# Official Journal C 49/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.049.eng |
| --- | --- |
| Official Journal
  of the European Union | C 49 |
| | |
| English edition | Information and Notices | Volume 5518 February 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.049.eng

Official Journal

of the European Union

C 49

English edition

Information and Notices

Volume 5518 February 2012

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2012/C 049/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 39, 11.2.2012 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2012/C 049/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 39, 11.2.2012

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2012/C 049/02 | Case C-27/09 P: Judgment of the Court (Grand Chamber) of 21 December 2011 — French Republic v People’s Mojahedin Organization of Iran, Council of the European Union, European Commission (Appeal — Common foreign and security policy — Restrictive measures directed against certain persons and entities with a view to combating terrorism — Common Position 2001/931/CFSC — Regulation (EC) No 2580/2001 — Freezing of funds applicable to a group included in a list drawn up, revised and amended by the Council of the European Union — Rights of the defence) | 2 |
| 2012/C 049/03 | Case C-28/09: Judgment of the Court (Grand Chamber) of 21 December 2011 — European Commission v Republic of Austria (Failure of a Member State to fulfil obligations — Articles 28 EC and 29 EC — Free movement of goods — Measures having equivalent effect to quantitative restrictions on imports and exports — Transport — Directives 96/62/EC and 1999/30/EC — Sectoral traffic prohibition for lorries of over 7,5 tonnes carrying certain goods — Air quality — Protection of health and the environment — Principle of proportionality — Consistency) | 2 |
| 2012/C 049/04 | Case C-271/09: Judgment of the Court (Third Chamber) of 21 December 2011 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Free movement of capital — Scope — Open pension funds — Limitation on the investment of capital assets outside the Member State concerned — Proportionality) | 3 |
| 2012/C 049/05 | Case C-318/09 P: Judgment of the Court (Sixth Chamber) of 21 December 2011 — A2A SpA, formerly ASM Brescia SpA v European Commission (Appeals — State aid — Aid granted to public utilities — Tax exemptions — Decision declaring the aid scheme incompatible with the common market — Action for annulment — Admissibility — Standing — Legal interest — Article 87 EC — Concept of aid — Article 88 EC — Concept of new aid — Article 10 EC — Duty of loyal cooperation — Regulation (EC) No 659/1999 — Articles 1 and 14 — Lawfulness of a recovery order — Principle of legal certainty — Duty to state reasons) | 3 |
| 2012/C 049/06 | Case C-319/09 P: Judgment of the Court (Sixth Chamber) of 21 December 2011 — ACEA SpA v Iride Spa, formerly AEM SpA, European Commission (Appeals — State aid — Aid granted to public utilities — Tax exemptions — Decision declaring the aid scheme incompatible with the common market — Action for annulment — Admissibility — Standing — Legal interest — Article 87 EC — Concept of aid — Article 88 EC — Concept of new aid — Regulation (EC) No 659/1999 — Articles 1 and 14 — Lawfulness of a recovery order — Duty to state reasons) | 4 |
| 2012/C 049/07 | Case C-320/09 P: Judgment of the Court (Sixth Chamber) of 21 December 2011 — A2A SpA, formerly AEM SpA v European Commission (Appeals — State aid — Aid granted to public utilities — Tax exemptions — Decision declaring the aid scheme incompatible with the common market — Action for annulment — Admissibility — Standing — Legal interest — Article 87 EC — Concept of aid — Article 88 EC — Concept of new aid — Article 10 EC — Duty of loyal cooperation — Regulation (EC) No 659/1999 — Articles 1 and 14 — Lawfulness of a recovery order — Principle of legal certainty — Duty to state reasons) | 4 |
| 2012/C 049/08 | Case C-329/09 P: Judgment of the Court (Sixth Chamber) of 21 December 2011 — Iride SpA, formerly Azienda Mediterranea Gas e Acqua SpA v European Commission, A2A SpA, formerly ASM Brescia SpA (Appeal — State aid — Aid granted to public utilities — Tax exemptions — Decision declaring the aid scheme incompatible with the common market — Action for annulment — Admissibility — Standing — Legal interest) | 5 |
| 2012/C 049/09 | Case C-242/10: Judgment of the Court (Second Chamber) of 21 December 2011 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Italy) — Enel Produzione SpA v Autorità per l’energia elettrica e il gas (Directive 2003/54/EC — Internal market in electricity — Electricity generating installations essential to the operation of the electricity system — Obligation to submit tenders on the national electricity exchange market in accordance with the limits and criteria laid down by the electricity transmission and distribution system operator — Dispatching and balancing service — Public service obligations) | 5 |
| 2012/C 049/10 | Case C-250/10: Judgment of the Court (Fourth Chamber) of 21 December 2011 (reference for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — Haltergemeinschaft LBL GbR v Hauptzollamt Düsseldorf (Directive 2003/96/EC — Taxation of energy products and electricity — Article 14(1)(b) — Exemption of energy products used as fuel for the purpose of air navigation — Fuel provided by a person chartering out an aircraft used by charterers of the aircraft for their flights for purposes other than the supply of air services for consideration) | 6 |
| 2012/C 049/11 | Case C-316/10: Judgment of the Court (Third Chamber) of 21 December 2011 (reference for a preliminary ruling from the Vestre Landsret — Denmark) — Danske Svineproducenter v Justitsministeriet (Second paragraph of Article 288 TFEU — Regulation (EC) No 1/2005 — Protection of animals during transport — Transport by road of domestic animals of the porcine species — Minimum height of compartments — Inspection during a journey — Loading density — Right of Member States to adopt detailed standards) | 6 |
| 2012/C 049/12 | Case C-366/10: Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the High Court of Justice, Queen’s Bench Division (Administrative Court) — United Kingdom) — Air Transport Association of America, American Airlines Inc., Continental Airlines Inc., United Airlines Inc. v Secretary of State for Energy and Climate Change (Reference for a preliminary ruling — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Directive 2008/101/EC — Inclusion of aviation activities in that scheme — Validity — Chicago Convention — Kyoto Protocol — EU-United States Air Transport Agreement — Principles of customary international law — Legal effects thereof — Whether they may be relied upon — Extraterritoriality of European Union law — Meaning of charges, fees and taxes) | 7 |
