# Official Journal C 252/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.252.eng |
| --- | --- |
| Official Journal
  of the European Union | C 252 |
| | |
| English edition | Information and Notices | Volume 5427 August 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.252.eng

Official Journal

of the European Union

C 252

English edition

Information and Notices

Volume 5427 August 2011

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 252/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 238, 13.8.2011 | 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 252/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 238, 13.8.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 252/02 | Case C-212/08: Judgment of the Court (Eighth Chamber) of 30 June 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Zeturf Ltd v Premier ministre (Scheme giving exclusive rights to manage off-course betting on horseracing — Article 49 EC — Restriction on the freedom to provide services — Overriding reasons in the public interest — Objectives of combating gambling addiction and fraudulent and criminal activities and of contributing to rural development — Proportionality — Restrictive measure to be aimed at reducing opportunities for gambling and limiting gambling activities in a consistent and systematic manner — Operator pursuing a dynamic commercial policy — Measured advertising policy — Assessment of the restriction on marketing by traditional channels and by the internet) | 2 |
| 2011/C 252/03 | Case C-262/09: Judgment of the Court (First Chamber) of 30 June 2011 (reference for a preliminary ruling from the Finanzgericht Köln (Germany)) — Wienand Meilicke, Heidi Christa Weyde, Marina Stöffler v Finanzamt Bonn-Innenstadt (Free movement of capital — Income tax — Certificate relating to corporation tax actually paid on dividends of foreign origin — Prevention of double taxation of dividends — Tax credit for dividends paid by resident companies — Proof required as to the foreign tax deductible) | 3 |
| 2011/C 252/04 | Case C-263/09 P: Judgment of the Court (Grand Chamber) of 5 July 2011 — Edwin Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Elio Fiorucci (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 52(2)(a) — Community word mark ELIO FIORUCCI — Application for a declaration of invalidity based on a right to a name under national law — Review by the Court of Justice of the interpretation and application of national law by the General Court — Power of the General Court to alter the decision of the Board of Appeal — Limits) | 4 |
| 2011/C 252/05 | Case C-388/09: Judgment of the Court (Second Chamber) of 30 June 2011 (reference for a preliminary ruling from the Bundessozialgericht (Germany)) — Joao Filipe da Silva Martins v Bank Betriebskrankenkasse — Pflegekasse (Reference for a preliminary ruling — Social security — Regulation (EEC) No 1408/71 — Articles 15, 27 and 28 — Articles 39 EC and 42 EC — Former migrant worker — Work in the Member State of origin and in another Member State — Retirement in the Member State of origin — Pensions paid by both Member States — Separate social security scheme covering the risk of reliance on care — Existence in the other former Member State of employment — Optional continued affiliation to that scheme — Maintenance of the right to a care allowance after the return to the Member State of origin) | 4 |
| 2011/C 252/06 | Case C-485/09: Judgment of the Court (Sixth Chamber) of 30 June 2011 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas (Directive 91/628/EEC — Point 48(5) of Chapter VII of the Annex — Regulation (EC) No 615/98 — Article 5(3) — Export refunds — Protection of bovine animals during rail transport — Conditions for payment of export refunds for bovine animals — Compliance with Directive 91/628/EEC — Principle of proportionality) | 5 |
| 2011/C 252/07 | Case C-271/10: Judgment of the Court (Third Chamber) of 30 June 2011 (reference for a preliminary ruling from the Raad van State van België — Belgium) — Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA) v Belgische Staat (Directive 92/100/EEC — Copyright and related rights — Public lending — Remuneration of authors — Adequate income) | 5 |
| 2011/C 252/08 | Case C-397/10: Judgment of the Court (Fifth Chamber) of 30 June 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Article 56 TFEU — Freedom to provide services — National legislation making the activities of temporary work agencies subject to a set of requirements — Unjustified obstacles) | 6 |
| 2011/C 252/09 | Case C-353/09 P: Order of the Court (Fifth Chamber) of 15 February 2011 — Perfetti Van Melle SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Cloetta AB, legal successor to Cloetta Fazer AB (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Invalidity proceedings — Community word mark CENTER SHOCK — Earlier national word mark CENTER — Examination of the likelihood of confusion) | 6 |
| 2011/C 252/10 | Case C-457/09: Order of the Court (Fifth Chamber) of 1 March 2011 (reference for a preliminary ruling from the Tribunal de première instance de Liège — Belgium) — Claude Chartry v Etat belge (Reference for a preliminary ruling — Article 234 EC — Assessing whether a national rule is consistent with both European Union law and the national Constitution — National legislation laying down the priority nature of preliminary proceedings for reviewing constitutionality — Charter of Fundamental Rights of the European Union — Need for a connection with European Union law — Clear lack of jurisdiction of the Court) | 7 |
| 2011/C 252/11 | Case C-535/09 P: Order of the Court of 23 March 2011 — Republic of Estonia v European Commission, Republic of Latvia (Appeal — Sugar — Determination of surplus quantities of sugar, isoglucose and fructose for the new Member States) | 7 |
| 2011/C 252/12 | Case C-5/10 P: Order of the Court (Fifth Chamber) of 16 May 2011 — Giampietro Torresan v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Klosterbrauerei Weissenohe GmbH & Co. KG (Appeals — Community trade mark — Word mark CANNABIS — Invalidity proceedings — Absolute ground for refusal — Descriptive character — Regulation (EC) No 40/94 — Article 7(1)(c)) | 7 |
| 2011/C 252/13 | Case C-194/10: Order of the Court (Sixth Chamber) of 24 March 2011 (reference for a preliminary ruling from the Landgericht München I, Germany) — Robert Nicolaus Abt and Others v Hypo Real Estate Holding AG (Reference for a preliminary ruling — Relevance of the question — No jurisdiction) | 8 |
| 2011/C 252/14 | Case C-254/10 P: Order of the Court of 3 March 2011 — Centre de Coordination Carrefour SNC v European Commission (Appeal — Aid scheme in favour of coordination centres established in Belgium — Conditions of admissibility of an action for annulment — Concept of interest in bringing proceedings — Res judicata) | 8 |
| 2011/C 252/15 | Case C-288/10: Order of the Court (First Chamber) of 30 June 2011 (reference for a preliminary ruling from the Rechtbank van Koophandel te Dendermonde — Belgium) — Wamo BVBA v JBC NV, Modemakers Fashion NV (First subparagraph of Article 104(3) of the Rules of Procedure — Directive 2005/29/EC — Unfair commercial practices — National legislation prohibiting announcements of price reductions or announcements suggesting such reductions) | 9 |
| 2011/C 252/16 | Case C-349/10 P: Order of the Court (Sixth Chamber) of 2 March 2011 — Claro SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Telefónica SA (Appeal — Community trade mark — Refusal of registration — Admissibility of the appeal before the Board of Appeal — Failure to file a statement setting out the grounds of appeal — Article 59 of Regulation (EC) No 40/94 — Rule 49(1) of Regulation (EC) No 2868/95 — Appeal manifestly unfounded) | 9 |
| 2011/C 252/17 | Case C-367/10 P: Order of the Court of 31 March 2011 — EMC Development AB v European Commission (Appeal — Agreements, decisions and concerted practices — European cement market — Action for annulment of a decision rejecting a complaint against the adoption of a harmonised standard for cement — Procedure for the adoption of the standard — Binding nature of the standard — Appeal clearly inadmissible in part and clearly unfounded in part) | 9 |
| 2011/C 252/18 | Case C-369/10 P: Order of the Court (Fifth Chamber) of 14 March 2011 — Ravensburger AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) — Educa Borras SA (Appeal — Community trade mark — Community word mark MEMORY — Invalidity proceedings — Absolute ground for refusal — Descriptive character — Regulation (EC) No 40/94 — Article 7(1)(c)) | 10 |
| 2011/C 252/19 | Case C-388/10 P: Order of the Court (Eighth Chamber) of 24 March 2011 — Félix Muñoz Arraiza v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consejo Regulador de la Denominación de Origen Calificada Rioja (Appeal — Community trade mark — Regulation (EC) No 40/94 — Articles 8(1)(b), 43(2) and 44(1) — Application for Community word mark RIOJAVINA — Opposition by the proprietor of the earlier Community collective figurative mark RIOJA — Refusal to register — Likelihood of confusion) | 10 |
| 2011/C 252/20 | Case C-429/10 P: Order of the Court (Fifth Chamber) of 16 May 2011 — X Technology Swiss GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeals — Community trade mark — Sign consisting of the partial colouring of a product — Orange colouring of the toe of a sock — Absolute ground for refusal — Absence of distinctive character — Regulation (EC) No 40/94 — Article 7(1)(b)) | 11 |
| 2011/C 252/21 | Case C-433/10 P: Order of the Court of 31 March 2011 — Volker Mauerhofer v European Commission (Appeal — Project supported by the European Union in Bosnia and Herzegovina — Contracts concluded between the Commission and a consortium and between the consortium and experts — Commission’s administrative order amending its contract with the consortium — Action for annulment of that administrative order brought by one of the experts — Admissibility — Action for damages — Non contractual liability of the Union — Causal link between the Commission’s administrative order and the damage allegedly suffered by that expert) | 11 |
| 2011/C 252/22 | Case C-476/10: Order of the Court of 24 June 2011 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Vorarlberg (Austria)) — proceedings brought by projektart Errichtungsgesellschaft mbH, Eva Maria Pepic, Herbert Hilbe (First subparagraph of Article 104(3) of the Rules of Procedure — Free movement of capital — Article 40 of and Annex XII to the EEA Agreement — Purchase by nationals of the Principality of Liechtenstein of a secondary residence in the Land of Vorarlberg (Austria) — Procedure of prior authorisation — Admissibility) | 11 |
| 2011/C 252/23 | Case C-72/11: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 18 February 2011 — Der Generalbundesanwalt beim Bundesgerichtshof v Mohsen Afrasiabi, Behzad Sahabi and Heinz Ulrich Kessel | 12 |
| 2011/C 252/24 | Case C-222/11 P: Appeal brought on 13 May 2011 by Longevity Health Products, Inc against the judgment of the General Court (Sixth Chamber) delivered on 9 March 2011 in Case T-190/09 Longevity Health Products, Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs); other party: Performing Science LLC | 12 |
| 2011/C 252/25 | Case C-243/11: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 20 May 2011 — RVS Levensverzekeringen N.V. v Belgische Staat | 13 |
| 2011/C 252/26 | Case C-248/11: Reference for a preliminary ruling from the Curte de Apel Cluj (Romania) lodged on 23 May 2011 — Criminal proceedings against Rareș Doralin Nilaș, Gicu Agenor Gânscă, Ana Maria Oprean (née Șchiopu), Sergiu Dan Dascăl, Ionuț Horea Baboș | 13 |
| 2011/C 252/27 | Case C-259/11: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 May 2011 — DTZ Zadelhoff vof, other party: Staatssecretaris van Financiën | 14 |
| 2011/C 252/28 | Case C-278/11 P: Appeal brought on 6 June 2011 by Densmore Ronald Dover against the judgment of the General Court (Eighth Chamber) delivered on 24.03.2011 in Case T-149/09: Densmore Ronald Dover v European Parliament | 14 |
| 2011/C 252/29 | Case C-281/11: Action brought on 6 June 2011 — European Commission v Republic of Poland | 15 |
| 2011/C 252/30 | Case C-288/11 P: Appeal brought on 8 June 2011 by Mitteldeutsche Flughafen AG, Flughafen Leipzig/Halle GmbH against the judgment delivered by the General Court (Eighth Chanber) on 24 March 2011 in Joined Cases T-443/08 and T-455/08 Freistaat Sachsen and Others v European Commission | 16 |
| 2011/C 252/31 | Case C-289/11 P: Appeal brought on 9 June 2011 by Legris Industries SA against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-376/06 Legris Industries v Commission | 17 |
| 2011/C 252/32 | Case C-290/11 P: Appeal brought on 9 June 2011 by Comap SA against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-377/06 Comap v Commission | 18 |
| 2011/C 252/33 | Case C-291/11: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 9 June 2011 — Staatssecretaris van Financiën v TNT Freight Management (Amsterdam) BV | 18 |
| 2011/C 252/34 | Case C-292/11 P: Appeal brought on 9 June 2011 by the European Commission against the judgment delivered on 29 March 2011 by the General Court (Third Chamber) in Case T-33/09 Portuguese Republic v European Commission | 19 |
| 2011/C 252/35 | Case C-294/11: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 9 June 2011 — Ministero dell’Economia e delle Finanze and Agenzia delle Entrate v Elsacom N.V. | 19 |
| 2011/C 252/36 | Case C-296/11: Action brought on 14 June 2011 — European Commission v French Republic | 19 |
| 2011/C 252/37 | Case C-300/11: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 17 June 2011 — ZZ v Secretary of State for the Home Department | 20 |
| 2011/C 252/38 | Case C-301/11: Action brought on 16 June 2011 — European Commission v Kingdom of the Netherlands | 20 |
| 2011/C 252/39 | Case C-302/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Rosanna Valenza v Autorità Garante della Concorrenza e del Mercato | 20 |
| 2011/C 252/40 | Case C-303/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Maria Laura Altavista v Autorità Garante della Concorrenza e del Mercato | 21 |
| 2011/C 252/41 | Case C-304/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Rosanna Valenza v Autorità Garante della Concorrenza e del Mercato | 22 |
| 2011/C 252/42 | Case C-305/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Laura Marsella, Simonetta Schettini, Sabrina Tomassini v Autorità Garante della Concorrenza e del Mercato | 22 |
| 2011/C 252/43 | Case C-309/11: Action brought on 17 June 2011 — European Commission v Republic of Finland | 23 |
| 2011/C 252/44 | Case C-313/11: Action brought on 21 June 2011 — European Commission v Republic of Poland | 23 |
| 2011/C 252/45 | Case C-320/11: Reference for a preliminary ruling from the Varnenski Administrativen Sad (Bulgaria) lodged on 27 June 2011 — Digitalnet OOD v Nachalnik na Mitnicheski punkt Varna Zapad pri Mitnitsi Varna | 24 |
| 2011/C 252/46 | Case C-322/11: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 28 June 2011 — K | 25 |
| 2011/C 252/47 | Case C-330/11: Reference for a preliminary ruling from the Varnenski Administrativen Sad (Bulgaria). lodged on 29 June 2011 — Tsifrova kompania v Nachalnik na Mitnicheski punkt Varna Zapad pri Mitnitsi Varna | 25 |
| 2011/C 252/48 | Case C-352/11: Action brought on 5 July 2011 — European Commission v Republic of Austria | 26 |
| 2011/C 252/49 | Case C-353/11: Action brought on 5 July 2011 — European Commission v Czech Republic | 26 |
| 2011/C 252/50 | Case C-341/09 P: Order of the President of the Court of 9 February 2011 — Acegas-APS SpA, formerly Acqua, Elettricità, Gas e servizi SpA (Acegas) v European Commission | 26 |
| 2011/C 252/51 | Case C-390/09: Order of the President of the Third Chamber of the Court of 11 February 2011 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — Reti Televisive Italiane SpA (RTI) v Autorità per le Garanzie nelle Communicazioni, Sky Italia Srl | 26 |
| 2011/C 252/52 | Case C-86/10: Order of the President of the Second Chamber of the Court of 23 May 2011 (reference for a preliminary ruling from the Arbeitsgericht Siegburg (Germany)) — Hüseyin Balaban v Zelter GmbH | 27 |
| 2011/C 252/53 | Joined Cases C-97/10 to C-99/10: Order of the President of the Court of 8 June 2011 (references for a preliminary ruling from the Tribunal d’Instance de Dax (France)) — AG2R Prévoyance v SARL Bourdil (C-97/10), SARL Boucalaise de Boulangerie (C-98/10), SARL Baba-Pom (C-99/10) | 27 |
| 2011/C 252/54 | Case C-253/10: Order of the President of the Eighth Chamber of the Court of 19 May 2011 — European Commission v Slovak Republic | 27 |
| 2011/C 252/55 | Case C-269/10: Order of the President of the Court of 15 February 2011 (reference for a preliminary ruling from the Tribunal administratif de Montreuil (France)) — Accor Services France v Le Chèque Déjeuner CCR, Etablissement Public de Santé de Ville-Evrard | 27 |
| 2011/C 252/56 | Case C-278/10: Order of the President of the Seventh Chamber of the Court of 17 March 2011 — European Commission v Hellenic Republic | 27 |
| 2011/C 252/57 | Case C-299/10: Order of the President of the Court of 15 June 2011 (reference for a preliminary ruling from the Tribunal Judicial de Amares (Portugal)) — Cristiano Marques Vieira v Companhia de Seguros Tranquilidade SA | 27 |
| 2011/C 252/58 | Case C-363/10: Order of the President of the Court of 6 June 2011 (reference for a preliminary ruling from the Tribunal Judicial de Póvoa de Lanhoso (Portugal)) — Maria de Jesus Barbosa Rodrigues v Zurich Companhia de Seguros, S.A. | 27 |
| 2011/C 252/59 | Case C-428/10: Order of the President of the Court of 24 March 2011 — European Commission v French Republic | 27 |
| 2011/C 252/60 | Case C-466/10: Order of the President of the Court of 16 February 2011 — European Commission v Hellenic Republic | 28 |
| 2011/C 252/61 | Case C-486/10: Order of the President of the Court of 13 May 2011 — European Commission v Federal Republic of Germany | 28 |
| 2011/C 252/62 | Case C-487/10: Order of the President of the Court of 16 February 2011 (reference for a preliminary ruling from the Tribunal Administratif de Rennes (France)) — L’Océane Immobilière SAS v Direction de contrôle fiscal Ouest | 28 |
| 2011/C 252/63 | Case C-531/10: Order of the President of the Court of 8 April 2011 — European Commission v Slovak Republic | 28 |
| 2011/C 252/64 | Case C-570/10: Order of the President of the Court of 2 May 2011 — European Commission v Ireland | 28 |
| 2011/C 252/65 | Case C-50/11: Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Ivrea (Italy)) — Criminal proceedings against Lucky Emegor | 28 |
| 2011/C 252/66 | Case C-60/11: Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Ragusa (Italy)) — Criminal proceedings against Mohamed Mrad | 28 |
| 2011/C 252/67 | Case C-63/11: Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the the Tribunale di Rovereto (Italy)) — Criminal proceedings against John Austine | 28 |
| 2011/C 252/68 | Case C-94/11: Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Bergamo (Italy)) — Criminal proceedings against Survival Godwin | 29 |
| 2011/C 252/69 | Case C-140/11: Order of the President of the First Chamber of the Court of 29 June 2011 (reference for a preliminary ruling from the Corte suprema di cassazione — Italy) — Procuratore generale della Repubblica presso la Corte suprema di cassazione v Demba Ngagne | 29 |
| | General Court |
| 2011/C 252/70 | Case T-112/07: Judgment of the General Court of 12 July 2011 — Hitachi and Others v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Rights of the defence — Proof of the infringement — Single and continuous infringement — Fines — Gravity and duration of the infringement — Deterrent effect — Cooperation) | 30 |
| 2011/C 252/71 | Case T-113/07: Judgment of the General Court of 12 July 2011 — Toshiba v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Rights of the defence — Proof of the infringement — Single and continuous infringement — Fines — Gravity and duration of the infringement — Statement of reasons — Starting amount — Reference year) | 30 |
| 2011/C 252/72 | Case T-132/07: Judgment of the General Court of 12 July 2011 — Fuji Electric v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Proof of the infringement — Whether liable for the infringement — Duration of the infringement — Fines — Mitigating circumstances — Cooperation) | 31 |
| 2011/C 252/73 | Case T-133/07: Judgment of the General Court of 12 July 2011 — Mitsubishi Electric v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Rights of the defence — Proof of the infringement — Duration of the infringement — Fines — Starting amount — Reference year — Equal treatment) | 31 |
| 2011/C 252/74 | Case T-374/08: Judgment of the General Court of 12 July 2011 — Aldi Einkauf v OHIM — Illinois Tools Works (TOP CRAFT) (Community trade mark — Opposition proceedings — Application for the Community figurative mark TOP CRAFT — Earlier national figurative marks Krafft — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Genuine use of the earlier marks — Article 43(2) of Regulation No 40/94 (now Article 42(2) of Regulation 207/2009) and Rule 22 of Regulation (EC) No 2868/95) | 32 |
| 2011/C 252/75 | Case T-80/09 P: Judgment of the General Court of 12 July 2011 — Commission v Q (Appeal — Civil service — Officials — Cross-appeal — Psychological harassment — Article 12a of the Staff Regulations — Communication on the policy on psychological harassment at the Commission — Duty on the part of the administration to provide assistance — Article 24 of the Staff Regulations — Scope — Request for assistance — Provisional distancing measures — Duty to have regard for the welfare of officials — Liability — Claim for damages — Unlimited jurisdiction — Conditions for implementation — Staff report — Action for annulment — Interest in bringing proceedings) | 32 |
| 2011/C 252/76 | Case T-197/09: Judgment of the General Court of 12 July 2011 — Slovenia v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Arable crops) | 33 |
| 2011/C 252/77 | Case T-209/11 R: Order of the President of the General Court of 21 June 2011 — MB System v Commission (Application for interim measures — State aid — Recovery obligation — Application for stay of execution — Urgency — Balancing of interests) | 33 |
| 2011/C 252/78 | Case T-259/11: Action brought on 16 May 2011 — Zinātnes, inovāciju un testēšānas centrs v European Commission | 33 |
| 2011/C 252/79 | Case T-288/11: Action brought on 1 June 2011 — Kieffer Omnitec v Commission | 34 |
| 2011/C 252/80 | Case T-319/11: Action brought on 14 June 2011 — ABN AMRO Group v Commission | 35 |
| 2011/C 252/81 | Case T-320/11: Action brought on 17 June 2011 — Republic of Hungary v European Commission | 36 |
| 2011/C 252/82 | Case T-323/11: Action brought on 21 June 2011 — UCP Backus y Johnston v OHIM (Shape of a bottle) | 36 |
| 2011/C 252/83 | Case T-325/11: Action brought on 17 June 2011 — Amador López v OHIM (AUTOCOACHING) | 37 |
| 2011/C 252/84 | Case T-329/11: Action brought on 20 June 2011 — TM.E v Commission | 37 |
| 2011/C 252/85 | Case T-336/11: Action brought on 24 June 2011 — Italiana Calzature v OHIM — Vicini (Giuseppe GIUSEPPE ZANOTTI DESIGN) | 38 |
| 2011/C 252/86 | Case T-337/11: Action brought on 24 June 2011 — Italiana Calzature v OHIM — Vicini (Giuseppe BY GIUSEPPE ZANOTTI) | 38 |
| 2011/C 252/87 | Case T-338/11: Action brought on 30 June 2011 — Getty Images v OHIM (PHOTOS.COM) | 39 |
| 2011/C 252/88 | Case T-339/11: Action brought on 28 June 2011 — Spain v European Commission | 39 |
| 2011/C 252/89 | Case T-341/11: Action brought on 30 June 2011 — Ecologistas en Acción-CODA v Commission | 40 |
| 2011/C 252/90 | Case T-342/11: Action brought on 30 June 2011 — CEEES y Asociación de Gestores de Estaciones de Servicio v Commission | 40 |
| 2011/C 252/91 | Case T-343/11: Action brought on 28 June 2011 — Netherlands v Commission | 41 |
| 2011/C 252/92 | Case T-346/11: Action brought on 7 July 2011 — Gollnisch v Parliament | 42 |
| 2011/C 252/93 | Case T-347/11: Action brought on 7 July 2011 — Gollnisch v Parliament | 43 |
| 2011/C 252/94 | Case T-353/11: Action brought on 29 June 2011 — Event v OHIM — CBT Comunicación Multimedia (eventer EVENT MANAGEMENT SYSTEMS) | 43 |
| 2011/C 252/95 | Case T-357/11: Action brought on 1 July 2011 — Bimbo v OHIM — Grupo Bimbo (GRUPO BIMBO) | 44 |
| 2011/C 252/96 | Case T-358/11: Action brought on 27 June 2011 — Italy v Commission | 44 |
| 2011/C 252/97 | Case T-362/11: Action brought on 7 July 2011 — Stichting Greenpeace Nederland and PAN Europe v Commission | 46 |
| | European Union Civil Service Tribunal |
| 2011/C 252/98 | Case F-17/05 REV: Judgment of the Civil Service Tribunal (3rd Chamber) of 15 June 2011 — de Brito Sequeira Carvalho v Commission (Civil service — Application for revision of a judgment — No new facts — Application inadmissible) | 47 |
| 2011/C 252/99 | Case F-67/05 RENV: Judgment of the Civil Service Tribunal (Third Chamber) of 14 December 2010 — Michail v Commission (Staff case — Officials — Referral back to the Tribunal after setting aside — Career development report — 2003 appraisal exercise — Action for annulment — Action for damages) | 47 |
| 2011/C 252/00 | Case F-113/07: Judgment of the Civil Service Tribunal (Second Chamber) of 14 April 2011 — Irmantas Šimonis v Commission (Staff case — Officials — Inter-institutional transfer — Lawyer-linguist — Substitution of grounds — Requirement of a minimum length of service) | 47 |
| 2011/C 252/01 | Case F-119/07: Judgment of the Civil Service Tribunal (Second Chamber) of 17 February 2011 — Strack v European Commission (Civil service — Officials — Mediation procedure — Act adversely affecting an official — Article 73 of the Staff Regulations — Consolidation — Provisional allowance) | 48 |
| 2011/C 252/02 | Case F-120/07: Judgment of the Civil Service Tribunal (Second Chamber) of 15 March 2011 — Strack v European Commission (Civil service — Officials — Carry-over of days of annual leave — Article 4 of Annex V to the Staff Regulations — Reasons attributable to the interests of the service — Article 73 of the Staff Regulations — Directive 2003/88/EC — Right to paid annual leave — Sick leave) | 48 |
| 2011/C 252/03 | Case F-82/08: Judgment of the Civil Service Tribunal (Second Chamber) of 14 April 2011 — Clarke and Others v OHIM (Staff case — Temporary staff — Article 8 CEOS — Clause terminating a contract if the agent is not included on the reserve list of a competition — OHIM/AD/02/07 and OHIM/AST/02/07 open competitions — Act adversely affecting an official — Principle of performance of contracts in good faith — Duty of care — Principle of sound administration — Language requirements — EPSO not competent — Directive 1999/70/EC — Fixed-term work) | 49 |
| 2011/C 252/04 | Case F-29/09 REV: Judgment of the Civil Service Tribunal (3rd Chamber) of 13 April 2011 — Lebedef and Jones v Commission (Civil service — Revision of a judgment — No new facts — Inadmissibility) | 49 |
| 2011/C 252/05 | Case F-30/09: Judgment of the Civil Service Tribunal (3rd Chamber) of 13 April 2011 –Chaouch v Commission (Civil service — Remuneration — Installation allowance — Establishment of entitlement — Entry into service as probationary official — Change of residence after establishment to be taken into account — Official’s duty of residence under Article 20 of the Staff Regulations) | 49 |
| 2011/C 252/06 | Case F-53/09: Judgment of the Civil Service Tribunal (3rd Chamber) of 11 May 2011 — J v Commission (Civil service — Officials — Social security — Accident insurance and occupational disease — Article 73 of the Staff Regulations — Refusal to recognise the cause of an occupational disease — Obligation to conduct the procedure within a reasonable period) | 50 |
| 2011/C 252/07 | Case F-68/09: Judgment of the Civil Service Tribunal (3rd Chamber) of 15 February 2011 — Barbin v Parliament (Civil service — Officials — 2006 promotion exercise — Enforcement of a judgment of the Tribunal — Comparative examination of the merits — Principle of equal treatment — Half-time parental leave) | 50 |
| 2011/C 252/08 | Case F-73/09: Judgment of the Civil Service Tribunal (3rd Chamber) of 13 April 2011 — Sukup v Commission (Civil service — Remuneration and allowances — Dependent child allowance — Education allowance — Retrospective award) | 50 |
| 2011/C 252/09 | Case F-83/09: Judgment of the Civil Service Tribunal (Second Chamber) of 26 May 2011 — Kalmár v Europol (Staff case — Europol staff — Dismissal — Request for annulment — Payment of remuneration — Effect of judgment ordering annulment) | 51 |
| 2011/C 252/10 | Case F-105/09: Judgment of the Civil Service Tribunal (Third Chamber) of 13 April 2011 — Scheefer v Parliament (Staff case — Temporary staff — Renewal of a fixed-term contract — Reclassification of a contract for a fixed period as a contract for an indefinite period — First paragraph of Article 8 of the CEOS) | 51 |
| 2011/C 252/11 | Case F-40/10: Judgment of the Civil Service Tribunal (2nd Chamber) of 26 May 2011 — Lebedef v Commission (Civil service — Officials — Annual leave — Absence without prior permission after annual leave used up — Forfeiture of remuneration — Article 60 of the Staff Regulations) | 52 |
| 2011/C 252/12 | Case F-10/10: Order of the Civil Service Tribunal (Third Chamber) of 31 March 2011 Hecq v Commission (Staff case — Officials — Social security — Meeting of 100 % of medical costs — Implied rejection decision — No decision recognising the occupational origin of the illness — Limited power of the administration — Decision to reject the complaint — Decision not purely confirmatory — No complaint — Inadmissibility) | 52 |
| 2011/C 252/13 | Case F-14/10: Order of the Civil Service Tribunal (Third Chamber) of 30 June 2011 — Marcuccio v European Commission (Civil Service — Officials — Social security — Accident — Procedure for recognition of permanent partial invalidity within the meaning of Article 73 of the Staff Regulations — Duration of the procedure — Action for damages — Action manifestly lacking any foundation in law — Article 94 of the Rules of Procedure) | 52 |
| 2011/C 252/14 | Case F-56/10: Order of the Civil Service Tribunal (Third Chamber) of 10 June 2011 Hecq v Commission (Staff case — Officials — Social security — Meeting of 100 % of medical costs — Implied rejection decision — Premature complaint — Inadmissibility) | 53 |
| 2011/C 252/15 | Case F-75/10: Order of the Civil Service Tribunal (Third Chamber) of 27 June 2011 — Scheefer v Parliament (Staff case — Temporary staff — Renewal of a fixed-term contract — No need to adjudicate) | 53 |
| 2011/C 252/16 | Case F-78/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Antelo Sanchez and Others v Parliament (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate) | 53 |
| 2011/C 252/17 | Case F-82/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Nolin v Commission (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate) | 54 |
| 2011/C 252/18 | Case F-87/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Adriaens and Others v Commission (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate) | 54 |
| 2011/C 252/19 | Case F-92/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Dricot-Daniele and Others v Commission (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate) | 54 |
| 2011/C 252/20 | Case F-96/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Andrecs and Others v Commission (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate) | 55 |
| 2011/C 252/21 | Case F-99/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Ashbrook and Others v Commission (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate) | 55 |
| 2011/C 252/22 | Case F-106/10: Order of the Civil Service Tribunal (Third Chamber) of 20 June 2011 — Gross and Others v Court of Justice (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate) | 55 |
| 2011/C 252/23 | Case F-47/11: Action brought on 15 April 2011 — ZZ v Commission | 56 |
| 2011/C 252/24 | Case F-51/11: Action brought on 21 April 2011 — ZZ v Commission | 56 |
| 2011/C 252/25 | Case F-55/11: Action brought on 9 May 2011 — ZZ v Commission | 56 |
| 2011/C 252/26 | Case F-64/11: Action brought on 24 June 2011 — ZZ v European Commission | 57 |
| 2011/C 252/27 | Case F-65/11: Action brought on 3 July 2011 — ZZ v Parliament | 57 |
| 2011/C 252/28 | Case F-87/09: Order of the Civil Service Tribunal (Third Chamber) of 11 January 2011 — Dekker v Europol | 57 |
| 2011/C 252/29 | Case F-70/10: Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — Hidalgo v Parliament | 57 |
| 2011/C 252/30 | Case F-94/10: Order of the Civil Service Tribunal (Third Chamber) of 18 May 2011 — Carpenito v Council | 58 |
| 2011/C 252/31 | Case F-97/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Kerstens v Commission | 58 |
| 2011/C 252/32 | Case F-101/10: Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — Massez And Others v Court of Justice | 58 |
| 2011/C 252/33 | Case F-102/10: Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — Geradon v Council | 58 |
| 2011/C 252/34 | Case F-8/11: Order of the Civil Service Tribunal (Third Chamber) of 17 June 2011 — Nieminen v Council | 58 |
| 2011/C 252/35 | Case F-28/11: Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — BC v Council | 58 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 252/02

Case C-212/08: Judgment of the Court (Eighth Chamber) of 30 June 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Zeturf Ltd v Premier ministre (Scheme giving exclusive rights to manage off-course betting on horseracing — Article 49 EC — Restriction on the freedom to provide services — Overriding reasons in the public interest — Objectives of combating gambling addiction and fraudulent and criminal activities and of contributing to rural development — Proportionality — Restrictive measure to be aimed at reducing opportunities for gambling and limiting gambling activities in a consistent and systematic manner — Operator pursuing a dynamic commercial policy — Measured advertising policy — Assessment of the restriction on marketing by traditional channels and by the internet)

2

2011/C 252/03

Case C-262/09: Judgment of the Court (First Chamber) of 30 June 2011 (reference for a preliminary ruling from the Finanzgericht Köln (Germany)) — Wienand Meilicke, Heidi Christa Weyde, Marina Stöffler v Finanzamt Bonn-Innenstadt (Free movement of capital — Income tax — Certificate relating to corporation tax actually paid on dividends of foreign origin — Prevention of double taxation of dividends — Tax credit for dividends paid by resident companies — Proof required as to the foreign tax deductible)

3

2011/C 252/04

Case C-263/09 P: Judgment of the Court (Grand Chamber) of 5 July 2011 — Edwin Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Elio Fiorucci (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 52(2)(a) — Community word mark ELIO FIORUCCI — Application for a declaration of invalidity based on a right to a name under national law — Review by the Court of Justice of the interpretation and application of national law by the General Court — Power of the General Court to alter the decision of the Board of Appeal — Limits)

4

2011/C 252/05

Case C-388/09: Judgment of the Court (Second Chamber) of 30 June 2011 (reference for a preliminary ruling from the Bundessozialgericht (Germany)) — Joao Filipe da Silva Martins v Bank Betriebskrankenkasse — Pflegekasse (Reference for a preliminary ruling — Social security — Regulation (EEC) No 1408/71 — Articles 15, 27 and 28 — Articles 39 EC and 42 EC — Former migrant worker — Work in the Member State of origin and in another Member State — Retirement in the Member State of origin — Pensions paid by both Member States — Separate social security scheme covering the risk of reliance on care — Existence in the other former Member State of employment — Optional continued affiliation to that scheme — Maintenance of the right to a care allowance after the return to the Member State of origin)

4

2011/C 252/06

Case C-485/09: Judgment of the Court (Sixth Chamber) of 30 June 2011 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas (Directive 91/628/EEC — Point 48(5) of Chapter VII of the Annex — Regulation (EC) No 615/98 — Article 5(3) — Export refunds — Protection of bovine animals during rail transport — Conditions for payment of export refunds for bovine animals — Compliance with Directive 91/628/EEC — Principle of proportionality)

5

2011/C 252/07

Case C-271/10: Judgment of the Court (Third Chamber) of 30 June 2011 (reference for a preliminary ruling from the Raad van State van België — Belgium) — Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA) v Belgische Staat (Directive 92/100/EEC — Copyright and related rights — Public lending — Remuneration of authors — Adequate income)

5

2011/C 252/08

Case C-397/10: Judgment of the Court (Fifth Chamber) of 30 June 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Article 56 TFEU — Freedom to provide services — National legislation making the activities of temporary work agencies subject to a set of requirements — Unjustified obstacles)

6

2011/C 252/09

Case C-353/09 P: Order of the Court (Fifth Chamber) of 15 February 2011 — Perfetti Van Melle SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Cloetta AB, legal successor to Cloetta Fazer AB (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Invalidity proceedings — Community word mark CENTER SHOCK — Earlier national word mark CENTER — Examination of the likelihood of confusion)

6

2011/C 252/10

Case C-457/09: Order of the Court (Fifth Chamber) of 1 March 2011 (reference for a preliminary ruling from the Tribunal de première instance de Liège — Belgium) — Claude Chartry v Etat belge (Reference for a preliminary ruling — Article 234 EC — Assessing whether a national rule is consistent with both European Union law and the national Constitution — National legislation laying down the priority nature of preliminary proceedings for reviewing constitutionality — Charter of Fundamental Rights of the European Union — Need for a connection with European Union law — Clear lack of jurisdiction of the Court)

7

2011/C 252/11

Case C-535/09 P: Order of the Court of 23 March 2011 — Republic of Estonia v European Commission, Republic of Latvia (Appeal — Sugar — Determination of surplus quantities of sugar, isoglucose and fructose for the new Member States)

7

2011/C 252/12

Case C-5/10 P: Order of the Court (Fifth Chamber) of 16 May 2011 — Giampietro Torresan v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Klosterbrauerei Weissenohe GmbH & Co. KG (Appeals — Community trade mark — Word mark CANNABIS — Invalidity proceedings — Absolute ground for refusal — Descriptive character — Regulation (EC) No 40/94 — Article 7(1)(c))

7

2011/C 252/13

Case C-194/10: Order of the Court (Sixth Chamber) of 24 March 2011 (reference for a preliminary ruling from the Landgericht München I, Germany) — Robert Nicolaus Abt and Others v Hypo Real Estate Holding AG (Reference for a preliminary ruling — Relevance of the question — No jurisdiction)

