrikus Cornelis Kortekaas

| | Kortekaas Entertainment Marketing B.V. |
| --- | --- |

Kortekaas Entertainment Marketing B.V.

| | Kortekaas Pensioen B.V. |
| --- | --- |

Kortekaas Pensioen B.V.

| | Dirk Robbard De Kat |
| --- | --- |

Dirk Robbard De Kat

| | Johannes Hendrikus Visch |
| --- | --- |

Johannes Hendrikus Visch

| | Euphemia Joanna Bökkerink |
| --- | --- |

Euphemia Joanna Bökkerink

| | Laminco Gld N-A |
| --- | --- |

Laminco Gld N-A

Other party: Ageas NV, previously Fortis N.V

Question referred

Must the EC Evidence Regulation, (1) in particular Article 1(1) thereof, be interpreted as meaning that a judge wishing to hear a witness who resides in another Member State must always, for that form of the taking of evidence, use the methods put in place by the EC Evidence Regulation, or does he have the power to use the methods provided by his own national procedural law such as summoning the witness to appear before him?

---

(1)  Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ 2001 L 174, p.1).

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/12 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/12

---

Action brought on 14 April 2011 — European Commission v Republic of Malta

(Case C-178/11)

2011/C 179/23

Language of the case: English

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro, K. Mifsud-Bonnici, Agents)

Defendant: Republic of Malta

The applicant claims that the Court should:

| — | Declare that, by failing to establish strategic noise maps in respect of the major roads and agglomeration identified by Malta in its report under the second subparagraph of Article 7(1) of Directive 2002/49/EC (1), to make them available and disseminate them to the public, and to send the information from these strategic noise maps to the Commission, Malta has failed to fulfil its obligations under the first subparagraph of Article 7(1), Article 9(1) and Article 10(2) of Directive 2002/49/EC of the European Parliament and of the Council of 25 June relating to the assessment and management of environmental noise; and |
| --- | --- |

—

Declare that, by failing to establish strategic noise maps in respect of the major roads and agglomeration identified by Malta in its report under the second subparagraph of Article 7(1) of Directive 2002/49/EC (1), to make them available and disseminate them to the public, and to send the information from these strategic noise maps to the Commission, Malta has failed to fulfil its obligations under the first subparagraph of Article 7(1), Article 9(1) and Article 10(2) of Directive 2002/49/EC of the European Parliament and of the Council of 25 June relating to the assessment and management of environmental noise; and

| — | order Republic of Malta to pay the costs. |
| --- | --- |

—

order Republic of Malta to pay the costs.

Pleas in law and main arguments

According to the report that Malta submitted in 2006 pursuant to the second subparagraph of article 7(1) of the directive, 1 agglomeration as well as 43 major roads within Malta's territory fall within the scope of the directive. It follows that strategic noise maps for this agglomeration as well as for the major roads in question should have been established by 30 June 2007 and should have been made available and disseminated to the public. Additionally, information from these strategic noise maps and summaries of the local action plans should have been sent to the Commission by 30 December 2007.

It is apparent that to date, due to internal obstacles relating to national tendering procedures, Malta has failed to fulfil its obligations to make strategic noise maps for the agglomeration and the major roads in question, to make available and disseminate the strategic noise maps to the public and to communicate the relevant information to the Commission.

---

(1)  Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise — Declaration by the Commission in the Conciliation Committee on the Directive relating to the assessment and management of environmental noise

OJ L 189, p. 12

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/13 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/13

---

Appeal brought on 26 April 2011 by European Commission against the judgment of the General Court (Seventh Chamber) delivered on 17 February 2011 in Case T-122/09: Zhejiang Xinshiji Foods Co. Ltd, Hubei Xinshiji Foods Co. Ltd v Council of the European Union

(Case C-195/11 P)

2011/C 179/24

Language of the case: English

Parties

Appellant: European Commission (represented by: T. Maxian Rusche, H. van Vliet, Agents)

Other parties to the proceedings: Zhejiang Xinshiji Foods Co. Ltd, Hubei Xinshiji Foods Co. Ltd, Council of the European Union

Form of order sought

The appellant claims that the Court should:

| — | set aside the Judgment; |
| --- | --- |

—

set aside the Judgment;

| — | order the Applicants to pay the Commission's costs in bringing this Appeal. |
| --- | --- |

—

order the Applicants to pay the Commission's costs in bringing this Appeal.

Pleas in law and main arguments

Point 1 of the operative part of the contested judgment annuls Council regulation (EC) no 1355/2008 (1) insofar as it concerns Zhejiang Xinshiji Foods Co. Ltd and Hubei Xinshiji Foods Co. Ltd (‘the applicants’), thereby fully annulling the anti-dumping duty imposed, leading to a zero anti-dumping duty on imports by the applicants.

The Commission submits that the General Court has ruled ultra petita by fully annulling the duty even though the applicants themselves admit that the adjustment that they had been seeking would only have led to a lower anti-dumping duty being imposed on their products.

Therefore, in the view of the Commission, the operative part of the contested judgment violates article 264, first paragraph, in conjunction with article 254, sixth paragraph, of the TFEU and the principle of proportionality. The annulment of the whole regulation insofar as it concerns the applicants is disproportionate to the only ground for annulment which was accepted by the General Court. It is also ultra petita.