| 2012/C 049/13 | Joined Cases C-411/10 and C-493/10: Judgment of the Court (Grand Chamber) of 21 December 2011 (references for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) and from the High Court of Ireland — United Kingdom, Ireland) — N. S. (C-411/10) v Secretary of State for the Home Department and M. E. (C-493/10), A. S. M., M. T., K. P., E. H. v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (European Union law — Principles — Fundamental rights — Implementation of European Union law — Prohibition of inhuman or degrading treatment — Common European Asylum System — Regulation (EC) No 343/2003 — Concept of safe countries — Transfer of an asylum seeker to the Member State responsible — Obligation — Rebuttable presumption of compliance, by that Member State, with fundamental rights) | 8 |
| 2012/C 049/14 | Joined Cases C-424/10 and C-425/10: Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Tomasz Ziolkowski (C-424/10), Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja (C-425/10) v Land Berlin (Freedom of movement for persons — Directive 2004/38/EC — Right of permanent residence — Article 16 — Legal residence — Residence based on national law — Period of residence completed before the accession to the European Union of the State of origin of the citizen concerned) | 9 |
| 2012/C 049/15 | Case C-465/10: Judgment of the Court (Fourth Chamber) of 21 December 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration v Chambre de commerce et d’industrie de l’Indre (Reference for a preliminary ruling — Protection of the European Union’s financial interests — Regulation (EC, Euratom) No 2988/95 — Article 3 — Structural Funds — Regulation (EEC) No 2052/88 — Regulation (EEC) No 4253/88 — Contracting authority in receipt of a subsidy from the Structural Funds — Failure to comply with public procurement rules by the recipient of an ERDF subsidy — Basis for the obligation to recover European Union subsidies in the case of an irregularity — Concept of irregularity — Concept of continuous irregularity — Conditions for recovery — Limitation period — Longer national limitation periods — Principle of proportionality) | 10 |
| 2012/C 049/16 | Case C-482/10: Judgment of the Court (Third Chamber) of 21 December 2011 (reference for a preliminary ruling from the Corte dei Conti — Sezione Giurisdizionale per la Regione Siciliana — Italy) — Teresa Cicala v Regione Siciliana (National administrative procedure — Administrative acts — Obligation to state reasons — Possibility of failure to state reasons being remedied during legal proceedings against an administrative act — Interpretation of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union — Lack of jurisdiction of the Court) | 11 |
| 2012/C 049/17 | Case C-495/10: Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Centre hospitalier universitaire de Besançon v Thomas Dutrueux, Caisse primaire d’assurance maladie du Jura (Directive 85/374/EEC — Liability for defective products — Scope — National rules requiring public healthcare establishments to pay compensation, even when they are not at fault, for damage sustained by a patient as a result of the failure of equipment or products used in the course of treatment) | 11 |
| 2012/C 049/18 | Case C-499/10: Judgment of the Court (Seventh Chamber) of 21 December 2011 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge — Belgium) — Vlaamse Oliemaatschappij NV v FOD Financiën (Sixth VAT Directive — Persons liable to pay tax — Third party jointly and severally liable — Warehousing arrangements other than customs warehousing — Joint and several liability of the warehouse-keeper of the goods and the taxable person who owns the goods — Good faith or lack of fault or negligence of the warehouse-keeper) | 12 |
| 2012/C 049/19 | Case C-503/10: Judgment of the Court (Eighth Chamber) of 21 December 2011 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Evroetil AD v Direktor na Agentsia Mitnitsi (Directive 2003/30/EC — Article 2(2)(a) — Concept of bioethanol — Product obtained from biomass, undenatured and with an ethyl alcohol content of over 98,5 % — Relevance of actual use as a biofuel — Regulation (EEC) No 2658/87 — Combined Nomenclature — Tariff classification of bioethanol for the purpose of collecting excise duties — Directive 2003/96/EC — Energy products — Directive 92/83/EEC — First indent of Article 20 and Article 27(1)(a) and (b) — Concept of ethyl alcohol — Exemption from the harmonised duty — Denaturing) | 12 |
| 2012/C 049/20 | Case C-507/10: Judgment of the Court (Second Chamber) of 21 December 2011 (reference for a preliminary ruling from the Tribunale di Firenze — Italy) — Criminal proceedings against X (Police and judicial cooperation in criminal matters — Framework Decision 2001/220/JHA — Standing of victims in criminal proceedings — Protection of vulnerable persons — Hearing of minors as witnesses — Special measure for early taking of evidence — Refusal by the Public Prosecutor to request the judge in charge of preliminary investigations to hear a witness) | 13 |
| 2012/C 049/21 | Case C-72/11: Judgment of the Court (Third Chamber) of 21 December 2011 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Criminal proceedings against Mohsen Afrasiabi, Behzad Sahabi, Heinz Ulrich Kessel (Common foreign and security policy — Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation — Regulation (EC) No 423/2007 — Article 7(3) and (4) — Supply and installation of a sintering furnace in Iran — Concept of indirectly making available an economic resource to persons, entities and bodies listed in Annexes IV and V to that regulation — Concept of circumvention of the prohibition on making that resource available) | 13 |
| 2012/C 049/22 | Case C-519/10: Order of the Court (Seventh Chamber) of 18 November 2011 (reference for a preliminary ruling from the Tribunale di Bari — Italy) — Giovanni Colapietro v Ispettorato Centrale Repressioni Frodi (Reference for a preliminary ruling — Articles 92(1), 103(1) and the second subparagraph of 104(3) of the Rules of Procedure — Wine sector — Regulation (EEC) No 822/87 and Regulation (EC) No 343/94 — Answer to the question admitting of no reasonable doubt — Manifest inadmissibility) | 14 |
| 2012/C 049/23 | Case C-67/11 P: Order of the Court (Fifth Chamber) of 20 October 2011 — DTL Corporación, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Gestión de Recursos y Soluciones Empresariales SL (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Opposition procedure — Figurative mark containing the word element Solaria and earlier national figurative mark containing the word element Solartia — Registration refused in part — Likelihood of confusion — Request for a stay of the proceedings before the General Court — Failure to lodge the request in good time) | 14 |
| 2012/C 049/24 | Case C-585/11: Reference for a preliminary ruling from the Verwaltungsgericht Karlsruhe (Germany) lodged on 24 November 2011 — Philipp Seeberger v Studentenwerk Heidelberg | 15 |
| 2012/C 049/25 | Case C-592/11: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 28 November 2011 — Anssi Ketelä | 15 |