8

2011/C 252/14

Case C-254/10 P: Order of the Court of 3 March 2011 — Centre de Coordination Carrefour SNC v European Commission (Appeal — Aid scheme in favour of coordination centres established in Belgium — Conditions of admissibility of an action for annulment — Concept of interest in bringing proceedings — Res judicata)

8

2011/C 252/15

Case C-288/10: Order of the Court (First Chamber) of 30 June 2011 (reference for a preliminary ruling from the Rechtbank van Koophandel te Dendermonde — Belgium) — Wamo BVBA v JBC NV, Modemakers Fashion NV (First subparagraph of Article 104(3) of the Rules of Procedure — Directive 2005/29/EC — Unfair commercial practices — National legislation prohibiting announcements of price reductions or announcements suggesting such reductions)

9

2011/C 252/16

Case C-349/10 P: Order of the Court (Sixth Chamber) of 2 March 2011 — Claro SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Telefónica SA (Appeal — Community trade mark — Refusal of registration — Admissibility of the appeal before the Board of Appeal — Failure to file a statement setting out the grounds of appeal — Article 59 of Regulation (EC) No 40/94 — Rule 49(1) of Regulation (EC) No 2868/95 — Appeal manifestly unfounded)

9

2011/C 252/17

Case C-367/10 P: Order of the Court of 31 March 2011 — EMC Development AB v European Commission (Appeal — Agreements, decisions and concerted practices — European cement market — Action for annulment of a decision rejecting a complaint against the adoption of a harmonised standard for cement — Procedure for the adoption of the standard — Binding nature of the standard — Appeal clearly inadmissible in part and clearly unfounded in part)

9

2011/C 252/18

Case C-369/10 P: Order of the Court (Fifth Chamber) of 14 March 2011 — Ravensburger AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) — Educa Borras SA (Appeal — Community trade mark — Community word mark MEMORY — Invalidity proceedings — Absolute ground for refusal — Descriptive character — Regulation (EC) No 40/94 — Article 7(1)(c))

10

2011/C 252/19

Case C-388/10 P: Order of the Court (Eighth Chamber) of 24 March 2011 — Félix Muñoz Arraiza v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consejo Regulador de la Denominación de Origen Calificada Rioja (Appeal — Community trade mark — Regulation (EC) No 40/94 — Articles 8(1)(b), 43(2) and 44(1) — Application for Community word mark RIOJAVINA — Opposition by the proprietor of the earlier Community collective figurative mark RIOJA — Refusal to register — Likelihood of confusion)

10

2011/C 252/20

Case C-429/10 P: Order of the Court (Fifth Chamber) of 16 May 2011 — X Technology Swiss GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeals — Community trade mark — Sign consisting of the partial colouring of a product — Orange colouring of the toe of a sock — Absolute ground for refusal — Absence of distinctive character — Regulation (EC) No 40/94 — Article 7(1)(b))

11

2011/C 252/21

Case C-433/10 P: Order of the Court of 31 March 2011 — Volker Mauerhofer v European Commission (Appeal — Project supported by the European Union in Bosnia and Herzegovina — Contracts concluded between the Commission and a consortium and between the consortium and experts — Commission’s administrative order amending its contract with the consortium — Action for annulment of that administrative order brought by one of the experts — Admissibility — Action for damages — Non contractual liability of the Union — Causal link between the Commission’s administrative order and the damage allegedly suffered by that expert)

11

2011/C 252/22

Case C-476/10: Order of the Court of 24 June 2011 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Vorarlberg (Austria)) — proceedings brought by projektart Errichtungsgesellschaft mbH, Eva Maria Pepic, Herbert Hilbe (First subparagraph of Article 104(3) of the Rules of Procedure — Free movement of capital — Article 40 of and Annex XII to the EEA Agreement — Purchase by nationals of the Principality of Liechtenstein of a secondary residence in the Land of Vorarlberg (Austria) — Procedure of prior authorisation — Admissibility)

11

2011/C 252/23

Case C-72/11: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 18 February 2011 — Der Generalbundesanwalt beim Bundesgerichtshof v Mohsen Afrasiabi, Behzad Sahabi and Heinz Ulrich Kessel

12

2011/C 252/24

Case C-222/11 P: Appeal brought on 13 May 2011 by Longevity Health Products, Inc against the judgment of the General Court (Sixth Chamber) delivered on 9 March 2011 in Case T-190/09 Longevity Health Products, Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs); other party: Performing Science LLC

12

2011/C 252/25

Case C-243/11: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 20 May 2011 — RVS Levensverzekeringen N.V. v Belgische Staat

13

2011/C 252/26

Case C-248/11: Reference for a preliminary ruling from the Curte de Apel Cluj (Romania) lodged on 23 May 2011 — Criminal proceedings against Rareș Doralin Nilaș, Gicu Agenor Gânscă, Ana Maria Oprean (née Șchiopu), Sergiu Dan Dascăl, Ionuț Horea Baboș

13

2011/C 252/27

Case C-259/11: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 May 2011 — DTZ Zadelhoff vof, other party: Staatssecretaris van Financiën

14

2011/C 252/28

Case C-278/11 P: Appeal brought on 6 June 2011 by Densmore Ronald Dover against the judgment of the General Court (Eighth Chamber) delivered on 24.03.2011 in Case T-149/09: Densmore Ronald Dover v European Parliament

14

2011/C 252/29

Case C-281/11: Action brought on 6 June 2011 — European Commission v Republic of Poland

15

2011/C 252/30

Case C-288/11 P: Appeal brought on 8 June 2011 by Mitteldeutsche Flughafen AG, Flughafen Leipzig/Halle GmbH against the judgment delivered by the General Court (Eighth Chanber) on 24 March 2011 in Joined Cases T-443/08 and T-455/08 Freistaat Sachsen and Others v European Commission

16

2011/C 252/31

Case C-289/11 P: Appeal brought on 9 June 2011 by Legris Industries SA against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-376/06 Legris Industries v Commission

17

2011/C 252/32

Case C-290/11 P: Appeal brought on 9 June 2011 by Comap SA against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-377/06 Comap v Commission

18

2011/C 252/33

Case C-291/11: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 9 June 2011 — Staatssecretaris van Financiën v TNT Freight Management (Amsterdam) BV

18

2011/C 252/34

Case C-292/11 P: Appeal brought on 9 June 2011 by the European Commission against the judgment delivered on 29 March 2011 by the General Court (Third Chamber) in Case T-33/09 Portuguese Republic v European Commission

19

2011/C 252/35

Case C-294/11: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 9 June 2011 — Ministero dell’Economia e delle Finanze and Agenzia delle Entrate v Elsacom N.V.

19

2011/C 252/36

Case C-296/11: Action brought on 14 June 2011 — European Commission v French Republic

19

2011/C 252/37

Case C-300/11: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 17 June 2011 — ZZ v Secretary of State for the Home Department

20

2011/C 252/38

Case C-301/11: Action brought on 16 June 2011 — European Commission v Kingdom of the Netherlands

20

2011/C 252/39

Case C-302/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Rosanna Valenza v Autorità Garante della Concorrenza e del Mercato

20

2011/C 252/40

Case C-303/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Maria Laura Altavista v Autorità Garante della Concorrenza e del Mercato

21

2011/C 252/41

Case C-304/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Rosanna Valenza v Autorità Garante della Concorrenza e del Mercato

22

2011/C 252/42

Case C-305/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Laura Marsella, Simonetta Schettini, Sabrina Tomassini v Autorità Garante della Concorrenza e del Mercato

22

2011/C 252/43

Case C-309/11: Action brought on 17 June 2011 — European Commission v Republic of Finland

23

2011/C 252/44

Case C-313/11: Action brought on 21 June 2011 — European Commission v Republic of Poland

23

2011/C 252/45

Case C-320/11: Reference for a preliminary ruling from the Varnenski Administrativen Sad (Bulgaria) lodged on 27 June 2011 — Digitalnet OOD v Nachalnik na Mitnicheski punkt Varna Zapad pri Mitnitsi Varna

24

2011/C 252/46

Case C-322/11: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 28 June 2011 — K

25

2011/C 252/47

Case C-330/11: Reference for a preliminary ruling from the Varnenski Administrativen Sad (Bulgaria). lodged on 29 June 2011 — Tsifrova kompania v Nachalnik na Mitnicheski punkt Varna Zapad pri Mitnitsi Varna

25

2011/C 252/48

Case C-352/11: Action brought on 5 July 2011 — European Commission v Republic of Austria

26

2011/C 252/49

Case C-353/11: Action brought on 5 July 2011 — European Commission v Czech Republic

26

2011/C 252/50

Case C-341/09 P: Order of the President of the Court of 9 February 2011 — Acegas-APS SpA, formerly Acqua, Elettricità, Gas e servizi SpA (Acegas) v European Commission

26

2011/C 252/51

Case C-390/09: Order of the President of the Third Chamber of the Court of 11 February 2011 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — Reti Televisive Italiane SpA (RTI) v Autorità per le Garanzie nelle Communicazioni, Sky Italia Srl

26

2011/C 252/52

Case C-86/10: Order of the President of the Second Chamber of the Court of 23 May 2011 (reference for a preliminary ruling from the Arbeitsgericht Siegburg (Germany)) — Hüseyin Balaban v Zelter GmbH

27

2011/C 252/53

Joined Cases C-97/10 to C-99/10: Order of the President of the Court of 8 June 2011 (references for a preliminary ruling from the Tribunal d’Instance de Dax (France)) — AG2R Prévoyance v SARL Bourdil (C-97/10), SARL Boucalaise de Boulangerie (C-98/10), SARL Baba-Pom (C-99/10)

27

2011/C 252/54

Case C-253/10: Order of the President of the Eighth Chamber of the Court of 19 May 2011 — European Commission v Slovak Republic

27

2011/C 252/55

Case C-269/10: Order of the President of the Court of 15 February 2011 (reference for a preliminary ruling from the Tribunal administratif de Montreuil (France)) — Accor Services France v Le Chèque Déjeuner CCR, Etablissement Public de Santé de Ville-Evrard

27

2011/C 252/56

Case C-278/10: Order of the President of the Seventh Chamber of the Court of 17 March 2011 — European Commission v Hellenic Republic

27

2011/C 252/57

Case C-299/10: Order of the President of the Court of 15 June 2011 (reference for a preliminary ruling from the Tribunal Judicial de Amares (Portugal)) — Cristiano Marques Vieira v Companhia de Seguros Tranquilidade SA

27

2011/C 252/58

Case C-363/10: Order of the President of the Court of 6 June 2011 (reference for a preliminary ruling from the Tribunal Judicial de Póvoa de Lanhoso (Portugal)) — Maria de Jesus Barbosa Rodrigues v Zurich Companhia de Seguros, S.A.

27

2011/C 252/59

Case C-428/10: Order of the President of the Court of 24 March 2011 — European Commission v French Republic

27

2011/C 252/60

Case C-466/10: Order of the President of the Court of 16 February 2011 — European Commission v Hellenic Republic

28

2011/C 252/61

Case C-486/10: Order of the President of the Court of 13 May 2011 — European Commission v Federal Republic of Germany

28

2011/C 252/62

Case C-487/10: Order of the President of the Court of 16 February 2011 (reference for a preliminary ruling from the Tribunal Administratif de Rennes (France)) — L’Océane Immobilière SAS v Direction de contrôle fiscal Ouest

28

2011/C 252/63

Case C-531/10: Order of the President of the Court of 8 April 2011 — European Commission v Slovak Republic

28

2011/C 252/64

Case C-570/10: Order of the President of the Court of 2 May 2011 — European Commission v Ireland

28

2011/C 252/65

Case C-50/11: Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Ivrea (Italy)) — Criminal proceedings against Lucky Emegor

28

2011/C 252/66

Case C-60/11: Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Ragusa (Italy)) — Criminal proceedings against Mohamed Mrad

28

2011/C 252/67

Case C-63/11: Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the the Tribunale di Rovereto (Italy)) — Criminal proceedings against John Austine

28

2011/C 252/68

Case C-94/11: Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Bergamo (Italy)) — Criminal proceedings against Survival Godwin

29

2011/C 252/69

Case C-140/11: Order of the President of the First Chamber of the Court of 29 June 2011 (reference for a preliminary ruling from the Corte suprema di cassazione — Italy) — Procuratore generale della Repubblica presso la Corte suprema di cassazione v Demba Ngagne

29

General Court

2011/C 252/70

Case T-112/07: Judgment of the General Court of 12 July 2011 — Hitachi and Others v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Rights of the defence — Proof of the infringement — Single and continuous infringement — Fines — Gravity and duration of the infringement — Deterrent effect — Cooperation)

30

2011/C 252/71

Case T-113/07: Judgment of the General Court of 12 July 2011 — Toshiba v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Rights of the defence — Proof of the infringement — Single and continuous infringement — Fines — Gravity and duration of the infringement — Statement of reasons — Starting amount — Reference year)

30

2011/C 252/72

Case T-132/07: Judgment of the General Court of 12 July 2011 — Fuji Electric v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Proof of the infringement — Whether liable for the infringement — Duration of the infringement — Fines — Mitigating circumstances — Cooperation)

31

2011/C 252/73

Case T-133/07: Judgment of the General Court of 12 July 2011 — Mitsubishi Electric v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Rights of the defence — Proof of the infringement — Duration of the infringement — Fines — Starting amount — Reference year — Equal treatment)

31

2011/C 252/74

Case T-374/08: Judgment of the General Court of 12 July 2011 — Aldi Einkauf v OHIM — Illinois Tools Works (TOP CRAFT) (Community trade mark — Opposition proceedings — Application for the Community figurative mark TOP CRAFT — Earlier national figurative marks Krafft — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Genuine use of the earlier marks — Article 43(2) of Regulation No 40/94 (now Article 42(2) of Regulation 207/2009) and Rule 22 of Regulation (EC) No 2868/95)

32

2011/C 252/75

Case T-80/09 P: Judgment of the General Court of 12 July 2011 — Commission v Q (Appeal — Civil service — Officials — Cross-appeal — Psychological harassment — Article 12a of the Staff Regulations — Communication on the policy on psychological harassment at the Commission — Duty on the part of the administration to provide assistance — Article 24 of the Staff Regulations — Scope — Request for assistance — Provisional distancing measures — Duty to have regard for the welfare of officials — Liability — Claim for damages — Unlimited jurisdiction — Conditions for implementation — Staff report — Action for annulment — Interest in bringing proceedings)

32

2011/C 252/76

Case T-197/09: Judgment of the General Court of 12 July 2011 — Slovenia v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Arable crops)

33

2011/C 252/77

Case T-209/11 R: Order of the President of the General Court of 21 June 2011 — MB System v Commission (Application for interim measures — State aid — Recovery obligation — Application for stay of execution — Urgency — Balancing of interests)

33

2011/C 252/78

Case T-259/11: Action brought on 16 May 2011 — Zinātnes, inovāciju un testēšānas centrs v European Commission

33

2011/C 252/79

Case T-288/11: Action brought on 1 June 2011 — Kieffer Omnitec v Commission

34

2011/C 252/80

Case T-319/11: Action brought on 14 June 2011 — ABN AMRO Group v Commission

35

2011/C 252/81

Case T-320/11: Action brought on 17 June 2011 — Republic of Hungary v European Commission

36

2011/C 252/82

Case T-323/11: Action brought on 21 June 2011 — UCP Backus y Johnston v OHIM (Shape of a bottle)

36

2011/C 252/83

Case T-325/11: Action brought on 17 June 2011 — Amador López v OHIM (AUTOCOACHING)

37

2011/C 252/84

Case T-329/11: Action brought on 20 June 2011 — TM.E v Commission

37

2011/C 252/85

Case T-336/11: Action brought on 24 June 2011 — Italiana Calzature v OHIM — Vicini (Giuseppe GIUSEPPE ZANOTTI DESIGN)

38

2011/C 252/86

Case T-337/11: Action brought on 24 June 2011 — Italiana Calzature v OHIM — Vicini (Giuseppe BY GIUSEPPE ZANOTTI)

38

2011/C 252/87

Case T-338/11: Action brought on 30 June 2011 — Getty Images v OHIM (PHOTOS.COM)

39

2011/C 252/88

Case T-339/11: Action brought on 28 June 2011 — Spain v European Commission

39

2011/C 252/89

Case T-341/11: Action brought on 30 June 2011 — Ecologistas en Acción-CODA v Commission

40

2011/C 252/90

Case T-342/11: Action brought on 30 June 2011 — CEEES y Asociación de Gestores de Estaciones de Servicio v Commission

40

2011/C 252/91

Case T-343/11: Action brought on 28 June 2011 — Netherlands v Commission

41

2011/C 252/92

Case T-346/11: Action brought on 7 July 2011 — Gollnisch v Parliament

42

2011/C 252/93

Case T-347/11: Action brought on 7 July 2011 — Gollnisch v Parliament

43

2011/C 252/94

Case T-353/11: Action brought on 29 June 2011 — Event v OHIM — CBT Comunicación Multimedia (eventer EVENT MANAGEMENT SYSTEMS)

43

2011/C 252/95

Case T-357/11: Action brought on 1 July 2011 — Bimbo v OHIM — Grupo Bimbo (GRUPO BIMBO)

44

2011/C 252/96

Case T-358/11: Action brought on 27 June 2011 — Italy v Commission

44

2011/C 252/97

Case T-362/11: Action brought on 7 July 2011 — Stichting Greenpeace Nederland and PAN Europe v Commission

46

European Union Civil Service Tribunal

2011/C 252/98

Case F-17/05 REV: Judgment of the Civil Service Tribunal (3rd Chamber) of 15 June 2011 — de Brito Sequeira Carvalho v Commission (Civil service — Application for revision of a judgment — No new facts — Application inadmissible)

47

2011/C 252/99

Case F-67/05 RENV: Judgment of the Civil Service Tribunal (Third Chamber) of 14 December 2010 — Michail v Commission (Staff case — Officials — Referral back to the Tribunal after setting aside — Career development report — 2003 appraisal exercise — Action for annulment — Action for damages)

47

2011/C 252/00

Case F-113/07: Judgment of the Civil Service Tribunal (Second Chamber) of 14 April 2011 — Irmantas Šimonis v Commission (Staff case — Officials — Inter-institutional transfer — Lawyer-linguist — Substitution of grounds — Requirement of a minimum length of service)

47

2011/C 252/01

Case F-119/07: Judgment of the Civil Service Tribunal (Second Chamber) of 17 February 2011 — Strack v European Commission (Civil service — Officials — Mediation procedure — Act adversely affecting an official — Article 73 of the Staff Regulations — Consolidation — Provisional allowance)

48

2011/C 252/02

Case F-120/07: Judgment of the Civil Service Tribunal (Second Chamber) of 15 March 2011 — Strack v European Commission (Civil service — Officials — Carry-over of days of annual leave — Article 4 of Annex V to the Staff Regulations — Reasons attributable to the interests of the service — Article 73 of the Staff Regulations — Directive 2003/88/EC — Right to paid annual leave — Sick leave)

48

2011/C 252/03

Case F-82/08: Judgment of the Civil Service Tribunal (Second Chamber) of 14 April 2011 — Clarke and Others v OHIM (Staff case — Temporary staff — Article 8 CEOS — Clause terminating a contract if the agent is not included on the reserve list of a competition — OHIM/AD/02/07 and OHIM/AST/02/07 open competitions — Act adversely affecting an official — Principle of performance of contracts in good faith — Duty of care — Principle of sound administration — Language requirements — EPSO not competent — Directive 1999/70/EC — Fixed-term work)

49

2011/C 252/04

Case F-29/09 REV: Judgment of the Civil Service Tribunal (3rd Chamber) of 13 April 2011 — Lebedef and Jones v Commission (Civil service — Revision of a judgment — No new facts — Inadmissibility)

49

2011/C 252/05

Case F-30/09: Judgment of the Civil Service Tribunal (3rd Chamber) of 13 April 2011 –Chaouch v Commission (Civil service — Remuneration — Installation allowance — Establishment of entitlement — Entry into service as probationary official — Change of residence after establishment to be taken into account — Official’s duty of residence under Article 20 of the Staff Regulations)

49

2011/C 252/06

Case F-53/09: Judgment of the Civil Service Tribunal (3rd Chamber) of 11 May 2011 — J v Commission (Civil service — Officials — Social security — Accident insurance and occupational disease — Article 73 of the Staff Regulations — Refusal to recognise the cause of an occupational disease — Obligation to conduct the procedure within a reasonable period)

50

2011/C 252/07

Case F-68/09: Judgment of the Civil Service Tribunal (3rd Chamber) of 15 February 2011 — Barbin v Parliament (Civil service — Officials — 2006 promotion exercise — Enforcement of a judgment of the Tribunal — Comparative examination of the merits — Principle of equal treatment — Half-time parental leave)

50

2011/C 252/08

Case F-73/09: Judgment of the Civil Service Tribunal (3rd Chamber) of 13 April 2011 — Sukup v Commission (Civil service — Remuneration and allowances — Dependent child allowance — Education allowance — Retrospective award)

50

2011/C 252/09

Case F-83/09: Judgment of the Civil Service Tribunal (Second Chamber) of 26 May 2011 — Kalmár v Europol (Staff case — Europol staff — Dismissal — Request for annulment — Payment of remuneration — Effect of judgment ordering annulment)

51

2011/C 252/10

Case F-105/09: Judgment of the Civil Service Tribunal (Third Chamber) of 13 April 2011 — Scheefer v Parliament (Staff case — Temporary staff — Renewal of a fixed-term contract — Reclassification of a contract for a fixed period as a contract for an indefinite period — First paragraph of Article 8 of the CEOS)

51

2011/C 252/11

Case F-40/10: Judgment of the Civil Service Tribunal (2nd Chamber) of 26 May 2011 — Lebedef v Commission (Civil service — Officials — Annual leave — Absence without prior permission after annual leave used up — Forfeiture of remuneration — Article 60 of the Staff Regulations)

52

2011/C 252/12

Case F-10/10: Order of the Civil Service Tribunal (Third Chamber) of 31 March 2011 Hecq v Commission (Staff case — Officials — Social security — Meeting of 100 % of medical costs — Implied rejection decision — No decision recognising the occupational origin of the illness — Limited power of the administration — Decision to reject the complaint — Decision not purely confirmatory — No complaint — Inadmissibility)

52

2011/C 252/13

Case F-14/10: Order of the Civil Service Tribunal (Third Chamber) of 30 June 2011 — Marcuccio v European Commission (Civil Service — Officials — Social security — Accident — Procedure for recognition of permanent partial invalidity within the meaning of Article 73 of the Staff Regulations — Duration of the procedure — Action for damages — Action manifestly lacking any foundation in law — Article 94 of the Rules of Procedure)

52

2011/C 252/14

Case F-56/10: Order of the Civil Service Tribunal (Third Chamber) of 10 June 2011 Hecq v Commission (Staff case — Officials — Social security — Meeting of 100 % of medical costs — Implied rejection decision — Premature complaint — Inadmissibility)

53

2011/C 252/15

Case F-75/10: Order of the Civil Service Tribunal (Third Chamber) of 27 June 2011 — Scheefer v Parliament (Staff case — Temporary staff — Renewal of a fixed-term contract — No need to adjudicate)

53

2011/C 252/16

Case F-78/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Antelo Sanchez and Others v Parliament (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate)

53

2011/C 252/17

Case F-82/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Nolin v Commission (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate)

54

2011/C 252/18

Case F-87/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Adriaens and Others v Commission (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate)

54

2011/C 252/19

Case F-92/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Dricot-Daniele and Others v Commission (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate)

54

2011/C 252/20

Case F-96/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Andrecs and Others v Commission (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate)

55

2011/C 252/21

Case F-99/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Ashbrook and Others v Commission (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate)

55

2011/C 252/22

Case F-106/10: Order of the Civil Service Tribunal (Third Chamber) of 20 June 2011 — Gross and Others v Court of Justice (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate)

55

2011/C 252/23

Case F-47/11: Action brought on 15 April 2011 — ZZ v Commission

56

2011/C 252/24

Case F-51/11: Action brought on 21 April 2011 — ZZ v Commission

56

2011/C 252/25

Case F-55/11: Action brought on 9 May 2011 — ZZ v Commission

56

2011/C 252/26

Case F-64/11: Action brought on 24 June 2011 — ZZ v European Commission

57

2011/C 252/27

Case F-65/11: Action brought on 3 July 2011 — ZZ v Parliament

57

2011/C 252/28

Case F-87/09: Order of the Civil Service Tribunal (Third Chamber) of 11 January 2011 — Dekker v Europol

57

2011/C 252/29

Case F-70/10: Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — Hidalgo v Parliament

57

2011/C 252/30

Case F-94/10: Order of the Civil Service Tribunal (Third Chamber) of 18 May 2011 — Carpenito v Council

58

2011/C 252/31

Case F-97/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Kerstens v Commission

58

2011/C 252/32

Case F-101/10: Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — Massez And Others v Court of Justice

58

2011/C 252/33

Case F-102/10: Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — Geradon v Council

58

2011/C 252/34

Case F-8/11: Order of the Civil Service Tribunal (Third Chamber) of 17 June 2011 — Nieminen v Council

58

2011/C 252/35

Case F-28/11: Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — BC v Council

58

| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 27.8.2011 | EN | Official Journal of the European Union | C 252/1 |
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27.8.2011

EN

Official Journal of the European Union

C 252/1

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2011/C 252/01

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

OJ C 238, 13.8.2011

Past publications

OJ C 232, 6.8.2011

OJ C 226, 30.7.2011

OJ C 219, 23.7.2011

OJ C 211, 16.7.2011

OJ C 204, 9.7.2011

OJ C 194, 2.7.2011

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 27.8.2011 | EN | Official Journal of the European Union | C 252/2 |
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27.8.2011

EN

Official Journal of the European Union

C 252/2

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Judgment of the Court (Eighth Chamber) of 30 June 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Zeturf Ltd v Premier ministre

(Case C-212/08) (1)

(Scheme giving exclusive rights to manage off-course betting on horseracing - Article 49 EC - Restriction on the freedom to provide services - Overriding reasons in the public interest - Objectives of combating gambling addiction and fraudulent and criminal activities and of contributing to rural development - Proportionality - Restrictive measure to be aimed at reducing opportunities for gambling and limiting gambling activities in a consistent and systematic manner - Operator pursuing a dynamic commercial policy - Measured advertising policy - Assessment of the restriction on marketing by traditional channels and by the internet)

2011/C 252/02

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Zeturf Ltd

Defendant: Premier ministre

Re:

Reference for a preliminary ruling — Conseil d’État — Interpretation of Articles 49 EC and 50 EC — Permissibility of a scheme giving exclusive management of off-course betting on horseracing to a sole non-profit-making operator which even so pursues a dynamic commercial policy — Requirement to take into account only online betting on horseracing or the whole sector of betting on horseracing, of any type

Operative part of the judgment

| 1. | Article 49 EC must be interpreted as follows:






  (a) | A Member State that is seeking to ensure a particularly high level of consumer protection in the gambling sector may be justified in taking the view that it is only by granting exclusive rights to a single body, subject to strict control by the public authorities, that it can tackle the risks connected with that sector and pursue the objective of preventing incitement to squander money on gambling and of combating addiction to gambling with sufficient effectiveness; |
| --- | --- | --- |

1.

Article 49 EC must be interpreted as follows:

(a)

A Member State that is seeking to ensure a particularly high level of consumer protection in the gambling sector may be justified in taking the view that it is only by granting exclusive rights to a single body, subject to strict control by the public authorities, that it can tackle the risks connected with that sector and pursue the objective of preventing incitement to squander money on gambling and of combating addiction to gambling with sufficient effectiveness;

| (b) | It is for the national court to determine whether:






  — | the national authorities genuinely sought, at the material time, to ensure such a particularly high level of protection and whether, having regard to the level of protection sought, the establishment of a monopoly could actually be considered necessary, and |
| --- | --- | --- |

(b)

It is for the national court to determine whether:

—

the national authorities genuinely sought, at the material time, to ensure such a particularly high level of protection and whether, having regard to the level of protection sought, the establishment of a monopoly could actually be considered necessary, and

| — | the State controls to which the activities of the body benefiting from the exclusive rights are, in principle, subject are actually implemented in the consistent and systematic pursuit of the objectives assigned to that body; |
| --- | --- |

—

the State controls to which the activities of the body benefiting from the exclusive rights are, in principle, subject are actually implemented in the consistent and systematic pursuit of the objectives assigned to that body;

| (c) | In order to be consistent with the objectives of combating criminality and reducing gambling opportunities, national legislation establishing a gambling monopoly must:






  — | be based on a finding that criminal and fraudulent activities linked to gaming and gambling addiction are a problem in the territory of the Member State concerned, which the expansion of authorised and regulated activities would be capable of solving, and |
| --- | --- | --- |

(c)

In order to be consistent with the objectives of combating criminality and reducing gambling opportunities, national legislation establishing a gambling monopoly must:

—

be based on a finding that criminal and fraudulent activities linked to gaming and gambling addiction are a problem in the territory of the Member State concerned, which the expansion of authorised and regulated activities would be capable of solving, and

| — | allow only advertising that is measured and strictly limited to what is necessary in order to channel consumers towards controlled gaming networks. |
| --- | --- |

—

allow only advertising that is measured and strictly limited to what is necessary in order to channel consumers towards controlled gaming networks.

| 2. | In order to assess the restriction on the freedom to provide services by a system that has established exclusive rights to organise horse-race betting, it is for the national courts to take account of all the substitutable channels of marketing for that betting, unless the consequence of using the internet is to increase the risks linked to games of chance beyond those that exist in relation to games marketed through traditional channels. Where the national legislation applies in the same way to the offering of horse-race betting online and to such betting through traditional channels, the restriction on the freedom to provide services should be assessed from the point of view of the restrictions placed on the entire sector concerned. |
| --- | --- |

2.

In order to assess the restriction on the freedom to provide services by a system that has established exclusive rights to organise horse-race betting, it is for the national courts to take account of all the substitutable channels of marketing for that betting, unless the consequence of using the internet is to increase the risks linked to games of chance beyond those that exist in relation to games marketed through traditional channels. Where the national legislation applies in the same way to the offering of horse-race betting online and to such betting through traditional channels, the restriction on the freedom to provide services should be assessed from the point of view of the restrictions placed on the entire sector concerned.

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(1)  OJ C 197, 2.8.2008.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/3 |
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27.8.2011

EN

Official Journal of the European Union

C 252/3

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Judgment of the Court (First Chamber) of 30 June 2011 (reference for a preliminary ruling from the Finanzgericht Köln (Germany)) — Wienand Meilicke, Heidi Christa Weyde, Marina Stöffler v Finanzamt Bonn-Innenstadt

(Case C-262/09) (1)

(Free movement of capital - Income tax - Certificate relating to corporation tax actually paid on dividends of foreign origin - Prevention of double taxation of dividends - Tax credit for dividends paid by resident companies - Proof required as to the foreign tax deductible)

2011/C 252/03

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicants: Wienand Meilicke, Heidi Christa Weyde, Marina Stöffler

Defendants: Finanzamt Bonn-Innenstadt

Re:

Reference for a preliminary ruling — Finanzgericht Köln — Interpretation of Articles 56 and 58(1)(a) and (3) EC and the principles of effectiveness and utility — Distribution of dividends by a company established in one Member State to a taxable person in another Member State — Compatibility with Community law of an income tax scheme in the other Member State which allows a tax credit of 3/7 of the gross dividends, although the corporation tax levied on those dividends cannot in practice be determined for a company established in another Member State, and which makes that tax credit subject to the presentation of a corporation tax declaration drawn up according to its own tax legislation, although it is in practice impossible for the taxable person to produce it for a company established in another Member State

Operative part of the judgment

| 1. | For the calculation of the amount of the tax credit to which a shareholder who is fully taxable in a Member State with regard to dividends paid by a capital company established in another Member State is entitled, Articles 56 EC and 58 EC preclude the application — if evidence required under the legislation of the first Member State is not adduced — of a provision such as Paragraph 36(2), second sentence, point 3 of the Law on Income Tax (Einkommensteuergesetz) of 7 September 1990, as amended by the Law of 13 September 1993, under which corporation tax imposed on dividends of foreign origin is set off against a shareholder’s income tax to the level of the fraction of corporation tax imposed on gross dividends distributed by companies in the first Member State.
  The calculation of the tax credit must be made in relation to the rate of corporation tax on the distributed profits applicable to the dividend-paying company according to the law of the Member State of establishment, however the amount to be imposed may not exceed the amount of the income tax to be paid on dividends received by the recipient shareholder in the Member State in which that shareholder is fully taxable. |
| --- | --- |

1.

For the calculation of the amount of the tax credit to which a shareholder who is fully taxable in a Member State with regard to dividends paid by a capital company established in another Member State is entitled, Articles 56 EC and 58 EC preclude the application — if evidence required under the legislation of the first Member State is not adduced — of a provision such as Paragraph 36(2), second sentence, point 3 of the Law on Income Tax (Einkommensteuergesetz) of 7 September 1990, as amended by the Law of 13 September 1993, under which corporation tax imposed on dividends of foreign origin is set off against a shareholder’s income tax to the level of the fraction of corporation tax imposed on gross dividends distributed by companies in the first Member State.

The calculation of the tax credit must be made in relation to the rate of corporation tax on the distributed profits applicable to the dividend-paying company according to the law of the Member State of establishment, however the amount to be imposed may not exceed the amount of the income tax to be paid on dividends received by the recipient shareholder in the Member State in which that shareholder is fully taxable.

| 2. | As regards the degree of detail which the evidence required must meet in order to benefit from a tax credit relating to dividends paid by a capital company established in a Member State other than that where the beneficiary is fully taxable, Articles 56 EC and 58 EC preclude the application of a provision such as Paragraph 36(2), second sentence, point 3, fourth sentence, (b) of the EStG under which the degree of detail and the form of evidence to be adduced by such a shareholder must be the same as those required where the dividend-paying company is established in the Member State of taxation of that shareholder.
  The tax authorities of the Member State of taxation are entitled to require that shareholder to provide documentary evidence enabling them to ascertain, clearly and precisely, whether the conditions for obtaining a tax credit under national legislation are met without having to make an estimate of that tax credit. |
| --- | --- |

2.

As regards the degree of detail which the evidence required must meet in order to benefit from a tax credit relating to dividends paid by a capital company established in a Member State other than that where the beneficiary is fully taxable, Articles 56 EC and 58 EC preclude the application of a provision such as Paragraph 36(2), second sentence, point 3, fourth sentence, (b) of the EStG under which the degree of detail and the form of evidence to be adduced by such a shareholder must be the same as those required where the dividend-paying company is established in the Member State of taxation of that shareholder.

The tax authorities of the Member State of taxation are entitled to require that shareholder to provide documentary evidence enabling them to ascertain, clearly and precisely, whether the conditions for obtaining a tax credit under national legislation are met without having to make an estimate of that tax credit.

| 3. | The principle of effectiveness precludes national legislation like that arising from the combined provisions of the second sentence of Paragraph 175(2) of the amended Regulations on Taxes (Abgabenordnung) and the third sentence of Paragraph 97(9) of the Law introducing the Tax Code (Einführungsgesetz zur Abgabenordnung), which, retroactively and without any transitional period, does not permit the offsetting of foreign corporation tax imposed on dividends paid by a capital company established in another Member State by submitting either a certificate relating to that tax in accordance with the legislation of the Member State in which the shareholder is fully taxable, or documentary evidence allowing the tax authorities of that Member State to determine, clearly and precisely, whether the conditions for obtaining that tax advantage were met. It is for the referring court to determine a reasonable period for the submission of such a certificate or documentary evidence. |
| --- | --- |

3.

The principle of effectiveness precludes national legislation like that arising from the combined provisions of the second sentence of Paragraph 175(2) of the amended Regulations on Taxes (Abgabenordnung) and the third sentence of Paragraph 97(9) of the Law introducing the Tax Code (Einführungsgesetz zur Abgabenordnung), which, retroactively and without any transitional period, does not permit the offsetting of foreign corporation tax imposed on dividends paid by a capital company established in another Member State by submitting either a certificate relating to that tax in accordance with the legislation of the Member State in which the shareholder is fully taxable, or documentary evidence allowing the tax authorities of that Member State to determine, clearly and precisely, whether the conditions for obtaining that tax advantage were met. It is for the referring court to determine a reasonable period for the submission of such a certificate or documentary evidence.

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(1)  OJ C 267, 7.11.2009.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/4 |
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27.8.2011

EN

Official Journal of the European Union

C 252/4

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Judgment of the Court (Grand Chamber) of 5 July 2011 — Edwin Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Elio Fiorucci

(Case C-263/09 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 52(2)(a) - Community word mark ELIO FIORUCCI - Application for a declaration of invalidity based on a right to a name under national law - Review by the Court of Justice of the interpretation and application of national law by the General Court - Power of the General Court to alter the decision of the Board of Appeal - Limits)

2011/C 252/04

Language of the case: Italian

Parties

Appellant: Edwin Co. Ltd (represented by: D. Rigatti, M. Bertani, S. Verea, K. Muraro and M. Balestriero, avvocati)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto, L. Rampini and J. Crespo Carrillo, Agents), Elio Fiorucci (represented by: A. Vanzetti and A. Colmano, avvocati)

Re:

Appeal brought against the judgment of the Court of First Instance (Fifth Chamber) of 14 May 2009 in Case T-165/06 Elio Fiorucci v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), by which the Court annulled, in so far as it contains an error of law in the interpretation of Article 8(3) of the Codice della Proprietà Industriale, the decision of the First Board of Appeal of OHIM of 6 April 2006 (Case R 238/2005-1), relating to invalidity and revocation proceedings between Mr Elio Fiorucci and Edwin Co. Ltd.