---

(1)  Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People’s Republic of China

OJ L 350, p. 35

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/13 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/13

---

Appeal brought on 27 April 2011 by Formula One Licensing BV against the judgment of the General Court (Eighth Chamber) delivered on 17 February 2011 in Case T-10/09: Formula One Licensing BV v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Global Sports Media Ltd

(Case C-196/11 P)

2011/C 179/25

Language of the case: English

Parties

Appellant: Formula One Licensing BV (represented by: K. Sandberg, B. Klingberg, Rechtsanwältinen)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Global Sports Media Ltd

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment under appeal; |
| --- | --- |

—

set aside the judgment under appeal;

| — | uphold the Appellant's application for annulment of the decision of the First Board of Appeal of the OHIM of 16 October 2008 in case R 7/2008-1 or, alternatively, refer the case back to the General Court for reconsideration; and |
| --- | --- |

—

uphold the Appellant's application for annulment of the decision of the First Board of Appeal of the OHIM of 16 October 2008 in case R 7/2008-1 or, alternatively, refer the case back to the General Court for reconsideration; and

| — | order OHIM to and the Intervener to bear their own costs and to pay those of the Appellant, both at first instance and on appeal. |
| --- | --- |

—

order OHIM to and the Intervener to bear their own costs and to pay those of the Appellant, both at first instance and on appeal.

Pleas in law and main arguments

The Appellant claims the infringement of Union Law, namely the erroneous application of Article 8 (1) (b) of Regulation No. 40/94 (1) (now No 207/09) as well as of Article 8 (5) of Regulation No 40/94, based on the following main arguments:

| 1. | The General Court violated Article 8 (1) (b) of Regulation No 40/94 in the following regards:






  1.1. | The General Court erred in law in its consideration of the distinctive character of the designation ‘F 1’. Firstly, the General Court violated the rule of established case-law that the distinctive character of a trade mark must be assessed by reference to the concrete goods and services covered by the mark. Secondly, the respective findings were based on distortion of the facts. Thirdly, the General Court failed to apply the rule of established case-law that the acquisition of the distinctive character of a mark may also be a result of its use as part of another registered trademark. Fourthly, the General Court's findings in this regard led to them applying an inadmissible de facto annulment of the Appellant's registered trademarks ‘F 1’ in standard typeset. |
| --- | --- | --- |

1.

The General Court violated Article 8 (1) (b) of Regulation No 40/94 in the following regards:

1.1.

The General Court erred in law in its consideration of the distinctive character of the designation ‘F 1’. Firstly, the General Court violated the rule of established case-law that the distinctive character of a trade mark must be assessed by reference to the concrete goods and services covered by the mark. Secondly, the respective findings were based on distortion of the facts. Thirdly, the General Court failed to apply the rule of established case-law that the acquisition of the distinctive character of a mark may also be a result of its use as part of another registered trademark. Fourthly, the General Court's findings in this regard led to them applying an inadmissible de facto annulment of the Appellant's registered trademarks ‘F 1’ in standard typeset.

| 1.2. | The General Court erred in law in its consideration of the likelihood of confusion under Art. 8 (1) (b) of Regulation No 40/94 both with regard to the opposition marks ‘F 1’ in standard typeset as well as the ‘F 1 Formula 1’ logotype. Firstly, it did not take into account the relevant factor of identity respectively high similarity in goods and services despite its own finding of a relevant degree of similarity in signs. Secondly, it focused on the factor of distinctiveness of the term ‘F 1’ to the exclusion of other relevant factors confirmed in established case-law. Thirdly, it failed to assess the similarity of the signs in accordance with the degree of resemblance between them. |
| --- | --- |

1.2.

The General Court erred in law in its consideration of the likelihood of confusion under Art. 8 (1) (b) of Regulation No 40/94 both with regard to the opposition marks ‘F 1’ in standard typeset as well as the ‘F 1 Formula 1’ logotype. Firstly, it did not take into account the relevant factor of identity respectively high similarity in goods and services despite its own finding of a relevant degree of similarity in signs. Secondly, it focused on the factor of distinctiveness of the term ‘F 1’ to the exclusion of other relevant factors confirmed in established case-law. Thirdly, it failed to assess the similarity of the signs in accordance with the degree of resemblance between them.

| 2. | The General Court violated Article 8 (5) of Regulation No 40/94 in the following regards:






  2.1. | The General Court erroneously excluded the reputation of the Appellant's trademarks ‘F 1’ in standard typeset. |
| --- | --- | --- |

2.

The General Court violated Article 8 (5) of Regulation No 40/94 in the following regards:

2.1.

The General Court erroneously excluded the reputation of the Appellant's trademarks ‘F 1’ in standard typeset.

| 2.2. | The General Court furthermore erred in law in its consideration of the similarity in signs with regard to the opposition mark ‘F1 Formula 1’ logotype as it falsely assumed the absence of distinctiveness of the term ‘F 1’. |
| --- | --- |

2.2.