| 2012/C 049/26 | Case C-618/11: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 1 December 2011 — TVI Televisão Independente, SA v Fazenda Pública | 16 |
| 2012/C 049/27 | Case C-619/11: Reference for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium) of 30 November 2011 — Patricia Dumont de Chassart v ONAFTS — Office national des allocations familiales pour travailleurs salariés | 16 |
| 2012/C 049/28 | Case C-629/11 P: Appeal brought on 8 December 2011 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Second Chamber) delivered on 20 September 2011 in Case T-298/09: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission | 17 |
| 2012/C 049/29 | Case C-637/11: Reference for a preliminary ruling from the Tribunal Central Administrativo Sul (Portugal) lodged on 12 December 2011 — TVI Televisão Independente SA v Fazenda Pública | 17 |
| 2012/C 049/30 | Case C-647/11 P: Appeal brought on 19 December 2011 by Dimos Peramatos against the judgment delivered by the General Court (First Chamber) on 12 October 2011 in Case T-312/07 Dimos Peramatos v European Commission | 18 |
| 2012/C 049/31 | Case C-650/11: Reference for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia), lodged on 19 December 2011 — Ilgvars Brunovskis v Lauku atbalsta dienests | 18 |
| 2012/C 049/32 | Case C-652/11 P: Appeal brought on 19 December 2011 by Mindo Srl against the judgment of the General Court (Third Chamber) delivered on 5 October 2011 in Case T-19/06: Mindo Srl v European Commission | 19 |
| 2012/C 049/33 | Case C-654/11 P: Appeal brought on 20 December 2011 by Transcatab SpA, in liquidation, against the judgment delivered on 5 October 2011 in Case T-39/06 Transcatab v Commission | 19 |
| 2012/C 049/34 | Case C-656/11: Action brought on 21 December 2011 — United Kingdom of Great Britain and Northern Ireland v Council of the European Union | 20 |
| 2012/C 049/35 | Case C-659/11: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 27 December 2011 — TVI Televisão Independente SA v Fazenda Pública | 21 |
| 2012/C 049/36 | Case C-356/10: Order of the President of the Third Chamber of the Court of 22 November 2011 — European Commission v Ireland | 21 |
| 2012/C 049/37 | Case C-535/10 P: Order of the President of the Court of 14 November 2011 — 4care AG v Office For Harmonization in the Internal Market (Trade marks and designs), Laboratorios Diafarm, SA | 21 |
| 2012/C 049/38 | Case C-568/10: Order of the President of the Court of 22 November 2011 — European Commission v Austrian Republic | 22 |
| 2012/C 049/39 | Case C-582/10: Order of the President of the Sixth Chamber of the Court of 22 November 2011 — European Commission v Austrian Republic | 22 |
| | General Court |
| 2012/C 049/40 | Case T-462/09: Judgment of the General Court of 12 January 2012 — Storck v OHIM — RAI (Ragolizia) (Community trade mark — Opposition proceedings — Application for Community word mark Ragolizia — Earlier Community word mark FAVOLIZIA — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009) | 23 |
| 2012/C 049/41 | Case T-311/09 P: Order of the General Court of 13 December 2011 — Marcuccio v Commission (Appeal — Civil Service — Officials — Social security — Reimbursement of medical expenses — Decision of the Commission refusing 100 % reimbursement of certain medical expenses incurred by the applicant — Distortion — Duty to state reasons — Investigation — Act adversely affecting the appellant — Authority of res judicata — Lis pendens — Confirmatory act) | 23 |
| 2012/C 049/42 | Case T-202/10: Order of the General Court of 16 December 2011 — Stichting Woonlinie and Others v Commission (State aid — Scheme of aid granted by the Netherlands to housing corporations — Existing aid — Decision accepting Member State’s commitments — Action for annulment — Not individually concerned — Inadmissibility) | 23 |
| 2012/C 049/43 | Case T-203/10: Order of the General Court of 16 December 2011 — Stichting Woonpunt and Others v Commission (State aid — Scheme of aid granted by the Netherlands to housing corporations — Existing aid — Decision accepting Member State’s commitments — Decision declaring new aid compatible — Action for annulment — Not individually concerned — No interest in bringing proceedings — Inadmissibility) | 24 |
| 2012/C 049/44 | Case T-285/11: Order of the General Court of 15 December 2011 — Gooré v Council (Common foreign and security policy — Restrictive measures adopted in view of the situation in Côte d’Ivoire — Withdrawal of the list of persons concerned — Action for annulment — No need to adjudicate — Action for damages — Action manifestly unfounded) | 24 |
| 2012/C 049/45 | Case T-593/11 R: Order of the President of the General Court of 22 December 2011 — Al-Chihabi v Council (Interim relief — Common foreign and security policy — Restrictive measures against Syria — Freezing of funds and economic resources — Application for interim measures — No urgency — No serious and irreparable damage) | 25 |
| 2012/C 049/46 | Case T-595/11 P: Appeal brought on 24 November 2011 by A against the judgment of the Civil Service Tribunal of 14 September 2011 in Case F-12/09, A v Commission | 25 |
| 2012/C 049/47 | Case T-626/11: Action brought on 2 December 2011 — Sky Deutschland and Sky Deutschland Fernsehen v Commission | 26 |
| 2012/C 049/48 | Case T-627/11: Action brought on 2 December 2011 — ATMvision v European Commission | 26 |
| 2012/C 049/49 | Case T-628/11: Action brought on 5 December 2011 — Biogas Nord v Commission | 27 |
| 2012/C 049/50 | Case T-629/11: Action brought on 5 December 2011 — Biogas Nord Anlagenbau v Commission | 28 |
| 2012/C 049/51 | Case T-630/11 P: Appeal brought on 6 December 2011 by Peter Strobl against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-56/05 Strobl v Commission | 28 |
| 2012/C 049/52 | Case T-638/11: Action brought on 12 December 2011 — European Dynamics Belgium and Others v European Medicines Agency | 29 |
| 2012/C 049/53 | Case T-639/11: Action brought on 14 December 2011 — Heads! v OHIM (HEADS) | 29 |
| 2012/C 049/54 | Case T-641/11 P: Appeal brought on 8 December 2011 by Harald Mische against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-70/05 Mische v Commission | 30 |
| 2012/C 049/55 | Case T-642/11 P: Appeal brought on 8 December 2011 by Harald Mische against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-93/05 Mische v Parliament | 30 |
| 2012/C 049/56 | Case T-643/11: Action brought on 15 December 2011 — Crown Equipment (Suzhou) and Crown Gabelstapler v Council | 31 |
| 2012/C 049/57 | Case T-661/11: Action brought on 21 December 2011 — Italy v Commission | 32 |
| 2012/C 049/58 | Case T-662/11: Action brought on 28 December 2011 — Müller v OHIM — Loncar (Sunless) | 32 |
| 2012/C 049/59 | Case T-6/12: Action brought on 5 January 2012 — Godrej Industries and V V F v Council | 33 |
| 2012/C 049/60 | Case T-523/11: Order of the President of the General Court of 15 December 2011 — Maxima Grupė v OHIM — Bodegas Maximo (MAXIMA PREMIUM) | 33 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2012/C 049/02