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal; |
| --- | --- |

1.

Dismisses the appeal;

| 2. | Dismisses the claim for amendment of the judgment of the Court of First Instance of the European Communities of 14 May 2009 in Case T-165/06 Fiorucci v OHIM — Edwin (ELIO FIORUCCI), submitted by Mr Fiorucci; |
| --- | --- |

2.

Dismisses the claim for amendment of the judgment of the Court of First Instance of the European Communities of 14 May 2009 in Case T-165/06 Fiorucci v OHIM — Edwin (ELIO FIORUCCI), submitted by Mr Fiorucci;

| 3. | Orders Edwin Co. Ltd and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) each to bear its own costs and to pay jointly three quarters of the costs of Mr Fiorucci; |
| --- | --- |

3.

Orders Edwin Co. Ltd and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) each to bear its own costs and to pay jointly three quarters of the costs of Mr Fiorucci;

| 4. | Orders Mr Fiorucci to bear one quarter of his own costs. |
| --- | --- |

4.

Orders Mr Fiorucci to bear one quarter of his own costs.

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(1)  OJ C 220, 12.9.2009.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/4 |
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27.8.2011

EN

Official Journal of the European Union

C 252/4

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Judgment of the Court (Second Chamber) of 30 June 2011 (reference for a preliminary ruling from the Bundessozialgericht (Germany)) — Joao Filipe da Silva Martins v Bank Betriebskrankenkasse — Pflegekasse

(Case C-388/09) (1)

(Reference for a preliminary ruling - Social security - Regulation (EEC) No 1408/71 - Articles 15, 27 and 28 - Articles 39 EC and 42 EC - Former migrant worker - Work in the Member State of origin and in another Member State - Retirement in the Member State of origin - Pensions paid by both Member States - Separate social security scheme covering the risk of reliance on care - Existence in the other former Member State of employment - Optional continued affiliation to that scheme - Maintenance of the right to a care allowance after the return to the Member State of origin)

2011/C 252/05

Language of the case: German

Referring court

Bundessozialgericht

Parties to the main proceedings

Applicant: Joao Filipe da Silva Martins

Defendant: Bank Betriebskrankenkasse — Pflegekasse

Re:

Reference for a preliminary ruling — Bundessozialgericht — Interpretation of the provisions of Community law on the free movement of persons and social security of migrant workers, particularly Articles 39 and 42 EC and Articles 27 and 28 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2) — Former migrant worker drawing a pension in his State of origin and in the former State of employment and entitled in the latter to a benefit covering the risk of dependence (‘Pflegegeld’) not existing in the social security system of the State of origin — Maintenance of the right to that benefit after return to the State of origin

Operative part of the judgment

Articles 15 and 27 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001, must be interpreted as not precluding a person in a situation such as that at issue in the main proceedings, who draws retirement pensions from retirement insurance funds both of his Member State of origin and of the Member State in which he spent most of his working life and has moved from that Member State to his Member State of origin, from continuing, by reason of optional continued affiliation to a separate care insurance scheme in the Member State in which he spent most of his working life, to receive a cash benefit corresponding to that affiliation, in particular where cash benefits relating to the specific risk of reliance on care do not exist in the Member State of residence, that being a matter for the referring court to ascertain.

If, contrary to that hypothesis, cash benefits relating to the risk of reliance on care are provided for under the legislation of the Member State of residence, but only at a lower level than that of the benefits relating to that risk from the other pension-paying Member State, Article 27 of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1386/2001, must be interpreted as meaning that such a person is entitled, at the expense of the competent institution of the latter State, to additional benefits equal to the difference between the two amounts.

---

(1)  OJ C 312, 19.12.2009

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/5 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/5

---

Judgment of the Court (Sixth Chamber) of 30 June 2011 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas

(Case C-485/09) (1)

(Directive 91/628/EEC - Point 48(5) of Chapter VII of the Annex - Regulation (EC) No 615/98 - Article 5(3) - Export refunds - Protection of bovine animals during rail transport - Conditions for payment of export refunds for bovine animals - Compliance with Directive 91/628/EEC - Principle of proportionality)

2011/C 252/06

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Viamex Agrar Handels GmbH

Defendant: Hauptzollamt Hamburg-Jonas

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, as amended by Council Directive 95/29/EC of 29 June 1995 (OJ 1995 L 148, p. 52), and in particular of point 48(5) of Chapter VII of the Annex to that directive, and interpretation of Article 5(3) of Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport (OJ 1998 L 82, p. 19) — Transport of bovine animals by rail — Applicability of the animal-welfare rules concerning watering and feeding intervals, journey times and rest periods

Operative part of the judgment

| 1. | Point 48(5) of Chapter VII of the Annex to Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, as amended by Council Directive 95/29/EC of 29 June 1995, applies inter alia to rail transport; |
| --- | --- |

1.

Point 48(5) of Chapter VII of the Annex to Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, as amended by Council Directive 95/29/EC of 29 June 1995, applies inter alia to rail transport;

| 2. | In situations in which the breach of Directive 91/628, as amended by Directive 95/29, has not resulted in the death of the animals being transported, the competent authorities and courts of the Member States, when carrying out their checks or review, are required to apply Article 5(3) of Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport in a manner consistent with the principle of proportionality, by refusing to pay the export refund for animals in respect of which the provisions of that directive concerning their welfare have not been complied with. |
| --- | --- |

2.

In situations in which the breach of Directive 91/628, as amended by Directive 95/29, has not resulted in the death of the animals being transported, the competent authorities and courts of the Member States, when carrying out their checks or review, are required to apply Article 5(3) of Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport in a manner consistent with the principle of proportionality, by refusing to pay the export refund for animals in respect of which the provisions of that directive concerning their welfare have not been complied with.

---

(1)  OJ C 37, 13.2.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/5 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/5

---

Judgment of the Court (Third Chamber) of 30 June 2011 (reference for a preliminary ruling from the Raad van State van België — Belgium) — Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA) v Belgische Staat

(Case C-271/10) (1)

(Directive 92/100/EEC - Copyright and related rights - Public lending - Remuneration of authors - Adequate income)

2011/C 252/07

Language of the case: Dutch

Referring court

Raad van State van België

Parties to the main proceedings

Applicant: Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA)

Defendant: Belgische Staat

Re:

Reference for a preliminary ruling — Raad van State van België — Interpretation of Article 5(1) of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61) (now Article 6(1) of European Parliament and Council Directive 2006/115/EC of 12 December 2006) — Remuneration of authors in the case of public lending — Sufficient remuneration

Operative part of the judgment

Article 5(1) of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property precludes legislation, such as that at issue in the main proceedings, which establishes a system under which the remuneration payable to authors in the event of public lending is calculated exclusively according to the number of borrowers registered with public establishments, on the basis of a flat-rate amount fixed per borrower and per year.

---

(1)  OJ C 234, 28.8.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/6 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/6

---

Judgment of the Court (Fifth Chamber) of 30 June 2011 — European Commission v Kingdom of Belgium

(Case C-397/10) (1)

(Failure of a Member State to fulfil obligations - Article 56 TFEU - Freedom to provide services - National legislation making the activities of temporary work agencies subject to a set of requirements - Unjustified obstacles)

2011/C 252/08

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne and I. Rogalski, acting as Agents)

Defendant: Kingdom of Belgium (represented by: M. Jacobs, acting as Agent)

Re:

Failure of a Member State to comply with its obligations — Infringement of Article 56 TFEU — Restriction on freedom to provide services — National legislation making the activities of temporary work agencies established in other Member States subject to a set of requirements — Unjustified obstacles

Operative part of the judgment

The Court:

| 1. | Declares that, by making the temporary work agencies providing their services in the territory of the Brussels Capital Region subject to the following requirements:






  — | that they have as their sole business activity that of the provision of workers, and |
| --- | --- | --- |

1.

Declares that, by making the temporary work agencies providing their services in the territory of the Brussels Capital Region subject to the following requirements:

—

that they have as their sole business activity that of the provision of workers, and

| — | that they have a particular legal form,
  the Kingdom of Belgium has failed to fulfil its obligations under Article 56 TFEU; |
| --- | --- |

—

that they have a particular legal form,

the Kingdom of Belgium has failed to fulfil its obligations under Article 56 TFEU;

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

2.

Orders the Kingdom of Belgium to pay the costs.

---

(1)  OJ C 301, 6.11.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/6 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/6

---

Order of the Court (Fifth Chamber) of 15 February 2011 — Perfetti Van Melle SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Cloetta AB, legal successor to Cloetta Fazer AB

(Case C-353/09 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Invalidity proceedings - Community word mark CENTER SHOCK - Earlier national word mark CENTER - Examination of the likelihood of confusion)

2011/C 252/09

Language of the case: English

Parties

Appellant: Perfetti Van Melle SpA (represented by: P. Perani and P. Pozzi, avvocati)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Novais Gonçalves, acting as Agent), Cloetta AB, legal successor to Cloetta Fazer AB (represented by: M. Fammler, Advocate, M. Treis, R. Niebel and E.M. Strobel, Rechstanwälte)

Re:

Appeal brought against the judgment of 1 July 2009 in Case T-16/08 Perfetti Van Melle v OHIM — Cloetta Fazer dismissing an action for annulment brought by the proprietor of Community word mark ‘CENTER SHOCK’ for goods in Class 30 against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 7 November 2007 (Case R 149/2006-4) dismissing the appeal against the decision of the Cancellation Division granting the application for a declaration of invalidity of that mark made by the proprietor of the earlier national word marks ‘CENTER’ and ‘CLOETTA CENTER’ for goods in, inter alia, Class 30 — Infringement of Article 8(1)(b) of Regulation (EC) No 40/94

Operative part of the order

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

| 2. | Perfetti Van Melle SpA shall pay the costs. |
| --- | --- |

2.

Perfetti Van Melle SpA shall pay the costs.

---

(1)  OJ C 267, 7.11.2009.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/7 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/7

---

Order of the Court (Fifth Chamber) of 1 March 2011 (reference for a preliminary ruling from the Tribunal de première instance de Liège — Belgium) — Claude Chartry v Etat belge

(Case C-457/09) (1)

(Reference for a preliminary ruling - Article 234 EC - Assessing whether a national rule is consistent with both European Union law and the national Constitution - National legislation laying down the priority nature of preliminary proceedings for reviewing constitutionality - Charter of Fundamental Rights of the European Union - Need for a connection with European Union law - Clear lack of jurisdiction of the Court)

2011/C 252/10

Language of the case: French

Referring court

Tribunal de première instance de Liège

Parties to the main proceedings

Applicant: Claude Chartry

Defendant: Etat belge

Re:

Reference for a preliminary ruling — Tribunal de première instance de Liège — Interpretation of Article 6 EU and of Article 234 EC — Mandatory reference by national courts to the Belgian Constitutional Court for a preliminary ruling in cases of presumed infringement of fundamental rights by national legislation — Validity, under Community law, of the provision requiring such reference — Infringement of the principle of effective judicial protection and of the rights of the defence if the ordinary courts may not review the national rules’ compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms — Time-barring of recovery under tax assessments raised by the tax authority in respect of ‘profits from self-employment’

Operative part of the order

The Court of Justice of the European Union clearly has no jurisdiction to reply to the question referred by the tribunal de première instance de Liège (Belgium).

---

(1)  OJ C 37, 13.2.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/7 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/7

---

Order of the Court of 23 March 2011 — Republic of Estonia v European Commission, Republic of Latvia

(Case C-535/09 P) (1)

(Appeal - Sugar - Determination of surplus quantities of sugar, isoglucose and fructose for the new Member States)

2011/C 252/11

Language of the case: Estonian

Parties

Appellant: Republic of Estonia (represented by: L. Uibo, acting as Agent)

Other parties to the proceedings: European Commission (represented by: H. Tserepa-Lacombe and E. Randvere, acting as Agents), Republic of Latvia (represented by: K. Drevina and K. Krasovska, acting as Agents)

Re:

Appeal against the judgment of 2 October 2009 in Case T-324/05 Estonia v Commission dismissing the appellant’s action for annulment of Commission Regulation (EC) No 832/2005 of 31 May 2005 on the determination of surplus quantities of sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2005 L 138, p. 3)

Operative part of the order

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

| 2. | The Republic of Estonia shall bear its own costs and pay the costs incurred by the European Commission. |
| --- | --- |

2.

The Republic of Estonia shall bear its own costs and pay the costs incurred by the European Commission.

| 3. | The Republic of Latvia shall bear its own costs. |
| --- | --- |

3.

The Republic of Latvia shall bear its own costs.

---

(1)  OJ C 63, 13.3.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/7 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/7

---

Order of the Court (Fifth Chamber) of 16 May 2011 — Giampietro Torresan v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Klosterbrauerei Weissenohe GmbH & Co. KG

(Case C-5/10 P) (1)

(Appeals - Community trade mark - Word mark CANNABIS - Invalidity proceedings - Absolute ground for refusal - Descriptive character - Regulation (EC) No 40/94 - Article 7(1)(c))

2011/C 252/12

Language of the case: Italian

Parties

Appellant: Giampietro Torresan (represented by: G. Recher and R. Munarini, avvocati)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto, acting as Agent), Klosterbrauerei Weissenohe GmbH & Co. KG (represented by: A. Masetti Zannini de Concina, M. Bucarelli and R. Cartella, avvocati)

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) of 19 November 2009 in Case T-234/06 Torresan v OHIM, by which the Court dismissed the action brought against the decision of the Second Board of Appeal of OHIM of 29 June 2006 (Case R 517/2005-2), relating to invalidity proceedings between Klosterbrauerei Weissenohe GmbH & Co. KG and Giampietro Torresan

Operative part of the order

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

| 2. | Mr Torresan is ordered to pay the costs. |
| --- | --- |

2.

Mr Torresan is ordered to pay the costs.

---

(1)  OJ C 63, 13.3.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/8 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/8

---

Order of the Court (Sixth Chamber) of 24 March 2011 (reference for a preliminary ruling from the Landgericht München I, Germany) — Robert Nicolaus Abt and Others v Hypo Real Estate Holding AG

(Case C-194/10) (1)

(Reference for a preliminary ruling - Relevance of the question - No jurisdiction)

2011/C 252/13

Language of the case: German

Referring court

Landgericth München I

Parties to the main proceedings

Applicants: Robert Nicolaus Abt, Danieal Kalwarowskyj, Mangusta Beteiligungs GmbH, Karsetn Trippel, VC-Services GmbH, Henning Hahmann

Defendant: Hypo Real Estate Holding AG

Interveners: Klaus E. H. Zapf, Inge Jung-Arend

Re:

Reference for a preliminary ruling — Landgericht Munich I — Interpretation of Article 297 EC and of Article 5(1) of 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 2007 L 184, p. 17) — Period for convocation of general meeting of a listed company — National legislation, ceasing to have effect on the expiry of the transposition period for the directive, which provides for a shorter convocation period than the minimum period under the directive — Provision likely seriously to compromise the result prescribed by the directive, in the light of the national legislation according to which some decisions of the general meeting remain valid after being registered in the commercial register, even in the event of annulment following legal action

Operative part of the order

| 1. | The Court of Justice of the European Union does not have jurisdiction to answer the first question referred for a preliminary ruling by the Landgericth München I. |
| --- | --- |

1.

The Court of Justice of the European Union does not have jurisdiction to answer the first question referred for a preliminary ruling by the Landgericth München I.

---

(1)  OJ C 195, 17.7.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/8 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/8

---

Order of the Court of 3 March 2011 — Centre de Coordination Carrefour SNC v European Commission

(Case C-254/10 P) (1)

(Appeal - Aid scheme in favour of coordination centres established in Belgium - Conditions of admissibility of an action for annulment - Concept of ‘interest in bringing proceedings’ - Res judicata)

2011/C 252/14

Language of the case: French

Parties

Appellant: Centre de Coordination Carrefour SNC (represented by: X. Clarebout, C. Docclo and M. Pittie, avocats)

Other party to the proceedings: European Commission (represented by: C. Urraca Caviedes and J.-P. Keppenne, Agents)

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 18 March 2010 — Case T-94/08 Centre de Coordination Carrefour v Commission, by which the General Court dismissed as inadmissible the applicant’s action seeking annulment of Commission Decision 2008/283/EC of 13 November 2007 amending Decision 2003/757/EC on the aid scheme implemented by Belgium for coordination centres established in Belgium (OJ 2008 L 90, p. 7) — Conditions of admissibility of an action for annulment — Concept of interest in bringing proceedings — Res judicata

Operative part of the order

The Court hereby:

| 1. | Dismisses the appeal; |
| --- | --- |

1.

Dismisses the appeal;

| 2. | Orders the Centre de Coordination Carrefour SNC to bear the costs. |
| --- | --- |

2.

Orders the Centre de Coordination Carrefour SNC to bear the costs.

---

(1)  OJ C 246, 11.9.2010

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/9 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/9

---

Order of the Court (First Chamber) of 30 June 2011 (reference for a preliminary ruling from the Rechtbank van Koophandel te Dendermonde — Belgium) — Wamo BVBA v JBC NV, Modemakers Fashion NV

(Case C-288/10) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Directive 2005/29/EC - Unfair commercial practices - National legislation prohibiting announcements of price reductions or announcements suggesting such reductions)

2011/C 252/15

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Dendermonde

Parties to the main proceedings

Applicant: Wamo BVBA

Defendants: JBC NV, Modemakers Fashion NV

Re:

Reference for a preliminary ruling — Rechtbank van Koophandel te Dendermonde — Interpretation of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC and Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) — National legislation prohibiting announcements of price reductions or announcements suggesting such reductions during certain periods preceding sales in specified sectors.

Operative part of the order

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC and Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as precluding a national provision, such as that at issue in the main proceedings, which provides for a general prohibition of announcements of price reductions or announcements suggesting such reductions during the period preceding sales, in so far as the provision pursues objectives relating to consumer protection. It is for the national court to determine whether that is the situation in the case in the main proceedings.

---

(1)  OJ C 246, 11.9.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/9 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/9

---

Order of the Court (Sixth Chamber) of 2 March 2011 — Claro SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Telefónica SA

(Case C-349/10 P) (1)

(Appeal - Community trade mark - Refusal of registration - Admissibility of the appeal before the Board of Appeal - Failure to file a statement setting out the grounds of appeal - Article 59 of Regulation (EC) No 40/94 - Rule 49(1) of Regulation (EC) No 2868/95 - Appeal manifestly unfounded)

2011/C 252/16

Language of the case: Spanish

Parties

Appellant: Claro SA (represented by: E. Armijo Chávarri, abogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, acting as Agent), Telefónica SA

Re:

Appeal brought against the judgment of the General Court (Fifth Chamber) of 28 April 2010 in Case T-225/09 Claro v OHIM and Telefónica, by which the General Court dismissed the action brought against the decision of the Second Board of Appeal of OHIM of 26 February 2009 (Case R 1079/2008-2) concerning opposition proceedings between Telefónica, SA and BCP S/A

Operative part of the order

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

| 2. | Claro SA shall pay the costs. |
| --- | --- |

2.

Claro SA shall pay the costs.

---

(1)  OJ C 234, 28.8.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/9 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/9

---

Order of the Court of 31 March 2011 — EMC Development AB v European Commission

(Case C-367/10 P) (1)

(Appeal - Agreements, decisions and concerted practices - European cement market - Action for annulment of a decision rejecting a complaint against the adoption of a harmonised standard for cement - Procedure for the adoption of the standard - Binding nature of the standard - Appeal clearly inadmissible in part and clearly unfounded in part)

2011/C 252/17

Language of the case: English

Parties

Appellant: EMC Development AB (represented by: W.-N. Schelp, avocat)

Other party to the proceedings: European Commission (represented by: J. Bourke, Agent)

Re:

Appeal brought against the judgment of the General Court (Fifth Chamber) of 12 May 2010 in Case T-432/05 EMC Development v Commission, by which the General Court dismissed an action seeking the annulment of the Commission's decision of 28 November 2005 rejecting the applicant's complaint based on Article 2(2) of Regulation No 17 and concerning alleged concerted practices on the part of European Portland cement producers consisting of the adoption of a European standard for cement (EN 197-1) aimed at excluding from the market products and technologies of competitors

Operative part of the order

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

| 2. | EMC Development AB shall pay the costs. |
| --- | --- |

2.

EMC Development AB shall pay the costs.

---

(1)  OJ C 288, 23.10.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/10 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/10

---

Order of the Court (Fifth Chamber) of 14 March 2011 — Ravensburger AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) — Educa Borras SA

(Case C-369/10 P) (1)

(Appeal - Community trade mark - Community word mark MEMORY - Invalidity proceedings - Absolute ground for refusal - Descriptive character - Regulation (EC) No 40/94 - Article 7(1)(c))

2011/C 252/18

Language of the case: English

Parties

Appellant: Ravensburger AG (represented by: H. Harte-Bavendamm and M. Goldmann, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, Agent), Educa Borras SA

Re:

Appeal brought against the judgment of the General Court (Eighth Chamber) of 19 May 2010 in Case T-108/09 Ravensburger v OHIM, by which the Court dismissed the action brought against Decision R 305/2008-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 8 January 2009, dismissing the appeal brought against the Cancellation Division’s decision which declares the word mark ‘MEMORY’ invalid, in respect of goods in Classes 9 and 28, in the context of the application for a declaration of invalidity filed by Educa Borras

Operative part of the order

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

| 2. | Ravensburger AG shall pay the costs. |
| --- | --- |

2.

Ravensburger AG shall pay the costs.

---

(1)  OJ C 260, 25.9.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/10 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/10

---

Order of the Court (Eighth Chamber) of 24 March 2011 — Félix Muñoz Arraiza v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consejo Regulador de la Denominación de Origen Calificada Rioja

(Case C-388/10 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Articles 8(1)(b), 43(2) and 44(1) - Application for Community word mark RIOJAVINA - Opposition by the proprietor of the earlier Community collective figurative mark RIOJA - Refusal to register - Likelihood of confusion)

2011/C 252/19

Language of the case: Spanish

Parties

Appellant: Félix Muñoz Arraiza (represented by: J. Grimau Muñoz and J. Villamor Muguerza, abogados)

Other party parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, Agent), Consejo Regulador de la Denominación de Origen Calificada Rioja (represented by: J. Martinez De Torre, abogado)

Re:

Appeal against the judgement of the General Court (Fifth Chamber) of 9 June 2010 in Case T-138/09 Muñoz Arraiza v OHIM — Consejo Regulador de la Denominación de Origen Calificada Rioja (RIOJAVINA), by which that court dismissed the action brought against the decision of the Second Board of Appeal of OHIM of 29 January 2009 (Case R 721/2008-2) relating to opposition proceedings between the Consejo Regulador de la Denominación de Origen Calificada Rioja and Mr. Félix Muñoz Arraiza

Operative part of the order

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

| 2. | Mr Muñoz Arraiza is ordered to pay the costs. |
| --- | --- |

2.

Mr Muñoz Arraiza is ordered to pay the costs.

---

(1)  OJ C 301, 6.11.2010.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/11 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/11

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Order of the Court (Fifth Chamber) of 16 May 2011 — X Technology Swiss GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-429/10 P) (1)

(Appeals - Community trade mark - Sign consisting of the partial colouring of a product - Orange colouring of the toe of a sock - Absolute ground for refusal - Absence of distinctive character - Regulation (EC) No 40/94 - Article 7(1)(b))

2011/C 252/20

Language of the case: German

Parties

Appellant: X Technology Swiss GmbH (represented by: A. Herbertz and R. Jung, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, acting as Agent)

Re:

Appeal against the judgment of the General Court (Second Chamber) of 15 June 2010 in Case T-547/08 X Technology Swiss v OHIM, by which the General Court dismissed the action brought against the decision of the Fourth Board of Appeal of OHIM of 6 October 2008 dismissing the appeal against the examiner’s decision, which refused registration of the sign consisting of the orange colouring of the toe of a sock as a Community trade mark for goods in Class 25 — Distinctive character of a sign consisting of the partial colouring of a product

Operative part of the order

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

| 2. | X Technology Swiss GmbH is ordered to pay the costs. |
| --- | --- |

2.

X Technology Swiss GmbH is ordered to pay the costs.

---

(1)  OJ C 301, 6.11.2010.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/11 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/11

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Order of the Court of 31 March 2011 — Volker Mauerhofer v European Commission

(Case C-433/10 P) (1)

(Appeal - Project supported by the European Union in Bosnia and Herzegovina - Contracts concluded between the Commission and a consortium and between the consortium and experts - Commission’s administrative order amending its contract with the consortium - Action for annulment of that administrative order brought by one of the experts - Admissibility - Action for damages - Non contractual liability of the Union - Causal link between the Commission’s administrative order and the damage allegedly suffered by that expert)

2011/C 252/21

Language of the case: English

Parties

Appellant: Volker Mauerhofer (represented by: J. Schartmüller, Rechtsanwalt)

Other party to the proceedings: European Commission (represented by: S. Boelaert, Agent)

Re:

Appeal brought against the order of the General Court (Third Chamber) of 29 June 2010 in Case T-515/08 Volker Mauerhofer v European Commission by which the Court dismissed an action for annulment of the Commission’s decision of 9 September 2008 reducing the number of paid days’ work allocated to the applicant to perform tasks resulting from a contract for an expert’s report (Contract No MC/5043/025/001/2008 — ‘Value Chain Mapping Analysis’) concluded with the undertaking responsible for a project carried out in Bosnia and Herzegovina in performance of the framework contract ‘EuropeAid/123314/C/SER/multi — Lot No 5 — Evaluations and presentations in the field of trade, businesses and regional economic integration’ — No challengeable act

Operative part of the order

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

| 2. | Mr Mauerhofer shall pay the costs. |
| --- | --- |

2.

Mr Mauerhofer shall pay the costs.

---

(1)  OJ C 301, 6.11.2010.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/11 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/11

---

Order of the Court of 24 June 2011 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Vorarlberg (Austria)) — proceedings brought by projektart Errichtungsgesellschaft mbH, Eva Maria Pepic, Herbert Hilbe

(Case C-476/10) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Free movement of capital - Article 40 of and Annex XII to the EEA Agreement - Purchase by nationals of the Principality of Liechtenstein of a secondary residence in the Land of Vorarlberg (Austria) - Procedure of prior authorisation - Admissibility)

2011/C 252/22

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat des Landes Vorarlberg (Austria)

Parties to the main proceedings

projektart Errichtungsgesellschaft mbH, Eva Maria Pepic, Herbert Hilbe

Re:

Reference for a preliminary ruling — Unabhängiger Verwaltungssenat des Landes Vorarlberg — Interpretation of Article 6(4) of Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (OJ 1988 L 178, p. 5) — Purchase of a secondary residence, situated in a Member State of the European Union, by nationals of a non-Member State, party to the European Economic Area Agreement (Liechtenstein) — National rules of that Member State making such purchases subject to an authorisation procedure

Operative part of the order

Article 40 of the European Economic Area Agreement of 2 May 1992 must be interpreted as precluding national legislation such as that at issue in the main proceedings which, on the basis of Article 6(4) of Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (article repealed by the Treaty of Amsterdam), prohibits a national of the Principality of Liechtenstein from purchasing a secondary residence situated in a Member State of the European Union, and therefore national authorities are required not to apply that national legislation.

---

(1)  OJ C 328, 4.12.2010.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/12 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/12

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Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 18 February 2011 — Der Generalbundesanwalt beim Bundesgerichtshof v Mohsen Afrasiabi, Behzad Sahabi and Heinz Ulrich Kessel

(Case C-72/11)

2011/C 252/23

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant: Der Generalbundesanwalt beim Bundesgerichtshof

Defendants: Mohsen Afrasiabi, Behzad Sahabi, Heinz Ulrich Kessel

Questions referred

| 1. | In order to make available an economic resource within the meaning of Article 7(3) of Council Regulation (EC) No 423/2007 (1), is it necessary that it can be used immediately by the listed person/entity for the purposes of acquiring funds or services? Or must Article 7(3) of Council Regulation (EC) No 423/2007 be interpreted as meaning that the prohibition on making available an economic resource indirectly encompasses the supply and installation of a functional, but not yet ready-to-use economic resource (in this case: a vacuum furnace) to a third party in Iran, who intends, at a later date, to manufacture products with that resource for a legal person, entity or body listed in Annexes IV and V to the regulation? |
| --- | --- |

1.

In order to make available an economic resource within the meaning of Article 7(3) of Council Regulation (EC) No 423/2007 (1), is it necessary that it can be used immediately by the listed person/entity for the purposes of acquiring funds or services? Or must Article 7(3) of Council Regulation (EC) No 423/2007 be interpreted as meaning that the prohibition on making available an economic resource indirectly encompasses the supply and installation of a functional, but not yet ready-to-use economic resource (in this case: a vacuum furnace) to a third party in Iran, who intends, at a later date, to manufacture products with that resource for a legal person, entity or body listed in Annexes IV and V to the regulation?

| 2. | Must Article 7(4) of Council Regulation (EC) No 423/2007 be interpreted as meaning that circumvention can occur only where the offender formally adapts his conduct — albeit only ostensibly — to the prohibitions arising from Article 7(1) to (3) of Council Regulation (EC) No 423/2007, with the effect that even applying the broadest interpretation that conduct is no longer covered by the prohibitions? Are the elements of the prohibitions on circumvention and on making available economic resources thus mutually exclusive? If answered in the affirmative: can conduct which would not (yet) be covered by the prohibition on making available economic resources (indirectly) nevertheless constitute circumvention within the meaning of Article 7(4) of Council Regulation (EC) No 423/2007?
  Or does Article 7(4) of Council Regulation (EC) No 423/2007 constitute a catch-all clause, under which any act is covered which is intended to lead to an economic resource being made available to a listed person or entity? |
| --- | --- |

2.

Must Article 7(4) of Council Regulation (EC) No 423/2007 be interpreted as meaning that circumvention can occur only where the offender formally adapts his conduct — albeit only ostensibly — to the prohibitions arising from Article 7(1) to (3) of Council Regulation (EC) No 423/2007, with the effect that even applying the broadest interpretation that conduct is no longer covered by the prohibitions? Are the elements of the prohibitions on circumvention and on making available economic resources thus mutually exclusive? If answered in the affirmative: can conduct which would not (yet) be covered by the prohibition on making available economic resources (indirectly) nevertheless constitute circumvention within the meaning of Article 7(4) of Council Regulation (EC) No 423/2007?

Or does Article 7(4) of Council Regulation (EC) No 423/2007 constitute a catch-all clause, under which any act is covered which is intended to lead to an economic resource being made available to a listed person or entity?

| 3. | Does the subjective condition ‘knowingly and intentionally’ in Article 7(4) of Council Regulation (EC) No 423/2007 require on the one hand actual knowledge that the effect or objective of the activities is circumvention of the prohibition on making available economic resources and in addition a more extensive volitional component, at least in the sense that the offender approves of the possibility that circumvention of the prohibition might occur? Or must it in fact be important to the offender to circumvent the prohibition and must he to that extent act intentionally?
  Or is it not necessary that the prohibition be knowingly circumvented, it being sufficient instead that the offender merely considers circumvention possible and approves of that possibility? |
| --- | --- |

3.

Does the subjective condition ‘knowingly and intentionally’ in Article 7(4) of Council Regulation (EC) No 423/2007 require on the one hand actual knowledge that the effect or objective of the activities is circumvention of the prohibition on making available economic resources and in addition a more extensive volitional component, at least in the sense that the offender approves of the possibility that circumvention of the prohibition might occur? Or must it in fact be important to the offender to circumvent the prohibition and must he to that extent act intentionally?

Or is it not necessary that the prohibition be knowingly circumvented, it being sufficient instead that the offender merely considers circumvention possible and approves of that possibility?

---

(1)  Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/12 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/12

---

Appeal brought on 13 May 2011 by Longevity Health Products, Inc against the judgment of the General Court (Sixth Chamber) delivered on 9 March 2011 in Case T-190/09 Longevity Health Products, Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs); other party: Performing Science LLC

(Case C-222/11 P)

2011/C 252/24

Language of the case: German

Parties

Appellant: Longevity Health Products, Inc (represented by: J. Korab, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Performing Science LLC

Form of order sought

| — | Declare the appeal by the company Longevity Health Products, Inc admissible; |
| --- | --- |

—

Declare the appeal by the company Longevity Health Products, Inc admissible;

| — | Set aside the judgment of the General Court of 9 March 2011 in Case T-190/09; |
| --- | --- |

—

Set aside the judgment of the General Court of 9 March 2011 in Case T-190/09;

| — | Order the Office for Harmonisation in the Internal Market to pay the costs. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

The restriction of the right to register a mark can be justified only in the public interest, for example in order to avoid a possible deception of certain trade circles. That can however be excluded in the present case because both experts and lay people are able to distinguish between the trade mark wording 5 HTP and the systematic designation for 5-hydroxy-tryptophan.

Experts such as chemists and veterinary surgeons are aware that even minor changes in chemical nomenclature terms or chemical formulae could lead to significant differences in substance structure. That circle of persons would therefore without further consideration continue to use the correct chemical designation, which is not the same as the trade mark.

‘Informed persons’, that is lay people and consumers interested in the products concerned, are also aware that the designations of different substances drawn from chemical nomenclature may differ only slightly, but that a minimal name difference is in fact associated with massive differences in the pharmacological, chemical or physical characteristics of those substances.

Lay persons who are not interested in the products concerned are in any case not able to recognise any connection between the trade mark name 5 HTP and the substance 5-hydroxy-tryptophan and therefore cannot also be misled thereby.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/13 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/13

---

Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 20 May 2011 — RVS Levensverzekeringen N.V. v Belgische Staat

(Case C-243/11)

2011/C 252/25

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: RVS Levensverzekeringen N.V.

Defendant: Belgische Staat

Questions referred

| 1. | Does Article 50 of Directive 2002/83/EC (1) of the European Parliament and of the Council of 5 November 2002 concerning life assurance, which in paragraph 1 provides that, without prejudice to any subsequent harmonisation, every assurance contract shall be subject exclusively to the indirect taxes and parafiscal charges on assurance premiums in the Member State of the commitment, and which in paragraph 3 provides that, pending future harmonisation, each Member State shall apply to those assurance undertakings which cover commitments situated within its territory its own national provisions for measures to ensure the collection of indirect taxes and parafiscal charges due under paragraph 1, preclude a national rule as laid down in Article 173 and Article 175(3) of the Wetboek van diverse rechten en taksen, which provides that insurance transactions (including life assurance policies) are subject to an annual tax, when the risk is situated in Belgium, in particular if the policy-holder has his/her habitual residence in Belgium, or, if the policy-holder is a legal person, if the establishment of that legal person, to which the contract relates, is situated in Belgium, without any account being taken of the place of residence of the policy holder at the time that the contract was concluded? |
| --- | --- |

1.

Does Article 50 of Directive 2002/83/EC (1) of the European Parliament and of the Council of 5 November 2002 concerning life assurance, which in paragraph 1 provides that, without prejudice to any subsequent harmonisation, every assurance contract shall be subject exclusively to the indirect taxes and parafiscal charges on assurance premiums in the Member State of the commitment, and which in paragraph 3 provides that, pending future harmonisation, each Member State shall apply to those assurance undertakings which cover commitments situated within its territory its own national provisions for measures to ensure the collection of indirect taxes and parafiscal charges due under paragraph 1, preclude a national rule as laid down in Article 173 and Article 175(3) of the Wetboek van diverse rechten en taksen, which provides that insurance transactions (including life assurance policies) are subject to an annual tax, when the risk is situated in Belgium, in particular if the policy-holder has his/her habitual residence in Belgium, or, if the policy-holder is a legal person, if the establishment of that legal person, to which the contract relates, is situated in Belgium, without any account being taken of the place of residence of the policy holder at the time that the contract was concluded?

| 2. | Do the Community principles concerning the elimination, between the Member States of the Community, of obstacles to the freedom of movement of persons and the freedom to provide services arising out of Articles 49 and 56 of the Treaty on the Functioning of the European Union, preclude a national rule as laid down in Article 173 and Article 175(3) of the Wetboek van diverse rechten en taksen, which provides that insurance transactions (including life assurance policies) are subject to an annual tax, when the risk is situated in Belgium, in particular if the policy-holder has his/her habitual residence in Belgium, or, if the policy-holder is a legal person, if the establishment of that legal person, to which the contract relates, is situated in Belgium, without any account being taken of the place of residence of the policy-holder at the time that the contract was concluded? |
| --- | --- |

2.

Do the Community principles concerning the elimination, between the Member States of the Community, of obstacles to the freedom of movement of persons and the freedom to provide services arising out of Articles 49 and 56 of the Treaty on the Functioning of the European Union, preclude a national rule as laid down in Article 173 and Article 175(3) of the Wetboek van diverse rechten en taksen, which provides that insurance transactions (including life assurance policies) are subject to an annual tax, when the risk is situated in Belgium, in particular if the policy-holder has his/her habitual residence in Belgium, or, if the policy-holder is a legal person, if the establishment of that legal person, to which the contract relates, is situated in Belgium, without any account being taken of the place of residence of the policy-holder at the time that the contract was concluded?