The General Court furthermore erred in law in its consideration of the similarity in signs with regard to the opposition mark ‘F1 Formula 1’ logotype as it falsely assumed the absence of distinctiveness of the term ‘F 1’.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1

---

General Court

| 18.6.2011 | EN | Official Journal of the European Union | C 179/15 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/15

---

Judgment of the General Court of 4 May 2011 — Bongrain v OHIM — apetito (APETITO)

(Case T-129/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark APETITO - Earlier Community word mark apetito - Relative ground for refusal - Likelihood of confusion - Similarity of the goods - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2011/C 179/26

Language of the case: English

Parties

Applicant: Bongrain SA (Viroflay, France) (represented by: C. Hertz-Eichenrode, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Novais Gonçalves, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: apetito AG (Rheine, Germany) (represented by: T. Weeg, lawyer)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 2 February 2009 (Case R 720/2008-4) relating to opposition proceedings between apetito AG and Bongrain SA

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
| --- | --- |

1.

Dismisses the action;

| 2. | Orders Bongrain SA to pay the costs. |
| --- | --- |

2.

Orders Bongrain SA to pay the costs.

---

(1)  OJ C 141, 20.6.2009.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/15 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/15

---

Order of the General Court of 8 April 2011 — Martin v Commission

(Case T-291/10) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Implied refusal of access - Explicit decision adopted after the action was brought - No need to adjudicate)

2011/C 179/27

Language of the case: English

Parties

Applicant: Anne Martin (Brussels, Belgium) (represented by: U. O’Dwyer, solicitor)

Defendant: European Commission (represented by: P. Costa de Oliveira and C. ten Dam, agents)

Intervener in support of the applicant: Kingdom of Denmark (represented by: S. Juul Jørgensen, agent)

Re:

Application for annulment of the Commission's implied decision of 20 April 2010 refusing the applicant access to the documents in the file relating to the State aid N 654/2008, notified by the United Kingdom of Great Britain and Northern Ireland on 19 December 2008, in favour of Short Brothers plc.

Operative part of the order

The Court:

| 1. | Declares that there is no need to adjudicate on this action. |
| --- | --- |

1.

Declares that there is no need to adjudicate on this action.

| 2. | Orders the European Commission to bear its own costs and to pay those incurred by Ms Anne Martin. |
| --- | --- |

2.

Orders the European Commission to bear its own costs and to pay those incurred by Ms Anne Martin.

| 3. | Orders the Kingdom of Denmark to bear its own costs. |
| --- | --- |

3.

Orders the Kingdom of Denmark to bear its own costs.

---

(1)  OJ C 234, 28.8.2010.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/16 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/16

---

Order of the President of the General Court of 13 April 2011 — Socitrel v Commission

(Case T-413/10 R)

(Application for interim measures - Competition - Commission decision imposing a fine - Bank guarantee - Application for suspension of operation - Pecuniary damage - No exceptional circumstances - No urgency)

2011/C 179/28

Language of the case: Portuguese

Parties

Applicant: Socitrel — Sociedade Industrial de Trefilaria, SA (Trofa, Portugal) (represented by: F. Proença de Carvalho and T. Luísa de Faria, lawyers)

Defendant: European Commission (represented by: F. Castillo de la Torre, V. Bottka and P. Costa de Oliveira, Agents, and M. Marques Mendes, lawyer)

Re:

Application for suspension of the operation of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a procedure pursuant to Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/38.344 — Prestressed steel) and for waiver of the obligation to establish a bank guarantee in order to prevent the immediate recovery of the fine imposed under Article 2 of that decision.

Operative part of the order

The Court hereby orders:

| 1. | The application for interim measures is dismissed; |
| --- | --- |

1.

The application for interim measures is dismissed;

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/16 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/16

---

Appeal brought on 28 March 2011 by Bart Nijs against the judgment of the Civil Service Tribunal of 13 January 2011 in Case F-77/09 Nijs v Court of Auditors

(Case T-184/11 P)

2011/C 179/29

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by F. Rollinger, lawyer)

Other party to the proceedings: Court of Auditors of the European Union

Form of order sought by the appellant

The appellant claims that the Court should:

| — | Set aside the judgment of the Civil Service Tribunal of the European Union of 13 January 2011; |
| --- | --- |

—

Set aside the judgment of the Civil Service Tribunal of the European Union of 13 January 2011;

| — | Primarily, annul the decision of the ad hoc committee of the European Court of Auditors of 15 January 2009 dismissing the applicant without reduction of his pension with effect from 1 February 2009; |
| --- | --- |

—

Primarily, annul the decision of the ad hoc committee of the European Court of Auditors of 15 January 2009 dismissing the applicant without reduction of his pension with effect from 1 February 2009;

| — | Annul Decision 81-2007 of 20 September 2007 of the Court of Auditors conferring the powers of the Appointing Authority on an ad hoc committee; |
| --- | --- |

—

Annul Decision 81-2007 of 20 September 2007 of the Court of Auditors conferring the powers of the Appointing Authority on an ad hoc committee;

| — | Annul all the preparatory decisions taken by that ad hoc committee, in particular those of 22/29 October, 23 November 2007 and 12 June 2008 to open an administrative investigation; |
| --- | --- |

—

Annul all the preparatory decisions taken by that ad hoc committee, in particular those of 22/29 October, 23 November 2007 and 12 June 2008 to open an administrative investigation;

| — | In the alternative, if the Court should not allow the primary applications for annulment, hold that the sanction pronounced by the ad hoc committee of the European Court of Auditors on 15 January 2009 is, on the basis of Article 10 of the Staff Regulations, for the reasons further discussed above, far too harsh; |
| --- | --- |