Case C-27/09 P: Judgment of the Court (Grand Chamber) of 21 December 2011 — French Republic v People’s Mojahedin Organization of Iran, Council of the European Union, European Commission (Appeal — Common foreign and security policy — Restrictive measures directed against certain persons and entities with a view to combating terrorism — Common Position 2001/931/CFSC — Regulation (EC) No 2580/2001 — Freezing of funds applicable to a group included in a list drawn up, revised and amended by the Council of the European Union — Rights of the defence)

2

2012/C 049/03

Case C-28/09: Judgment of the Court (Grand Chamber) of 21 December 2011 — European Commission v Republic of Austria (Failure of a Member State to fulfil obligations — Articles 28 EC and 29 EC — Free movement of goods — Measures having equivalent effect to quantitative restrictions on imports and exports — Transport — Directives 96/62/EC and 1999/30/EC — Sectoral traffic prohibition for lorries of over 7,5 tonnes carrying certain goods — Air quality — Protection of health and the environment — Principle of proportionality — Consistency)

2

2012/C 049/04

Case C-271/09: Judgment of the Court (Third Chamber) of 21 December 2011 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Free movement of capital — Scope — Open pension funds — Limitation on the investment of capital assets outside the Member State concerned — Proportionality)

3

2012/C 049/05

Case C-318/09 P: Judgment of the Court (Sixth Chamber) of 21 December 2011 — A2A SpA, formerly ASM Brescia SpA v European Commission (Appeals — State aid — Aid granted to public utilities — Tax exemptions — Decision declaring the aid scheme incompatible with the common market — Action for annulment — Admissibility — Standing — Legal interest — Article 87 EC — Concept of aid — Article 88 EC — Concept of new aid — Article 10 EC — Duty of loyal cooperation — Regulation (EC) No 659/1999 — Articles 1 and 14 — Lawfulness of a recovery order — Principle of legal certainty — Duty to state reasons)

3

2012/C 049/06

Case C-319/09 P: Judgment of the Court (Sixth Chamber) of 21 December 2011 — ACEA SpA v Iride Spa, formerly AEM SpA, European Commission (Appeals — State aid — Aid granted to public utilities — Tax exemptions — Decision declaring the aid scheme incompatible with the common market — Action for annulment — Admissibility — Standing — Legal interest — Article 87 EC — Concept of aid — Article 88 EC — Concept of new aid — Regulation (EC) No 659/1999 — Articles 1 and 14 — Lawfulness of a recovery order — Duty to state reasons)

4

2012/C 049/07

Case C-320/09 P: Judgment of the Court (Sixth Chamber) of 21 December 2011 — A2A SpA, formerly AEM SpA v European Commission (Appeals — State aid — Aid granted to public utilities — Tax exemptions — Decision declaring the aid scheme incompatible with the common market — Action for annulment — Admissibility — Standing — Legal interest — Article 87 EC — Concept of aid — Article 88 EC — Concept of new aid — Article 10 EC — Duty of loyal cooperation — Regulation (EC) No 659/1999 — Articles 1 and 14 — Lawfulness of a recovery order — Principle of legal certainty — Duty to state reasons)

4

2012/C 049/08

Case C-329/09 P: Judgment of the Court (Sixth Chamber) of 21 December 2011 — Iride SpA, formerly Azienda Mediterranea Gas e Acqua SpA v European Commission, A2A SpA, formerly ASM Brescia SpA (Appeal — State aid — Aid granted to public utilities — Tax exemptions — Decision declaring the aid scheme incompatible with the common market — Action for annulment — Admissibility — Standing — Legal interest)

5

2012/C 049/09

Case C-242/10: Judgment of the Court (Second Chamber) of 21 December 2011 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Italy) — Enel Produzione SpA v Autorità per l’energia elettrica e il gas (Directive 2003/54/EC — Internal market in electricity — Electricity generating installations essential to the operation of the electricity system — Obligation to submit tenders on the national electricity exchange market in accordance with the limits and criteria laid down by the electricity transmission and distribution system operator — Dispatching and balancing service — Public service obligations)

5

2012/C 049/10

Case C-250/10: Judgment of the Court (Fourth Chamber) of 21 December 2011 (reference for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — Haltergemeinschaft LBL GbR v Hauptzollamt Düsseldorf (Directive 2003/96/EC — Taxation of energy products and electricity — Article 14(1)(b) — Exemption of energy products used as fuel for the purpose of air navigation — Fuel provided by a person chartering out an aircraft used by charterers of the aircraft for their flights for purposes other than the supply of air services for consideration)

6

2012/C 049/11

Case C-316/10: Judgment of the Court (Third Chamber) of 21 December 2011 (reference for a preliminary ruling from the Vestre Landsret — Denmark) — Danske Svineproducenter v Justitsministeriet (Second paragraph of Article 288 TFEU — Regulation (EC) No 1/2005 — Protection of animals during transport — Transport by road of domestic animals of the porcine species — Minimum height of compartments — Inspection during a journey — Loading density — Right of Member States to adopt detailed standards)

6

2012/C 049/12

Case C-366/10: Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the High Court of Justice, Queen’s Bench Division (Administrative Court) — United Kingdom) — Air Transport Association of America, American Airlines Inc., Continental Airlines Inc., United Airlines Inc. v Secretary of State for Energy and Climate Change (Reference for a preliminary ruling — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Directive 2008/101/EC — Inclusion of aviation activities in that scheme — Validity — Chicago Convention — Kyoto Protocol — EU-United States Air Transport Agreement — Principles of customary international law — Legal effects thereof — Whether they may be relied upon — Extraterritoriality of European Union law — Meaning of charges, fees and taxes)

7

2012/C 049/13

Joined Cases C-411/10 and C-493/10: Judgment of the Court (Grand Chamber) of 21 December 2011 (references for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) and from the High Court of Ireland — United Kingdom, Ireland) — N. S. (C-411/10) v Secretary of State for the Home Department and M. E. (C-493/10), A. S. M., M. T., K. P., E. H. v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (European Union law — Principles — Fundamental rights — Implementation of European Union law — Prohibition of inhuman or degrading treatment — Common European Asylum System — Regulation (EC) No 343/2003 — Concept of safe countries — Transfer of an asylum seeker to the Member State responsible — Obligation — Rebuttable presumption of compliance, by that Member State, with fundamental rights)