---

(1)  OJ 2002 L 345, p. 1

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/13 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/13

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Reference for a preliminary ruling from the Curte de Apel Cluj (Romania) lodged on 23 May 2011 — Criminal proceedings against Rareș Doralin Nilaș, Gicu Agenor Gânscă, Ana Maria Oprean (née Șchiopu), Sergiu Dan Dascăl, Ionuț Horea Baboș

(Case C-248/11)

2011/C 252/26

Language of the case: Romanian

Referring court

Curte de Apel Cluj

Parties to the main proceedings

Rareș Doralin Nilaș, Gicu Agenor Gânscă, Ana Maria Oprean (née Șchiopu), Sergiu Dan Dascăl, Ionuț Horea Baboș

Questions referred

| 1. | Can Article 4(1)(14) and Articles 9 to 14 of Directive 2004/39/EC (1) be interpreted as applying both to the main trading market authorised by the CNVM (Comisia Națională a Valorilor Mobiliare [National Securities Commission]) and to the secondary trading market, which has been incorporated into the former since 2005 (omissis) but has continued to be regarded as separate from the regulated market, even though its legal status has not been clarified by way of legislation? |
| --- | --- |

1.

Can Article 4(1)(14) and Articles 9 to 14 of Directive 2004/39/EC (1) be interpreted as applying both to the main trading market authorised by the CNVM (Comisia Națională a Valorilor Mobiliare [National Securities Commission]) and to the secondary trading market, which has been incorporated into the former since 2005 (omissis) but has continued to be regarded as separate from the regulated market, even though its legal status has not been clarified by way of legislation?

| 2. | Must the provisions of Article 4(1)(14) of Directive 2004/39/EC be interpreted as meaning that the concept of a regulated market does not encompass those trading systems which do not comply with the provisions of Title III of the MIFID directive? |
| --- | --- |

2.

Must the provisions of Article 4(1)(14) of Directive 2004/39/EC be interpreted as meaning that the concept of a regulated market does not encompass those trading systems which do not comply with the provisions of Title III of the MIFID directive?

| 3. | Must the provisions of Article 47 of Directive 2004/39/EC be interpreted as meaning that a market which has not been notified by a competent national authority and is not included in the list of regulated markets is not subject to the legal rules applicable to the regulated markets, in particular as regards the rules designed to prevent market abuse under Directive 2003/6/EC? |
| --- | --- |

3.

Must the provisions of Article 47 of Directive 2004/39/EC be interpreted as meaning that a market which has not been notified by a competent national authority and is not included in the list of regulated markets is not subject to the legal rules applicable to the regulated markets, in particular as regards the rules designed to prevent market abuse under Directive 2003/6/EC?

---

(1)  Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1).

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/14 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/14

---

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 May 2011 — DTZ Zadelhoff vof, other party: Staatssecretaris van Financiën

(Case C-259/11)

2011/C 252/27

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: DTZ Zadelhoff vof

Other party: Staatssecretaris van Financiën

Questions referred

| 1. | Must Article 13B(d)(5) of the Sixth Directive (1) be interpreted as also covering transactions, such as those carried out by the interested party, which in essence relate to the immovable property held by the companies concerned and its (indirect) transfer, solely on the ground that those transactions were aimed at, and resulted in, the transfer of the shares in the companies? |
| --- | --- |

1.

Must Article 13B(d)(5) of the Sixth Directive (1) be interpreted as also covering transactions, such as those carried out by the interested party, which in essence relate to the immovable property held by the companies concerned and its (indirect) transfer, solely on the ground that those transactions were aimed at, and resulted in, the transfer of the shares in the companies?

| 2. | Is the exception to the exemption contained in the second indent of Article 13B(d)(5) of the Sixth Directive also applicable if the Member State has not availed itself of the possibility provided by Article 5(3)(c) of the Sixth Directive of considering shares or interests equivalent to shares giving the holder thereof rights of ownership or possession over immovable property to be tangible property? |
| --- | --- |

2.

Is the exception to the exemption contained in the second indent of Article 13B(d)(5) of the Sixth Directive also applicable if the Member State has not availed itself of the possibility provided by Article 5(3)(c) of the Sixth Directive of considering shares or interests equivalent to shares giving the holder thereof rights of ownership or possession over immovable property to be tangible property?

| 3. | If the previous question must be answered in the affirmative, must the aforementioned shares or interests equivalent to shares be understood to include shares in companies which, directly or indirectly (by means of (sub-) subsidiaries), own immovable property, regardless of whether they exploit it as such or whether they utilise it in the context of a different type of undertaking? |
| --- | --- |

3.

If the previous question must be answered in the affirmative, must the aforementioned shares or interests equivalent to shares be understood to include shares in companies which, directly or indirectly (by means of (sub-) subsidiaries), own immovable property, regardless of whether they exploit it as such or whether they utilise it in the context of a different type of undertaking?

---

(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 1997 L 145, p. 1).

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/14 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/14

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Appeal brought on 6 June 2011 by Densmore Ronald Dover against the judgment of the General Court (Eighth Chamber) delivered on 24.03.2011 in Case T-149/09: Densmore Ronald Dover v European Parliament

(Case C-278/11 P)

2011/C 252/28

Language of the case: English

Parties

Appellant: Densmore Ronald Dover (represented by: D. Vaughan QC, M. Lester, Barrister, R. Collard, Solicitor)

Other party to the proceedings: European Parliament

Form of order sought

The appellant claims that the Court should:

| — | issue an order that the contested parts of Judgment of the General Court in Case T-149/09 be overturned; |
| --- | --- |

—

issue an order that the contested parts of Judgment of the General Court in Case T-149/09 be overturned;

| — | annul the whole of the Contested Decision; |
| --- | --- |

—

annul the whole of the Contested Decision;

| — | issue an order that the Parliament pays the appellant's costs of this appeal and of the application for annulment in the General Court. |
| --- | --- |

—

issue an order that the Parliament pays the appellant's costs of this appeal and of the application for annulment in the General Court.

Pleas in law and main arguments

First, the General Court erred in holding that the Parliament complied with its duty to give proper reasons for seeking repayment of the sum of GBP 345 289,00 at paragraphs 24 and 25 of the Contested Decision. The appellant did not know, from paragraphs 24 to 25 of the Contested Decision or elsewhere, the reasons why he was being ordered to repay those sums, which would permit him to contest the validity of that reasoning before the Courts, or to enable the Courts properly to review those reasons.

Second, the General Court erred in holding that the Parliament was justified in reclaiming GBP 345 289,00 on the grounds that it had been paid ‘unduly’ under Article 14 of the PEAM rules since:

| (a) | The Parliament had not explained anywhere in the Contested Decision the reasons why it considered that the numerous documents submitted by the appellant did not prove that the items set out at paragraph 25 were used in accordance with the PEAM rules, nor the respects in which the Parliament considered them to have been wrongly claimed under Article 14 of the PEAM rules or to have been misused or used for improper purposes. |
| --- | --- |

(a)

The Parliament had not explained anywhere in the Contested Decision the reasons why it considered that the numerous documents submitted by the appellant did not prove that the items set out at paragraph 25 were used in accordance with the PEAM rules, nor the respects in which the Parliament considered them to have been wrongly claimed under Article 14 of the PEAM rules or to have been misused or used for improper purposes.

| (b) | In fact the appellant had explained each item listed at paragraph 25 of the Contested Decision, and had also explained that each item was incurred entirely and precisely in order to cover only the expenses arising from the employment or engagement of MP Holdings as service provider. The appellant had provided a large volume of documentary evidence in order to show that the allowances paid to MP Holdings were actually used for Article 14 purposes. What he provided has vastly exceeded the documents he has been required to keep and provide at all relevant times, in particular documents relating to the appellant’s first mandate. This evidence demonstrated that all expenses were incurred wholly and exclusively in providing parliamentary assistance services to the appellant. The Parliament was seeking to impose hugely onerous requirements on the appellant to provide documentation in order to justify each and every cost going right back to 1999. These were not requirements that existed at the time the expenses were incurred, and indeed have never been preconditions for reimbursement at all under Article 14 of the PEAM Rules. |
| --- | --- |

(b)

In fact the appellant had explained each item listed at paragraph 25 of the Contested Decision, and had also explained that each item was incurred entirely and precisely in order to cover only the expenses arising from the employment or engagement of MP Holdings as service provider. The appellant had provided a large volume of documentary evidence in order to show that the allowances paid to MP Holdings were actually used for Article 14 purposes. What he provided has vastly exceeded the documents he has been required to keep and provide at all relevant times, in particular documents relating to the appellant’s first mandate. This evidence demonstrated that all expenses were incurred wholly and exclusively in providing parliamentary assistance services to the appellant. The Parliament was seeking to impose hugely onerous requirements on the appellant to provide documentation in order to justify each and every cost going right back to 1999. These were not requirements that existed at the time the expenses were incurred, and indeed have never been preconditions for reimbursement at all under Article 14 of the PEAM Rules.

Third, the General Court erred in finding that the Parliament’s impermissible reliance on an alleged ‘conflict of interest’ should not have resulted in the annulment of the Contested Decision as a whole. The General Court correctly held that the Parliament could not rely on an alleged conflict of interest to justify seeking repayment of parliamentary assistance allowance. Since the Parliament had relied expressly and principally on that reason to justify the whole of the Contested Decision, that finding should have resulted in the whole of the Contested Decision being annulled.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/15 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/15

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Action brought on 6 June 2011 — European Commission v Republic of Poland

(Case C-281/11)

2011/C 252/29

Language of the case: Polish

Parties

Applicant: European Commission (represented by: L. Pignataro-Nolin and M. Owsiany Hornung, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by failing to transpose or transposing incorrectly Article 2(a), (b), (d), (e) and (f), Article 3(3), Article 4(3), Article 6, Article 7, Article 8, Article 9(1) and (2)(a), Article 10(3) and (4) and Article 18(1), second subparagraph, and (3) and (4) of, and the fourth indent of Part A, the first indent of Part B and the first indent of Part C of Annex V to, Directive 2009/41/EC of the European Parliament and of the Council of 6 May 2009 on the contained use of genetically modified micro-organisms, the Republic of Poland has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to transpose or transposing incorrectly Article 2(a), (b), (d), (e) and (f), Article 3(3), Article 4(3), Article 6, Article 7, Article 8, Article 9(1) and (2)(a), Article 10(3) and (4) and Article 18(1), second subparagraph, and (3) and (4) of, and the fourth indent of Part A, the first indent of Part B and the first indent of Part C of Annex V to, Directive 2009/41/EC of the European Parliament and of the Council of 6 May 2009 on the contained use of genetically modified micro-organisms, the Republic of Poland has failed to fulfil its obligations under that directive;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission complains that the Republic of Poland has transposed incorrectly into Polish law the definitions of ‘micro-organism’, ‘genetically modified micro-organism’, ‘accident’ and ‘user’ contained respectively in Article 2(a), (b), (d) and (e) of Directive 2009/41. According to the Commission, an infringement is also constituted by the fact that the Polish legislation does not contain a definition of ‘notification’, a definition which appears in Article 2(f) of the directive.

The Commission further maintains that Articles 3(3), 6, 7, 8, 9(1) and (2)(a) and 18(1), second subparagraph, and (3) and (4) of Directive 2009/41 and the first indent of Part B and the first indent of Part C of Annex V thereto have not been transposed into Polish law.

According to the Commission, the transposition of Article 4(3) of Directive 2009/41 is incorrect because under Polish law the first class encompasses only activities of no risk whereas the directive also encompasses activities of negligible risk.

The Commission also complains that the Republic of Poland has implemented Article 10(3) of Directive 2009/41 incorrectly by restricting the possibility of specifying additional conditions for the contained use of genetically modified organisms solely to the situation where it is called for by the need to protect human health or the environment, whereas Article 10(3) of Directive 2009/41 does not contain such a restriction.

Furthermore, according to the Commission, Article 10(4) of Directive 2009/41 has been transposed into national law incorrectly because the latter introduces a 30-day period for which the directive does not provide.

Finally, the Commission asserts that the Polish authorities have not fully transposed the fourth indent of Part A of Annex V to Directive 2009/41.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/16 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/16

---

Appeal brought on 8 June 2011 by Mitteldeutsche Flughafen AG, Flughafen Leipzig/Halle GmbH against the judgment delivered by the General Court (Eighth Chanber) on 24 March 2011 in Joined Cases T-443/08 and T-455/08 Freistaat Sachsen and Others v European Commission

(Case C-288/11 P)

2011/C 252/30

Language of the case: German

Parties

Appellants: Mitteldeutsche Flughafen AG, Flughafen Leipzig/Halle GmbH (represented by: M. Núñez-Müller and J. Dammann, Rechtsanwälte)

Other parties to the proceedings: Freistaat Sachsen, Land Sachsen-Anhalt, Federal Republic of Germany, Arbeitsgemeinschaft Deutscher Verkehrsflughäfen e.V. (ADV), European Commission

Form of order sought

The appellants contend that the Court should:

| — | set aside paragraph 4 of the operative part of the contested judgment, by virtue of which the action in Case T-455/08 was dismissed as to the remainder, and the related decision on costs in paragraph 6; |
| --- | --- |

—

set aside paragraph 4 of the operative part of the contested judgment, by virtue of which the action in Case T-455/08 was dismissed as to the remainder, and the related decision on costs in paragraph 6;

| — | give final judgment in the matter and also uphold the action in Case T-455/08 in so far as it seeks annulment of the contested decision to the extent that the European Commission finds therein that the measure adopted by Germany providing capital contributions for the construction of a new southern runway and related airport infrastructure at Leipzig Halle Airport constitutes State aid for the purposes of Article 107(1) TFEU (formerly Article 87(1) EC); |
| --- | --- |

—

give final judgment in the matter and also uphold the action in Case T-455/08 in so far as it seeks annulment of the contested decision to the extent that the European Commission finds therein that the measure adopted by Germany providing capital contributions for the construction of a new southern runway and related airport infrastructure at Leipzig Halle Airport constitutes State aid for the purposes of Article 107(1) TFEU (formerly Article 87(1) EC);

| — | order the European Commission to pay both the costs of the appeal proceedings and — supplementing paragraph 7 of the contested operative part — the costs of the proceedings at first instance in Case T-455/08. |
| --- | --- |

—

order the European Commission to pay both the costs of the appeal proceedings and — supplementing paragraph 7 of the contested operative part — the costs of the proceedings at first instance in Case T-455/08.

Pleas in law and main arguments

The present appeal concerns the judgment by which the General Court partially dismissed the appellants’ action for partial annulment of Commission Decision 2009/948/EC on measures by Germany to assist DHL and Leipzig Halle Airport.

The content of the appeal is limited. The appeal does not challenge paragraph 3 of the operative part of the judgment, by which the General Court partially annulled Article 1 of the contested decision; on the contrary, only paragraph 4 is challenged, by which the General Court dismissed the ‘remainder’ of the action. The approval under Article 107(3) TFEU granted by the second half of the sentence in Article 1 of the contested decision is therefore also not challenged; on the contrary, only the classification of the financing measures at issue as aid for the purposes of Article 107(1) TFEU is challenged.

The appellants base their appeal on the following pleas in law.

The contested judgment infringes Article 107(1) TFEU. Contrary to the view of the General Court, Flughafen Leipzig/Halle GmbH is not an undertaking within the meaning of Article 107(1) TFEU with regard to the infrastructure measures at issue and their financing. The construction of regional airport infrastructure does not constitute an economic activity. Consequently, the aid provisions are inapplicable to the present circumstances.

The contested judgment infringes furthermore the prohibition on retroactivity, the requirement of legal certainty and the protection of legitimate expectations. In the contested decision, the Commission applied the communication on Community guidelines on financing of airports and start-up aid to airlines departing from regional airports — which was published on 9 December 2005 — retroactively to the infrastructure measures which had been decided upon on 4 November 2004. The General Court finds that the 2005 guidelines were not applied retroactively and thereby upholds a contradictory and substantively incorrect legal position created by the Commission, in breach of the abovementioned principles. The General Court moeover fails to take account of the fact that the 1994 aviation guidelines — under which the State financing of airport infrastructure is regarded as a general measure and is therefore not subject to aid control — continued to apply.

The contested judgment also infringes Article 1(b)(v) or Articles 17 and 18 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1) because the General Court did not apply the provisions of that regulation on existing aid to the capital contributions of 4 November 2004 classified by the General Court as aid.

The contested judgment also violates, finally, the division of powers under the TFEU. By its interpretation of the concept of ‘undertaking’ in Article 107(1) TFEU, the General Court infringes primary law, in that it subjects to aid control Member State measures which in fact are not subject to the law on aid.

Finally, the appellants submit that the contested judgment also infringes the duty under Article 81 of the Rules of Procedure of the General Court to state reasons for judgments because the grounds of the judgment are incomplete.

---

(1)  OJ 1999 L 83, p. 1.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/17 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/17

---

Appeal brought on 9 June 2011 by Legris Industries SA against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-376/06 Legris Industries v Commission

(Case C-289/11 P)

2011/C 252/31

Language of the case: French

Parties

Appellant: Legris Industries SA (represented by: A. Wachsmann and S. Thibault-Liger, avocates)

Other party to the proceedings: European Commission

Forms of order sought

| — | First
  :






  — | Set aside in its entirety, on the basis of Article 256 TFEU and Article 56 of Protocol No 3 on the Statute of the Court of Justice of the European Union, the judgment of the General Court of 24 March 2011 in Case T-376/06 Legris Industries v European Commission; |
| --- | --- | --- |

—

First
  :

—

Set aside in its entirety, on the basis of Article 256 TFEU and Article 56 of Protocol No 3 on the Statute of the Court of Justice of the European Union, the judgment of the General Court of 24 March 2011 in Case T-376/06 Legris Industries v European Commission;

| — | Grant the order sought by Legris Industries SA at first instance before the General Court; |
| --- | --- |

—

Grant the order sought by Legris Industries SA at first instance before the General Court;

| — | Consequently,






  — | Annul European Commission decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) as it concerns Legris Industries SA, and the grounds underlying the decision adopted, in so far as that decision imposes a fine on Legris Industries SA on the basis that the practices found to have been committed by Comap were attributed to Legris Industries SA; and |
| --- | --- | --- |

—

Consequently,

—

Annul European Commission decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) as it concerns Legris Industries SA, and the grounds underlying the decision adopted, in so far as that decision imposes a fine on Legris Industries SA on the basis that the practices found to have been committed by Comap were attributed to Legris Industries SA; and

| — | Allow Legris Industries SA to adopt the written submissions, heads of claim and applications of Comap in respect of the abovementioned decision of the European Commission; |
| --- | --- |

—

Allow Legris Industries SA to adopt the written submissions, heads of claim and applications of Comap in respect of the abovementioned decision of the European Commission;

| — | In the alternative
  annul, on the basis of Article 261 TFEU, the fine of EUR 46,8 million imposed on Legris Industries SA, of which EUR 18,56 million was imposed jointly and severally with Comap SA, pursuant to Article 2(g) of the abovementioned decision of the European Commission or reduce, on the basis of Article 261 TFEU, that fine of EUR 46,8 million to an appropriate amount; |
| --- | --- |

—

In the alternative
  annul, on the basis of Article 261 TFEU, the fine of EUR 46,8 million imposed on Legris Industries SA, of which EUR 18,56 million was imposed jointly and severally with Comap SA, pursuant to Article 2(g) of the abovementioned decision of the European Commission or reduce, on the basis of Article 261 TFEU, that fine of EUR 46,8 million to an appropriate amount;

| — | In any case, order the European Commission to pay all the costs, including those incurred by Legris Industries SA before the General Court. |
| --- | --- |

—

In any case, order the European Commission to pay all the costs, including those incurred by Legris Industries SA before the General Court.

Pleas in law and main arguments

The applicant relies on four pleas in law in support of its appeal.

By its first plea, Legris Industries alleges the infringement of the right of access to an independent and impartial tribunal to the extent that the review carried out by the General Court of the decision of the Commission, an institution combining both investigatory and penal functions, limited itself to manifest errors of law and fact and was not a full review involving a complete re-examination of the facts of the case and, in particular, the proof adduced.

By its second plea, which comprises three branches, the applicant alleges infringement of the principles governing the attributability to a parent company of an infringement of Article 101 TFEU found to have been committed by its subsidiary. By the first branch, the applicant claims first that the application to it of a de facto irrebuttable presumption of liability is not permitted under European Union law, taking into account the penal nature of the sanction imposed on it. By its second branch, the applicant then submits that the application to it of that de facto irrebuttable presumption of liability stems from the General Court’s rejection of its arguments when relying on insufficient and contradictory reasoning. In the third branch, the applicant alleges finally failure to comply with the case-law which disapplies that presumption of liability to financial holdings which do not engage in operational activity, and infringement of the principles of equal treatment and legitimate expectations.

By its third plea, the parent company complains of the infringement of the principles of equal treatment, personal liability and the principle that the penalty must be specific to the offender, stemming from the General Court’s refusal to allow the applicant to use the pleas in law seeking annulment of the contested decision submitted by its subsidiary Comap, while holding the applicant liable for the practices found to have been committed by Comap.

By its fourth and final plea, the applicant finally requests the Court to draw the appropriate conclusions, with regard to it, from the possible setting aside of the Comap judgment on the basis of Comap’s grounds of appeal.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/18 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/18

---

Appeal brought on 9 June 2011 by Comap SA against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-377/06 Comap v Commission

(Case C-290/11 P)

2011/C 252/32

Language of the case: French

Parties

Appellant: Comap SA (represented by: A. Wachsmann and S. de Guigné, avocats)

Other party to the proceedings: European Commission

Form of order sought

| — | Principally,








  — | annul, on the basis of Article 256 TFEU and 56 of Protocol No 3 on the Statute of the Court of Justice of the European Union, the entirety of the judgment of the General Court of 24 March 2011 in Case T-377/06 Comap v Commission; |
| --- | --- | --- |

—

Principally,

—

annul, on the basis of Article 256 TFEU and 56 of Protocol No 3 on the Statute of the Court of Justice of the European Union, the entirety of the judgment of the General Court of 24 March 2011 in Case T-377/06 Comap v Commission;

| — | grant the form of order sought by Comap SA at first instance before the General Court; |
| --- | --- |

—

grant the form of order sought by Comap SA at first instance before the General Court;

| — | consequently,






  — | annul European Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — FITTINGS) inasmuch as it concerns Comap SA and the grounds underlying the operative part thereof inasmuch as that decision imposes a fine on Comap SA; |
| --- | --- | --- |

—

consequently,

—

annul European Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — FITTINGS) inasmuch as it concerns Comap SA and the grounds underlying the operative part thereof inasmuch as that decision imposes a fine on Comap SA;

| — | in the alternative,






  — | annul, on the basis of Article 261 TFEU, the fine of EUR 18,56 million imposed on Comap SA by Article 2(g) of the abovementioned decision of the European Commission or, on the basis of Article 261 TFEU, reduce that fine to an appropriate amount; |
| --- | --- | --- |

—

in the alternative,

—

annul, on the basis of Article 261 TFEU, the fine of EUR 18,56 million imposed on Comap SA by Article 2(g) of the abovementioned decision of the European Commission or, on the basis of Article 261 TFEU, reduce that fine to an appropriate amount;

| — | in any event, order the European Commission to pay all the costs, including those incurred by Comap SA before the General Court. |
| --- | --- |

—

in any event, order the European Commission to pay all the costs, including those incurred by Comap SA before the General Court.

Pleas in law and main arguments

The appellant raises four pleas in law in support of its appeal.

By its first plea, Comap alleges infringement of the right to an independent and impartial tribunal since the review carried out by the General Court of the decision of the Commission, an institution which fulfils the functions both of inquiry and sanction, was limited to the manifest errors in law and of fact, without the unlimited power of review having been used on the basis of a full re-examination of the facts of the case and, in particular, the evidence adduced.

By its second plea, the appellant complains that the General Court applied to it too restrictive an understanding of the notion of ‘public distancing’ which disregards the requirements of the principle of strict interpretation of criminal law, enshrined in Article 7(1) of the ECHR, which provides that the criminal law may not be applied broadly to the detriment of the defendant. That understanding also infringes the principle that the benefit of the doubt must be given to the undertaking to which the decision is addressed and which is necessary having regard to the principle of the presumption of innocence.

By its third plea, Comap alleges distortion of a number of pieces of evidence which led to an incorrect legal qualification of certain bilateral contacts between the appellant and one of its competitors after the Commission inspections.

By its fourth and last plea, finally, the appellant complains that the General Court failed to fulfil its duty to state reasons in that it took the view that the Commission had established Comap’s participation to the requisite legal standard in a single and continuous infringement after March 2001.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/18 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/18

---

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 9 June 2011 — Staatssecretaris van Financiën v TNT Freight Management (Amsterdam) BV

(Case C-291/11)

2011/C 252/33

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Staatssecretaris van Financiën

Respondent: TNT Freight Management (Amsterdam) BV

Question referred

Should Note 1(g) to Chapter 30 of the Harmonised System, read in conjunction with Note 1(b) to Chapter 35 of the Harmonised System, be interpreted as meaning that blood albumin, which itself has no therapeutic or prophylactic effect but which has been produced with a view to, and is essential for, the preparation of products which do have a therapeutic or prophylactic effect, and which by its nature can be used only for that purpose, has been prepared for therapeutic or prophylactic uses within the meaning of that note?

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/19 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/19

---

Appeal brought on 9 June 2011 by the European Commission against the judgment delivered on 29 March 2011 by the General Court (Third Chamber) in Case T-33/09 Portuguese Republic v European Commission

(Case C-292/11 P)

2011/C 252/34

Language of the case: Portuguese

Parties

Appellant: European Commission (represented by P. Hetsch, P. Costa de Oliveira and M. Heller)

Other party to the proceedings: Portuguese Republic

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court of 29 March 2011 in Case T-33/09 Portuguese Republic v Commission; |
| --- | --- |

—

set aside the judgment of the General Court of 29 March 2011 in Case T-33/09 Portuguese Republic v Commission;

| — | rule on the matters that are the subject of this appeal and were the subject of the action before the General Court, and dismiss the Portuguese Republic’s claim for annulment of the Commission’s decision of 25 November 2008 demanding payment of the penalty payment; |
| --- | --- |

—

rule on the matters that are the subject of this appeal and were the subject of the action before the General Court, and dismiss the Portuguese Republic’s claim for annulment of the Commission’s decision of 25 November 2008 demanding payment of the penalty payment;

| — | order the Portuguese Republic to bear, in addition to its own costs, those incurred by the Commission both at first instance and in this appeal. |
| --- | --- |

—

order the Portuguese Republic to bear, in addition to its own costs, those incurred by the Commission both at first instance and in this appeal.

Pleas in law and main arguments

The General Court erred in law by: (i) misappraising both the powers of the Commission with regard to compliance with judgments of the Court of Justice made pursuant to Article 260(2) TFEU and its own jurisdiction to review the Commission’s actions; (ii) by ruling in the contested judgment, on the basis of an incomplete reading of the operative part of the judgment of the Court of Justice of 2004, that there had been failure to fulfil obligations, thereby infringing Article 260(2) TFEU. Furthermore, on any view the General Court’s judgment is marred by an error of law, for the General Court was in breach of its duty to state reasons, in that it decided on the basis of insufficient, contradictory reasoning that the Commission had overstepped the bounds of the infringement as found by the Court of Justice.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/19 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/19

---

Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 9 June 2011 — Ministero dell’Economia e delle Finanze and Agenzia delle Entrate v Elsacom N.V.

(Case C-294/11)

2011/C 252/35

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicants: Ministero dell’Economia e delle Finanze and Agenzia delle Entrate

Defendant: Elsacom N.V.

Question referred

Is the period of six months from the end of the calendar year in which value added tax became chargeable, being the time allowed for taxable persons not established in the territory of the country to submit an application for refund of that tax — as laid down in the last sentence of the first subparagraph of Article 7(1) of Eighth Council Directive 79/1072/EEC (1) of 6 December 1979 — a mandatory time-limit, that is to say, a time-limit non-compliance with which results in forfeiture of the right to a refund?

---

(1)  OJ 1979 L 331, p. 11.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/19 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/19

---

Action brought on 14 June 2011 — European Commission v French Republic

(Case C-296/11)

2011/C 252/36

Language of the case: French

Parties

Applicant: European Commission (represented by: C. Soulay and L. Lozano Palacios, acting as Agents)

Defendant: French Republic

Form of order sought

| — | Declare that, by applying the special scheme for travel agencies to services supplied to persons other than travellers (in particular to other travel agencies), the French Republic has failed to fulfil its obligations under Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1) |
| --- | --- |

—

Declare that, by applying the special scheme for travel agencies to services supplied to persons other than travellers (in particular to other travel agencies), the French Republic has failed to fulfil its obligations under Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1)

| — | order the French Republic to pay the costs. |
| --- | --- |

—

order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission raises a single plea in law in support of its action, alleging the wrongful application of the special scheme for travel agencies to services supplied to persons other than travellers. In that regard, it points out that the scheme applies only where the travel service is sold to a traveller. However, it is not applicable to services supplied by travel agencies to other travel agencies or to tour operators. Having regard to the wording of the provisions of the Code général des impôts (General Tax Code) which refer to a ‘client’ rather than a ‘traveller’, the defendant uses an approach based on the ‘client’ and thus applies the special scheme for travel agencies broadly.

The Commission also rejects the argument advanced by the French authorities that the French legislation enables the objectives pursued by the special scheme, namely the simplification of travel agencies’ administrative formalities and the attribution of VAT revenue to the Member State in which the end consumption of each individual service took place, to be better achieved.

---

(1)  OJ 2006 L 347, p. 1.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/20 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/20

---

Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 17 June 2011 — ZZ v Secretary of State for the Home Department

(Case C-300/11)

2011/C 252/37

Language of the case: English

Referring court

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

Parties to the main proceedings

Applicant: ZZ

Defendant: Secretary of State for the Home Department

Question referred

‘Does the principle of effective judicial protection, set out in Article 30(2) of Directive 2004/38 (1), as interpreted in the light of Article 346(1)(a) of the Treaty on the Functioning of the European Union, require that a judicial body considering an appeal from a decision to exclude a European Union citizen from a member state on grounds of public policy and public security under Chapter VI of Directive 2004/38 ensure that the European Union citizen concerned is informed of the essence of the grounds against him, notwithstanding the fact that the authorities of the Member State and the relevant domestic court, after consideration of the totality of the evidence against the European Union citizen relied upon by the authorities of the Member State, conclude that the disclosure of the essence of the grounds against him would be contrary to the interests of state security?’

---

(1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

1

OJ L 158, p. 77

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/20 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/20

---

Action brought on 16 June 2011 — European Commission v Kingdom of the Netherlands

(Case C-301/11)

2011/C 252/38

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: R. Lyal and W. Roels, acting as Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

| — | Declare that, by approving and maintaining in force Articles 3.60 and 3.61 of the 2001 Law on income tax (Wet inkomstenbelasting) and Articles 15c and 15d of the 1969 Law on corporation tax (Wet Vennootschapsbelasting), as currently in force, the Kingdom of the Netherlands has failed to fulfil its obligations under the Treaty on the Functioning of the European Union, in particular Article 49 thereof; |
| --- | --- |

—

Declare that, by approving and maintaining in force Articles 3.60 and 3.61 of the 2001 Law on income tax (Wet inkomstenbelasting) and Articles 15c and 15d of the 1969 Law on corporation tax (Wet Vennootschapsbelasting), as currently in force, the Kingdom of the Netherlands has failed to fulfil its obligations under the Treaty on the Functioning of the European Union, in particular Article 49 thereof;

| — | order the Kingdom of the Netherlands to pay the costs. |
| --- | --- |

—

order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission takes the view that the taxation of unrealised capital gains on the transfer of an undertaking or part of an undertaking to another Member State or on the relocation to another Member State of an undertaking’s head office or of its actual centre of administration amounts to an obstacle to the freedom of establishment that is incompatible with Article 49 TFEU.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/20 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/20

---

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Rosanna Valenza v Autorità Garante della Concorrenza e del Mercato

(Case C-302/11)

2011/C 252/39

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Rosanna Valenza

Defendant: Autorità Garante della Concorrenza e del Mercato

Question referred

| (a) | Does Clause 4(4) of the Annex to Directive 1999/70/EC, (1) under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account? |
| --- | --- |

(a)

Does Clause 4(4) of the Annex to Directive 1999/70/EC, (1) under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account?

| (b) | Does Clause 4(4) of the Annex to Directive 1999/70/EC, under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules under which, without prejudice to the accrual of length of service for the period of the fixed-term contract, the fixed-term contract is to be terminated and a new contract of unlimited duration established, which is different from the previous contract and under which the length of service accrued is not to be maintained (Article 1(519) of Law No 296/2006)? |
| --- | --- |

(b)

Does Clause 4(4) of the Annex to Directive 1999/70/EC, under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules under which, without prejudice to the accrual of length of service for the period of the fixed-term contract, the fixed-term contract is to be terminated and a new contract of unlimited duration established, which is different from the previous contract and under which the length of service accrued is not to be maintained (Article 1(519) of Law No 296/2006)?

---

(1)  OJ L 175, p. 43.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/21 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/21

---

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Maria Laura Altavista v Autorità Garante della Concorrenza e del Mercato

(Case C-303/11)

2011/C 252/40

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Maria Laura Altavista

Defendant: Autorità Garante della Concorrenza e del Mercato

Questions referred

| (a) | Does Clause 4(4) of the Annex to Directive 1999/70/EC (1), under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account? |
| --- | --- |

(a)

Does Clause 4(4) of the Annex to Directive 1999/70/EC (1), under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account?

| (b) | Does Clause 4(4) of the Annex to Directive 1999/70/EC, under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules under which, without prejudice to the accrual of length of service for the period of the fixed-term contract, the fixed-term contract is to be terminated and a new contract of unlimited duration established, which is different from the previous contract and under which the length of service accrued is not to be maintained (Article 1(519) of Law No 296/2006)? |
| --- | --- |

(b)

Does Clause 4(4) of the Annex to Directive 1999/70/EC, under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules under which, without prejudice to the accrual of length of service for the period of the fixed-term contract, the fixed-term contract is to be terminated and a new contract of unlimited duration established, which is different from the previous contract and under which the length of service accrued is not to be maintained (Article 1(519) of Law No 296/2006)?

---

(1)  OJ 1999 L 175, p. 43.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/22 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/22

---

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Rosanna Valenza v Autorità Garante della Concorrenza e del Mercato

(Case C-304/11)

2011/C 252/41

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Rosanna Valenza

Defendant: Autorità Garante della Concorrenza e del Mercato

Questions referred

| (a) | Does Clause 4(4) of the Annex to Directive 1999/70/EC (1), under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account? |
| --- | --- |

(a)

Does Clause 4(4) of the Annex to Directive 1999/70/EC (1), under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account?

| (b) | Does Clause 4(4) of the Annex to Directive 1999/70/EC, under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules under which, without prejudice to the accrual of length of service for the period of the fixed-term contract, the fixed-term contract is to be terminated and a new contract of unlimited duration established, which is different from the previous contract and under which the length of service accrued is not to be maintained (Article 1(519) of Law No 296/2006)? |
| --- | --- |

(b)

Does Clause 4(4) of the Annex to Directive 1999/70/EC, under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules under which, without prejudice to the accrual of length of service for the period of the fixed-term contract, the fixed-term contract is to be terminated and a new contract of unlimited duration established, which is different from the previous contract and under which the length of service accrued is not to be maintained (Article 1(519) of Law No 296/2006)?

---

(1)  OJ 1999 L 175, p. 43.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/22 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/22

---

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 17 June 2011 — Laura Marsella, Simonetta Schettini, Sabrina Tomassini v Autorità Garante della Concorrenza e del Mercato

(Case C-305/11)

2011/C 252/42

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Laura Marsella, Simonetta Schettini, Sabrina Tomassini

Defendant: Autorità Garante della Concorrenza e del Mercato

Questions referred

| (a) | Does Clause 4(4) of the Annex to Directive 1999/70/EC, (1) under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account? |
| --- | --- |

(a)

Does Clause 4(4) of the Annex to Directive 1999/70/EC, (1) under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account?

| (b) | Does Clause 4(4) of the Annex to Directive 1999/70/EC, under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules under which, without prejudice to the accrual of length of service for the period of the fixed-term contract, the fixed-term contract is to be terminated and a new contract of unlimited duration established, which is different from the previous contract and under which |
| --- | --- |

(b)

Does Clause 4(4) of the Annex to Directive 1999/70/EC, under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules under which, without prejudice to the accrual of length of service for the period of the fixed-term contract, the fixed-term contract is to be terminated and a new contract of unlimited duration established, which is different from the previous contract and under which

---

(1)  OJ 1999 L 175, p. 43.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/23 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/23

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Action brought on 17 June 2011 — European Commission v Republic of Finland

(Case C-309/11)

2011/C 252/43

Language of the case: Finnish

Parties

Applicant: European Commission (represented by: I. Koskinen and L. Lozano Palacios, acting as Agents)

Defendant: Republic of Finland

Form of order sought

| — | declare that, by applying, in Paragraph 80 of Law on value added tax (1501/1993), the special scheme for travel agents to travel services sold to persons other than travellers, the Republic of Finland has failed to fulfil its obligations under Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1); |
| --- | --- |

—

declare that, by applying, in Paragraph 80 of Law on value added tax (1501/1993), the special scheme for travel agents to travel services sold to persons other than travellers, the Republic of Finland has failed to fulfil its obligations under Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1);

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

—

order Republic of Finland to pay the costs.

Pleas in law and main arguments

The Commission observes that the special scheme for travel agents in Directive 2006/112/EC of 28 November 2006 on the common system of value added tax is to be applied only when travel services are sold to travellers. The Republic of Finland has infringed that directive by applying the special scheme for travel agents to services which travel agencies supply to one another or to tour operators.