—

In the alternative, if the Court should not allow the primary applications for annulment, hold that the sanction pronounced by the ad hoc committee of the European Court of Auditors on 15 January 2009 is, on the basis of Article 10 of the Staff Regulations, for the reasons further discussed above, far too harsh;

| — | Refer the case back to the European Court of Auditors’ Appointing Authority with a different composition or, failing that, pronounce a sanction, if genuinely deemed necessary, far better adapted to the facts; |
| --- | --- |

—

Refer the case back to the European Court of Auditors’ Appointing Authority with a different composition or, failing that, pronounce a sanction, if genuinely deemed necessary, far better adapted to the facts;

| — | In the further alternative, hold expressly that the principle of the reasonable length of proceedings has not been observed in the present case, as further discussed above, and taking into account the level of the sanction to be pronounced as appropriate; |
| --- | --- |

—

In the further alternative, hold expressly that the principle of the reasonable length of proceedings has not been observed in the present case, as further discussed above, and taking into account the level of the sanction to be pronounced as appropriate;

| — | Rule in accordance with the application initiating proceedings; |
| --- | --- |

—

Rule in accordance with the application initiating proceedings;

| — | Order the European Court of Auditors to bear the costs of the present proceedings; |
| --- | --- |

—

Order the European Court of Auditors to bear the costs of the present proceedings;

| — | Allow the appellant all other rights and in particular that of being permitted to reply to the European Court of Auditors’ written pleading; |
| --- | --- |

—

Allow the appellant all other rights and in particular that of being permitted to reply to the European Court of Auditors’ written pleading;

| — | Order the opposing party to bear the costs of the two instances; |
| --- | --- |

—

Order the opposing party to bear the costs of the two instances;

| — | Allow the appellant all other rights, entitlements, pleas and actions. |
| --- | --- |

—

Allow the appellant all other rights, entitlements, pleas and actions.

Pleas in law and main arguments

In support of the appeal, the appellant relies on nine pleas in law.

| 1. | The first plea alleges a change in the subject-matter of the proceedings by the Civil Service Tribunal by interpreting the submissions of the appellant at the hearing as a withdrawal of his application for annulment of Decision No 81-2007. |
| --- | --- |

1.

The first plea alleges a change in the subject-matter of the proceedings by the Civil Service Tribunal by interpreting the submissions of the appellant at the hearing as a withdrawal of his application for annulment of Decision No 81-2007.

| 2. | The second plea alleges a misinterpretation of the facts by the Civil Service Tribunal in paragraphs 40, 58 and 94 of the judgment appealed against. |
| --- | --- |

2.

The second plea alleges a misinterpretation of the facts by the Civil Service Tribunal in paragraphs 40, 58 and 94 of the judgment appealed against.

| 3. | The third plea alleges a misinterpretation of the first plea of the action brought by the appellant in that the Civil Service Tribunal failed to take into account the paragraphs of Articles 22a and 22b of the Staff Regulations of the European Union relied upon. |
| --- | --- |

3.

The third plea alleges a misinterpretation of the first plea of the action brought by the appellant in that the Civil Service Tribunal failed to take into account the paragraphs of Articles 22a and 22b of the Staff Regulations of the European Union relied upon.

| 4. | The fourth plea alleges the non-application by the Civil Service Tribunal of the principle of the reversal of the burden of proof. |
| --- | --- |

4.

The fourth plea alleges the non-application by the Civil Service Tribunal of the principle of the reversal of the burden of proof.

| 5. | The fifth plea alleges that the Civil Service Tribunal made a bad legal decision with regard to the second plea of the appellant’s action and failed to draw conclusions from the conduct of the Secretary-General in connection with Article 11a of the Staff Regulations. |
| --- | --- |

5.

The fifth plea alleges that the Civil Service Tribunal made a bad legal decision with regard to the second plea of the appellant’s action and failed to draw conclusions from the conduct of the Secretary-General in connection with Article 11a of the Staff Regulations.

| 6. | The sixth plea alleges failure by the Civil Service Tribunal to take into account the infringement of the principle of equal treatment. |
| --- | --- |

6.

The sixth plea alleges failure by the Civil Service Tribunal to take into account the infringement of the principle of equal treatment.

| 7. | The seventh plea alleges bias towards the appellant by the official entrusted with the disciplinary enquiry. |
| --- | --- |

7.

The seventh plea alleges bias towards the appellant by the official entrusted with the disciplinary enquiry.

| 8. | The eighth plea alleges the actual non-application of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as a result of the refusal to review whether the sanction was proportionate in the light of the facts in respect of which it was adopted. |
| --- | --- |

8.

The eighth plea alleges the actual non-application of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as a result of the refusal to review whether the sanction was proportionate in the light of the facts in respect of which it was adopted.

| 9. | The ninth plea alleges that the principle of the reasonable length of proceedings was wrongly applied. |
| --- | --- |

9.