8

2012/C 049/14

Joined Cases C-424/10 and C-425/10: Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Tomasz Ziolkowski (C-424/10), Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja (C-425/10) v Land Berlin (Freedom of movement for persons — Directive 2004/38/EC — Right of permanent residence — Article 16 — Legal residence — Residence based on national law — Period of residence completed before the accession to the European Union of the State of origin of the citizen concerned)

9

2012/C 049/15

Case C-465/10: Judgment of the Court (Fourth Chamber) of 21 December 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration v Chambre de commerce et d’industrie de l’Indre (Reference for a preliminary ruling — Protection of the European Union’s financial interests — Regulation (EC, Euratom) No 2988/95 — Article 3 — Structural Funds — Regulation (EEC) No 2052/88 — Regulation (EEC) No 4253/88 — Contracting authority in receipt of a subsidy from the Structural Funds — Failure to comply with public procurement rules by the recipient of an ERDF subsidy — Basis for the obligation to recover European Union subsidies in the case of an irregularity — Concept of irregularity — Concept of continuous irregularity — Conditions for recovery — Limitation period — Longer national limitation periods — Principle of proportionality)

10

2012/C 049/16

Case C-482/10: Judgment of the Court (Third Chamber) of 21 December 2011 (reference for a preliminary ruling from the Corte dei Conti — Sezione Giurisdizionale per la Regione Siciliana — Italy) — Teresa Cicala v Regione Siciliana (National administrative procedure — Administrative acts — Obligation to state reasons — Possibility of failure to state reasons being remedied during legal proceedings against an administrative act — Interpretation of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union — Lack of jurisdiction of the Court)

11

2012/C 049/17

Case C-495/10: Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Centre hospitalier universitaire de Besançon v Thomas Dutrueux, Caisse primaire d’assurance maladie du Jura (Directive 85/374/EEC — Liability for defective products — Scope — National rules requiring public healthcare establishments to pay compensation, even when they are not at fault, for damage sustained by a patient as a result of the failure of equipment or products used in the course of treatment)

11

2012/C 049/18

Case C-499/10: Judgment of the Court (Seventh Chamber) of 21 December 2011 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge — Belgium) — Vlaamse Oliemaatschappij NV v FOD Financiën (Sixth VAT Directive — Persons liable to pay tax — Third party jointly and severally liable — Warehousing arrangements other than customs warehousing — Joint and several liability of the warehouse-keeper of the goods and the taxable person who owns the goods — Good faith or lack of fault or negligence of the warehouse-keeper)

12

2012/C 049/19

Case C-503/10: Judgment of the Court (Eighth Chamber) of 21 December 2011 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Evroetil AD v Direktor na Agentsia Mitnitsi (Directive 2003/30/EC — Article 2(2)(a) — Concept of bioethanol — Product obtained from biomass, undenatured and with an ethyl alcohol content of over 98,5 % — Relevance of actual use as a biofuel — Regulation (EEC) No 2658/87 — Combined Nomenclature — Tariff classification of bioethanol for the purpose of collecting excise duties — Directive 2003/96/EC — Energy products — Directive 92/83/EEC — First indent of Article 20 and Article 27(1)(a) and (b) — Concept of ethyl alcohol — Exemption from the harmonised duty — Denaturing)

12

2012/C 049/20

Case C-507/10: Judgment of the Court (Second Chamber) of 21 December 2011 (reference for a preliminary ruling from the Tribunale di Firenze — Italy) — Criminal proceedings against X (Police and judicial cooperation in criminal matters — Framework Decision 2001/220/JHA — Standing of victims in criminal proceedings — Protection of vulnerable persons — Hearing of minors as witnesses — Special measure for early taking of evidence — Refusal by the Public Prosecutor to request the judge in charge of preliminary investigations to hear a witness)

13

2012/C 049/21

Case C-72/11: Judgment of the Court (Third Chamber) of 21 December 2011 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Criminal proceedings against Mohsen Afrasiabi, Behzad Sahabi, Heinz Ulrich Kessel (Common foreign and security policy — Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation — Regulation (EC) No 423/2007 — Article 7(3) and (4) — Supply and installation of a sintering furnace in Iran — Concept of indirectly making available an economic resource to persons, entities and bodies listed in Annexes IV and V to that regulation — Concept of circumvention of the prohibition on making that resource available)

13

2012/C 049/22

Case C-519/10: Order of the Court (Seventh Chamber) of 18 November 2011 (reference for a preliminary ruling from the Tribunale di Bari — Italy) — Giovanni Colapietro v Ispettorato Centrale Repressioni Frodi (Reference for a preliminary ruling — Articles 92(1), 103(1) and the second subparagraph of 104(3) of the Rules of Procedure — Wine sector — Regulation (EEC) No 822/87 and Regulation (EC) No 343/94 — Answer to the question admitting of no reasonable doubt — Manifest inadmissibility)

14

2012/C 049/23

Case C-67/11 P: Order of the Court (Fifth Chamber) of 20 October 2011 — DTL Corporación, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Gestión de Recursos y Soluciones Empresariales SL (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Opposition procedure — Figurative mark containing the word element Solaria and earlier national figurative mark containing the word element Solartia — Registration refused in part — Likelihood of confusion — Request for a stay of the proceedings before the General Court — Failure to lodge the request in good time)

14

2012/C 049/24

Case C-585/11: Reference for a preliminary ruling from the Verwaltungsgericht Karlsruhe (Germany) lodged on 24 November 2011 — Philipp Seeberger v Studentenwerk Heidelberg

15

2012/C 049/25

Case C-592/11: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 28 November 2011 — Anssi Ketelä

15

2012/C 049/26

Case C-618/11: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 1 December 2011 — TVI Televisão Independente, SA v Fazenda Pública

16

2012/C 049/27

Case C-619/11: Reference for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium) of 30 November 2011 — Patricia Dumont de Chassart v ONAFTS — Office national des allocations familiales pour travailleurs salariés

16

2012/C 049/28

Case C-629/11 P: Appeal brought on 8 December 2011 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Second Chamber) delivered on 20 September 2011 in Case T-298/09: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission

17

2012/C 049/29

Case C-637/11: Reference for a preliminary ruling from the Tribunal Central Administrativo Sul (Portugal) lodged on 12 December 2011 — TVI Televisão Independente SA v Fazenda Pública

17

2012/C 049/30

Case C-647/11 P: Appeal brought on 19 December 2011 by Dimos Peramatos against the judgment delivered by the General Court (First Chamber) on 12 October 2011 in Case T-312/07 Dimos Peramatos v European Commission

18

2012/C 049/31

Case C-650/11: Reference for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia), lodged on 19 December 2011 — Ilgvars Brunovskis v Lauku atbalsta dienests

18

2012/C 049/32

Case C-652/11 P: Appeal brought on 19 December 2011 by Mindo Srl against the judgment of the General Court (Third Chamber) delivered on 5 October 2011 in Case T-19/06: Mindo Srl v European Commission

19

2012/C 049/33

Case C-654/11 P: Appeal brought on 20 December 2011 by Transcatab SpA, in liquidation, against the judgment delivered on 5 October 2011 in Case T-39/06 Transcatab v Commission

19

2012/C 049/34

Case C-656/11: Action brought on 21 December 2011 — United Kingdom of Great Britain and Northern Ireland v Council of the European Union

20

2012/C 049/35

Case C-659/11: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 27 December 2011 — TVI Televisão Independente SA v Fazenda Pública

21

2012/C 049/36

Case C-356/10: Order of the President of the Third Chamber of the Court of 22 November 2011 — European Commission v Ireland

21

2012/C 049/37

Case C-535/10 P: Order of the President of the Court of 14 November 2011 — 4care AG v Office For Harmonization in the Internal Market (Trade marks and designs), Laboratorios Diafarm, SA

21

2012/C 049/38

Case C-568/10: Order of the President of the Court of 22 November 2011 — European Commission v Austrian Republic

22

2012/C 049/39

Case C-582/10: Order of the President of the Sixth Chamber of the Court of 22 November 2011 — European Commission v Austrian Republic

22

General Court

2012/C 049/40

Case T-462/09: Judgment of the General Court of 12 January 2012 — Storck v OHIM — RAI (Ragolizia) (Community trade mark — Opposition proceedings — Application for Community word mark Ragolizia — Earlier Community word mark FAVOLIZIA — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

23

2012/C 049/41

Case T-311/09 P: Order of the General Court of 13 December 2011 — Marcuccio v Commission (Appeal — Civil Service — Officials — Social security — Reimbursement of medical expenses — Decision of the Commission refusing 100 % reimbursement of certain medical expenses incurred by the applicant — Distortion — Duty to state reasons — Investigation — Act adversely affecting the appellant — Authority of res judicata — Lis pendens — Confirmatory act)

23

2012/C 049/42

Case T-202/10: Order of the General Court of 16 December 2011 — Stichting Woonlinie and Others v Commission (State aid — Scheme of aid granted by the Netherlands to housing corporations — Existing aid — Decision accepting Member State’s commitments — Action for annulment — Not individually concerned — Inadmissibility)

23

2012/C 049/43

Case T-203/10: Order of the General Court of 16 December 2011 — Stichting Woonpunt and Others v Commission (State aid — Scheme of aid granted by the Netherlands to housing corporations — Existing aid — Decision accepting Member State’s commitments — Decision declaring new aid compatible — Action for annulment — Not individually concerned — No interest in bringing proceedings — Inadmissibility)

24

2012/C 049/44

Case T-285/11: Order of the General Court of 15 December 2011 — Gooré v Council (Common foreign and security policy — Restrictive measures adopted in view of the situation in Côte d’Ivoire — Withdrawal of the list of persons concerned — Action for annulment — No need to adjudicate — Action for damages — Action manifestly unfounded)

24

2012/C 049/45

Case T-593/11 R: Order of the President of the General Court of 22 December 2011 — Al-Chihabi v Council (Interim relief — Common foreign and security policy — Restrictive measures against Syria — Freezing of funds and economic resources — Application for interim measures — No urgency — No serious and irreparable damage)

25

2012/C 049/46

Case T-595/11 P: Appeal brought on 24 November 2011 by A against the judgment of the Civil Service Tribunal of 14 September 2011 in Case F-12/09, A v Commission

25

2012/C 049/47

Case T-626/11: Action brought on 2 December 2011 — Sky Deutschland and Sky Deutschland Fernsehen v Commission

26

2012/C 049/48

Case T-627/11: Action brought on 2 December 2011 — ATMvision v European Commission

26

2012/C 049/49

Case T-628/11: Action brought on 5 December 2011 — Biogas Nord v Commission

27

2012/C 049/50

Case T-629/11: Action brought on 5 December 2011 — Biogas Nord Anlagenbau v Commission

28

2012/C 049/51

Case T-630/11 P: Appeal brought on 6 December 2011 by Peter Strobl against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-56/05 Strobl v Commission

28

2012/C 049/52

Case T-638/11: Action brought on 12 December 2011 — European Dynamics Belgium and Others v European Medicines Agency

29

2012/C 049/53

Case T-639/11: Action brought on 14 December 2011 — Heads! v OHIM (HEADS)

29

2012/C 049/54

Case T-641/11 P: Appeal brought on 8 December 2011 by Harald Mische against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-70/05 Mische v Commission

30

2012/C 049/55

Case T-642/11 P: Appeal brought on 8 December 2011 by Harald Mische against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-93/05 Mische v Parliament

30

2012/C 049/56

Case T-643/11: Action brought on 15 December 2011 — Crown Equipment (Suzhou) and Crown Gabelstapler v Council

31

2012/C 049/57

Case T-661/11: Action brought on 21 December 2011 — Italy v Commission

32

2012/C 049/58

Case T-662/11: Action brought on 28 December 2011 — Müller v OHIM — Loncar (Sunless)

32

2012/C 049/59

Case T-6/12: Action brought on 5 January 2012 — Godrej Industries and V V F v Council

33

2012/C 049/60

Case T-523/11: Order of the President of the General Court of 15 December 2011 — Maxima Grupė v OHIM — Bodegas Maximo (MAXIMA PREMIUM)

33

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 18.2.2012 | EN | Official Journal of the European Union | C 49/1 |
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18.2.2012

EN

Official Journal of the European Union

C 49/1

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2012/C 49/01

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

OJ C 39, 11.2.2012

Past publications

OJ C 32, 4.2.2012

OJ C 25, 28.1.2012

OJ C 13, 14.1.2012

OJ C 6, 7.1.2012

OJ C 370, 17.12.2011

OJ C 362, 10.12.2011

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 18.2.2012 | EN | Official Journal of the European Union | C 49/2 |
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18.2.2012