---

(1)  OJ 2006 L 347, p. 1

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/23 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/23

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Action brought on 21 June 2011 — European Commission v Republic of Poland

(Case C-313/11)

2011/C 252/44

Language of the case: Polish

Parties

Applicant: European Commission (represented by: D. Bianchi and A. Szmytkowska, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by introducing a prohibition on the manufacture, placing on the market and use for animal nutrition in Poland of genetically modified feed and genetically modified organisms intended for feed use, the Republic of Poland has failed to fulfil its obligations under Articles 16(5), 19, 20 and 34 of Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed; (1) |
| --- | --- |

—

declare that, by introducing a prohibition on the manufacture, placing on the market and use for animal nutrition in Poland of genetically modified feed and genetically modified organisms intended for feed use, the Republic of Poland has failed to fulfil its obligations under Articles 16(5), 19, 20 and 34 of Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed; (1)

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission complains that, by adopting the national Law on feed which prohibits the manufacture, placing on the market and use for animal nutrition in Poland of genetically modified feed and genetically modified organisms intended for feed use, the Republic of Poland has failed to fulfil its obligations under Regulation No 1829/2003. As a result of the adoption of that regulation, which introduces full harmonisation in the field of GMO feed authorisations at European Union level, Poland cannot adopt legal provisions prohibiting the placing on the market, use and manufacture in its territory of products that are the subject of such authorisations. Specifically, Poland has infringed:

| — | Article 16(5) of Regulation No 1829/2003, in accordance with which authorisation for placing on the market, using or processing GMOs for feed use, feed containing or consisting of GMOs and feed produced from GMOs is to be granted, refused, renewed, modified, suspended or revoked only on the grounds given in the regulation and under the procedures set out therein; |
| --- | --- |

—

Article 16(5) of Regulation No 1829/2003, in accordance with which authorisation for placing on the market, using or processing GMOs for feed use, feed containing or consisting of GMOs and feed produced from GMOs is to be granted, refused, renewed, modified, suspended or revoked only on the grounds given in the regulation and under the procedures set out therein;

| — | Article 19 of the regulation, which provides that the powers to issue authorisations rest with the Commission; |
| --- | --- |

—

Article 19 of the regulation, which provides that the powers to issue authorisations rest with the Commission;

| — | Article 20 of the regulation, under which products already placed on the market and authorised pursuant to the law in force prior to the regulation’s entry into force are regarded as authorised pursuant to the regulation; |
| --- | --- |

—

Article 20 of the regulation, under which products already placed on the market and authorised pursuant to the law in force prior to the regulation’s entry into force are regarded as authorised pursuant to the regulation;

| — | Article 34 of the regulation (clause concerning protective measures), a provision which, in view of the full harmonisation of the field in question, constitutes the only possibility for the adoption of emergency measures seeking to suspend or modify an authorisation that has been granted. |
| --- | --- |

—

Article 34 of the regulation (clause concerning protective measures), a provision which, in view of the full harmonisation of the field in question, constitutes the only possibility for the adoption of emergency measures seeking to suspend or modify an authorisation that has been granted.

It is irrelevant in this regard that the entry into force of the prohibition at issue has been postponed under national law, because the very adoption by the legislature of the contested provisions that are contrary to European Union law and their publication infringe the obligations owed by the Republic of Poland by virtue of the regulation.

---

(1)  OJ 2003 L 268, p. 1.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/24 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/24

---

Reference for a preliminary ruling from the Varnenski Administrativen Sad (Bulgaria) lodged on 27 June 2011 — Digitalnet OOD v Nachalnik na Mitnicheski punkt Varna Zapad pri Mitnitsi Varna

(Case C-320/11)

2011/C 252/45

Language of the case: Bulgarian

Referring court

Varnenski Administrativen Sad

Parties to the main proceedings

Applicant: Digitalnet OOD

Defendant: Nachalnik na Mitnicheski punkt Varna Zapad pri Mitnitsi Varna

Questions referred

| 1. | What is to be understood by the term ‘Internet’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), (1) which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300? |
| --- | --- |

1.

What is to be understood by the term ‘Internet’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), (1) which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300?

| 2. | What is to be understood by the term ‘modem’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300? |
| --- | --- |

2.

What is to be understood by the term ‘modem’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300?

| 3. | What is to be understood by the terms ‘modulation’ and ‘demodulation’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if they are used in relation to the classification of goods under TARIC code 8528711300? |
| --- | --- |

3.

What is to be understood by the terms ‘modulation’ and ‘demodulation’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if they are used in relation to the classification of goods under TARIC code 8528711300?

| 4. | What is the relevant function (main function) of the set-top box TF6100DCC apparatus, pursuant to which the tariff classification must be carried out: receiving television signals or the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet? |
| --- | --- |

4.

What is the relevant function (main function) of the set-top box TF6100DCC apparatus, pursuant to which the tariff classification must be carried out: receiving television signals or the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet?

| 5. | If the relevant function (main function) of the set-top box TF6100DCC apparatus is the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet, is the type of modulation and demodulation which the modem brings about or the type of modem used relevant to the tariff classification, or does it suffice that access to the internet is provided by means of the modem? |
| --- | --- |

5.

If the relevant function (main function) of the set-top box TF6100DCC apparatus is the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet, is the type of modulation and demodulation which the modem brings about or the type of modem used relevant to the tariff classification, or does it suffice that access to the internet is provided by means of the modem?

| 6. | Under which subheading and which code should apparatus corresponding to the description of the apparatus TF6100DCC be classified? |
| --- | --- |

6.

Under which subheading and which code should apparatus corresponding to the description of the apparatus TF6100DCC be classified?

| 7. | In the event that the set-top box TF6100DCC is to be classified under subheading 8521 90 00 of the combined nomenclature, is the application of a positive rate of customs duty lawful as a matter of Community law, if such classification would constitute a violation of the Community’s obligations under the Information Technology Agreement and Article II:l(b) of the General Agreement on Tariffs and Trade 1994, or does classification under heading 8521 entail a conclusion that the set-top box TF6100DCC falls outside the scope of the relevant part of the Information Technology Agreement? |
| --- | --- |

7.

In the event that the set-top box TF6100DCC is to be classified under subheading 8521 90 00 of the combined nomenclature, is the application of a positive rate of customs duty lawful as a matter of Community law, if such classification would constitute a violation of the Community’s obligations under the Information Technology Agreement and Article II:l(b) of the General Agreement on Tariffs and Trade 1994, or does classification under heading 8521 entail a conclusion that the set-top box TF6100DCC falls outside the scope of the relevant part of the Information Technology Agreement?

---

(1)  OJ 2009 L 291, p. 1.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/25 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/25

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Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 28 June 2011 — K

(Case C-322/11)

2011/C 252/46

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Appellant: K

Other parties: Veronsaajien oikeudenvalvontayksikkö, Valtiovarainministeriö

Question referred

Must Articles 63 TFEU and 65 TFEU be interpreted as precluding national legislation under which a person with general liability to tax in Finland cannot deduct a loss incurred on the transfer of immovable property situated in France from gains on the transfer of shares taxable in Finland, whereas a person with general liability to tax in Finland may on certain conditions deduct a loss on the transfer of equivalent immovable property situated in Finland from gains on transfer?

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/25 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/25

---

Reference for a preliminary ruling from the Varnenski Administrativen Sad (Bulgaria). lodged on 29 June 2011 — Tsifrova kompania v Nachalnik na Mitnicheski punkt Varna Zapad pri Mitnitsi Varna

(Case C-330/11)

2011/C 252/47

Language of the case: Bulgarian

Referring court

Varnenski Administrativen Sad

Parties to the main proceedings

Applicant: Tsifrova kompania

Defendant: Nachalnik na Mitnicheski punkt Varna Zapad pri Mitnitsi Varna

Questions referred

| 1. | What is to be understood by the term ‘Internet’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), (1) which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300? |
| --- | --- |

1.

What is to be understood by the term ‘Internet’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), (1) which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300?

| 2. | What is to be understood by the term ‘modem’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300? |
| --- | --- |

2.

What is to be understood by the term ‘modem’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300?

| 3. | What is to be understood by the terms ‘modulation’ and ‘demodulation’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if they are used in relation to the classification of goods under TARIC code 8528711300? |
| --- | --- |

3.

What is to be understood by the terms ‘modulation’ and ‘demodulation’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if they are used in relation to the classification of goods under TARIC code 8528711300?

| 4. | What is the relevant function (main function) of the set-top box DC 215 KL apparatus, pursuant to which the tariff classification must be carried out: receiving television signals or the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet? |
| --- | --- |

4.

What is the relevant function (main function) of the set-top box DC 215 KL apparatus, pursuant to which the tariff classification must be carried out: receiving television signals or the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet?

| 5. | If the relevant function (main function) of the set-top box DC 215 KL apparatus is the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet, is the type of modulation and demodulation which the modem brings about or the type of modem used relevant to the tariff classification, or does it suffice that access to the Internet is provided by means of the modem? |
| --- | --- |

5.

If the relevant function (main function) of the set-top box DC 215 KL apparatus is the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet, is the type of modulation and demodulation which the modem brings about or the type of modem used relevant to the tariff classification, or does it suffice that access to the Internet is provided by means of the modem?

| 6. | Under which subheading and which code should apparatus corresponding to the description of the apparatus DC 215 KL be classified? |
| --- | --- |

6.

Under which subheading and which code should apparatus corresponding to the description of the apparatus DC 215 KL be classified?

| 7. | In the event that the set-top box DC 215 KL is to be classified under subheading 8521 90 00 of the combined nomenclature, is the application of a positive rate of customs duty lawful as a matter of Community law, if such classification would constitute a violation of the Community’s obligations under the Information Technology Agreement and Article II:l(b) of the General Agreement on Tariffs and Trade 1994, or does classification under heading 8521 entail a conclusion that the set-top box TF6100DCC falls outside the scope of the relevant part of the Information Technology Agreement? |
| --- | --- |

7.

In the event that the set-top box DC 215 KL is to be classified under subheading 8521 90 00 of the combined nomenclature, is the application of a positive rate of customs duty lawful as a matter of Community law, if such classification would constitute a violation of the Community’s obligations under the Information Technology Agreement and Article II:l(b) of the General Agreement on Tariffs and Trade 1994, or does classification under heading 8521 entail a conclusion that the set-top box TF6100DCC falls outside the scope of the relevant part of the Information Technology Agreement?

---

(1)  OJ 2008 L 291, p. 1.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/26 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/26

---

Action brought on 5 July 2011 — European Commission v Republic of Austria

(Case C-352/11)

2011/C 252/48

Language of the case: German

Parties

Applicant: European Commission (represented by: G. Wilms and A. Alcover San Pedro, Agents)

Defendant: Republic of Austria

Form of order sought

| — | Declare that, by failing to grant permits in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (IPPC Directive), to reconsider or if necessary renew and check compliance with existing permits, in order to ensure that all existing installations are operated in accordance with the requirements of Articles 3, 7, 9, 10 and 13, 14(a) and (b) and Article 15(2) of the IPPC Directive, the Republic of Austria has failed to fulfil its obligations under Article 5(1) of the IPPC directive; |
| --- | --- |

—

Declare that, by failing to grant permits in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (IPPC Directive), to reconsider or if necessary renew and check compliance with existing permits, in order to ensure that all existing installations are operated in accordance with the requirements of Articles 3, 7, 9, 10 and 13, 14(a) and (b) and Article 15(2) of the IPPC Directive, the Republic of Austria has failed to fulfil its obligations under Article 5(1) of the IPPC directive;

| — | Order the Republic of Austria to pay the costs. |
| --- | --- |

—

Order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Pursuant to the provisions of the IPPC Directive, (1) since 30 October 2007‘existing installations’ within the meaning of that directive require a permit.

According to the information currently available to the Commission, at the relevant time not all of those ‘existing installations’ situated in the Republic of Austria are in possession of the necessary permit.

---

(1)  Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (OJ 2008 L 24, p. 8)

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/26 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/26

---

Action brought on 5 July 2011 — European Commission v Czech Republic

(Case C-353/11)

2011/C 252/49

Language of the case: Czech

Parties

Applicant: European Commission (represented by: E. Manhaeve and M. Thomannová-Körnerová, acting as Agents)

Defendant: Czech Republic

Form of order sought

| — | declare that, by failing to adopt all the necessary legal and administrative measures necessary to comply with Commission Directive 2010/5/EU of 8 February 2010 amending Directive 98/8/EC of the European Parliament and of the Council to include acrolein as an active substance in Annex I thereto (1), or in any event by failing to notify the Commission of such measures, the Czech Republic has failed to fulfil its obligations under Article 2 of that directive; |
| --- | --- |

—

declare that, by failing to adopt all the necessary legal and administrative measures necessary to comply with Commission Directive 2010/5/EU of 8 February 2010 amending Directive 98/8/EC of the European Parliament and of the Council to include acrolein as an active substance in Annex I thereto (1), or in any event by failing to notify the Commission of such measures, the Czech Republic has failed to fulfil its obligations under Article 2 of that directive;

| — | order the Czech Republic to pay the costs. |
| --- | --- |

—

order the Czech Republic to pay the costs.

Pleas in law and main arguments

The prescribed period for transposing the directive into domestic law expired on 31 August 2010.

---

(1)  OJ 2010 L 36, p. 24

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/26 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/26

---

Order of the President of the Court of 9 February 2011 — Acegas-APS SpA, formerly Acqua, Elettricità, Gas e servizi SpA (Acegas) v European Commission

(Case C-341/09 P) (1)

2011/C 252/50

Language of the case: Italian

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 267, 7.11.2009.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/26 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/26

---

Order of the President of the Third Chamber of the Court of 11 February 2011 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — Reti Televisive Italiane SpA (RTI) v Autorità per le Garanzie nelle Communicazioni, Sky Italia Srl

(Case C-390/09) (1)

2011/C 252/51

Language of the case: Italian

The President of the Third Chamber has ordered that the case be removed from the register.

---

(1)  OJ C 312, 19.12.2009.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/27 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/27

---

Order of the President of the Second Chamber of the Court of 23 May 2011 (reference for a preliminary ruling from the Arbeitsgericht Siegburg (Germany)) — Hüseyin Balaban v Zelter GmbH

(Case C-86/10) (1)

2011/C 252/52

Language of the case: German

The President of the Second Chamber has ordered that the case be removed from the register.

---

(1)  OJ C 113, 1.5.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/27 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/27

---

Order of the President of the Court of 8 June 2011 (references for a preliminary ruling from the Tribunal d’Instance de Dax (France)) — AG2R Prévoyance v SARL Bourdil (C-97/10), SARL Boucalaise de Boulangerie (C-98/10), SARL Baba-Pom (C-99/10)

(Joined Cases C-97/10 to C-99/10) (1)

2011/C 252/53

Language of the case: French

The President of the Court has ordered that the cases be removed from the register.

---

(1)  OJ C 113, 1.5.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/27 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/27

---

Order of the President of the Eighth Chamber of the Court of 19 May 2011 — European Commission v Slovak Republic

(Case C-253/10) (1)

2011/C 252/54

Language of the case: Slovak

The President of the Eighth Chamber has ordered that the case be removed from the register.

---

(1)  OJ C 195, 17.7.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/27 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/27

---

Order of the President of the Court of 15 February 2011 (reference for a preliminary ruling from the Tribunal administratif de Montreuil (France)) — Accor Services France v Le Chèque Déjeuner CCR, Etablissement Public de Santé de Ville-Evrard

(Case C-269/10) (1)

2011/C 252/55

Language of the case: French

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 221, 14.8.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/27 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/27

---

Order of the President of the Seventh Chamber of the Court of 17 March 2011 — European Commission v Hellenic Republic

(Case C-278/10) (1)

2011/C 252/56

Language of the case: Greek

The President of the Seventh Chamber has ordered that the case be removed from the register.

---

(1)  OJ C 209, 31.7.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/27 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/27

---

Order of the President of the Court of 15 June 2011 (reference for a preliminary ruling from the Tribunal Judicial de Amares (Portugal)) — Cristiano Marques Vieira v Companhia de Seguros Tranquilidade SA

(Case C-299/10) (1)

2011/C 252/57

Language of the case: Portuguese

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 234, 28.8.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/27 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/27

---

Order of the President of the Court of 6 June 2011 (reference for a preliminary ruling from the Tribunal Judicial de Póvoa de Lanhoso (Portugal)) — Maria de Jesus Barbosa Rodrigues v Zurich Companhia de Seguros, S.A.

(Case C-363/10) (1)

2011/C 252/58

Language of the case: Portuguese

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 288, 23.10.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/27 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/27

---

Order of the President of the Court of 24 March 2011 — European Commission v French Republic

(Case C-428/10) (1)

2011/C 252/59

Language of the case: French

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 328, 4.12.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/28 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/28

---

Order of the President of the Court of 16 February 2011 — European Commission v Hellenic Republic

(Case C-466/10) (1)

2011/C 252/60

Language of the case: Greek

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 317, 20.11.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/28 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/28

---

Order of the President of the Court of 13 May 2011 — European Commission v Federal Republic of Germany

(Case C-486/10) (1)

2011/C 252/61

Language of the case: German

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 13, 15.1.2011.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/28 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/28

---

Order of the President of the Court of 16 February 2011 (reference for a preliminary ruling from the Tribunal Administratif de Rennes (France)) — L’Océane Immobilière SAS v Direction de contrôle fiscal Ouest

(Case C-487/10) (1)

2011/C 252/62

Language of the case: French

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 346, 18.12.2010.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/28 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/28

---

Order of the President of the Court of 8 April 2011 — European Commission v Slovak Republic

(Case C-531/10) (1)

2011/C 252/63

Language of the case: Slovak

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 30, 29.1.2011.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/28 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/28

---

Order of the President of the Court of 2 May 2011 — European Commission v Ireland

(Case C-570/10) (1)

2011/C 252/64

Language of the case: English

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 63, 26.2.2011.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/28 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/28

---

Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Ivrea (Italy)) — Criminal proceedings against Lucky Emegor

(Case C-50/11) (1)

2011/C 252/65

Language of the case: Italian

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 113, 9.4.2011.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/28 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/28

---

Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Ragusa (Italy)) — Criminal proceedings against Mohamed Mrad

(Case C-60/11) (1)

2011/C 252/66

Language of the case: Italian

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 113, 9.4.2011.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/28 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/28

---

Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the the Tribunale di Rovereto (Italy)) — Criminal proceedings against John Austine

(Case C-63/11) (1)

2011/C 252/67

Language of the case: Italian

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 120, 16.4.2011.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/29 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/29

---

Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Bergamo (Italy)) — Criminal proceedings against Survival Godwin

(Case C-94/11) (1)

2011/C 252/68

Language of the case: Italian

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 139, 7.5.2011.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/29 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/29

---

Order of the President of the First Chamber of the Court of 29 June 2011 (reference for a preliminary ruling from the Corte suprema di cassazione — Italy) — Procuratore generale della Repubblica presso la Corte suprema di cassazione v Demba Ngagne

(Case C-140/11) (1)

2011/C 252/69

Language of the case: Italian

The President of the First Chamber of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 152, 21.5.2011.

---

General Court

| 27.8.2011 | EN | Official Journal of the European Union | C 252/30 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/30

---

Judgment of the General Court of 12 July 2011 — Hitachi and Others v Commission

(Case T-112/07) (1)

(Competition - Agreements, decisions and concerted practices - Market in gas insulated switchgear projects - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Market-sharing - Rights of the defence - Proof of the infringement - Single and continuous infringement - Fines - Gravity and duration of the infringement - Deterrent effect - Cooperation)

2011/C 252/70

Language of the case: English

Parties

Applicants: Hitachi Ltd (Tokyo, Japan); Hitachi Europe Ltd (Maidenhead, United Kingdom); and Japan AE Power Systems Corp. (Tokyo) (represented by: M. Reynolds, P. Mansfield and B. Roy, Solicitors, D. Arts, lawyer, N. Green QC, and S. Singla, Barrister)

Defendant: European Commission (represented by: initially F. Arbault, then X. Lewis, and subsequently P. Van Nuffel and J. Bourke, and finally P. Van Nuffel, N. Khan and F. Ronkes Agerbeek, Agents, assisted by J. Holmes, Barrister)

Re:

APPLICATION, primarily, for the annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) to the extent to which it concerns the applicants and annulment of the fines imposed on them and, in the alternative, for the annulment of Article 2 of that decision to the extent to which it concerns the applicants and, in the further alternative, for the annulment or a reduction of the fines imposed on the applicants.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the applicants to pay the costs. |
| --- | --- |

2.

Orders the applicants to pay the costs.

---

(1)  OJ C 129, 9.6.2007.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/30 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/30

---

Judgment of the General Court of 12 July 2011 — Toshiba v Commission

(Case T-113/07) (1)

(Competition - Agreements, decisions and concerted practices - Market in gas insulated switchgear projects - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Market-sharing - Rights of the defence - Proof of the infringement - Single and continuous infringement - Fines - Gravity and duration of the infringement - Statement of reasons - Starting amount - Reference year)

2011/C 252/71

Language of the case: English

Parties

Applicant: Toshiba Corp. (Tokyo, Japan) (represented by: initially J. MacLennan, Solicitor, A. Schulz and J. Borum, lawyers, and subsequently J. MacLennan and A. Schulz)

Defendant: European Commission (represented by: initially F. Arbault and J. Samnadda, then X. Lewis, and subsequently J. Bourke and F. Ronkes Agerbeek, and finally F. Ronkes Agerbeek and N. Khan, Agents)

Re:

APPLICATION, primarily, for the annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) to the extent to which it concerns the applicant and, in the alternative, for the amendment of Articles 1 and 2 of that decision so as to cancel or reduce the fine imposed on the applicant.

Operative part of the judgment

The Court:

| 1. | Annuls Article 2(h) and (i) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) in so far as it concerns Toshiba Corp; |
| --- | --- |

1.

Annuls Article 2(h) and (i) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) in so far as it concerns Toshiba Corp;

| 2. | Dismisses the action as to the remainder; |
| --- | --- |

2.

Dismisses the action as to the remainder;

| 3. | Orders Toshiba to bear three quarters of the costs incurred by the parties before the General Court; |
| --- | --- |

3.

Orders Toshiba to bear three quarters of the costs incurred by the parties before the General Court;

| 4. | Orders the European Commission to bear a quarter of the costs incurred by the parties before the General Court. |
| --- | --- |

4.

Orders the European Commission to bear a quarter of the costs incurred by the parties before the General Court.

---

(1)  OJ C 140, 23.6.2007.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/31 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/31

---

Judgment of the General Court of 12 July 2011 — Fuji Electric v Commission

(Case T-132/07) (1)

(Competition - Agreements, decisions and concerted practices - Market in gas insulated switchgear projects - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Market-sharing - Proof of the infringement - Whether liable for the infringement - Duration of the infringement - Fines - Mitigating circumstances - Cooperation)

2011/C 252/72

Language of the case: English

Parties

Applicant: Fuji Electric (previously Fuji Electric Holdings Co. Ltd and successor in title to Fuji Electric Systems Co. Ltd) (Kawasaki, Japan) (represented by P. Chappatte and P. Walter, Solicitors)

Defendant: European Commission (represented by: initially F. Arbault, and subsequently X. Lewis, J. Bourke and F. Ronkes Agerbeek, and then N. Khan and F. Ronkes Agerbeek, Agents, and J. Holmes, Barrister)

Re:

Application for the partial annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) and reduction of the fine imposed on Fuji Electric Holdings and Fuji Electric Systems

Operative part of the judgment

The Court:

| 1. | Annuls Article 1(h) and Article 2(d) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) to the extent that they find or rely on the finding that Fuji Electric Systems Co. Ltd, the successor in title to which is Fuji Electric Co. Ltd, can be held personally liable for the infringement from September 2000 until 30 June 2001; |
| --- | --- |

1.

Annuls Article 1(h) and Article 2(d) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) to the extent that they find or rely on the finding that Fuji Electric Systems Co. Ltd, the successor in title to which is Fuji Electric Co. Ltd, can be held personally liable for the infringement from September 2000 until 30 June 2001;

| 2. | Sets the amount of the fine imposed on Fuji Electric, formerly named Fuji Electric Holdings Co. Ltd and the successor in title to Fuji Electric Systems, in Article 2(d) of Decision C(2006) 6762 final at EUR 2 200 000; |
| --- | --- |

2.

Sets the amount of the fine imposed on Fuji Electric, formerly named Fuji Electric Holdings Co. Ltd and the successor in title to Fuji Electric Systems, in Article 2(d) of Decision C(2006) 6762 final at EUR 2 200 000;

| 3. | Orders the European Commission to pay one quarter of the costs incurred by Fuji Electric and to bear one quarter of its own costs; |
| --- | --- |

3.

Orders the European Commission to pay one quarter of the costs incurred by Fuji Electric and to bear one quarter of its own costs;

| 4. | Orders Fuji Electric to bear three quarters of its own costs and three quarters of the costs incurred by the Commission. |
| --- | --- |

4.

Orders Fuji Electric to bear three quarters of its own costs and three quarters of the costs incurred by the Commission.

---

(1)  OJ C 140, 23.6.2007.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/31 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/31

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Judgment of the General Court of 12 July 2011 — Mitsubishi Electric v Commission

(Case T-133/07) (1)

(Competition - Agreements, decisions and concerted practices - Market in gas insulated switchgear projects - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Market-sharing - Rights of the defence - Proof of the infringement - Duration of the infringement - Fines - Starting amount - Reference year - Equal treatment)

2011/C 252/73

Language of the case: English

Parties

Applicant: Mitsubishi Electric Corp. (Tokyo, Japan) (represented by: R. Denton, Solicitor, and K. Haegeman, lawyer)

Defendant: European Commission (represented by: F. Arbault and J. Samnadda, then X. Lewis, and subsequently P. Van Nuffel and J. Bourke, and finally P. Van Nuffel and N. Khan, Agents)

Re:

APPLICATION, primarily, for the annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) to the extent to which it concerns the applicant and TM T & D, in the alternative, for the annulment of Article 2(g) of that decision and Article 2(h) thereof, to the extent to which it concerns the applicant and, in the further alternative, amendment of Article 2 of that decision so as to cancel or, failing which, reduce the fine imposed on the applicant.

Operative part of the judgment

The Court:

| 1. | Annuls Article 2(g) and (h) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) in so far as it concerns Mitsubishi Electric Corp; |
| --- | --- |

1.

Annuls Article 2(g) and (h) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) in so far as it concerns Mitsubishi Electric Corp;

| 2. | Dismisses the action as to the remainder; |
| --- | --- |

2.

Dismisses the action as to the remainder;

| 3. | Orders Mitsubishi Electric to bear three quarters of the costs incurred by the parties before the Court; |
| --- | --- |

3.

Orders Mitsubishi Electric to bear three quarters of the costs incurred by the parties before the Court;

| 4. | Orders the European Commission to bear a quarter of the costs incurred by the parties before the Court. |
| --- | --- |

4.

Orders the European Commission to bear a quarter of the costs incurred by the parties before the Court.

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(1)  OJ C 140, 23.6.2007.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/32 |
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27.8.2011

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Official Journal of the European Union

C 252/32

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Judgment of the General Court of 12 July 2011 — Aldi Einkauf v OHIM — Illinois Tools Works (TOP CRAFT)

(Case T-374/08) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark TOP CRAFT - Earlier national figurative marks Krafft - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Genuine use of the earlier marks - Article 43(2) of Regulation No 40/94 (now Article 42(2) of Regulation 207/2009) and Rule 22 of Regulation (EC) No 2868/95)

2011/C 252/74

Language of the case: German

Parties

Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks and C. Fürsen, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Illinois Tools Works, Inc. (Glenview, United States)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 25 June 2008 (Case No R 952/2007-2), relating to opposition proceedings between Illinois Tools Works, Inc. and Aldi Einkauf GmbH & Co. OHG

Operative part of the judgment

The Court:

| 1. | annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 25 June 2008 (Case No R 952/2007-2), relating to opposition proceedings between Illinois Tools Works, Inc. and Aldi Einkauf GmbH & Co. OHG); |
| --- | --- |

1.

annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 25 June 2008 (Case No R 952/2007-2), relating to opposition proceedings between Illinois Tools Works, Inc. and Aldi Einkauf GmbH & Co. OHG);

| 2. | orders OHIM to pay the costs. |
| --- | --- |

2.

orders OHIM to pay the costs.

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(1)  OJ C 313, 6.12.2008.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/32 |
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27.8.2011

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Official Journal of the European Union

C 252/32

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Judgment of the General Court of 12 July 2011 — Commission v Q

(Case T-80/09 P) (1)

(Appeal - Civil service - Officials - Cross-appeal - Psychological harassment - Article 12a of the Staff Regulations - Communication on the policy on psychological harassment at the Commission - Duty on the part of the administration to provide assistance - Article 24 of the Staff Regulations - Scope - Request for assistance - Provisional distancing measures - Duty to have regard for the welfare of officials - Liability - Claim for damages - Unlimited jurisdiction - Conditions for implementation - Staff report - Action for annulment - Interest in bringing proceedings)

2011/C 252/75

Language of the case: French

Parties

Appellant: European Commission (represented by: V. Joris, D. Martin and B. Egger, Agents)

Other party to the proceedings: Q (Domsjö, Sweden) (represented by: S. Rodrigues and Y. Minatchy, lawyers)

Re:

Appeal against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 9 December 2008 in Case F-52/05 Q v Commission, not yet published in the ECR, seeking to have that judgment set aside.

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 9 December 2008 in Case F-52/05 Q v Commission, not yet published in the ECR, in so far as, at paragraph 2 of the operative part of the judgment, it orders the Commission of the European Communities to pay to Q compensation in the sum of EUR 500 together with the sum of EUR 15 000, in so far as that sum is intended to make reparation for the non-material damage suffered by Q as a result of the delay in opening the administrative inquiry, and, for the purpose of dismissing the application at first instance as to the remainder at paragraph 3 of the operative part, rules, at paragraphs 147 to 189 of the grounds of the judgment, on ‘the complaint of psychological harassment raised by [Q]’ and, at paragraph 230 of the grounds, finds that there is no need to rule on the claim for annulment of Q’s career development reports drawn up in respect of the periods from 1 January to 31 October and from 1 November to 31 December 2003, respectively. |
| --- | --- |

1.

Sets aside the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 9 December 2008 in Case F-52/05 Q v Commission, not yet published in the ECR, in so far as, at paragraph 2 of the operative part of the judgment, it orders the Commission of the European Communities to pay to Q compensation in the sum of EUR 500 together with the sum of EUR 15 000, in so far as that sum is intended to make reparation for the non-material damage suffered by Q as a result of the delay in opening the administrative inquiry, and, for the purpose of dismissing the application at first instance as to the remainder at paragraph 3 of the operative part, rules, at paragraphs 147 to 189 of the grounds of the judgment, on ‘the complaint of psychological harassment raised by [Q]’ and, at paragraph 230 of the grounds, finds that there is no need to rule on the claim for annulment of Q’s career development reports drawn up in respect of the periods from 1 January to 31 October and from 1 November to 31 December 2003, respectively.

| 2. | Dismisses the appeal and cross-appeal as to the remainder. |
| --- | --- |

2.

Dismisses the appeal and cross-appeal as to the remainder.

| 3. | Refers the case back to the Civil Service Tribunal for a ruling on the claim seeking annulment of the career development reports referred to above and on the sum to be paid to Q by the Commission solely in respect of the non-material damage resulting from the Commission’s refusal to take a provisional distancing measure. |
| --- | --- |

3.

Refers the case back to the Civil Service Tribunal for a ruling on the claim seeking annulment of the career development reports referred to above and on the sum to be paid to Q by the Commission solely in respect of the non-material damage resulting from the Commission’s refusal to take a provisional distancing measure.

| 4. | Costs reserved. |
| --- | --- |

4.

Costs reserved.

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(1)  OJ C 102, 1.5.2009.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/33 |
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27.8.2011

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Official Journal of the European Union

C 252/33

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Judgment of the General Court of 12 July 2011 — Slovenia v Commission

(Case T-197/09) (1)

(EAGGF - ‘Guarantee’ Section - Expenditure excluded from Community financing - Arable crops)

2011/C 252/76

Language of the case: Slovene

Parties

Applicant: Republic of Slovenia (represented initially by: Ž. Cilenšek Bončina, Agent, and subsequently by L. Bembič, Agent, and J. Sladič, lawyer)

Defendant: European Commission (represented initially by: T. van Rijn and K. Banks, subsequently by F. Jimeno Fernández and M. Žebre, and finally by F. Jimeno Fernández and B. Rous, acting as Agents)

Re:

Annulment of Commission Decision 2009/253/EC of 19 March 2009 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (OJ 2009 L 75, p. 15), in so far as it excludes certain expenditure incurred by the Republic of Slovenia.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Republic of Slovenia to bear its own costs and to pay those incurred by the European Commission. |
| --- | --- |

2.

Orders the Republic of Slovenia to bear its own costs and to pay those incurred by the European Commission.

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(1)  OJ C 180, 1.8.2009.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/33 |
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27.8.2011

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Official Journal of the European Union

C 252/33

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Order of the President of the General Court of 21 June 2011 — MB System v Commission

(Case T-209/11 R)

(Application for interim measures - State aid - Recovery obligation - Application for stay of execution - Urgency - Balancing of interests)

2011/C 252/77

Language of the case: German

Parties

Applicant: MB System GmbH & Co. KG (Nordhausen, Germany) (represented by: G. Brüggen, M. Ackermann and C. Geiert, lawyers)

Defendant: European Commission (represented by: F. Erlbacher and T. Maxian Rusche, acting as Agents)

Re:

Application for suspension in part of Commission Decision C(2010) 8289 final of 14 December 2010 on State aid No C 38/2005 (ex NN 52/2004) granted by Germany to the Biria Group.

Operative part of the order

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

1.

The application for interim measures is dismissed.

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/33 |
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27.8.2011

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Official Journal of the European Union

C 252/33

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Action brought on 16 May 2011 — Zinātnes, inovāciju un testēšānas centrs v European Commission

(Case T-259/11)

2011/C 252/78

Language of the case: Latvian

Parties

Applicant: Zinātnes, inovāciju un testēšānas centrs (represented by: E. Darapolskis, lawyer)

Defendant: European Commission

Form of order sought

| — | Annulment of the decision of the European Commission concerning contract 2003/004-979-06-03/1/0027 ‘Būvmateriālu inivāciju un testēšānas centra izveide’ concluded in the framework of the 2003 Latvian national PHARE programme, and a declaration that there are no grounds for the recovery of the financing for the PHARE programme in the amount of EUR 1 576 010,80. |
| --- | --- |

—

Annulment of the decision of the European Commission concerning contract 2003/004-979-06-03/1/0027 ‘Būvmateriālu inivāciju un testēšānas centra izveide’ concluded in the framework of the 2003 Latvian national PHARE programme, and a declaration that there are no grounds for the recovery of the financing for the PHARE programme in the amount of EUR 1 576 010,80.

Pleas in law and main arguments

By the decision of the European Commission (‘Commission’) concerning contract 2003/004-979-06-03/1/0027 ‘Būvmateriālu inivāciju un testēšānas centra izveide’ concluded in the framework of the 2003 Latvian national PHARE programme (‘the contested decision’) it was decided to recover financial aid granted by the European Union amounting to EUR 1 474 200.

The applicant considers that, by adopting the contested decision, the Commission has disregarded the financial protocol adopted on 19 September 2003 by the European Community and the Republic of Latvia, concerning the financing of the 2003 Latvian national PHARE programme (‘financial protocol’), on the basis of which a contract regarding the grant of financing was concluded with the applicant on 23 August 2005 and aid under PHARE was granted in the amount of EUR 1 576 010,80. In addition, the applicant maintains that the Commission failed to comply with Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (1) (‘Financial Regulation’) and Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (2) (‘implementing regulation’).

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

First, the applicant claims that the Commission adopted the contested decision without having carried out a careful examination of the circumstances of the matter and an assessment of the facts, basing its decision solely on statements by officials of the Republic of Latvia, which, in turn, were not based on reports or decisions of the competent authorities. The applicant considers that, before beginning the procedure for recovery, the Commission was required to prove the infringements mentioned in the statements by those officials of the Republic of Latvia and obtain all the necessary evidence, which the Commission did not do, limiting itself to examining formally the previous correspondence. In its opinion, the result was that in the present case important facts were overlooked and the financing of the PHARE programme which had been paid was reclaimed without grounds.

Second, the applicant claims that the Commission did not make use of the options which the financial protocol, the Financial Regulation and the implementing regulation allow it. On that point, the applicant asserts that, in pointing to the existence of infringements, the Commission must first have calculated the financial impact on the Community budget; subsequently if it had observed that the infringements could have significant financial consequences it should have allowed the Republic of Latvia a period of time to remedy them. It asserts that, in the present case, the Commission did not make use of those options and as a result the contested decision breached the financial protocol, Article 71 of the Financial Regulation and Articles 79 and 80 of the implementing regulation.

Third, the applicant asserts that the contested decision is disproportionate and was adopted in breach of the procedure for adoption of decisions laid down not only in the financial protocol, but also in the Financial Regulation and the implementing regulation. In addition, it alleges that the contested decision was not published, it did not give a date of adoption and the applicant learned of the decision only after 9 March 2011 in the context of judicial proceedings brought in Latvia.

Fourth, the applicant maintains that the contested decision had serious consequences for it and caused it to suffer losses, given that it is the cause of judicial proceedings brought against it and prevents it from continuing to receive financing from the PHARE programme.

Fifthly and finally, the applicant considers that the contested decision seriously damaged its reputation, given that, because of the unlawful actions of the Commission, the participation of new partners in the project has been jeopardised and the confidence of investors in the applicant as a safe and stable financial partner has greatly decreased.