The ninth plea alleges that the principle of the reasonable length of proceedings was wrongly applied.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/17 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/17

---

Action brought on 11 April 2011 — LTTE v Council

(Case T-208/11)

2011/C 179/30

Language of the case: English

Parties

Applicant: Liberation Tigers of Tamil Eelam (LTTE) (Herning, Denmark) (represented by: V. Koppe, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | annul Council Implementing Regulation (EU) No 83/2011 (1) in as far as it concerns the applicant; |
| --- | --- |

—

annul Council Implementing Regulation (EU) No 83/2011 (1) in as far as it concerns the applicant;

| — | determine that the Council Regulation (EC) No 2580/2001 (2) is not applicable to the applicant; |
| --- | --- |

—

determine that the Council Regulation (EC) No 2580/2001 (2) is not applicable to the applicant;

| — | award the costs and interests to the applicant. |
| --- | --- |

—

award the costs and interests to the applicant.

Pleas in law and main arguments

In the present case the applicant seeks the partial annulment of Council Implementing Regulation (EU) No 83/2011 in so far as the name of the applicant is maintained on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision.

In support of the action, the applicant relies on six pleas in law.

| 1. | First plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant and/or the Council Regulation (EC) No 2580/2001 is inapplicable due to a failure to take regard of the law of armed conflict. |
| --- | --- |

1.

First plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant and/or the Council Regulation (EC) No 2580/2001 is inapplicable due to a failure to take regard of the law of armed conflict.

| 2. | Second plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant since the applicant cannot be qualified as a terrorist organisation as defined in Article 1(3) of Council Common Position 2001/931/CFSP (3). In this regard the applicant submits that its activities do not amount to offences under international humanitarian law and national criminal law, which does not apply to situations of armed conflict. |
| --- | --- |

2.

Second plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant since the applicant cannot be qualified as a terrorist organisation as defined in Article 1(3) of Council Common Position 2001/931/CFSP (3). In this regard the applicant submits that its activities do not amount to offences under international humanitarian law and national criminal law, which does not apply to situations of armed conflict.

| 3. | Third plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant because no decision by a competent authority, as required by Article 1(4) of Council Common Position 2001/931/CFSP, has been taken. |
| --- | --- |

3.

Third plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant because no decision by a competent authority, as required by Article 1(4) of Council Common Position 2001/931/CFSP, has been taken.

| 4. | Fourth plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant since the Council did not conduct any review as required by Article 1(6) of Council Common Position 2001/931/CFSP. The applicant contends that, as it no longer uses military means to achieve its goals and is no longer directly active in Sri Lanka, such a review would have led to the conclusion that it must be removed from the list. |
| --- | --- |

4.

Fourth plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant since the Council did not conduct any review as required by Article 1(6) of Council Common Position 2001/931/CFSP. The applicant contends that, as it no longer uses military means to achieve its goals and is no longer directly active in Sri Lanka, such a review would have led to the conclusion that it must be removed from the list.

| 5. | Fifth plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant as it does not comply with the obligation to state reasons in violation of Article 296 TFUE. |
| --- | --- |

5.

Fifth plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant as it does not comply with the obligation to state reasons in violation of Article 296 TFUE.

| 6. | Sixth plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant because it infringes upon the applicant’s right of defence, the applicant’s right to effective judicial protection. |
| --- | --- |

6.

Sixth plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant because it infringes upon the applicant’s right of defence, the applicant’s right to effective judicial protection.

---

(1)  Council Implementing Regulation (EU) No 83/2011 of 31 January 2011 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) No 610/2010. (OJ 2011, L 28, p. 14).

(2)  Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism. (OJ 2001, L 344, p. 70).

(3)  Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism. (OJ 2001, L 344, p. 93).

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/18 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/18

---

Action brought on 11 April 2011 — Timab Industries and CFPR v Commission

(Case T-211/11)

2011/C 179/31

Language of the case: French

Parties

Applicants: Timab Industries (Dinard, France) and Cie financière et de participations Roullier (CFPR) (Saint-Malo, France) (represented by: N. Lenoir, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul the decision; |
| --- | --- |

—

annul the decision;

| — | order the Commission to pay the costs in their entirety. |
| --- | --- |

—

order the Commission to pay the costs in their entirety.

Pleas in law and main arguments

The applicants seek the annulment of the Commission’s decision of 1 February 2011 refusing access to certain Commission documents relating to a procedure pursuant to Article 101 TFEU and Article 13 of the Agreement on the European Economic Area, concerning a cartel on the European market in animal feed phosphates (Case COMP/38866).

In support of the action, the applicants rely on three pleas in law:

| 1. | First plea in law, alleging error of law and a manifest error of assessment in relation to the second subparagraph of Article 4(3) of Regulation No 1049/2001, (1) in so far as the documents applied for are not opinions but decisions in respect of which it has not been established that disclosure might seriously undermine the decision-making process. |
| --- | --- |

1.

First plea in law, alleging error of law and a manifest error of assessment in relation to the second subparagraph of Article 4(3) of Regulation No 1049/2001, (1) in so far as the documents applied for are not opinions but decisions in respect of which it has not been established that disclosure might seriously undermine the decision-making process.

| 2. | Second plea in law, alleging error of law and a manifest error of assessment in relation to the first indent of Article 4(2) of Regulation No 1049/2001, in so far as the documents applied for do not contain any sensitive commercial information precluding, even partly, their disclosure. |
| --- | --- |

2.