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Official Journal of the European Union

C 49/2

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Judgment of the Court (Grand Chamber) of 21 December 2011 — French Republic v People’s Mojahedin Organization of Iran, Council of the European Union, European Commission

(Case C-27/09 P) (1)

(Appeal - Common foreign and security policy - Restrictive measures directed against certain persons and entities with a view to combating terrorism - Common Position 2001/931/CFSC - Regulation (EC) No 2580/2001 - Freezing of funds applicable to a group included in a list drawn up, revised and amended by the Council of the European Union - Rights of the defence)

2012/C 49/02

Language of the case: English

Parties

Appellant: French Republic (represented by: E. Belliard and by G. de Bergues and A. Adam, Agents)

Other parties to the proceedings: People’s Mojahedin Organization of Iran (represented by: J.-P. Spitzer, avocat, D. Vaughan QC and M.-E. Demetriou, Barrister), Council of the European Union, European Commission (represented by: S. Boelaert and P. Aalto, Agents)

Re:

Appeal against the judgment of 4 December 2008 of the Court of First Instance (Seventh Chamber) in Case T-284/08 People’s Mojahedin Organization of Iran v Council of the European Union annulling, so far as the People’s Mojahedin Organization of Iran is concerned, Council Decision 2008/583/EC of 15 July 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC (OJ 2008 L 188, p. 21)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders the French Republic to pay the costs. |
| --- | --- |

2.

Orders the French Republic to pay the costs.

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(1)  OJ C 82, 4.4.2009.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/2 |
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18.2.2012

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Official Journal of the European Union

C 49/2

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Judgment of the Court (Grand Chamber) of 21 December 2011 — European Commission v Republic of Austria

(Case C-28/09) (1)

(Failure of a Member State to fulfil obligations - Articles 28 EC and 29 EC - Free movement of goods - Measures having equivalent effect to quantitative restrictions on imports and exports - Transport - Directives 96/62/EC and 1999/30/EC - Sectoral traffic prohibition for lorries of over 7,5 tonnes carrying certain goods - Air quality - Protection of health and the environment - Principle of proportionality - Consistency)

2012/C 49/03

Language of the case: German

Parties

Applicant: European Commission (represented by: P. Oliver, A. Alcover San Pedro and B. Schima, acting as Agents)

Defendant: Republic of Austria (represented by: E. Riedl, G. Eberhard and C. Ranacher, acting as Agents, and L. Schmutzhard and J. Thudium)

Intervening parties in support of the applicant: Italian Republic (represented initially by I. Bruni and subsequently by G. Palmieri, acting as Agents, and G. De Bellis, avvocato dello Stato), Kingdom of the Netherlands (represented by: C. Wissels, Y. de Vries and M. Noort, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 28 EC and 29 EC — Prohibition against driving lorries with a total weight of more than 7.5 tonnes, loaded with certain goods, on a section of the A12 ‘Inntalautobahn’ motorway — Justification of that prohibition under Article 30 EC and the Community legislation relating to ambient air quality

Operative part of the judgment

The Court:

| 1. | Declares that, by prohibiting lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley (Austria), the Republic of Austria has failed to fulfil its obligations under Articles 28 EC and 29 EC; |
| --- | --- |

1.

Declares that, by prohibiting lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley (Austria), the Republic of Austria has failed to fulfil its obligations under Articles 28 EC and 29 EC;

| 2. | Orders the Republic of Austria to pay the costs; |
| --- | --- |

2.

Orders the Republic of Austria to pay the costs;

| 3. | Orders the Italian Republic and the Kingdom of the Netherlands to bear their own costs. |
| --- | --- |

3.

Orders the Italian Republic and the Kingdom of the Netherlands to bear their own costs.

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(1)  OJ C 69, 21.3.2009.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/3 |
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18.2.2012

EN

Official Journal of the European Union

C 49/3

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Judgment of the Court (Third Chamber) of 21 December 2011 — European Commission v Republic of Poland

(Case C-271/09) (1)

(Failure of a Member State to fulfil obligations - Free movement of capital - Scope - Open pension funds - Limitation on the investment of capital assets outside the Member State concerned - Proportionality)

2012/C 49/04

Language of the case: Polish

Parties

Applicant: European Commission (represented by: E. Montaguti and K. Herrmann, Agents)

Defendant: Republic of Poland (represented by: M. Dowgielewicz, M. Szpunar, M. Jarosz and P. Kucharski, Agents)

Re:

Failure of a Member State to fulfil obligations — Breach of Article 56 EC — Pension funds forming part of a national system of compulsory affiliation and based on the capitalisation system — National rules limiting and discouraging the investment by such funds of capital assets outside Poland

Operative part of the judgment

The Court (Third Chamber):

| 1. | Declares that, by maintaining in force Articles 143, 136(3) and 136a(2) of the Law of 28 August 1997 on the organisation and operation of pension funds (Ustawa o organizacji i funkcjonowaniu funduszy emerytalnych), as amended, in that they limit investments by Polish open pension funds in the other Member States, the Republic of Poland has failed to fulfil its obligations under Article 56 EC; |
| --- | --- |

1.

Declares that, by maintaining in force Articles 143, 136(3) and 136a(2) of the Law of 28 August 1997 on the organisation and operation of pension funds (Ustawa o organizacji i funkcjonowaniu funduszy emerytalnych), as amended, in that they limit investments by Polish open pension funds in the other Member States, the Republic of Poland has failed to fulfil its obligations under Article 56 EC;

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

2.

Orders the Republic of Poland to pay the costs.

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(1)  OJ C 233, 26.9.2009.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/3 |
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18.2.2012

EN

Official Journal of the European Union

C 49/3

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Judgment of the Court (Sixth Chamber) of 21 December 2011 — A2A SpA, formerly ASM Brescia SpA v European Commission

(Case C-318/09 P) (1)

(Appeals - State aid - Aid granted to public utilities - Tax exemptions - Decision declaring the aid scheme incompatible with the common market - Action for annulment - Admissibility - Standing - Legal interest - Article 87 EC - Concept of ‘aid’ - Article 88 EC - Concept of ‘new aid’ - Article 10 EC - Duty of loyal cooperation - Regulation (EC) No 659/1999 - Articles 1 and 14 - Lawfulness of a recovery order - Principle of legal certainty - Duty to state reasons)

2012/C 49/05

Language of the case: Italian

Parties

Appellant: A2A SpA, formerly ASM Brescia SpA (represented by: A. Santa Maria, A. Giardina, C. Croff and G. Pizzonia, avvocati)

Other party to the proceedings: European Commission (represented by: E. Righini, V. Di Bucci and D. Grespan, Agents)

Re:

Appeal brought against the judgment of the Court of First Instance (now the General Court) (Eighth Chamber, Extended Composition) of 11 June 2009 in Case T-189/03 ASM Brescia SpA v Commission by which the General Court dismissed the action brought for annulment of Articles 2 and 3 of Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).