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(1)  OJ L 248, 16.9.2002, p. 1.

(2)  OJ L 357, 31.12.2002, p. 1.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/34 |
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27.8.2011

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Official Journal of the European Union

C 252/34

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Action brought on 1 June 2011 — Kieffer Omnitec v Commission

(Case T-288/11)

2011/C 252/79

Language of the case: French

Parties

Applicant: A+P Kieffer Omnitec Sàrl (Luxembourg, Luxembourg) (represented by: A. Delvaux and V. Bertrand, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | declare the action for annulment admissible; |
| --- | --- |

—

declare the action for annulment admissible;

| — | annul the decision by which the European Commission rejected the applicant’s tender and awarded the contract to another tenderer, a decision of which the applicant was informed by letter of 1 April 2011, received on 5 April 2011; |
| --- | --- |

—

annul the decision by which the European Commission rejected the applicant’s tender and awarded the contract to another tenderer, a decision of which the applicant was informed by letter of 1 April 2011, received on 5 April 2011;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

This action seeks the annulment of the Commission’s decision of 1 April 2011 rejecting the tender submitted by the applicant in the tendering procedure for the conclusion of a contract for Maintenance of HVAC, sprinkler, and water and sanitary installations at the Joseph Bech Building in Luxembourg and awarding the contract to another tenderer (OJ 2010/S 241-367523).

In support of the action, the applicant relies on two pleas in law:

| 1. | First plea in law, alleging infringement of Article 89(1) and (2) and Article 92 of the Financial Regulation, Article 135(1) and (5) of the Implementing Regulation and Article 49 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, (1) and of the principles of transparency, equality and proportionality in so far as the European Commission requires the tenderer to provide ‘the valid ISO certificate for the whole of its maintenance activity, issued by the certification body’. The applicant complains, first, that the European Commission did not set out the selection criterion clearly and precisely in the absence of any specification in the tender specifications of the ISO certification number which was required to be submitted, second, that it required from the tenderers ISO certification ‘for the whole of their maintenance activity’ and not only for the market concerned and, third, that it did not allow the tenderers to demonstrate that their level of quality was similar to that of the ISO certification. |
| --- | --- |

1.

First plea in law, alleging infringement of Article 89(1) and (2) and Article 92 of the Financial Regulation, Article 135(1) and (5) of the Implementing Regulation and Article 49 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, (1) and of the principles of transparency, equality and proportionality in so far as the European Commission requires the tenderer to provide ‘the valid ISO certificate for the whole of its maintenance activity, issued by the certification body’. The applicant complains, first, that the European Commission did not set out the selection criterion clearly and precisely in the absence of any specification in the tender specifications of the ISO certification number which was required to be submitted, second, that it required from the tenderers ISO certification ‘for the whole of their maintenance activity’ and not only for the market concerned and, third, that it did not allow the tenderers to demonstrate that their level of quality was similar to that of the ISO certification.

| 2. | Second plea in law, alleging infringement of the obligation to state reasons stemming from Article 296 TFEU, Article 100(2) of the Financial Regulation, infringement of the tendering specifications and the annexes thereto, and a manifest error of assessment in so far as the European Commission rejected A+P KIEFFER OMNITEC’s tender on the ground that it did not satisfy criterion No 16, since it had not submitted conclusive and relevant documents to demonstrate that the candidates possessed the required qualifications. The applicant claims, first, that criterion No 16 concerned ‘the statement indicating the average annual manpower with the required profile during the last three years present at all the members of the possible group’ and that page 27/37 of Annex II to the tendering specifications refers only to the candidates’ knowledge of languages and, second, that the applicant did indeed adduce proof that one of the candidates had the qualifications required at page 28/38 of Annex II to the tendering specifications and submitted conclusive documents to that effect. In the case of the other candidate, the contract documents did not require that the qualifications required for site manager be satisfied. |
| --- | --- |

2.

Second plea in law, alleging infringement of the obligation to state reasons stemming from Article 296 TFEU, Article 100(2) of the Financial Regulation, infringement of the tendering specifications and the annexes thereto, and a manifest error of assessment in so far as the European Commission rejected A+P KIEFFER OMNITEC’s tender on the ground that it did not satisfy criterion No 16, since it had not submitted conclusive and relevant documents to demonstrate that the candidates possessed the required qualifications. The applicant claims, first, that criterion No 16 concerned ‘the statement indicating the average annual manpower with the required profile during the last three years present at all the members of the possible group’ and that page 27/37 of Annex II to the tendering specifications refers only to the candidates’ knowledge of languages and, second, that the applicant did indeed adduce proof that one of the candidates had the qualifications required at page 28/38 of Annex II to the tendering specifications and submitted conclusive documents to that effect. In the case of the other candidate, the contract documents did not require that the qualifications required for site manager be satisfied.

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(1)  OJ 2004 L 134, p. 114.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/35 |
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Action brought on 14 June 2011 — ABN AMRO Group v Commission

(Case T-319/11)

2011/C 252/80

Language of the case: English

Parties

Applicant: ABN AMRO Group NV (Amsterdam, Netherlands) (represented by: W. Knibbeler and P. van den Berg, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul article 5 of the Commission Decision of 5 April 2011 on the measures No C 11/2009 (ex NN 53b/2008, NN 2/2010 and N 19/2010) implemented by Dutch State for ABN AMRO Group NV; and |
| --- | --- |

—

Annul article 5 of the Commission Decision of 5 April 2011 on the measures No C 11/2009 (ex NN 53b/2008, NN 2/2010 and N 19/2010) implemented by Dutch State for ABN AMRO Group NV; and

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the contested Decision’s findings in relation to the scope of the acquisition ban contained in article 5, are vitiated by the following errors of law and must therefore be annulled:






  — | Infringement of article 107(3)(b) TFEU and misapplication of the principles and guidelines set out in the Commission’s Communications (1); |
| --- | --- | --- |

1.

First plea in law, alleging that the contested Decision’s findings in relation to the scope of the acquisition ban contained in article 5, are vitiated by the following errors of law and must therefore be annulled:

—

Infringement of article 107(3)(b) TFEU and misapplication of the principles and guidelines set out in the Commission’s Communications (1);

| — | Infringement of the principle of proportionality by making the approval of the aid measures conditional upon an acquisition ban which is not adequate, necessary or proportionate; |
| --- | --- |

—

Infringement of the principle of proportionality by making the approval of the aid measures conditional upon an acquisition ban which is not adequate, necessary or proportionate;

| — | Infringement of the principle of equal treatment by imposing an acquisition ban which is significantly stricter compared to acquisition bans imposed by the Commission in other cases; |
| --- | --- |

—

Infringement of the principle of equal treatment by imposing an acquisition ban which is significantly stricter compared to acquisition bans imposed by the Commission in other cases;

| — | Infringement of the principle of sound administration as a result of not examining carefully and individually all relevant aspects of the individual case, including the need for and consequences of the acquisition ban as imposed through the Decision, and infringement of article 296 TFEU resulting from a failure to provide adequate reasoning for the said Decision. |
| --- | --- |

—

Infringement of the principle of sound administration as a result of not examining carefully and individually all relevant aspects of the individual case, including the need for and consequences of the acquisition ban as imposed through the Decision, and infringement of article 296 TFEU resulting from a failure to provide adequate reasoning for the said Decision.

| 2. | Second plea in law, alleging that the contested Decision’s findings in relation to the duration of the acquisition ban contained in article 5, are vitiated by the following errors of law and of assessment and must therefore be annulled:






  — | Infringement of article 345 TFEU by making the duration of the acquisition ban dependent upon State ownership; |
| --- | --- | --- |

2.

Second plea in law, alleging that the contested Decision’s findings in relation to the duration of the acquisition ban contained in article 5, are vitiated by the following errors of law and of assessment and must therefore be annulled:

—

Infringement of article 345 TFEU by making the duration of the acquisition ban dependent upon State ownership;

| — | Infringement of article 107(3)(b) TFEU and misapplication of the principles and guidelines set out in the Commission’s Communications (2); |
| --- | --- |

—

Infringement of article 107(3)(b) TFEU and misapplication of the principles and guidelines set out in the Commission’s Communications (2);

| — | Infringement of the principle of equal treatment by imposing an acquisition ban which has a significant longer duration compared to acquisition bans imposed by the Commission in other cases; |
| --- | --- |

—

Infringement of the principle of equal treatment by imposing an acquisition ban which has a significant longer duration compared to acquisition bans imposed by the Commission in other cases;

| — | Infringement of the principles of proportionality and sound administration. |
| --- | --- |

—

Infringement of the principles of proportionality and sound administration.

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(1)  Communication from the Commission on the application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis (OJ 2008 C 270, p. 8); Communication from the Commission on the recapitalization of financial institutions in the current financial crisis: limitation of aid to the minimum necessary and safeguards against undue distortions of competition (OJ 2009 C 10, p. 2); Communication from the Commission on the treatment of impaired assets in the community banking sector (OJ 2009 C 72, p. 1); Communication from the Commission on the return to viability and the assessment of restructuring measures in the financial sector in the current crisis under the state aid rules (OJ 2009 C 195 p. 9).

(2)  See footnote 1

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/36 |
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Action brought on 17 June 2011 — Republic of Hungary v European Commission

(Case T-320/11)

2011/C 252/81

Language of the case: Hungarian

Parties

Applicant: Republic of Hungary (represented by: M. Fehér, K Szíjjártó and K. Veres, Agents)

Defendant: European Commission

Form of order sought

| — | Annulment of 2011/192/EU: Commission Decision of 28 March 2011 excluding from EU financing certain expenditure incurred by Hungary under the programme for the support for pre-accession measures for agriculture and rural development (Sapard) in 2004. |
| --- | --- |

—

Annulment of 2011/192/EU: Commission Decision of 28 March 2011 excluding from EU financing certain expenditure incurred by Hungary under the programme for the support for pre-accession measures for agriculture and rural development (Sapard) in 2004.

| — | An order that the Commission pay the costs. |
| --- | --- |

—

An order that the Commission pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three plea(s) in law.

| 1. | In the grounds of its application the applicant alleges, as its first plea in law, the infringement of the law of the European Union by the Commission. It states that the financial reduction applied by the Commission because of the failure to observe the period of three months laid down is unlawful given that, in its view and contrary to the contention of the Commission, the period of three months for making the Sapard payment laid down by the law of the European Union — specifically, by Article 9(6) of Commission Regulation No 2222/2000/EC (1) and by Article 8(6) of Annex A to the multiannual financial agreement signed by the European Community and the Republic of Hungary on 15 June 2001 — begins to run when the authority has all the supporting documents necessary to make the payments. Consequently, in the event that, for certain reasons, additional supporting documents are necessary, the period does not begin to run until the last of the additional documents has been sent. In addition, according to the applicant, the Commission also breached the principles of cooperation in good faith and protection of legitimate expectations in applying a financial reduction in a situation in which the Hungarian authorities had good reason to believe that their payment procedure complied with European Union law.
  As its second plea in law the applicant alleges that the Commission made a manifest error of assessment in adopting the contested decision since it did not take into account exceptional circumstances and sound reasons which would have justified not applying the financial reduction or its limitation as the case may be. It pointed to the ‘educational’ nature of the Sapard programme and the fact that the prime objective of the Hungarian authorities was to protect the economic interests of the EU, as specific examples of such circumstances. The applicant pointed out that the Commission did not suffer any loss as a result of the failure to comply with the time-limit.
  According to the third plea, which alleges a failure to state reasons, the grounds for the contested decision do not give an adequate account of the reasons why the Commission decided to apply the reduction, nor of how its extent in practice should be quantified, nor, in particular, as regards why the Commission departed from the opinion drawn up in that regard by the conciliation body, according to which there are exceptional circumstances in the present case which should be taken into account for the purposes of applying the reduction. |
| --- | --- |

1.

In the grounds of its application the applicant alleges, as its first plea in law, the infringement of the law of the European Union by the Commission. It states that the financial reduction applied by the Commission because of the failure to observe the period of three months laid down is unlawful given that, in its view and contrary to the contention of the Commission, the period of three months for making the Sapard payment laid down by the law of the European Union — specifically, by Article 9(6) of Commission Regulation No 2222/2000/EC (1) and by Article 8(6) of Annex A to the multiannual financial agreement signed by the European Community and the Republic of Hungary on 15 June 2001 — begins to run when the authority has all the supporting documents necessary to make the payments. Consequently, in the event that, for certain reasons, additional supporting documents are necessary, the period does not begin to run until the last of the additional documents has been sent. In addition, according to the applicant, the Commission also breached the principles of cooperation in good faith and protection of legitimate expectations in applying a financial reduction in a situation in which the Hungarian authorities had good reason to believe that their payment procedure complied with European Union law.

As its second plea in law the applicant alleges that the Commission made a manifest error of assessment in adopting the contested decision since it did not take into account exceptional circumstances and sound reasons which would have justified not applying the financial reduction or its limitation as the case may be. It pointed to the ‘educational’ nature of the Sapard programme and the fact that the prime objective of the Hungarian authorities was to protect the economic interests of the EU, as specific examples of such circumstances. The applicant pointed out that the Commission did not suffer any loss as a result of the failure to comply with the time-limit.

According to the third plea, which alleges a failure to state reasons, the grounds for the contested decision do not give an adequate account of the reasons why the Commission decided to apply the reduction, nor of how its extent in practice should be quantified, nor, in particular, as regards why the Commission departed from the opinion drawn up in that regard by the conciliation body, according to which there are exceptional circumstances in the present case which should be taken into account for the purposes of applying the reduction.

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(1)  Commission Regulation (EC) No 2222/2000 of 7 June 2000 laying down financial rules for the application of Council Regulation (EC) No 1268/1999 on Community support for pre-accession measures for agriculture and rural development in the applicant countries of central and eastern Europe in the pre-accession period (OJ 2000 L 253, p. 5).

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/36 |
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27.8.2011

EN

Official Journal of the European Union

C 252/36

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Action brought on 21 June 2011 — UCP Backus y Johnston v OHIM (Shape of a bottle)

(Case T-323/11)

2011/C 252/82

Language of the case: Spanish

Parties

Applicant: Unión de Cervecerías Peruanas Backus y Johnston SAA (Lima, Peru) (represented by E. Armijo Chávarri, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

| — | Declare the action against the Decision of the Second Board of Appeal of the Office of 23 March 2011 in Case R 2238/2010-2 to be brought in due form and time, and |
| --- | --- |

—

Declare the action against the Decision of the Second Board of Appeal of the Office of 23 March 2011 in Case R 2238/2010-2 to be brought in due form and time, and

| — | Following the appropriate procedural steps, give judgment annulling the abovementioned decision and expressly order the Office to pay the costs. |
| --- | --- |

—

Following the appropriate procedural steps, give judgment annulling the abovementioned decision and expressly order the Office to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark consisting in the shape of a bottle (application No 8.592.081) for goods in Class 32 (‘beer’)

Decision of the Examiner: Application refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect interpretation and application of Article 7(1)(b) of Regulation No 207/2009 on the Community trade mark.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/37 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/37

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Action brought on 17 June 2011 — Amador López v OHIM (AUTOCOACHING)

(Case T-325/11)

2011/C 252/83

Language of the case: Spanish

Parties

Applicant: Pedro Germán Amador López (Barcelona, Spain) (represented by A. Falcón Morales, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

The applicant requests the General Court to find the present application and the accompanying documents to be duly lodged and admissible, to take note that an action has been brought against the Decision of 23 March 2011 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM), partially dismissing the appeal in Case R 1665/2010-2, and, consequently, to annul the said decision.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘AUTOCOACHING’ (application No 8.945.362), for goods and services in Classes 16, 41 and 45.

Decision of the Examiner: Application refused in part.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect application and interpretation of Article 7(1)(b) of Regulation No 207/2009 on the Community trade mark.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/37 |
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27.8.2011

EN

Official Journal of the European Union

C 252/37

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Action brought on 20 June 2011 — TM.E v Commission

(Case T-329/11)

2011/C 252/84

Language of the case: Italian

Parties

Applicant: TM.E SpA — Termomeccanica Ecologia (Milan, Italy) (represented by: C. Malinconico, S. Fidanzia and A. Gigliola, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the European Commission of 20 April 2011 ruling out the need to initiate infringement proceedings against Romania for breach of the Community principles and directives on the award of public procurement contracts and of the ‘Practical Guide to contract procedures financed from the General Budget of the European Communities in the context of external actions’; |
| --- | --- |

—

annul the decision of the European Commission of 20 April 2011 ruling out the need to initiate infringement proceedings against Romania for breach of the Community principles and directives on the award of public procurement contracts and of the ‘Practical Guide to contract procedures financed from the General Budget of the European Communities in the context of external actions’;

| — | order the European Commission to pay damages in the amount of EUR 18 955 106, or such greater or lesser amount as may be considered appropriate by the Court, by way of compensation to TM.E for the damage sustained by TM.E SpA as a result of the breach of Community law on the part of the European Commission itself; |
| --- | --- |

—

order the European Commission to pay damages in the amount of EUR 18 955 106, or such greater or lesser amount as may be considered appropriate by the Court, by way of compensation to TM.E for the damage sustained by TM.E SpA as a result of the breach of Community law on the part of the European Commission itself;

| — | in the alternative, order the European Commission to pay compensation for the loss of opportunity suffered by TM.E, equivalent to EUR 3 791 021, or to pay such greater or lesser amount as may be considered appropriate by the Court; |
| --- | --- |

—

in the alternative, order the European Commission to pay compensation for the loss of opportunity suffered by TM.E, equivalent to EUR 3 791 021, or to pay such greater or lesser amount as may be considered appropriate by the Court;

| — | in the further alternative, order the European Commission to pay compensation for the delay attributable to the European Commission in the performance of its duties, quantifiable as the overall amount represented by the legal fees incurred by TM.E, equal to EUR 73 044,32, or such greater or lesser amount as may be considered appropriate by the Court; |
| --- | --- |

—

in the further alternative, order the European Commission to pay compensation for the delay attributable to the European Commission in the performance of its duties, quantifiable as the overall amount represented by the legal fees incurred by TM.E, equal to EUR 73 044,32, or such greater or lesser amount as may be considered appropriate by the Court;

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

—

order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The present action seeks annulment of the letter of the European Commission of 20 April 2011 ruling out the need to initiate infringement proceedings against Romania for breach of the Community principles and directives on the award of public procurement contracts and of the ‘Practical Guide to contract procedures for EU external actions’ (‘the PRAG’) drawn up by the Commission itself, and compensation for the damage brought about by the Commission in the performance of its duties.

In support of the action, TM.E relies on three pleas in law.

| 1. | First plea in law, alleging breach of the essential procedural requirements laid down in the PRAG, and breach of the Treaties or of any rule of law relating to their application
  TM.E submits that, by the contested decision, the European Commission failed to give a reasoned opinion on the manifest and serious illegalities complained of in relation to the procedure for award of a contract for the project termed ‘Bucharest Wastewater Treatment Plant Rehabilitation: Stage I ISPA 2004/RO/16/P/PE/003-03’ and, in consequence, failed to initiate infringement proceedings against Romania or, what is more, to revoke the Community funding paid to Romania for execution of the project. |
| --- | --- |

1.

First plea in law, alleging breach of the essential procedural requirements laid down in the PRAG, and breach of the Treaties or of any rule of law relating to their application

TM.E submits that, by the contested decision, the European Commission failed to give a reasoned opinion on the manifest and serious illegalities complained of in relation to the procedure for award of a contract for the project termed ‘Bucharest Wastewater Treatment Plant Rehabilitation: Stage I ISPA 2004/RO/16/P/PE/003-03’ and, in consequence, failed to initiate infringement proceedings against Romania or, what is more, to revoke the Community funding paid to Romania for execution of the project.

| 2. | Second plea in law, alleging breach of essential procedural requirements and of the PRAG, and distortion of the facts
  TM.E submits also that the contested decision is flawed because the Commission, distorting the facts covered by the complaint, did not point out the manifest procedural defects for which the Primaria Municipiului Bucaresti was responsible. Specifically, the latter authority first excluded TM.E’s tender because of an alleged anomaly in the financial offer and then, realising that this was seriously unlawful, tried to justify the decision already taken by alleging defects in the technical offer. Furthermore, the Commission did not take account of the fact that, in flagrant breach of the rights of the defence and of Community principles, the application for annulment of the contract was not examined in the proceedings before the Romanian judicial authority on the pretext that stamp duty in the amount of EUR 7,3 million had not been paid. |
| --- | --- |

2.

Second plea in law, alleging breach of essential procedural requirements and of the PRAG, and distortion of the facts

TM.E submits also that the contested decision is flawed because the Commission, distorting the facts covered by the complaint, did not point out the manifest procedural defects for which the Primaria Municipiului Bucaresti was responsible. Specifically, the latter authority first excluded TM.E’s tender because of an alleged anomaly in the financial offer and then, realising that this was seriously unlawful, tried to justify the decision already taken by alleging defects in the technical offer. Furthermore, the Commission did not take account of the fact that, in flagrant breach of the rights of the defence and of Community principles, the application for annulment of the contract was not examined in the proceedings before the Romanian judicial authority on the pretext that stamp duty in the amount of EUR 7,3 million had not been paid.

| 3. | Third plea in law, alleging failure by the Commission to make a finding in relation to the further breach complained of
  TM.E submits also that, in the contested letter, the Commission failed to consider the other aspects brought to its attention. In particular, no appraisal whatsoever was made of the fact that TM.E’s case was adjudicated at first instance by the same judicial authority as had declared the application inadmissible, by a judgment subsequently reversed on appeal, and accordingly by a judicial authority which was not impartial and which should have declined to adjudicate, this being in clear and undeniable breach of the rights of the defence, of the Community principles and of Article 6(1) of the European Convention on Human Rights. Lastly, as regards the claim for compensation, TM.E submits that the inaction attributable to the Commission, as well as its failure to revoke the Community funding paid to Romania in connection with the project in question, caused considerable financial damage because of the failure to execute the procurement contract, or because of TM.E’s loss of any chance of being awarded that contract and, in any event, damage in the form of delay which compelled TM.E to engage in costly legal proceedings before the Romanian judicial authorities. |
| --- | --- |

3.

Third plea in law, alleging failure by the Commission to make a finding in relation to the further breach complained of

TM.E submits also that, in the contested letter, the Commission failed to consider the other aspects brought to its attention. In particular, no appraisal whatsoever was made of the fact that TM.E’s case was adjudicated at first instance by the same judicial authority as had declared the application inadmissible, by a judgment subsequently reversed on appeal, and accordingly by a judicial authority which was not impartial and which should have declined to adjudicate, this being in clear and undeniable breach of the rights of the defence, of the Community principles and of Article 6(1) of the European Convention on Human Rights. Lastly, as regards the claim for compensation, TM.E submits that the inaction attributable to the Commission, as well as its failure to revoke the Community funding paid to Romania in connection with the project in question, caused considerable financial damage because of the failure to execute the procurement contract, or because of TM.E’s loss of any chance of being awarded that contract and, in any event, damage in the form of delay which compelled TM.E to engage in costly legal proceedings before the Romanian judicial authorities.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/38 |
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27.8.2011

EN

Official Journal of the European Union

C 252/38

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Action brought on 24 June 2011 — Italiana Calzature v OHIM — Vicini (Giuseppe GIUSEPPE ZANOTTI DESIGN)

(Case T-336/11)

2011/C 252/85

Language in which the application was lodged: Italian

Parties

Applicant: Società Italiana Calzature SpA (Milan, Italy) (represented by: A. Rapisardi and C. Ginevra, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Vicini SpA (San Mauro Pascoli, Italy)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of 8 April 2011 in Case No R 0634/2010-2 and, accordingly, uphold the decision of the Opposition Division of 5 March 2010 relating to Opposition No 1350711. |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of 8 April 2011 in Case No R 0634/2010-2 and, accordingly, uphold the decision of the Opposition Division of 5 March 2010 relating to Opposition No 1350711.

| — | Order OHIM to pay the costs of the proceedings. |
| --- | --- |

—

Order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: VICINI SpA

Community trade mark concerned: Figurative mark containing the word element ‘GIUSEPPE’ (application for registration No 6.513.386), for goods and services in Classes 18 and 25

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Community word mark ‘ZANOTTI’ (No 244.277), for goods and services in Class 25, and Italian figurative mark containing the word element ‘Zanotti’, for goods in Classes 18 and 25

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Opposition rejected in its entirety

Pleas in law: Misinterpretation and misapplication of Article 8(2)(b) of Regulation No 207/2009 on the Community trade mark.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/38 |
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27.8.2011

EN

Official Journal of the European Union

C 252/38

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Action brought on 24 June 2011 — Italiana Calzature v OHIM — Vicini (Giuseppe BY GIUSEPPE ZANOTTI)

(Case T-337/11)

2011/C 252/86

Language in which the application was lodged: Italian

Parties

Applicant: Società Italiana Calzature SpA (Milan, Italy) (represented by: A. Rapisardi and C. Ginevra, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Vicini SpA (San Mauro Pascoli, Italy)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of 8 April 2011 in Case No R 0918/2010-2 and, accordingly, uphold the decision of the Opposition Division of 30 April 2010 relating to Opposition No 992653 |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of 8 April 2011 in Case No R 0918/2010-2 and, accordingly, uphold the decision of the Opposition Division of 30 April 2010 relating to Opposition No 992653

| — | Order OHIM to pay the costs of the proceedings. |
| --- | --- |

—

Order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: VICINI SpA

Community trade mark concerned: Figurative mark containing the word element ‘Giuseppe BY GIUSEPPE ZANOTTI’ (application for registration No 992.653), for goods in Classes 18 and 25

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Earlier Community word mark ‘ZANOTTI’ (No 244.277), for goods in Class 25

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Opposition rejected in its entirety

Pleas in law: Misinterpretation and misapplication of Article 8(2)(b) of Regulation No 207/2009 on the Community trade mark.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/39 |
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27.8.2011

EN

Official Journal of the European Union

C 252/39

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Action brought on 30 June 2011 — Getty Images v OHIM (PHOTOS.COM)

(Case T-338/11)

2011/C 252/87

Language of the case: English

Parties

Applicant: Getty Images (US), Inc. (Seattle, United States) (represented by: P.G. Olson, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 April 2011 in case R 1831/2010-2; and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 April 2011 in case R 1831/2010-2; and

| — | Order the defendant to pay the costs of the proceedings. |
| --- | --- |

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘PHOTOS.COM’ for goods and services in classes 9, 42 and 45 — Community trade mark application No 8549991

Decision of the Examiner: Partially refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) in conjunction with Article 7(3) of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly found that the mark applied for describes the goods/services for which registration was sought; (ii) erred by disregarding the fact that the applicant’s domain name registration corresponds to the mark applied for and has an effect on the assessment of the mark’s distinctive character; and (iii) wrongly assessed that the documentation was insufficient to document that the mark had acquired distinctiveness and based its decision on misunderstanding and misconception of the evidence presented. Infringement of the principles of equal treatment and legitimate expectation, as the Board of Appeal wrongly rejected the importance of the fact that OHIM has accepted the applicant’s trademark ‘PHOTOS.COM’ for similar goods and services in a prior application.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/39 |
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27.8.2011

EN

Official Journal of the European Union

C 252/39

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Action brought on 28 June 2011 — Spain v European Commission

(Case T-339/11)

2011/C 252/88

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez, Agent)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision 2011/244/EU final of 15 April 2011 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as it is the subject of this action, and |
| --- | --- |

—

annul Commission Decision 2011/244/EU final of 15 April 2011 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as it is the subject of this action, and

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

By the contested decision, the Commission excludes from financing certain costs of environmental management of packaging (for the years 2006, 2007 and 2008), in the sum of EUR 37 252 551,10.

The applicant argues in that regard that, by its Decision 2010/152/EU, the Commission excluded from EAGGF financing EUR 33 339 525,05 in connection with assistance for operational programmes, for it took the view that Community assistance to cover the costs entailed by the environmental management of packaging in the years from 2003 to 2006 had not been granted in accordance with the provisions of European Union law. That decision was the subject of an action for annulment brought by the Kingdom of Spain, at present pending as Case T-230/10.

The arguments put forward in this action are the same as those set forth in Case T-230/10.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/40 |
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27.8.2011

EN

Official Journal of the European Union

C 252/40

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Action brought on 30 June 2011 — Ecologistas en Acción-CODA v Commission

(Case T-341/11)

2011/C 252/89

Language of the case: Spanish

Parties

Applicant: Ecologistas en Acción-CODA (Madrid, Spain) (represented by: J Doreste Harnández, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | annul, for failure to reply within the time limit prescribed, the rejection decision of the Secretary General of the European Commission refusing the applicant access to the requested documents in proceedings GESTDEM 2011/6; |
| --- | --- |

—

annul, for failure to reply within the time limit prescribed, the rejection decision of the Secretary General of the European Commission refusing the applicant access to the requested documents in proceedings GESTDEM 2011/6;

| — | recognise the right of ECOLOGISTAS EN ACCION to receive the requested documents which they were unduly refused by the Commission, that is to say:






  (a) | the summary by the Spanish Ministry of Environment of the information submitted to the European Commission concerning the environmental assessment of the construction of the Grandilla Port, transmitted to the permanent Representation of Spain to the European Union on 4 November 2005, |
| --- | --- | --- |

—

recognise the right of ECOLOGISTAS EN ACCION to receive the requested documents which they were unduly refused by the Commission, that is to say:

(a)

the summary by the Spanish Ministry of Environment of the information submitted to the European Commission concerning the environmental assessment of the construction of the Grandilla Port, transmitted to the permanent Representation of Spain to the European Union on 4 November 2005,

| (b) | the explanatory note, complementary information by Gobierno de Canarias, November 2005, |
| --- | --- |

(b)

the explanatory note, complementary information by Gobierno de Canarias, November 2005,

| (c) | the alternative analysis concerning the location of the Grandilla Port by Gobierno de Canarias, July 2005; and |
| --- | --- |

(c)

the alternative analysis concerning the location of the Grandilla Port by Gobierno de Canarias, July 2005; and

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

At the origin of this action is a request for information of an environmental nature which was implicitly rejected by the European Commission.

The information which was refused consists of 3 documents submitted to the European Commission by the Spanish authorities for the Commission to give an opinion, pursuant to Article 6(4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), on the construction of a port in Granadilla (Tenerife, Spain).

In support of its action, the applicant raises two pleas in law.

| 1. | Its first plea in law in based on an infringement of 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).






  — | The applicant claims in that respect that the defendant failed to inform EOLOGISTAS EN ACCIÓN in writing of its grounds for refusing access to the 3 requested documents and left the decision on whether to grant the applicant access to that information to the Spanish State, even though none of those documents falls within the exceptions referred to in Article 4(1),(2) and (3) of Regulation No 1049/2001. |
| --- | --- | --- |

1.

Its first plea in law in based on an infringement of 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).

—

The applicant claims in that respect that the defendant failed to inform EOLOGISTAS EN ACCIÓN in writing of its grounds for refusing access to the 3 requested documents and left the decision on whether to grant the applicant access to that information to the Spanish State, even though none of those documents falls within the exceptions referred to in Article 4(1),(2) and (3) of Regulation No 1049/2001.

| 2. | Its second plea in law is based on an infringement of 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).






  — | In the applicant's view, since the 3 requested documents concern ‘environmental information’, the implied rejection of its request constitutes an infringement of the letter and spirit of Regulation No 1367/2006 and of the Aarhus Convention. |
| --- | --- | --- |

2.

Its second plea in law is based on an infringement of 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).

—

In the applicant's view, since the 3 requested documents concern ‘environmental information’, the implied rejection of its request constitutes an infringement of the letter and spirit of Regulation No 1367/2006 and of the Aarhus Convention.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/40 |
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27.8.2011

EN

Official Journal of the European Union

C 252/40

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Action brought on 30 June 2011 — CEEES y Asociación de Gestores de Estaciones de Servicio v Commission

(Case T-342/11)

2011/C 252/90

Language of the case: Spanish

Parties

Applicants: Confederación Española de Empresarios de Estaciones de Servicio (CEEES) (Spain) y Asociación de Gestores de Estaciones de Servicio (Madrid, Spain) (represented by: A Hernández Pardo and B Marín Corral, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

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

—

annul the contested decision;

| — | as a consequence of the annulment, order the Commission to impose a fine or periodic penalty payments on REPSOL for having failed to comply with Article 9 of Regulation No 1/2003. |
| --- | --- |

—

as a consequence of the annulment, order the Commission to impose a fine or periodic penalty payments on REPSOL for having failed to comply with Article 9 of Regulation No 1/2003.

Pleas in law and main arguments

The present action has been brought against the decision of the European Commission of 28 April 2011, adopted in Case COMP/39461/CEEES AOP-REPSOL, the purpose of which was to determine whether the complaint lodged by the applicants on 30 May 2007 was admissible. That complaint was based on three main claims:

| (a) | The existence of horizontal agreements of the Asociación de Operadores Petrolíferos (AOP) and its members which limited competition between them. |
| --- | --- |

(a)

The existence of horizontal agreements of the Asociación de Operadores Petrolíferos (AOP) and its members which limited competition between them.

| (b) | Infringement of Article 101 and Article 102 TFEU for fixing retail prices. |
| --- | --- |

(b)

Infringement of Article 101 and Article 102 TFEU for fixing retail prices.

| (c) | Failure on the part of REPSOL to comply with the Commission's decision of 12 April 2006 (2006/446/EC) relating to a proceeding pursuant to Article 81 of the EC Treaty and adopted pursuant to Article 9 of Regulation (EC) No 1/2003 (Case COMP/B-1/38.348 — Repsol CPP), and the [absence] of consequences following from that failure. |
| --- | --- |

(c)

Failure on the part of REPSOL to comply with the Commission's decision of 12 April 2006 (2006/446/EC) relating to a proceeding pursuant to Article 81 of the EC Treaty and adopted pursuant to Article 9 of Regulation (EC) No 1/2003 (Case COMP/B-1/38.348 — Repsol CPP), and the [absence] of consequences following from that failure.

In the contested decision the Commission considers that there were not sufficient grounds to adopt against Repsol any of the measures provided for in Regulation (EC) No 1/2003 for the failure of parties to comply with their commitments.

The applicants rely on two pleas in law in support of their action.

| 1. | First plea in law, based on an infringement of Article 9 of Regulation (EC) No 1/2003, together with an infringement of the principle of direct effect of European Union law.






  — | The applicants claim, in particular, that, in the light of the findings of the National Competition Authority, the Commission cannot simply ignore REPSOL's failure to comply with its commitment to put an end to its practice of price-fixing. Indeed, the facts set out by the National Competition Authority in relation to the infringement of Article 101 TFEU should have been sufficient for the Commission to consider it well established that REPSOL had failed to comply with its commitments. |
| --- | --- | --- |

1.

First plea in law, based on an infringement of Article 9 of Regulation (EC) No 1/2003, together with an infringement of the principle of direct effect of European Union law.

—

The applicants claim, in particular, that, in the light of the findings of the National Competition Authority, the Commission cannot simply ignore REPSOL's failure to comply with its commitment to put an end to its practice of price-fixing. Indeed, the facts set out by the National Competition Authority in relation to the infringement of Article 101 TFEU should have been sufficient for the Commission to consider it well established that REPSOL had failed to comply with its commitments.

| — | The Commission's failure to intervene faced with a failure to comply with a commitment decision, on the basis that it has discretion in that regard, threatens the very essence of the mechanisms underlying the acceptance of commitments as an alternative solution to imposing sanctions and converts the Commission's power of discretion into an arbitrary power which could lead to a blatant denial of legal protection. |
| --- | --- |

—

The Commission's failure to intervene faced with a failure to comply with a commitment decision, on the basis that it has discretion in that regard, threatens the very essence of the mechanisms underlying the acceptance of commitments as an alternative solution to imposing sanctions and converts the Commission's power of discretion into an arbitrary power which could lead to a blatant denial of legal protection.

| 2. | Second plea in law, based on an infringement of Article 23(2)(c) and Article 24(1)(c) of Regulation (EC) No 1/2003.






  — | In the view of the applicants, faced with an infringement of Article 9 of Regulation (EC) No 1/2003, as is in this instance, the Commission should have imposed fines and periodic penalty payments as provided for in those provisions. |
| --- | --- | --- |

2.

Second plea in law, based on an infringement of Article 23(2)(c) and Article 24(1)(c) of Regulation (EC) No 1/2003.

—

In the view of the applicants, faced with an infringement of Article 9 of Regulation (EC) No 1/2003, as is in this instance, the Commission should have imposed fines and periodic penalty payments as provided for in those provisions.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/41 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/41

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Action brought on 28 June 2011 — Netherlands v Commission

(Case T-343/11)

2011/C 252/91

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: C. Wissels, M. de Ree, B. Koopman and C. Schillemans, acting as Agents)

Defendant: European Commission

Form of order sought

| — | Annul Article 1 of Commission Decision 2011/244/EU of 15 April 2011, notified on 18 April 2011, on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) in so far as Article 1 of that decision concerns the Netherlands and in so far as it concerns the exclusion of the sum of EUR 22 691 407,79 from the financing applicable to the expenditure declared in 2006 to 2008 in connection with operational programmes and the recognition of producer organisations; |
| --- | --- |

—

Annul Article 1 of Commission Decision 2011/244/EU of 15 April 2011, notified on 18 April 2011, on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) in so far as Article 1 of that decision concerns the Netherlands and in so far as it concerns the exclusion of the sum of EUR 22 691 407,79 from the financing applicable to the expenditure declared in 2006 to 2008 in connection with operational programmes and the recognition of producer organisations;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

In Decision 2011/244/EU the Commission treated all costs relating to printing on packages, regardless of the nature and purpose of such printing, as general production costs within the meaning of Annex II to Commission Regulation No 1433/2003, (1) and accordingly deemed those costs to be ineligible for Community financing. The Netherlands Government takes the view that the printing on packages of a brand or trade mark of producer organisations which also has a promotional intent must be treated as generic promotion and/or promotion of quality labels and promotion of producer organisations’ brands/trade marks. The costs of such operations are in fact eligible under Annex I to Regulation No 1433/2003.