Second plea in law, alleging error of law and a manifest error of assessment in relation to the first indent of Article 4(2) of Regulation No 1049/2001, in so far as the documents applied for do not contain any sensitive commercial information precluding, even partly, their disclosure.

| 3. | Third plea in law, alleging error of law and a manifest error of assessment in relation to the third indent of Article 4(2) of Regulation No 1049/2001, in so far as the Commission contended that the purpose of inspections, investigations and audits would be undermined. |
| --- | --- |

3.

Third plea in law, alleging error of law and a manifest error of assessment in relation to the third indent of Article 4(2) of Regulation No 1049/2001, in so far as the Commission contended that the purpose of inspections, investigations and audits would be undermined.

---

(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/18 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/18

---

Action brought on 11 April 2011 — ClientEarth and PAN Europe v EFSA

(Case T-214/11)

2011/C 179/32

Language of the case: English

Parties

Applicants: ClientEarth (London, United Kingdom) and Pesticides Action Network Europe (PAN Europe) (Brussels, Belgium) (represented by: P. Kirch, lawyer)

Defendant: European Food Safety Authority (EFSA)

Form of order sought

| — | Declare the defendant in violation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters; |
| --- | --- |

—

Declare the defendant in violation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters;

| — | declare the defendant in violation of Regulation (EC) No 1367/2006 (1); |
| --- | --- |

—

declare the defendant in violation of Regulation (EC) No 1367/2006 (1);

| — | declare the defendant in violation of Regulation (EC) No 1049/2001 (2); |
| --- | --- |

—

declare the defendant in violation of Regulation (EC) No 1049/2001 (2);

| — | Annul the negative reply by which the defendant withheld the requested documents; and |
| --- | --- |

—

Annul the negative reply by which the defendant withheld the requested documents; and

| — | Order the defendant to pay the applicants’ costs, including the costs of any intervening party. |
| --- | --- |

—

Order the defendant to pay the applicants’ costs, including the costs of any intervening party.

Pleas in law and main arguments

By means of their application, the applicants seek, pursuant to Article 263 TFEU, the annulment of the negative reply of European Food Safety Authority to their request for access to document, thereby withholding intermediate drafts and the scientific advice from EFSA's Pesticides Steering Committee (PSC) and Plant protection products and their residues (PPR) Panel relating to the Guidance on the submission of scientific peer-reviewed open literature for the approval of pesticide active substances under Regulation (EC) No 1107/2009 (3).

In support of their action, the applicants rely on four pleas in law.

| 1. | First plea in law, alleging that the contested decision violates Articles 8(2) of Regulation (EC) No 1049/2001 for not replying within the prescribed time limits to the applicants' confirmatory application and not providing detailed reasons for doing so. |
| --- | --- |

1.

First plea in law, alleging that the contested decision violates Articles 8(2) of Regulation (EC) No 1049/2001 for not replying within the prescribed time limits to the applicants' confirmatory application and not providing detailed reasons for doing so.

| 2. | Second plea in law, alleging that the contested decision violates Article 4(1)(2)(3) and (4) of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters for failure to provide the applicants access to the requested drafts and the scientific advice on EFSA's Guidance. The contested decision also violates Article 6(1) of Regulation (EC) No 1367/2006 for failure to interpret the exceptions provided under Article 4 of Regulation (EC) No 1049/2001 in a restrictive way. |
| --- | --- |

2.

Second plea in law, alleging that the contested decision violates Article 4(1)(2)(3) and (4) of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters for failure to provide the applicants access to the requested drafts and the scientific advice on EFSA's Guidance. The contested decision also violates Article 6(1) of Regulation (EC) No 1367/2006 for failure to interpret the exceptions provided under Article 4 of Regulation (EC) No 1049/2001 in a restrictive way.

| 3. | Third plea in law, alleging that the contested decision violates Article 4(3) second subparagraph of Regulation (EC) No 1049/2001 for failure to demonstrate that the disclosure of the requested documents would seriously undermine EFSA's internal decision-making, particularly after the decision has been taken. |
| --- | --- |

3.

Third plea in law, alleging that the contested decision violates Article 4(3) second subparagraph of Regulation (EC) No 1049/2001 for failure to demonstrate that the disclosure of the requested documents would seriously undermine EFSA's internal decision-making, particularly after the decision has been taken.

| 4. | Fourth plea in law, alleging that the contested decision violates Article 4(3) second subparagraph of Regulation (EC) No 1049/2001 for failure to assess whether there is an overriding public interest in disclosure and to provide a detailed statement of reasons for such a refusal. |
| --- | --- |

4.

Fourth plea in law, alleging that the contested decision violates Article 4(3) second subparagraph of Regulation (EC) No 1049/2001 for failure to assess whether there is an overriding public interest in disclosure and to provide a detailed statement of reasons for such a refusal.