Further, in Decision 2011/244/EU the Commission excluded altogether from financing expenditure in the context of the operational programmes of the producer organisation FresQ for marketing years 2004 to 2007 on the basis that FresQ did not satisfy the terms and conditions for recognition under Regulations No 2200/96 (2) and No 1432/2003. The Commission bases that assessment on the finding that some of FresQ’s subsidiary sellers were exclusively marketing the products of one producer, and that as a result of the presumed influence of that producer on the subsidiary, FresQ was no longer fulfilling its central management role in relation to marketing and price setting. The Netherlands Government challenges that assessment and also the related finding that the Netherlands authorities should have withdrawn recognition of producer organisation FresQ.

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

| 1. | First plea in law, alleging infringement of Article 7(4) of Regulation No 1258/1999 (3) and Article 31 of Regulation No 1290/2005 (4) in conjunction with Article 15 of Regulation No 2200/96 and Article 8, in conjunction with Annex I, points 8 and 9, of Regulation No 1433/2003, in so far as expenditure on printing on packages was treated as general production costs and accordingly excluded from financing. |
| --- | --- |

1.

First plea in law, alleging infringement of Article 7(4) of Regulation No 1258/1999 (3) and Article 31 of Regulation No 1290/2005 (4) in conjunction with Article 15 of Regulation No 2200/96 and Article 8, in conjunction with Annex I, points 8 and 9, of Regulation No 1433/2003, in so far as expenditure on printing on packages was treated as general production costs and accordingly excluded from financing.

| 2. | Second plea in law, alleging infringement of Article 7(4) of Regulation No 1258/1999 and Article 31 of Regulation No 1290/2005 in conjunction with Article 11 of Regulation No 2200/96 and Articles 6 and 7 of Regulation No 1432/2003, in so far as it was concluded that producer organisation FresQ did not fulfil the terms and conditions for recognition. |
| --- | --- |

2.

Second plea in law, alleging infringement of Article 7(4) of Regulation No 1258/1999 and Article 31 of Regulation No 1290/2005 in conjunction with Article 11 of Regulation No 2200/96 and Articles 6 and 7 of Regulation No 1432/2003, in so far as it was concluded that producer organisation FresQ did not fulfil the terms and conditions for recognition.

| 3. | In the alternative, third plea in law, alleging infringement of Article 7(4) of Regulation No 1258/1999 and Article 31 of Regulation No 1290/2005 in conjunction with Article 21 of Regulation No 1432/2003, in so far as all of the aid received by FresQ for the marketing years 2004 to 2007 was considered ineligible for Community co-financing. |
| --- | --- |

3.

In the alternative, third plea in law, alleging infringement of Article 7(4) of Regulation No 1258/1999 and Article 31 of Regulation No 1290/2005 in conjunction with Article 21 of Regulation No 1432/2003, in so far as all of the aid received by FresQ for the marketing years 2004 to 2007 was considered ineligible for Community co-financing.

| 4. | In the further alternative, fourth plea in law, alleging infringement of Article 7(4) of Regulation No 1258/1999 and Article 31 of Regulation No 1290/2005, as well as of the principle of proportionality, since the amount of financial correction is disproportionate to the actual financial risk to the Agricultural Fund. |
| --- | --- |

4.

In the further alternative, fourth plea in law, alleging infringement of Article 7(4) of Regulation No 1258/1999 and Article 31 of Regulation No 1290/2005, as well as of the principle of proportionality, since the amount of financial correction is disproportionate to the actual financial risk to the Agricultural Fund.

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(1)  Commission Regulation (EC) No 1433/2003 of 11 August 2003 laying down detailed rules for the application of Council Regulation (EC) No 2200/96 as regards operational funds, operational programmes and financial assistance (OJ 2003 L 203, p. 25).

(2)  Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (OJ 1996 L 297, p. 1).

(3)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103).

(4)  Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1).

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/42 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/42

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Action brought on 7 July 2011 — Gollnisch v Parliament

(Case T-346/11)

2011/C 252/92

Language of the case: French

Parties

Applicant: Bruno Gollnisch (Limonest, France) (represented by: G. Dubois, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the General Court should:

| — | annul the decision of European Parliament of 10 May 2011 to waive the applicant’s parliamentary immunity and to adopt Report No A7-0155/2011; |
| --- | --- |

—

annul the decision of European Parliament of 10 May 2011 to waive the applicant’s parliamentary immunity and to adopt Report No A7-0155/2011;

| — | award Mr GOLLNISCH the sum of EUR 8 000 in compensation for non-material damage; |
| --- | --- |

—

award Mr GOLLNISCH the sum of EUR 8 000 in compensation for non-material damage;

| — | award Mr GOLLNISCH the sum of EUR 4 000 by way of costs incurred for legal advice and the preparation of this action. |
| --- | --- |

—

award Mr GOLLNISCH the sum of EUR 4 000 by way of costs incurred for legal advice and the preparation of this action.

Pleas in law and main arguments

The applicant seeks, first, the annulment of the decision of the European Parliament of 10 May 2011 to adopt the report of the Committee on Legal Affairs (A7-0155/2011) and to reject the request for the defence of immunity and privileges of Bruno Gollnisch (2010/2284(IMM)) and, second, compensation for the non-material damage that it allegedly suffered in consequence of the adoption of the contested decision.

In support of the action, the applicant relies on seven pleas in law:

| 1. | First plea, alleging infringement of Article 9 of the Protocol on the privileges and immunities of the European Union of 8 April 1965. |
| --- | --- |

1.

First plea, alleging infringement of Article 9 of the Protocol on the privileges and immunities of the European Union of 8 April 1965.

| 2. | Second plea, concerning the necessary application in the present case of Article 9 of the Protocol. |
| --- | --- |

2.

Second plea, concerning the necessary application in the present case of Article 9 of the Protocol.

| 3. | Third plea, alleging failure to follow the precedents set by previous decisions of the Committee on Legal Affairs of the European Parliament. |
| --- | --- |

3.

Third plea, alleging failure to follow the precedents set by previous decisions of the Committee on Legal Affairs of the European Parliament.

| 4. | Fourth plea, alleging failure to respect the legal certainty of European Union law and breach of legitimate expectations. |
| --- | --- |

4.

Fourth plea, alleging failure to respect the legal certainty of European Union law and breach of legitimate expectations.

| 5. | Fifth plea, alleging breach of the independence of a Member. |
| --- | --- |

5.

Fifth plea, alleging breach of the independence of a Member.

| 6. | Sixth plea, alleging infringement of the provisions of the rules of the European Parliament relating to proceedings which might lead to the disqualification of a Member. |
| --- | --- |

6.

Sixth plea, alleging infringement of the provisions of the rules of the European Parliament relating to proceedings which might lead to the disqualification of a Member.

| 7. | Seventh plea, alleging breach of the rule that the parties should be heard and of the applicant’s rights of defence. |
| --- | --- |

7.

Seventh plea, alleging breach of the rule that the parties should be heard and of the applicant’s rights of defence.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/43 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/43

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Action brought on 7 July 2011 — Gollnisch v Parliament

(Case T-347/11)

2011/C 252/93

Language of the case: French

Parties

Applicant: Bruno Gollnisch (Limonest, France) (represented by: G. Dubois, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the General Court should:

| — | annul the decision of European Parliament of 10 May 2011 to waive the applicant’s parliamentary immunity and to adopt Report No A7-0154/2011; |
| --- | --- |

—

annul the decision of European Parliament of 10 May 2011 to waive the applicant’s parliamentary immunity and to adopt Report No A7-0154/2011;

| — | award Mr GOLLNISCH the sum of EUR 8 000 in compensation for non-material damage; |
| --- | --- |

—

award Mr GOLLNISCH the sum of EUR 8 000 in compensation for non-material damage;

| — | award Mr GOLLNISCH the sum of EUR 4 000 by way of costs incurred for legal advice and the preparation of this action. |
| --- | --- |

—

award Mr GOLLNISCH the sum of EUR 4 000 by way of costs incurred for legal advice and the preparation of this action.

Pleas in law and main arguments

The applicant seeks, first, the annulment of the decision of the European Parliament of 10 May 2011 to adopt the report of the Committee on Legal Affairs (A7-0154/2011) and to reject the request for the defence of immunity and privileges of Bruno Gollnisch (2010/2097(IMM)) and, second, compensation for the non-material damage that it allegedly suffered in consequence of the adoption of the contested decision.

In support of the action, the applicant relies on seven pleas in law:

| 1. | First plea, alleging infringement of Article 9 of the Protocol on the privileges and immunities of the European Union of 8 April 1965. |
| --- | --- |

1.

First plea, alleging infringement of Article 9 of the Protocol on the privileges and immunities of the European Union of 8 April 1965.

| 2. | Second plea, concerning the necessary application in the present case of Article 9 of the Protocol. |
| --- | --- |

2.

Second plea, concerning the necessary application in the present case of Article 9 of the Protocol.

| 3. | Third plea, alleging failure to follow the precedents set by previous decisions of the Committee on Legal Affairs of the European Parliament. |
| --- | --- |

3.

Third plea, alleging failure to follow the precedents set by previous decisions of the Committee on Legal Affairs of the European Parliament.

| 4. | Fourth plea, alleging failure to respect the legal certainty of European Union law and breach of legitimate expectations. |
| --- | --- |

4.

Fourth plea, alleging failure to respect the legal certainty of European Union law and breach of legitimate expectations.

| 5. | Fifth plea, alleging breach of the independence of a Member. |
| --- | --- |

5.

Fifth plea, alleging breach of the independence of a Member.

| 6. | Sixth plea, alleging infringement of the provisions of the rules of the European Parliament relating to proceedings which might lead to the disqualification of a Member. |
| --- | --- |

6.

Sixth plea, alleging infringement of the provisions of the rules of the European Parliament relating to proceedings which might lead to the disqualification of a Member.

| 7. | Seventh plea, alleging breach of the rule that the parties should be heard and of the applicant’s rights of defence. |
| --- | --- |

7.

Seventh plea, alleging breach of the rule that the parties should be heard and of the applicant’s rights of defence.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/43 |
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27.8.2011

EN

Official Journal of the European Union

C 252/43

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Action brought on 29 June 2011 — Event v OHIM — CBT Comunicación Multimedia (eventer EVENT MANAGEMENT SYSTEMS)

(Case T-353/11)

2011/C 252/94

Language in which the application was lodged: English

Parties

Applicant: Event Holding GmbH & Co. KG (Köln, Germany) (represented by: G. Schoenen and V. Töbelmann, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: CBT Comunicación Multimedia, SL (Getxo, Spain)

Form of order sought

| — | Overturn the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 March 2011 in case R 939/2010-2; |
| --- | --- |

—

Overturn the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 March 2011 in case R 939/2010-2;

| — | Order the defendant to pay its own costs as well as the costs of the Applicant; and |
| --- | --- |

—

Order the defendant to pay its own costs as well as the costs of the Applicant; and

| — | Order the other party to the proceedings, if it becomes intervener before the Tribunal to bear its own costs. |
| --- | --- |

—

Order the other party to the proceedings, if it becomes intervener before the Tribunal to bear its own costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘eventer EVENT MANAGEMENT SYSTEMS’, for goods and services in classes 9, 35, 41 and 42 — Community trade mark application No 6483606

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: German trade mark registration No 39 548 073.6 of the word mark ‘Event’, for services in classes 35, 36, 42 and 43

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly found that there were no grounds for a rejection of the Community trade mark application ‘eventer EVENT MANAGEMENT SYSTEMS’. Given the similarity of the trade marks, and the similarity of the services covered by both trade marks, there is a likelihood of confusion between the two trade marks.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/44 |
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27.8.2011

EN

Official Journal of the European Union

C 252/44

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Action brought on 1 July 2011 — Bimbo v OHIM — Grupo Bimbo (GRUPO BIMBO)

(Case T-357/11)

2011/C 252/95

Language in which the application was lodged: Spanish

Parties

Applicant: Bimbo (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Grupo Bimbo, SAB de CV (Mexico City, Mexico)

Form of order sought

| — | Vary the decision of the First Board of Appeal of 14 April 2011, in accordance with Article 65(3) of the CTMR, on account of infringement of Article 8(5) CTMR, and refuse registration of the trade mark concerned — figurative mark 5.025.598 ‘GRUPO BIMBO’ — in its entirety for all the goods and services applied for; |
| --- | --- |

—

Vary the decision of the First Board of Appeal of 14 April 2011, in accordance with Article 65(3) of the CTMR, on account of infringement of Article 8(5) CTMR, and refuse registration of the trade mark concerned — figurative mark 5.025.598 ‘GRUPO BIMBO’ — in its entirety for all the goods and services applied for;

| — | In the alternative, and only in the event that the previous claim is rejected, annul the decision of the First Board of Appeal of 14 April 2011 on account of infringement of Article 8(5) CTMR; |
| --- | --- |

—

In the alternative, and only in the event that the previous claim is rejected, annul the decision of the First Board of Appeal of 14 April 2011 on account of infringement of Article 8(5) CTMR;

| — | Order the defendants to pay the costs. |
| --- | --- |

—

Order the defendants to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Grupo Bimbo, S.A.B de C.V.

Community trade mark concerned: Figurative mark including the word element ‘GRUPO BIMBO’ (application No 5.025.598) for goods and services in Classes 5, 29, 30, 31, 32, 35 and 43.

Proprietor of the mark or sign cited in the opposition proceedings: The applicant.

Mark or sign cited in opposition: Spanish word mark ‘BIMBO’ (No 2.689.432) for goods in Classes 5, 29 and 30, and various Spanish figurative marks (No 464.785, No 2.244.562, No 2.244.563 and No 2.255.097) which include the word element ‘BIMBO’, for goods and services in Classes 29, 30, 31, 32, 35 and 42.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Decision under appeal annulled in part.

Pleas in law: Incorrect interpretation and application of Article 8(5) of Regulation No 207/2009 on the Community trade mark, since, following a finding that the BIMBO trade marks cited in opposition are trade marks with a reputation in the Spanish market and that the mark applied for ‘GRUPO BIMBO’ is virtually identical to the opposing marks, the application for that trade mark was granted in part, on the basis that it had not been proved that unfair advantage was taken of the repute or distinctive character of the opposing marks or that there was any risk to that repute or distinctive character.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/44 |
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27.8.2011

EN

Official Journal of the European Union

C 252/44

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Action brought on 27 June 2011 — Italy v Commission

(Case T-358/11)

2011/C 252/96

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Marchini, avvocato dello Stato)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the following measures: (i) as not being in conformity with the rules of the European Union: European Commission Implementing Decision C(2011) 2517 of 15 April 2011 ... excluding from European Union financing the expenditure incurred by Italy under the EAGGF Guarantee Section in relation to the Public Storage — Sugar measure for the financial year 2006 (10 % flat-rate adjustment, amounting to EUR 171 418,00, the reason being ‘35 % increase in storage costs’), the financial year 2007 (10 % flat-rate adjustment, amounting to EUR 182 006,00, the reason being ‘35 % increase in storage costs’), the financial year 2008 (10 % flat-rate adjustment, amounting to EUR 111 062,00, the reason being ‘35 % increase in storage costs’), the financial year 2009 (10 % flat-rate adjustment, amounting to EUR 34 547,00, the reason being ‘35 % increase in storage costs’), the financial year 2006 (5 % flat-rate year adjustment, amounting to EUR 781 044,00, the reason being ‘late inventory controls’) indicated in the Annex to that decision, which relates to Article 1 thereof; (ii) as measures constituting a sine qua non for Decision C(2011) 2517: the letter of the European Commission Directorate-General for Agriculture and Rural Development (Directorate J: Audit of Agricultural Expenditure), No ARES (2011) 2287 of 3 January 2011, and point 2 of the Annex thereto, setting out the definitive reasons in support of the final position following the report of the Dispute Settlement Body in Case 10/IT/435; (iii) as measures constituting a sine qua non for Decision C(2011) 2517: the letter of the European Commission Directorate-General for Agriculture and Rural Development (Directorate J: Audit of Agricultural Expenditure), No ARES (2010) 57525 of 3 February 2010 and the Annex thereto setting out the reasons for the exclusion from Community financing; |
| --- | --- |

—

annul the following measures: (i) as not being in conformity with the rules of the European Union: European Commission Implementing Decision C(2011) 2517 of 15 April 2011 ... excluding from European Union financing the expenditure incurred by Italy under the EAGGF Guarantee Section in relation to the Public Storage — Sugar measure for the financial year 2006 (10 % flat-rate adjustment, amounting to EUR 171 418,00, the reason being ‘35 % increase in storage costs’), the financial year 2007 (10 % flat-rate adjustment, amounting to EUR 182 006,00, the reason being ‘35 % increase in storage costs’), the financial year 2008 (10 % flat-rate adjustment, amounting to EUR 111 062,00, the reason being ‘35 % increase in storage costs’), the financial year 2009 (10 % flat-rate adjustment, amounting to EUR 34 547,00, the reason being ‘35 % increase in storage costs’), the financial year 2006 (5 % flat-rate year adjustment, amounting to EUR 781 044,00, the reason being ‘late inventory controls’) indicated in the Annex to that decision, which relates to Article 1 thereof; (ii) as measures constituting a sine qua non for Decision C(2011) 2517: the letter of the European Commission Directorate-General for Agriculture and Rural Development (Directorate J: Audit of Agricultural Expenditure), No ARES (2011) 2287 of 3 January 2011, and point 2 of the Annex thereto, setting out the definitive reasons in support of the final position following the report of the Dispute Settlement Body in Case 10/IT/435; (iii) as measures constituting a sine qua non for Decision C(2011) 2517: the letter of the European Commission Directorate-General for Agriculture and Rural Development (Directorate J: Audit of Agricultural Expenditure), No ARES (2010) 57525 of 3 February 2010 and the Annex thereto setting out the reasons for the exclusion from Community financing;

| — | (as an incidental claim) uphold the preliminary plea of illegality in respect of Regulation (EC) No 915/2006. |
| --- | --- |

—

(as an incidental claim) uphold the preliminary plea of illegality in respect of Regulation (EC) No 915/2006.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging breach of essential procedural requirements (Article 2[96] T[F]EU, formerly Article 253 TEC): specifically, failure to carry out a preliminary investigation in relation to the financial adjustment of the costs itemised as ‘35 % increase in storage costs for the financial years 2006, 2007, 2008, 2009’
  According to the Italian Government, the Commission did not adequately investigate the evidence produced by the AGEA [Agricultural Payments Agency], which shows that the market survey had been carried out and that there was awareness of the causes underlying the increase in the prices charged for the rental of silos, which stemmed from the difficult situation prevailing since 2005 in the market for the rental of storage space for the sugar stocks. |
| --- | --- |

1.

First plea in law, alleging breach of essential procedural requirements (Article 2[96] T[F]EU, formerly Article 253 TEC): specifically, failure to carry out a preliminary investigation in relation to the financial adjustment of the costs itemised as ‘35 % increase in storage costs for the financial years 2006, 2007, 2008, 2009’

According to the Italian Government, the Commission did not adequately investigate the evidence produced by the AGEA [Agricultural Payments Agency], which shows that the market survey had been carried out and that there was awareness of the causes underlying the increase in the prices charged for the rental of silos, which stemmed from the difficult situation prevailing since 2005 in the market for the rental of storage space for the sugar stocks.

| 2. | Second plea in law, alleging breach of essential procedural requirements (Article 2[96] T[F]EU, formerly Article 253 TEC): specifically, failure to state reasons in relation to the financial adjustment of the costs itemised as ‘35 % increase in storage costs for the financial years 2006, 2007, 2008, 2009’
  According to the Italian Government, the Commission did not explain the failure to treat the statements made by the AGEA officials or the tariff of one of the major warehousing operators as appropriate documentary evidence for showing that there had been a general request on the part of the sugar companies for a price increase of up to 50 %. |
| --- | --- |

2.

Second plea in law, alleging breach of essential procedural requirements (Article 2[96] T[F]EU, formerly Article 253 TEC): specifically, failure to state reasons in relation to the financial adjustment of the costs itemised as ‘35 % increase in storage costs for the financial years 2006, 2007, 2008, 2009’

According to the Italian Government, the Commission did not explain the failure to treat the statements made by the AGEA officials or the tariff of one of the major warehousing operators as appropriate documentary evidence for showing that there had been a general request on the part of the sugar companies for a price increase of up to 50 %.

| 3. | Third plea in law, alleging infringement and misinterpretation of Article 8 of Regulation (EC) No 884/2006, and Annex I thereto, and of Article 4 of Regulation (EC) No 2148/1996, as amended by the Annex to Commission Regulation (EC) No 915/2006, and breach of the principle of legal certainty, the principle that legislation must not be retroactive and the principle of the protection of legitimate expectations, in relation to the 5 % flate-rate financial adjustment for the 2006 financial year, owing to ‘late inventory controls’.
  The Italian Government submits that the Commission acted in breach of the transitional rules provided for in Point 5 of Section AII of Annex I to Regulation No 884/2006. Given that the AGEA had already carried out those activities as part of the inspections required under the Italian legislation, and had furnished proof of this to Commission staff, by handing over all the loading and discharge registers and the related records to the Commission delegation in the course of the May 2007 inspection visit, the transitional rules should have applied and, accordingly, no penalty should have been imposed on the Italian State, which — owing to genuine organisational difficulties regarding coordination with Agecontrol — could be regarded as entitled to submit only the summary documents in February 2007. The Italian Government alleges breach of the principle of legal certainty, the principle that legislation must not be retroactive, the principle of the protection of legitimate expectations and the principle of proportionality, on the ground that it is inconsistent with those principles to apply an inventory obligation immediately in respect of operations which had long been completed by the time that those regulations entered into force on 23 and 24 June 2006 (in particular, the Annex to Regulation No 915/2006) and shortly before the accounts were closed in respect of the EAGGF year on 30 September 2006. |
| --- | --- |

3.

Third plea in law, alleging infringement and misinterpretation of Article 8 of Regulation (EC) No 884/2006, and Annex I thereto, and of Article 4 of Regulation (EC) No 2148/1996, as amended by the Annex to Commission Regulation (EC) No 915/2006, and breach of the principle of legal certainty, the principle that legislation must not be retroactive and the principle of the protection of legitimate expectations, in relation to the 5 % flate-rate financial adjustment for the 2006 financial year, owing to ‘late inventory controls’.

The Italian Government submits that the Commission acted in breach of the transitional rules provided for in Point 5 of Section AII of Annex I to Regulation No 884/2006. Given that the AGEA had already carried out those activities as part of the inspections required under the Italian legislation, and had furnished proof of this to Commission staff, by handing over all the loading and discharge registers and the related records to the Commission delegation in the course of the May 2007 inspection visit, the transitional rules should have applied and, accordingly, no penalty should have been imposed on the Italian State, which — owing to genuine organisational difficulties regarding coordination with Agecontrol — could be regarded as entitled to submit only the summary documents in February 2007. The Italian Government alleges breach of the principle of legal certainty, the principle that legislation must not be retroactive, the principle of the protection of legitimate expectations and the principle of proportionality, on the ground that it is inconsistent with those principles to apply an inventory obligation immediately in respect of operations which had long been completed by the time that those regulations entered into force on 23 and 24 June 2006 (in particular, the Annex to Regulation No 915/2006) and shortly before the accounts were closed in respect of the EAGGF year on 30 September 2006.

| 4. | Fourth plea in law, alleging breach of essential procedural requirements (Article 2[96] T[F]EU, formerly Article 253 TEC): specifically, failure to state reasons in relation to the 5 % flat-rate financial adjustment for the 2006 financial year, owing to ‘late inventory controls’
  According to the Italian Government, the Commission did not state adequate reasons for declining to implement the proposal put forward by the Dispute Settlement Body in so far as, under that proposal, the new rule laid down in Regulation (EC) No 915/2006 fixing the inventory deadline was to be applied to sugar movements only with effect from the entry into force of that regulation and not retroactively to the entire financial year 2006, with the effect that the financial adjustment imposed would have been commensurately reduced (by approximately 8 months). |
| --- | --- |

4.

Fourth plea in law, alleging breach of essential procedural requirements (Article 2[96] T[F]EU, formerly Article 253 TEC): specifically, failure to state reasons in relation to the 5 % flat-rate financial adjustment for the 2006 financial year, owing to ‘late inventory controls’

According to the Italian Government, the Commission did not state adequate reasons for declining to implement the proposal put forward by the Dispute Settlement Body in so far as, under that proposal, the new rule laid down in Regulation (EC) No 915/2006 fixing the inventory deadline was to be applied to sugar movements only with effect from the entry into force of that regulation and not retroactively to the entire financial year 2006, with the effect that the financial adjustment imposed would have been commensurately reduced (by approximately 8 months).

| 5. | Fifth plea in law, alleging that Regulation (EC) No 915/2006 is unlawful
  The Italian Government alleges that Regulation (EC) No 915/2006 is unlawful in so far as it imposes the obligation to inventory the remaining stocks for the 2004/2005 marketing year (30 September 2005), the initial stocks for the 2005/2006 marketing year (1 October 2005) and the remaining stocks for the 2005/2006 marketing year (30 September 2006), in the course of the 2006 financial year, approximately only three months before the new inventory deadline. According to the Italian Government, it is contrary to the general principles of Community law to make actions compulsory, by means of a regulation, in respect of events which are past and complete and, as a consequence, to penalise their omission by means of the financial adjustment procedure. |
| --- | --- |

5.

Fifth plea in law, alleging that Regulation (EC) No 915/2006 is unlawful

The Italian Government alleges that Regulation (EC) No 915/2006 is unlawful in so far as it imposes the obligation to inventory the remaining stocks for the 2004/2005 marketing year (30 September 2005), the initial stocks for the 2005/2006 marketing year (1 October 2005) and the remaining stocks for the 2005/2006 marketing year (30 September 2006), in the course of the 2006 financial year, approximately only three months before the new inventory deadline. According to the Italian Government, it is contrary to the general principles of Community law to make actions compulsory, by means of a regulation, in respect of events which are past and complete and, as a consequence, to penalise their omission by means of the financial adjustment procedure.

| 6. | Sixth plea in law, alleging breach of essential procedural requirements: specifically, failure to state reasons and failure to produce sufficient evidence (Article 2[96] T[F]EU, formerly Article 253 TEC)
  According to the Italian Government, the Commission distorts the facts in so far as it applies a financial adjustment on the mistaken premise, proposed by DG AGRI, to the effect that there was no AGEA monitoring of‘sugar in’ and ‘sugar out’, and that ‘approximately 127 000 tons of sugar were moved (without the weight being officially checked’. The Italian Government also submits that insufficient evidence has been produced to substantiate the allegation ‘of not undertaking the annual inventory inspection ... when the warehousing operations were carried out’ or the allegation that ‘approximately 127 000 tons of sugar were moved (without being officially checked or weighed) between 30 September 2006 (the date by which the inventory should have been made) and February 2007’. Given the documentary evidence offered by the AGEA, that is to say, the accounting records — handed over to Commission staff — showing the figures relating to the movement and stocking of the sugar, for each single consignment placed in storage, the Commission services cannot maintain the contrary without proving it. |
| --- | --- |

6.

Sixth plea in law, alleging breach of essential procedural requirements: specifically, failure to state reasons and failure to produce sufficient evidence (Article 2[96] T[F]EU, formerly Article 253 TEC)

According to the Italian Government, the Commission distorts the facts in so far as it applies a financial adjustment on the mistaken premise, proposed by DG AGRI, to the effect that there was no AGEA monitoring of‘sugar in’ and ‘sugar out’, and that ‘approximately 127 000 tons of sugar were moved (without the weight being officially checked’. The Italian Government also submits that insufficient evidence has been produced to substantiate the allegation ‘of not undertaking the annual inventory inspection ... when the warehousing operations were carried out’ or the allegation that ‘approximately 127 000 tons of sugar were moved (without being officially checked or weighed) between 30 September 2006 (the date by which the inventory should have been made) and February 2007’. Given the documentary evidence offered by the AGEA, that is to say, the accounting records — handed over to Commission staff — showing the figures relating to the movement and stocking of the sugar, for each single consignment placed in storage, the Commission services cannot maintain the contrary without proving it.

| 7. | Seventh plea in law, alleging breach of essential procedural requirements: specifically, failure to state reasons and failure to produce sufficient evidence (Article 2[96] T[F]EU, formerly Article 253 TEC), in relation to the alleged risk that the Fund would sustain damage
  According to the Italian Government, the decision is flawed by failure to state adequate reasons for not appraising the useful effect of the inspections and controls which the AGEA nevertheless undertakes of ‘sugar in’ to storage and‘sugar out’ of storage, and of their monthly stocks. |
| --- | --- |

7.

Seventh plea in law, alleging breach of essential procedural requirements: specifically, failure to state reasons and failure to produce sufficient evidence (Article 2[96] T[F]EU, formerly Article 253 TEC), in relation to the alleged risk that the Fund would sustain damage

According to the Italian Government, the decision is flawed by failure to state adequate reasons for not appraising the useful effect of the inspections and controls which the AGEA nevertheless undertakes of ‘sugar in’ to storage and‘sugar out’ of storage, and of their monthly stocks.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/46 |
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Action brought on 7 July 2011 — Stichting Greenpeace Nederland and PAN Europe v Commission

(Case T-362/11)

2011/C 252/97

Language of the case: English

Parties

Applicants: Stichting Greenpeace Nederland (Amsterdam, Netherlands) and Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) (represented by: B. Kloostra, lawyer)

Defendant: European Commission

Form of order sought

| — | Declare that the Commission’s decision of 6 May 2011 is in violation of Regulation (EC) No 1049/2001 (1); |
| --- | --- |

—

Declare that the Commission’s decision of 6 May 2011 is in violation of Regulation (EC) No 1049/2001 (1);

| — | Declare that the Commission’s decision of 6 May 2011 is in violation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Regulation (EC) No 1049/2001 and Regulation (EC) No 1367/2006 (2); |
| --- | --- |

—

Declare that the Commission’s decision of 6 May 2011 is in violation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Regulation (EC) No 1049/2001 and Regulation (EC) No 1367/2006 (2);

| — | Annul the Commission’s decision of 6 May 2011; and |
| --- | --- |

—

Annul the Commission’s decision of 6 May 2011; and

| — | Order the Commission to pay the costs of the proceedings. |
| --- | --- |

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

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

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

1.

First plea in law, alleging that the contested decision violates Article 8(1) and (2) of Regulation (EC) No 1049/2001 for not deciding within the prescribed time-limits on 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 of the Aarhus Convention, Article 4(2) and (5) of Regulation (EC) No 1049/2001 and Article 6(1) of Regulation (EC) No 1367/2006 for failure to assess, as:






  — | the ground for refusal is not compliant with the Aarhus Convention; |
| --- | --- | --- |

2.

Second plea in law, alleging that the contested decision violates Article 4 of the Aarhus Convention, Article 4(2) and (5) of Regulation (EC) No 1049/2001 and Article 6(1) of Regulation (EC) No 1367/2006 for failure to assess, as:

—

the ground for refusal is not compliant with the Aarhus Convention;

| — | the information requested qualifies as information relating to emissions into the environment; and |
| --- | --- |

—

the information requested qualifies as information relating to emissions into the environment; and

| — | there is an overriding public interest in disclosure of the information requested by the applicants. |
| --- | --- |

—

there is an overriding public interest in disclosure of the information requested by the applicants.

---

(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)

(2)  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)

---

European Union Civil Service Tribunal

| 27.8.2011 | EN | Official Journal of the European Union | C 252/47 |
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Official Journal of the European Union

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Judgment of the Civil Service Tribunal (3rd Chamber) of 15 June 2011 — de Brito Sequeira Carvalho v Commission

(Case F-17/05 REV)

(Civil service - Application for revision of a judgment - No new facts - Application inadmissible)

2011/C 252/98

Language of the case: French

Parties

Applicant: José Antonio de Brito Sequeira Carvalho (Brussels, Belgium) (represented by: N. Kanyonga Mulumba and M. Boury, lawyers)

Defendant: European Commission (represented by: D. Martin, Agent)

Re:

Action by the applicant for revision of a judgment delivered by the Third Chamber of the Civil Service Tribunal on 13 December 2006 in Case F-17/05

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the application as inadmissible;

| 2. | Orders Mr. de Brito Sequeira Carvalho to pay all the costs. |
| --- | --- |

2.

Orders Mr. de Brito Sequeira Carvalho to pay all the costs.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/47 |
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27.8.2011

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Official Journal of the European Union

C 252/47

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Judgment of the Civil Service Tribunal (Third Chamber) of 14 December 2010 — Michail v Commission

(Case F-67/05 RENV)

(Staff case - Officials - Referral back to the Tribunal after setting aside - Career development report - 2003 appraisal exercise - Action for annulment - Action for damages)

2011/C 252/99

Language of the case: French

Parties

Applicant: Christos Michail (Brussels, Belgium) (represented by: C. Meïdanis, lawyer)

Defendant: European Commission (represented by: initially J. Currall and K. Herrmann, agents, then by J. Currall and K. Herrmann, agents, and by E. Bourtzalas and I. Antypas, lawyers)

Re:

Application for the annulment of the applicant’s career development report for the appraisal period from 1 April 2003 to 31 December 2003 and a claim for damages (formerly T-284/05) — Case T-49/08 P referred back after appeal.

Operative part of the judgment

The Tribunal:

| 1. | annuls Mr Michail’s career development report for the period from 1 April to 31 December 2003; |
| --- | --- |

1.

annuls Mr Michail’s career development report for the period from 1 April to 31 December 2003;

| 2. | orders the European Commission to pay Mr Michail damages of EUR 1 000; |
| --- | --- |

2.

orders the European Commission to pay Mr Michail damages of EUR 1 000;

| 3. | orders the European Commission to pay the costs. |
| --- | --- |

3.

orders the European Commission to pay the costs.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/47 |
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Judgment of the Civil Service Tribunal (Second Chamber) of 14 April 2011 — Irmantas Šimonis v Commission

(Case F-113/07) (1)

(Staff case - Officials - Inter-institutional transfer - Lawyer-linguist - Substitution of grounds - Requirement of a minimum length of service)

2011/C 252/100

Language of the case: Lithuanian

Parties

Applicant: Irmantas Šimonis (Luxembourg, Luxembourg) (represented by: V. Vilkas, lawyer)

Defendant: European Commission (represented by: A. Steiblytė and K. Hermann, acting as Agents)

Intervener in support of the applicant: Republic of Lithuania (represented by: D. Kriaučiūnas and E. Matulionytė, acting as Agents)

Re:

Annulment of the Commission’s decision whereby, during the selection procedure for filling a post forming the subject-matter of vacancy notice no COM/2007/142, it declined to request the transfer of the applicant to the Commission and removed him from the selection procedure.

Operative part of the judgment

The Tribunal:

| 1. | Sets aside the decision whereby the European Commission removed Mr Šimonis from the selection procedure under vacancy notice COM/2007/142 by declining to request his transfer from the Court of Justice of the European Union; |
| --- | --- |

1.

Sets aside the decision whereby the European Commission removed Mr Šimonis from the selection procedure under vacancy notice COM/2007/142 by declining to request his transfer from the Court of Justice of the European Union;

| 2. | Orders the European Commission to bear its own costs and pay those of the applicant; |
| --- | --- |

2.

Orders the European Commission to bear its own costs and pay those of the applicant;

| 3. | Orders the Republic of Lithuania to bear its own costs.. |
| --- | --- |

3.

Orders the Republic of Lithuania to bear its own costs..

---

(1)  OJ C 79, 29.3.2008, p. 36.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/48 |
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Judgment of the Civil Service Tribunal (Second Chamber) of 17 February 2011 — Strack v European Commission

(Case F-119/07) (1)

(Civil service - Officials - Mediation procedure - Act adversely affecting an official - Article 73 of the Staff Regulations - Consolidation - Provisional allowance)

2011/C 252/101

Language of the case: German

Parties

Applicant: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

Defendant: European Commission (represented by: J. Currall and B. Eggers, Agents)

Re:

Annulment of several decisions of the Commission rejecting the applicant’s requests for the conduct of a mediation procedure, for immediate intervention, for the adoption of dispute resolution measures and for payment of an allowance pursuant to Article 19(4) of the Common Rules on insurance against the risk of accident and of occupational disease. Application for damages.

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of the European Commission of 26 February 2007 refusing to pay Mr Strack a provisional allowance pursuant to Article 19(4) of the Common Rules. |
| --- | --- |

1.

Annuls the decision of the European Commission of 26 February 2007 refusing to pay Mr Strack a provisional allowance pursuant to Article 19(4) of the Common Rules.

| 2. | Dismisses the remainder of the action. |
| --- | --- |

2.

Dismisses the remainder of the action.

| 3. | Orders the Commission to pay half of the costs incurred by Mr Strack in addition to its own costs. |
| --- | --- |

3.

Orders the Commission to pay half of the costs incurred by Mr Strack in addition to its own costs.

| 4. | Orders Mr Strack to pay half of his own costs. |
| --- | --- |

4.