---

(1)  Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13)

(2)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)

(3)  Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1)

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/19 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/19

---

Action brought on 21 April 2011 — Dagher v Council

(Case T-218/11)

2011/C 179/33

Language of the case: French

Parties

Applicant: Habib Roland Dagher (Abidjan, Côte d’Ivoire) (represented by: J.-Y. Dupeux and F. Dressen, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Implementing Regulation (EU) No 85/2011 of 31 January 2011, in so far as that act relates to him; |
| --- | --- |

—

annul Council Implementing Regulation (EU) No 85/2011 of 31 January 2011, in so far as that act relates to him;

| — | annul Council Decision 2011/71/CFSP of 31 January 2011, in so far as that act relates to him; |
| --- | --- |

—

annul Council Decision 2011/71/CFSP of 31 January 2011, in so far as that act relates to him;

| — | order the Council to pay the applicant EUR 40 000 as damages to make good the non-material loss and other damage suffered by the applicant; |
| --- | --- |

—

order the Council to pay the applicant EUR 40 000 as damages to make good the non-material loss and other damage suffered by the applicant;

| — | order the Council to pay the entirety of the costs. |
| --- | --- |

—

order the Council to pay the entirety of the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea divided into three parts and alleging infringement of essential procedural requirements.

| — | By the first part of the plea, the applicant argues that the procedure followed by the Council was not of an adversarial nature, in so far as the Council failed to provide, as soon as possible after the publication of the contested measures, information permitting the applicant to understand the reasons for the measures taken in his regard and, later refused the applicant’s subsequent requests for information, which meant that the applicant was deprived of his right to exercise usefully any action of an administrative nature seeking to have those measures lifted; |
| --- | --- |

—

By the first part of the plea, the applicant argues that the procedure followed by the Council was not of an adversarial nature, in so far as the Council failed to provide, as soon as possible after the publication of the contested measures, information permitting the applicant to understand the reasons for the measures taken in his regard and, later refused the applicant’s subsequent requests for information, which meant that the applicant was deprived of his right to exercise usefully any action of an administrative nature seeking to have those measures lifted;

| — | By the second part of the plea, the applicant alleges failure to state reasons, since the grounds set out in the restrictive measures taken against him are unclear and brief, which prevents him from examining the substance of the complaints underlying the sanctions in question; |
| --- | --- |

—

By the second part of the plea, the applicant alleges failure to state reasons, since the grounds set out in the restrictive measures taken against him are unclear and brief, which prevents him from examining the substance of the complaints underlying the sanctions in question;

| — | By the third part of the plea, the applicant claims an infringement of the right to effective judicial protection. |
| --- | --- |

—

By the third part of the plea, the applicant claims an infringement of the right to effective judicial protection.

---

European Union Civil Service Tribunal

| 18.6.2011 | EN | Official Journal of the European Union | C 179/21 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/21

---

Action brought on 31 March 2011 — AV v Commission

(Case F-4/11)

2011/C 179/34

Language of the case: French

Parties

Applicant: AV (Cadrezzate, Italy) (represented by: A. Coolen, J.-N. Louis, É. Marchal, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of decisions to defer medical cover in respect of the applicant as provided for by Article 32 of the Conditions of employment of other servants of the European Union and not to grant him entitlement to the invalidity allowance.

Form of order sought

| — | Annul the decision of the European Commission of 12 October 2010 rejecting the applicant’s complaint against the decisions of 12 April 2010 to defer medical cover in respect of the applicant as provided for by Article 32 of the Conditions of employment of other servants of the European Union (CEOS) and 16 April 2010 not to grant him entitlement to an invalidity allowance; |
| --- | --- |

—

Annul the decision of the European Commission of 12 October 2010 rejecting the applicant’s complaint against the decisions of 12 April 2010 to defer medical cover in respect of the applicant as provided for by Article 32 of the Conditions of employment of other servants of the European Union (CEOS) and 16 April 2010 not to grant him entitlement to an invalidity allowance;

| — | As necessary, annul the decisions of 12 April 2010 to defer medical cover in respect of the applicant as provided for by Article 32 of the CEOS and 16 April 2010 not to grant him entitlement to an invalidity allowance; |
| --- | --- |

—

As necessary, annul the decisions of 12 April 2010 to defer medical cover in respect of the applicant as provided for by Article 32 of the CEOS and 16 April 2010 not to grant him entitlement to an invalidity allowance;

| — | order the European Commission to pay the costs. |
| --- | --- |

—

order the European Commission to pay the costs.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/21 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/21

---

Action brought on 8 March 2011 — ZZ v Council

(Case F-26/11)

2011/C 179/35

Language of the case: French

Parties

Applicant: ZZ (Brussels, Belgium) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision not to include the applicant in the list of those promoted to grade AD 13 in the 2010 promotion exercise, and an order that the defendant pay to the applicant a sum in compensation for the non-material damage suffered.

Form of order sought

| — | Annul the decision of the appointing authority not to include the applicant in the list of those promoted to grade AD 13 in the 2010 promotion exercise, as that decision was made known in the Staff Note No 80/10 of 26 April 2010 and the Staff Note No 81/10 of 26 May 2010; |
| --- | --- |

—

Annul the decision of the appointing authority not to include the applicant in the list of those promoted to grade AD 13 in the 2010 promotion exercise, as that decision was made known in the Staff Note No 80/10 of 26 April 2010 and the Staff Note No 81/10 of 26 May 2010;

| — | annul, as necessary, the decision of the appointing authority rejecting the applicant’s complaint; |
| --- | --- |