Orders Mr Strack to pay half of his own costs.

---

(1)  OJ C 183, 19.07.2008, p. 32.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/48 |
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27.8.2011

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Official Journal of the European Union

C 252/48

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Judgment of the Civil Service Tribunal (Second Chamber) of 15 March 2011 — Strack v European Commission

(Case F-120/07) (1)

(Civil service - Officials - Carry-over of days of annual leave - Article 4 of Annex V to the Staff Regulations - Reasons attributable to the interests of the service - Article 73 of the Staff Regulations - Directive 2003/88/EC - Right to paid annual leave - Sick leave)

2011/C 252/102

Language of the case: French

Parties

Applicant: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

Defendant: European Commission (represented by: J. Currall and B. Eggers, Agents)

Re:

Annulment of several decisions of the Commission concerning the application to carry over from 2004 to 2005 a number of days of unused annual leave exceeding the limit of 12 days. An order that the European Commission pay the applicant compensation for the 26.5 days of unused leave in respect of which no compensation has been paid with interest at a rate of 2 % per year.

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of the European Commission of 15 March 2007 rejecting the request by Mr Strack to carry over the balance of his days of annual leave from 2004; |
| --- | --- |

1.

Annuls the decision of the European Commission of 15 March 2007 rejecting the request by Mr Strack to carry over the balance of his days of annual leave from 2004;

| 2. | Dismisses the remainder of the application; |
| --- | --- |

2.

Dismisses the remainder of the application;

| 3. | Orders the European Commission to pays its own costs and those of Mr Strack. |
| --- | --- |

3.

Orders the European Commission to pays its own costs and those of Mr Strack.

---

(1)  OJ C 315, 22.12.2007, p. 50.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/49 |
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C 252/49

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Judgment of the Civil Service Tribunal (Second Chamber) of 14 April 2011 — Clarke and Others v OHIM

(Case F-82/08) (1)

(Staff case - Temporary staff - Article 8 CEOS - Clause terminating a contract if the agent is not included on the reserve list of a competition - OHIM/AD/02/07 and OHIM/AST/02/07 open competitions - Act adversely affecting an official - Principle of performance of contracts in good faith - Duty of care - Principle of sound administration - Language requirements - EPSO not competent - Directive 1999/70/EC - Fixed-term work)

2011/C 252/103

Language of the case: German

Parties

Applicants: Nicola Clarke and Others (Alicante, Spain) (represented by: H. Tettenborn, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. de Medrano Caballero, agent, and D. Waelbroeck, lawyer)

Re:

Application for, first, a declaration of the invalidity of the clauses in the applicants’ contracts which make provision for automatic termination of their contracts in the event that they are not included on the reserve list drawn up following the first open competition for their function group and, second, for a declaration that the open competitions OHIM/AD/02/07 and OHIM/AST/02/07 have no effect on the contracts of the applicants or for the annulment of those competitions. Further, application for damages for non-material damage caused to the applicants.

Operative part of the judgment

The Tribunal:

| 1. | annuls the decision of the Director of the Human Resources Department of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 19 December 2007, and the OHIM decision of 7 March 2008, in so far as the latter decision rejected the respective applications by Mmes Clarke, Papathanasiou and Periañez-González that the termination clause in their temporary staff contracts not be applied in relation to the OHIM/AD/02/07 and OHIM/AST/02/07 competitions; |
| --- | --- |

1.

annuls the decision of the Director of the Human Resources Department of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 19 December 2007, and the OHIM decision of 7 March 2008, in so far as the latter decision rejected the respective applications by Mmes Clarke, Papathanasiou and Periañez-González that the termination clause in their temporary staff contracts not be applied in relation to the OHIM/AD/02/07 and OHIM/AST/02/07 competitions;

| 2. | orders OHIM to pay to each of the applicants the sum of EUR 2 000 in damages; |
| --- | --- |

2.

orders OHIM to pay to each of the applicants the sum of EUR 2 000 in damages;

| 3. | dismisses the action as to the remainder; |
| --- | --- |

3.

dismisses the action as to the remainder;

| 4. | orders OHIM to bear its own costs and to pay those of the applicants. |
| --- | --- |

4.

orders OHIM to bear its own costs and to pay those of the applicants.

---

(1)  OJ C 19, 24.1.2009, p. 38.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/49 |
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27.8.2011

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Official Journal of the European Union

C 252/49

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Judgment of the Civil Service Tribunal (3rd Chamber) of 13 April 2011 — Lebedef and Jones v Commission

(Case F-29/09 REV)

(Civil service - Revision of a judgment - No new facts - Inadmissibility)

2011/C 252/104

Language of the case: French

Parties

Applicants: Giorgio Lebedef (Senningerberg, Luxembourg) and Trevor Jones (Ernzen, Luxembourg) (represented by: F. Frabetti, lawyer)

Defendant: European Commission (represented by: J. Currall and D. Martin, Agents)

Intervener: Council of the European Union (represented by: K. Zieleśkiewicz and M. Bauer, Agents)

Re:

Action by the applicants for revision of a judgment delivered by the Third Chamber of the Civil Service Tribunal on 30 September 2010 in Case F-29/09

Operative part of the judgment

The Tribunal:

| 1. | Dismisses the application for revision as inadmissible; |
| --- | --- |

1.

Dismisses the application for revision as inadmissible;

| 2. | Orders Mr. Lebedef and Mr. Jones to pay all the costs; |
| --- | --- |

2.

Orders Mr. Lebedef and Mr. Jones to pay all the costs;

| 3. | Orders the Council of the European Union, the intervener, to bear its own costs. |
| --- | --- |

3.

Orders the Council of the European Union, the intervener, to bear its own costs.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/49 |
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27.8.2011

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Official Journal of the European Union

C 252/49

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Judgment of the Civil Service Tribunal (3rd Chamber) of 13 April 2011 –Chaouch v Commission

(Case F-30/09) (1)

(Civil service - Remuneration - Installation allowance - Establishment of entitlement - Entry into service as probationary official - Change of residence after establishment to be taken into account - Official’s duty of residence under Article 20 of the Staff Regulations)

2011/C 252/105

Language of the case: French

Parties

Applicant: Dhikra Chaouch (Oetrange, Luxembourg) (represented by: F. Moyse and A. Salerno, lawyers)

Defendant: European Commission (represented by: D. Martin and J. Baquero Cruz, Agents)

Re:

Annulment of the Appointing Authority’s decision not to grant the applicant installation allowance

Operative part of the judgment

The Tribunal:

| 1. | Dismisses Mr. Chaouch’s action; |
| --- | --- |

1.

Dismisses Mr. Chaouch’s action;

| 2. | Orders Mr. Chaouch to pay all the costs. |
| --- | --- |

2.

Orders Mr. Chaouch to pay all the costs.

---

(1)  OJ C 129 of 06.06.2009, p. 21.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/50 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/50

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Judgment of the Civil Service Tribunal (3rd Chamber) of 11 May 2011 — J v Commission

(Case F-53/09) (1)

(Civil service - Officials - Social security - Accident insurance and occupational disease - Article 73 of the Staff Regulations - Refusal to recognise the cause of an occupational disease - Obligation to conduct the procedure within a reasonable period)

2011/C 252/106

Language of the case: French

Parties

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

Defendant: European Commission (represented by: D. Martin and J. Baquero Cruz, Agents)

Re:

Annulment of the decision rejecting the applicant’s claim that the disease from which she is suffering should be recognised as an occupational disease, and of the decision to charge her for the fees and costs of the doctor whom she designated and 50 % of the fees and incidental costs of the third doctor on the medical committee

Operative part of the judgment

The Tribunal:

| 1. | Orders the European Commission to pay the applicant damages of one euro; |
| --- | --- |

1.

Orders the European Commission to pay the applicant damages of one euro;

| 2. | Dismisses the other claims in the action; |
| --- | --- |

2.

Dismisses the other claims in the action;

| 3. | Orders the European Commission to pay, as well as its own costs, one quarter of the applicant’s costs; |
| --- | --- |

3.

Orders the European Commission to pay, as well as its own costs, one quarter of the applicant’s costs;

| 4. | Orders the applicant to bear three-quarters of her own costs. |
| --- | --- |

4.

Orders the applicant to bear three-quarters of her own costs.

---

(1)  OJ C 180, of 01.08.2009, p. 64.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/50 |
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27.8.2011

EN

Official Journal of the European Union

C 252/50

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Judgment of the Civil Service Tribunal (3rd Chamber) of 15 February 2011 — Barbin v Parliament

(Case F-68/09) (1)

(Civil service - Officials - 2006 promotion exercise - Enforcement of a judgment of the Tribunal - Comparative examination of the merits - Principle of equal treatment - Half-time parental leave)

2011/C 252/107

Language of the case: French

Parties

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

Defendant: European Parliament (represented by: A. Lukošiūtė, C. Burgos, J.F. de Wachter, R. Ignătescu and K. Zejdová, Agents)

Re:

Annulment of the European Parliament’s decision not to promote the applicant to Grade AD 12 for the 2006 promotion exercise

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders Ms Barbin to pay all the costs. |
| --- | --- |

2.

Orders Ms Barbin to pay all the costs.

---

(1)  OJ C 220 of 12.09.09, p. 43.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/50 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/50

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Judgment of the Civil Service Tribunal (3rd Chamber) of 13 April 2011 — Sukup v Commission

(Case F-73/09) (1)

(Civil service - Remuneration and allowances - Dependent child allowance - Education allowance - Retrospective award)

2011/C 252/108

Language of the case: French

Parties

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

Defendant: European Commission (represented by: J. Currall and D. Martin, Agents)

Re:

Application for annulment of the decision of the European Commission’s Office for administration and payment of individual rights refusing to grant the applicant dependent child allowance or education allowance

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders Mr Sukup to pay all the costs. |
| --- | --- |

2.

Orders Mr Sukup to pay all the costs.

---

(1)  OJ C 267, of 07.11.2009, p. 84.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/51 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/51

---

Judgment of the Civil Service Tribunal (Second Chamber) of 26 May 2011 — Kalmár v Europol

(Case F-83/09) (1)

(Staff case - Europol staff - Dismissal - Request for annulment - Payment of remuneration - Effect of judgment ordering annulment)

2011/C 252/109

Language of the case: Dutch

Parties

Applicant: Andreas Kalmár (The Hague, Netherlands) (represented by: D. C. Coppens, lawyer)

Defendant: Europol (represented by: D. Neumann and D. El Khoury, agents, and by B. Wägenbaur, lawyer)

Re:

Annulment of the decisions of Europol of 4 and 24 February 2009 concerning the applicant’s dismissal and his suspension for the period of notice. In addition, application for compensation for the non-material harm suffered by the applicant.

Operative part of the judgment

The Tribunal:

| 1. | annuls the decision of 4 February 2009 whereby the Director of Europol terminated Mr Kalmár’s fixed-term contract, the decision of 24 February 2009 whereby the Director of Europol relieved him of the duty to serve his period of notice, and the decision of 18 July 2009 rejecting his complaint; |
| --- | --- |

1.

annuls the decision of 4 February 2009 whereby the Director of Europol terminated Mr Kalmár’s fixed-term contract, the decision of 24 February 2009 whereby the Director of Europol relieved him of the duty to serve his period of notice, and the decision of 18 July 2009 rejecting his complaint;

| 2. | orders Europol to pay the applicant a sum of EUR 5 000 in damages; |
| --- | --- |

2.

orders Europol to pay the applicant a sum of EUR 5 000 in damages;

| 3. | dismisses the action for the remainder; |
| --- | --- |

3.

dismisses the action for the remainder;

| 4. | orders Europol to bear its own costs and to pay the costs of Mr Kalmár. |
| --- | --- |

4.

orders Europol to bear its own costs and to pay the costs of Mr Kalmár.

---

(1)  OJ C 24, 30.1.2010, p. 80.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/51 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/51

---

Judgment of the Civil Service Tribunal (Third Chamber) of 13 April 2011 — Scheefer v Parliament

(Case F-105/09) (1)

(Staff case - Temporary staff - Renewal of a fixed-term contract - Reclassification of a contract for a fixed period as a contract for an indefinite period - First paragraph of Article 8 of the CEOS)

2011/C 252/110

Language of the case: French

Parties

Applicant: Séverine Scheefer (Luxembourg, Luxembourg) (represented by: R. Adam and P. Ketter, lawyers)

Defendant: European Parliament (represented by: R. Ignătescu and L. Chrétien, then by R. Ignătescu and S. Alves, agents)

Re:

Application for annulment of the defendant’s decisions refusing to convert the applicant’s temporary staff contract into a contract for an indefinite period in accordance with the first paragraph of Article 8 of the CEOS, and application for compensation for the loss suffered by the applicant.

Operative part of the judgment

The Tribunal:

| 1. | annuls the decision contained in the letter of 12 February 2009 whereby the Secretary-General of the European Parliament informed Ms Scheefer, first, that it had not been possible to find any legally acceptable solution to enable her to continue working within the medical service at Luxembourg (Luxembourg) and, secondly, that her temporary staff contract would end on 31 March 2009; |
| --- | --- |

1.

annuls the decision contained in the letter of 12 February 2009 whereby the Secretary-General of the European Parliament informed Ms Scheefer, first, that it had not been possible to find any legally acceptable solution to enable her to continue working within the medical service at Luxembourg (Luxembourg) and, secondly, that her temporary staff contract would end on 31 March 2009;

| 2. | orders the European Parliament to pay to Ms Scheefer the difference between, (i) the amount of the remuneration which she would have earned if she had continued to be employed by the Parliament and (ii) the amount of the remuneration, fees, unemployment benefit or any other allowance in lieu which she has in fact received since 1 April 2009 in place of the remuneration which she was receiving as a member of the temporary staff; |
| --- | --- |

2.

orders the European Parliament to pay to Ms Scheefer the difference between, (i) the amount of the remuneration which she would have earned if she had continued to be employed by the Parliament and (ii) the amount of the remuneration, fees, unemployment benefit or any other allowance in lieu which she has in fact received since 1 April 2009 in place of the remuneration which she was receiving as a member of the temporary staff;

| 3. | dismisses the action as to the remainder; |
| --- | --- |

3.

dismisses the action as to the remainder;

| 4. | orders the European Parliament to bear its own costs and to pay those of Ms Scheefer. |
| --- | --- |

4.

orders the European Parliament to bear its own costs and to pay those of Ms Scheefer.

---

(1)  OJ C 37, 13.2.2010, p. 52.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/52 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/52

---

Judgment of the Civil Service Tribunal (2nd Chamber) of 26 May 2011 — Lebedef v Commission

(Case F-40/10) (1)

(Civil service - Officials - Annual leave - Absence without prior permission after annual leave used up - Forfeiture of remuneration - Article 60 of the Staff Regulations)

2011/C 252/111

Language of the case: French

Parties

Applicant: Giorgio Lebedef (Senningerberg, Luxembourg) (represented by: F. Frabetti, lawyer)

Defendant: European Commission (represented by: G. Berscheid and D. Martin, Agents)

Re:

Application for annulment of the Commission’s decision stating that the applicant had, without prior permission, exceeded his annual leave entitlement for 2009 by 5,5 days

Operative part of the judgment

The Tribunal:

| 1. | Dismisses Mr. Lebedef’s action; |
| --- | --- |

1.

Dismisses Mr. Lebedef’s action;

| 2. | Orders Mr. Lebedef to pay all the costs. |
| --- | --- |

2.

Orders Mr. Lebedef to pay all the costs.

---

(1)  OJ C 209, of 31/07/10, p. 55.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/52 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/52

---

Order of the Civil Service Tribunal (Third Chamber) of 31 March 2011

Hecq v Commission

(Case F-10/10) (1)

(Staff case - Officials - Social security - Meeting of 100 % of medical costs - Implied rejection decision - No decision recognising the occupational origin of the illness - Limited power of the administration - Decision to reject the complaint - Decision not purely confirmatory - No complaint - Inadmissibility)

2011/C 252/112

Language of the case: French

Parties

Applicant: André Hecq (Chaumont-Gistoux, Belgium) (represented by: L. Vogel, lawyer)

Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents, assisted by J.-L. Fagnart, lawyer)

Subject-matter of the case

Application for annulment of the decision dismissing a claim for 100 % reimbursement of various medical costs.

Operative part of the order

| 1. | The action is dismissed as in part clearly unfounded and in part clearly inadmissible. |
| --- | --- |

1.

The action is dismissed as in part clearly unfounded and in part clearly inadmissible.

| 2. | Mr Hecq is ordered to pay the whole of the costs. |
| --- | --- |

2.

Mr Hecq is ordered to pay the whole of the costs.

---

(1)  OJ C 100, 17.4.2010, p. 70.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/52 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/52

---

Order of the Civil Service Tribunal (Third Chamber) of 30 June 2011 — Marcuccio v European Commission

(Case F-14/10) (1)

(Civil Service - Officials - Social security - Accident - Procedure for recognition of permanent partial invalidity within the meaning of Article 73 of the Staff Regulations - Duration of the procedure - Action for damages - Action manifestly lacking any foundation in law - Article 94 of the Rules of Procedure)

2011/C 252/113

Language of the case: French

Parties

Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Defendant: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, assisted by A. Dal Ferro, lawyer)

Re:

Application for an order that the defendant pay compensation for the damage suffered by the applicant as a result of the duration of the procedure for recognition of partial invalidity.

Operative part of the order

| 1. | The action of Mr Marcuccio is dismissed as manifestly lacking any foundation in law. |
| --- | --- |

1.

The action of Mr Marcuccio is dismissed as manifestly lacking any foundation in law.

| 2. | Mr Marcuccio is ordered to bear the costs incurred by the European Commission in addition to his own costs. |
| --- | --- |

2.

Mr Marcuccio is ordered to bear the costs incurred by the European Commission in addition to his own costs.

| 3. | Mr Marcuccio is ordered to repay the Tribunal the sum of EUR 1 000 pursuant to Article 94 of the Rules of Procedure. |
| --- | --- |

3.

Mr Marcuccio is ordered to repay the Tribunal the sum of EUR 1 000 pursuant to Article 94 of the Rules of Procedure.

---

(1)  OJ C 134, 22.05.2010, p. 54.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/53 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/53

---

Order of the Civil Service Tribunal (Third Chamber) of 10 June 2011

Hecq v Commission

(Case F-56/10) (1)

(Staff case - Officials - Social security - Meeting of 100 % of medical costs - Implied rejection decision - Premature complaint - Inadmissibility)

2011/C 252/114

Language of the case: French

Parties

Applicant: André Hecq (Chaumont-Gistoux, Belgium) (represented by: L. Vogel, lawyer)

Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents, assisted by J.-L. Fagnart, lawyer)

Subject-matter of the case

Application for annulment of the Commission’s decision refusing full reimbursement of various medical costs.

Operative part of the order

| 1. | The action is dismissed as clearly inadmissible. |
| --- | --- |

1.

The action is dismissed as clearly inadmissible.

| 2. | Mr Hecq is ordered to pay the whole of the costs. |
| --- | --- |

2.

Mr Hecq is ordered to pay the whole of the costs.

---

(1)  OJ C 246 of 11/09/10, p. 43.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/53 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/53

---

Order of the Civil Service Tribunal (Third Chamber) of 27 June 2011 — Scheefer v Parliament

(Case F-75/10) (1)

(Staff case - Temporary staff - Renewal of a fixed-term contract - No need to adjudicate)

2011/C 252/115

Language of the case: French

Parties

Applicant: Séverine Scheefer (Luxembourg, Luxembourg) (represented by: C. L’Hote-Tissier, R. Adam and P. Ketter, lawyers)

Defendant: European Parliament (represented by: R. Ignătescu and S. Alves, agents)

Re:

Application for annulment of the defendant’s decisions refusing to issue a reasoned decision in relation to the applicant’s legal status and in particular refusing to reclassify the applicant’s temporary staff contract as engagement for an indefinite period in accordance with the first paragraph of Article 8 of the CEOS and for compensation for damage suffered by the applicant.

Operative part of the order

| 1. | There is no longer any need to adjudicate on Case F-75/10 Scheefer v Parliament; |
| --- | --- |

1.

There is no longer any need to adjudicate on Case F-75/10 Scheefer v Parliament;

| 2. | The European Parliament shall bear its own costs and pay those of Ms Scheefer. |
| --- | --- |

2.

The European Parliament shall bear its own costs and pay those of Ms Scheefer.

---

(1)  OJ 2010 C 301, p. 64

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/53 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/53

---

Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Antelo Sanchez and Others v Parliament

(Case F-78/10) (1)

(Staff cases - Annual adjustment of the remuneration and pensions of officials and other servants - No need to adjudicate)

2011/C 252/116

Language of the case: French

Parties

Applicants: Pilar Antelo Sanchez (Brussels, Belgium) and Others (represented by: M. Casado García-Hirschfeld, lawyer)

Defendant: European Parliament (represented by: S. Seyr and K. Zejdová, Agents)

Re:

Application for annulment of the defendant’s decision, reproduced in the applicants’ pay slips, to limit the adjustment of their salaries, with effect from July 2009, to an increase of 1,85 % in the context of the annual adjustment of the remuneration and pensions of officials and other servants on the basis of Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

Operative part of the order

| 1. | There is no need to adjudicate on Case F-78/10 Antelo Sanchez and Others v Parliament. |
| --- | --- |

1.

There is no need to adjudicate on Case F-78/10 Antelo Sanchez and Others v Parliament.

| 2. | Each party is ordered to bear its own costs. |
| --- | --- |

2.

Each party is ordered to bear its own costs.

---

(1)  OJ C 301, 6.11.2010, p. 65.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/54 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/54

---

Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Nolin v Commission

(Case F-82/10) (1)

(Staff cases - Annual adjustment of the remuneration and pensions of officials and other servants - No need to adjudicate)

2011/C 252/117

Language of the case: French

Parties

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

Defendant: European Commission (represented by: G. Berscheid and D. Martin, Agents)

Re:

Application for the annulment of the applicant’s salary adjustment slip for the period from July to December 2009 and the salary slips of 1 January 2010 issued within the framework of the annual adjustment of the remuneration and pensions of officials and other servants pursuant to Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

Operative part of the order

| 1. | There is no need to adjudicate on Case F-82/10 Nolin v Commission. |
| --- | --- |

1.

There is no need to adjudicate on Case F-82/10 Nolin v Commission.

| 2. | Each party is ordered to bear its own costs. |
| --- | --- |

2.

Each party is ordered to bear its own costs.

---

(1)  OJ C 13, 15.01.2011, p. 38.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/54 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/54

---

Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Adriaens and Others v Commission

(Case F-87/10) (1)

(Staff cases - Annual adjustment of the remuneration and pensions of officials and other servants - No need to adjudicate)

2011/C 252/118

Language of the case: French

Parties

Applicants: Stéphane Adriaens (Evere, Belgium) and Others (represented by: M. Casado García-Hirschfeld, lawyer)

Defendant: European Commission (represented by: G. Berscheid and D. Martin, Agents)

Re:

Application to annul the defendant’s decision, contained in the applicants’ pay slips, to limit their salary adjustment, with effect from July 2009, to an increase of 1.85 % in the context of the annual adjustment of remuneration and pensions of officials and other servants on the basis of Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

Operative part of the order

| 1. | There is no need to adjudicate on Case F-87/10 Adriaens and Others v Commission. |
| --- | --- |

1.

There is no need to adjudicate on Case F-87/10 Adriaens and Others v Commission.

| 2. | Each party is ordered to bear its own costs. |
| --- | --- |

2.

Each party is ordered to bear its own costs.

---

(1)  OJ C 13, 15.01.2011, p. 40.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/54 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/54

---

Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Dricot-Daniele and Others v Commission

(Case F-92/10) (1)

(Staff cases - Annual adjustment of the remuneration and pensions of officials and other servants - No need to adjudicate)

2011/C 252/119

Language of the case: French

Parties

Applicants: Luiga Dricot-Daniele (Overijse, Belgium) and Others (represented by: C. Mourato, lawyer)

Defendant: European Commission (represented by: J Currall and G. Berscheid, Agents)

Re:

Annulment of the applicants’ correcting pay slips for the period from July to December 2009 and the pay slips issued after 1 January 2010 in the context of the annual adjustment of remuneration and pensions of officials and other servants on the basis of Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

Operative part of the order

| 1. | There is no need to adjudicate on Case F-92/10 Dricot-Daniele and Others v Commission. |
| --- | --- |

1.

There is no need to adjudicate on Case F-92/10 Dricot-Daniele and Others v Commission.

| 2. | Each party is ordered to bear its own costs. |
| --- | --- |

2.

Each party is ordered to bear its own costs.

---

(1)  OJ C 13, 15.01.2011, p. 40.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/55 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/55

---

Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Andrecs and Others v Commission

(Case F-96/10) (1)

(Staff cases - Annual adjustment of the remuneration and pensions of officials and other servants - No need to adjudicate)

2011/C 252/120

Language of the case: French

Parties

Applicants: Stefan Robert Andrecs (Uccle, Belgium) and Others (represented by: L. Vogel, lawyer)

Defendant: European Commission (represented by: G. Berscheid and D. Martin, Agents)

Re:

Application for annulment of the defendant's decision adjusting the applicants’ remuneration, pensions and other allowances with effect from 1 July 2009, as set out in their salary slips, within the framework of the annual adjustment of the remuneration and pensions of officials and other servants pursuant to Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

Operative part of the order

| 1. | There is no need to adjudicate on Case F-96/10 Andrecs and Others v Commission. |
| --- | --- |

1.

There is no need to adjudicate on Case F-96/10 Andrecs and Others v Commission.

| 2. | The applicants are ordered to bear their own costs and to pay the European Commission's costs. |
| --- | --- |

2.

The applicants are ordered to bear their own costs and to pay the European Commission's costs.

---

(1)  OJ C 30, 29.01.2011, p. 63.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/55 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/55

---

Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Ashbrook and Others v Commission

(Case F-99/10) (1)

(Staff cases - Annual adjustment of the remuneration and pensions of officials and other servants - No need to adjudicate)

2011/C 252/121

Language of the case: French

Parties

Applicants: Michael Ashbrook (Luxembourg, Luxembourg) and Others (represented by: B. Cortese, C. Cortese and F. Spitaleri)

Defendant: European Commission (represented by: J. Currall and G. Berscheid, Agents)

Re:

Application for annulment of the defendant’s decisions, reproduced in the applicants’ pay slips, to limit the adjustment of their salaries, with effect from July 2009, to an increase of 1,85 % in the context of the annual adjustment of the remuneration and pensions of officials and other servants on the basis of Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009, and claim for compensation.

Operative part of the order

| 1. | There is no need to adjudicate on Case F-99/10 Ashbrook and Others v Commission. |
| --- | --- |

1.

There is no need to adjudicate on Case F-99/10 Ashbrook and Others v Commission.

| 2. | Each party is ordered to bear its own costs. |
| --- | --- |

2.

Each party is ordered to bear its own costs.

---

(1)  OJ C 13, 15.01.2011, p. 42.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/55 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/55

---

Order of the Civil Service Tribunal (Third Chamber) of 20 June 2011 — Gross and Others v Court of Justice

(Case F-106/10) (1)

(Staff cases - Annual adjustment of the remuneration and pensions of officials and other servants - No need to adjudicate)

2011/C 252/122

Language of the case: French

Parties

Applicants: Ivo Gross (Luxembourg, Luxembourg) and Others (represented by: J. Kayser, lawyer)

Defendant: Court of Justice of the European Union (represented by: A. V. Placco, Agent)

Re:

Claim for annulment of the decisions set out in the applicants’ salary adjustment slips for the period from July to December 2009 and in the salary slips issued since 1 January 2010 within the framework of the annual adjustment of the remuneration and pensions of officials and other servants pursuant to Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

Operative part of the order

| 1. | There is no need to adjudicate on Case F-106/10 Gross and Others v Court of Justice. |
| --- | --- |

1.

There is no need to adjudicate on Case F-106/10 Gross and Others v Court of Justice.

| 2. | Each party is ordered to bear its own costs. |
| --- | --- |

2.

Each party is ordered to bear its own costs.

---

(1)  OJ C 72, 5.03.2011, p. 34.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/56 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/56

---

Action brought on 15 April 2011 — ZZ v Commission

(Case F-47/11)

2011/C 252/123

Language of the case: German

Parties

Applicant: ZZ. (represented by W. Bode, lawyer)

Defendant: European Commission

Subject-matter and description of the dispute

Annulment of the decision to exclude the applicant from Competition EPSO AST/100/09 and request for access to information concerning the running of the competition.

Forms of order sought

The applicant claims that the Civil Service Tribunal should:

| — | Order the defendant to supply the applicant with full information on the running of the competition and the various tests up to the present, including the procedure for assessing tests, including, but not limited to






  — | granting access to all documents which the defendant holds concerning the participation of the applicant in that competition including documents concerning assessment of the tests taken by the applicant. |
| --- | --- | --- |

—

Order the defendant to supply the applicant with full information on the running of the competition and the various tests up to the present, including the procedure for assessing tests, including, but not limited to

—

granting access to all documents which the defendant holds concerning the participation of the applicant in that competition including documents concerning assessment of the tests taken by the applicant.

| — | providing full information on how the mark (12 points) which the applicant obtained in practical test (a) was arrived at. |
| --- | --- |

—

providing full information on how the mark (12 points) which the applicant obtained in practical test (a) was arrived at.

| — | providing information on the running of the competition in general, including the number of candidates who participated in the written and oral tests; the number of candidates who passed practical test (a); the criteria established by the selection board for assessing, for example, answer keys, criteria for the awarding of points for certain parts of the various tests, or according to which criteria for assessment; the number of points obtained by other candidates in practical tests a) and b) and information as to the manner in which those points were awarded. |
| --- | --- |

—

providing information on the running of the competition in general, including the number of candidates who participated in the written and oral tests; the number of candidates who passed practical test (a); the criteria established by the selection board for assessing, for example, answer keys, criteria for the awarding of points for certain parts of the various tests, or according to which criteria for assessment; the number of points obtained by other candidates in practical tests a) and b) and information as to the manner in which those points were awarded.

| — | Annul the defendant’s decision of 28 September 2010 and confirmatory decision of 5 April 2011, thereby allowing the applicant to continue to participate in the competition, the first stage consisting in marking the applicant’s practical test (b). |
| --- | --- |

—

Annul the defendant’s decision of 28 September 2010 and confirmatory decision of 5 April 2011, thereby allowing the applicant to continue to participate in the competition, the first stage consisting in marking the applicant’s practical test (b).

| — | Order the defendant to pay the applicant’s extra-legal costs arising as a result of the three administrative complaints and the present action. |
| --- | --- |

—

Order the defendant to pay the applicant’s extra-legal costs arising as a result of the three administrative complaints and the present action.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/56 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/56

---

Action brought on 21 April 2011 — ZZ v Commission

(Case F-51/11)

2011/C 252/124

Language of the case: Greek

Parties

Applicant: ZZ (represented by: P. Giatagantzidis and K. Kyriazi, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the EPSO decision to re-open the EPSO/AD/77/06 open competition and to invite the applicant to participate again in the first stage of that competition.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the EPSO decision to re-open the competition; |
| --- | --- |

—

annul the EPSO decision to re-open the competition;

| — | annul the EPSO decision of 11 March 2011; |
| --- | --- |

—

annul the EPSO decision of 11 March 2011;

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

—

order the European Commission to pay the costs.

---

| 27.8.2011 | EN | Official Journal of the European Union | C 252/56 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

C 252/56

---

Action brought on 9 May 2011 — ZZ v Commission

(Case F-55/11)

2011/C 252/125

Language of the cse: Greek

Parties

Applicant: ZZ (represented by: V. Christianos, lawyer)

Defendant: European Commission

Subject-matter and description of the dispute

Annulment of the Commission’s decision to reduce the education allowance paid to the applicant by reason of the fact that his son receives financial aid from a Member State in the form of a bursary and a loan.

Forms of order sought

| — | Annul the decision to reduce the ‘education allowance’ paid to the applicant; |
| --- | --- |

—

Annul the decision to reduce the ‘education allowance’ paid to the applicant;

| — | annul the decision concerning the retrospective retention of EUR 939,96, as shown by the applicant’s pay slip for October 2010; |
| --- | --- |

—

annul the decision concerning the retrospective retention of EUR 939,96, as shown by the applicant’s pay slip for October 2010;

| — | annul the decision concerning the retrospective retention of EUR 936,96, as shown by the applicant’s pay slip for November 2010; |
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annul the decision concerning the retrospective retention of EUR 936,96, as shown by the applicant’s pay slip for November 2010;

| — | annul the Commission’s decision of 17 February 2011 expressly dismissing the complaint; |
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annul the Commission’s decision of 17 February 2011 expressly dismissing the complaint;

| — | repay to the applicant, with interest, the sums withheld from him; |
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repay to the applicant, with interest, the sums withheld from him;

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

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/57 |
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27.8.2011

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Official Journal of the European Union

C 252/57

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Action brought on 24 June 2011 — ZZ v European Commission

(Case F-64/11)

2011/C 252/126

Language of the case: English

Parties

Applicant: ZZ (represented by: S. Crosby and S. Santoro, lawyers)

Defendant: European Commission

The subject matter and description of the proceedings

The annulment of the decision of the defendant to revoke unilaterally the offer of employment made to the applicant, despite the fact that the applicant had already accepted the offer.

Form of order sought

| — | Annul the Decision of 4 March 2011 whereby the European Commission rejected the internal complaint lodged by the Applicant against the Commission decision HR B2 (2010) 662634 of 5 October 2010; |
| --- | --- |

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Annul the Decision of 4 March 2011 whereby the European Commission rejected the internal complaint lodged by the Applicant against the Commission decision HR B2 (2010) 662634 of 5 October 2010;

| — | pay a compensation for the damages suffered by the Applicant, including salaries and benefits foregone; |
| --- | --- |

—

pay a compensation for the damages suffered by the Applicant, including salaries and benefits foregone;

| — | order the Commission to pay the costs of this action. |
| --- | --- |

—

order the Commission to pay the costs of this action.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/57 |
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Official Journal of the European Union

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Action brought on 3 July 2011 — ZZ v Parliament

(Case F-65/11)

2011/C 252/127

Language of the case: German

Parties

Applicant: ZZ. (represented by O. Mader, lawyer)

Defendant: European Parliament

Subject-matter and description of the dispute

Annulment of the decision of the European Parliament whereby the applicant was awarded only 2 promotion points in respect of the promotions year 2004, in which he was seconded to the European Court of Auditors.

Forms of order sought

The applicant claims that the Civil Service Tribunal should:

| — | Annul the defendant’s decision of 19 July 2010 not to award the applicant a third promotion point for 2004, and annul the defendant’s decision of 28 April 2011, dismissing the applicant’s complaint against the decision of 19 July 2010; |
| --- | --- |

—

Annul the defendant’s decision of 19 July 2010 not to award the applicant a third promotion point for 2004, and annul the defendant’s decision of 28 April 2011, dismissing the applicant’s complaint against the decision of 19 July 2010;

| — | Order the defendant to pay the applicant compensation for non-material damage suffered by him, of an amount to be assessed in the discretion of the Tribunal; |
| --- | --- |

—

Order the defendant to pay the applicant compensation for non-material damage suffered by him, of an amount to be assessed in the discretion of the Tribunal;

| — | Order the defendant to pay the costs. |
| --- | --- |

—

Order the defendant to pay the costs.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/57 |
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Order of the Civil Service Tribunal (Third Chamber) of 11 January 2011 — Dekker v Europol

(Case F-87/09) (1)

2011/C 252/128

Language of the case: Dutch

The President of the Third Chamber has ordered that the case be removed from the register, following amicable settlement.

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(1)  OJ C 24, 30.1.2010, p. 80.

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| 27.8.2011 | EN | Official Journal of the European Union | C 252/57 |
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Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — Hidalgo v Parliament

(Case F-70/10) (1)

2011/C 252/129

Language of the case: French

The President of the Third Chamber has ordered that the case be removed from the register.

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(1)  OJ C 288, 23.10.2010, p. 75.

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Order of the Civil Service Tribunal (Third Chamber) of 18 May 2011 — Carpenito v Council

(Case F-94/10) (1)

2011/C 252/130

Language of the case: French

The President of the Third Chamber has ordered that the case be removed from the register.

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(1)  OJ C 13, 15.01.11, p. 41.

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Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Kerstens v Commission

(Case F-97/10) (1)

2011/C 252/131

Language of the case: French

The President of the Third Chamber has ordered that the case be removed from the register.

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(1)  OJ C 13, 15.1.2011, p 41.

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Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — Massez And Others v Court of Justice

(Case F-101/10) (1)

2011/C 252/132

Language of the case: French

The President of the Third Chamber has ordered that the case be removed from the register.

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(1)  OJ C 30, 29.1.2011, p. 63.

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Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — Geradon v Council

(Case F-102/10) (1)

2011/C 252/133

Language of the case: French

The President of the Third Chamber has ordered that the case be removed from the register.

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(1)  OJ C 30, 29.1.2011, p. 64.

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Order of the Civil Service Tribunal (Third Chamber) of 17 June 2011 — Nieminen v Council

(Case F-8/11) (1)

2011/C 252/134

Language of the case: French

The President of the Third Chamber has ordered that the case be removed from the register.

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(1)  OJ C 95, 26.3.2011, p. 14.

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Official Journal of the European Union

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Order of the Civil Service Tribunal (Third Chamber) of 12 July 2011 — BC v Council

(Case F-28/11) (1)

2011/C 252/135

Language of the case: French

The President of the Third Chamber has ordered that the case be removed from the register.

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(1)  OJ C 173, 11.6.2011, p. 16.

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