—

annul, as necessary, the decision of the appointing authority rejecting the applicant’s complaint;

| — | annul, as necessary, the decision to promote AD 12 officials promoted to grade AD 13 in the 2010 promotion exercise (Staff Note No 80/10 of 26 April 2010 and the Staff Note No 81/10 of 26 May 2010); |
| --- | --- |

—

annul, as necessary, the decision to promote AD 12 officials promoted to grade AD 13 in the 2010 promotion exercise (Staff Note No 80/10 of 26 April 2010 and the Staff Note No 81/10 of 26 May 2010);

| — | order the defendant to pay to the applicant the sum of EUR 150 000 in compensation for non-material damage suffered; |
| --- | --- |

—

order the defendant to pay to the applicant the sum of EUR 150 000 in compensation for non-material damage suffered;

| — | order the Council of the European Union to pay the costs. |
| --- | --- |

—

order the Council of the European Union to pay the costs.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/21 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/21

---

Action brought on 23 March 2011 — ZZ v Council

(Case F-30/11)

2011/C 179/36

Language of the case: French

Parties

Applicant: ZZ (Brussels, Belgium) (represented by: M. Velardo, lawyer)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the applicant’s staff report for the period 1.1.2008 to 31.12.2008, and compensation for harm allegedly suffered.

Form of order sought

| — | Annul the CDR for 2008 and order the defendant to pay compensation for the harm suffered, provisionally estimated at EUR 5 000 and to be determined more precisely in the course of proceedings, and compensatory and late payment interest calculated at the rate of 6,75 % on the damages for material and non-material harm; |
| --- | --- |

—

Annul the CDR for 2008 and order the defendant to pay compensation for the harm suffered, provisionally estimated at EUR 5 000 and to be determined more precisely in the course of proceedings, and compensatory and late payment interest calculated at the rate of 6,75 % on the damages for material and non-material harm;

| — | order the Council of the European Union to pay the costs. |
| --- | --- |

—

order the Council of the European Union to pay the costs.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/22 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/22

---

Action brought on 5 April 2011 — ZZ v Commission

(Case F-36/11)

2011/C 179/37

Language of the case: French

Parties

Applicant: ZZ (Etterbeck, Belgium) (represented by: T. Bontinck and S. Woog, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

First, annulment of the decision not to extend the applicant’s contract beyond its expiry date and, consequently, reinstatement of the applicant in his duties as from 1 November 2010. Second, an order that the Commission pay to the applicant a sum of EUR 10 000 in compensation for non-material damage suffered and to bear the financial costs incurred in the pre litigation procedure.

Form of order sought

| — | Annul the decision contained in the note of 30 August 2010 informing the applicant that his contract would not be extended beyond its expiry date; |
| --- | --- |

—

Annul the decision contained in the note of 30 August 2010 informing the applicant that his contract would not be extended beyond its expiry date;

| — | consequently, reinstate the applicant in his duties in the delegation to Albania as from 1 November 2010 and order the defendant to pay his remuneration retrospectively. Failing such reinstatement, order the defendant to pay unemployment allowances until the applicant is again in employment; |
| --- | --- |

—

consequently, reinstate the applicant in his duties in the delegation to Albania as from 1 November 2010 and order the defendant to pay his remuneration retrospectively. Failing such reinstatement, order the defendant to pay unemployment allowances until the applicant is again in employment;

| — | withdraw the contested decision and any document linked to this procedure from the applicant’s personal file; |
| --- | --- |

—

withdraw the contested decision and any document linked to this procedure from the applicant’s personal file;

| — | order the Commission to pay to the applicant the sum of EUR 10 000 in compensation for the non-material damage suffered, subject to increase in the course of proceedings, and to bear the financial costs incurred in the pre-litigation procedure; |
| --- | --- |

—

order the Commission to pay to the applicant the sum of EUR 10 000 in compensation for the non-material damage suffered, subject to increase in the course of proceedings, and to bear the financial costs incurred in the pre-litigation procedure;

| — | order the Commission to pay the costs. |
| --- | --- |

—

order the Commission to pay the costs.

---

| 18.6.2011 | EN | Official Journal of the European Union | C 179/22 |
| --- | --- | --- | --- |

18.6.2011

EN

Official Journal of the European Union

C 179/22

---

Action brought on 5 April 2011 — ZZ v Parliament

(Case F-38/11)

2011/C 179/38

Language of the case: French

Parties

Applicant: ZZ (Luxembourg, Luxembourg) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Parliament

Subject-matter and description of the proceedings

Annulment of the decision not to promote in the 2009 promotion exercise the applicant, who was transferred on 1 September 2009 from the Court of Justice of the European Union to the European Parliament

Form of order sought

| — | Annul the decision of the Parliament of 4 January 2011 to reject the applicant’s complaint against the decision not to promote him to grade AD7 in the 2009 promotion exercise; |
| --- | --- |

—

Annul the decision of the Parliament of 4 January 2011 to reject the applicant’s complaint against the decision not to promote him to grade AD7 in the 2009 promotion exercise;

| — | As necessary, annul the decision of the Parliament not to promote him to grade AD7 in the 2009 promotion exercise; |
| --- | --- |

—

As necessary, annul the decision of the Parliament not to promote him to grade AD7 in the 2009 promotion exercise;

| — | order the European Parliament to pay the costs. |
| --- | --- |

—

order the European Parliament to pay the costs.

---