Operative part of the judgment

The Court:

| 1. | Dismisses the main appeal and the cross-appeal. |
| --- | --- |

1.

Dismisses the main appeal and the cross-appeal.

| 2. | Orders A2A SpA to pay the costs of the main appeal. |
| --- | --- |

2.

Orders A2A SpA to pay the costs of the main appeal.

| 3. | Orders the European Commission to pay the costs of the cross-appeal. |
| --- | --- |

3.

Orders the European Commission to pay the costs of the cross-appeal.

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(1)  OJ C 267, 7.11.2009.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/4 |
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18.2.2012

EN

Official Journal of the European Union

C 49/4

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Judgment of the Court (Sixth Chamber) of 21 December 2011 — ACEA SpA v Iride Spa, formerly AEM SpA, European Commission

(Case C-319/09 P) (1)

(Appeals - State aid - Aid granted to public utilities - Tax exemptions - Decision declaring the aid scheme incompatible with the common market - Action for annulment - Admissibility - Standing - Legal interest - Article 87 EC - Concept of ‘aid’ - Article 88 EC - Concept of ‘new aid’ - Regulation (EC) No 659/1999 - Articles 1 and 14 - Lawfulness of a recovery order - Duty to state reasons)

2012/C 49/06

Language of the case: Italian

Parties

Appellant: ACEA SpA (represented by: L. Radicati di Brozolo, A. Giardina and T. Ubaldi, avvocati)

Other parties to the proceedings: European Commission (represented by: E. Righini, V. Di Bucci and D. Grespan, Agents), Iride SpA, formerly AEM Spa (represented by: L. Radicati di Brozolo, M. Merola, T. Ubaldi and A. Santa Maria, avvocati)

Re:

Appeal brought against the judgment of the Court of First Instance (now the General Court) (Eighth Chamber, Extended Composition) of 11 June 2009 in Case T-297/02 ACEA v Commission by which the General Court dismissed the action brought for annulment of Articles 2 and 3 of Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).

Operative part of the judgment

The Court:

| 1. | Dismisses the main appeal and the cross-appeal. |
| --- | --- |

1.

Dismisses the main appeal and the cross-appeal.

| 2. | Orders ACEA SpA to pay the costs of the main appeal. |
| --- | --- |

2.

Orders ACEA SpA to pay the costs of the main appeal.

| 3. | Orders the European Commission to pay the costs of the cross-appeal. |
| --- | --- |

3.

Orders the European Commission to pay the costs of the cross-appeal.

| 4. | Orders Iride SpA to pay its own costs. |
| --- | --- |

4.

Orders Iride SpA to pay its own costs.

---

(1)  OJ C 267, 7.11.2009.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/4 |
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18.2.2012

EN

Official Journal of the European Union

C 49/4

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Judgment of the Court (Sixth Chamber) of 21 December 2011 — A2A SpA, formerly AEM SpA v European Commission

(Case C-320/09 P) (1)

(Appeals - State aid - Aid granted to public utilities - Tax exemptions - Decision declaring the aid scheme incompatible with the common market - Action for annulment - Admissibility - Standing - Legal interest - Article 87 EC - Concept of ‘aid’ - Article 88 EC - Concept of ‘new aid’ - Article 10 EC - Duty of loyal cooperation - Regulation (EC) No 659/1999 - Articles 1 and 14 - Lawfulness of a recovery order - Principle of legal certainty - Duty to state reasons)

2012/C 49/07

Language of the case: Italian

Parties

Appellant: A2A SpA, formerly AEM SpA (represented by: A. Santa Maria, A. Giardina and G. Pizzonia, avvocati)

Other party to the proceedings: European Commission (represented by: E. Righini, V. Di Bucci and D. Grespan, Agents)

Re:

Appeal brought against the judgment of the Court of First Instance (now the General Court) (Eighth Chamber, Extended Composition) of 11 June 2009 in Case T-301/02 AEM v Commission by which the General Court dismissed the action brought for annulment of Articles 2 and 3 of Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).

Operative part of the judgment

The Court:

| 1. | Dismisses the main appeal and the cross-appeal. |
| --- | --- |

1.

Dismisses the main appeal and the cross-appeal.

| 2. | Orders A2A SpA to pay the costs of the main appeal. |
| --- | --- |

2.

Orders A2A SpA to pay the costs of the main appeal.

| 3. | Orders the European Commission to pay the costs of the cross-appeal. |
| --- | --- |

3.

Orders the European Commission to pay the costs of the cross-appeal.

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(1)  OJ C 267, 7.11.2009.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/5 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/5

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Judgment of the Court (Sixth Chamber) of 21 December 2011 — Iride SpA, formerly Azienda Mediterranea Gas e Acqua SpA v European Commission, A2A SpA, formerly ASM Brescia SpA

(Case C-329/09 P) (1)

(Appeal - State aid - Aid granted to public utilities - Tax exemptions - Decision declaring the aid scheme incompatible with the common market - Action for annulment - Admissibility - Standing - Legal interest)

2012/C 49/08

Language of the case: Italian

Parties

Appellant: Iride SpA, formerly Azienda Mediterranea Gas e Acqua SpA (represented by: L. Radicati di Bronzolo, M. Merola and T. Ubaldi, avvocati)

Other parties to the proceedings: European Commission (represented by: V. Di Bucca, E. Righini and D. Grespan, Agents), A2A SpA, formerly ASM Brescia SpA

Re:

Appeal brought against the judgment of the Court of First Instance (now the General Court) (Eighth Chamber, Extended Composition) of 11 June 2009 in Case T-300/02 AMGA v Commission, by which the General Court rejected as inadmissible an application for the annulment of Articles 2 and 3 of Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal.

| 2. | Orders Iride SpA to pay the costs of the appeal proceedings. |
| --- | --- |

2.

Orders Iride SpA to pay the costs of the appeal proceedings.

| 3. | Orders the European Commission to pay the costs relating to the request for replacement of grounds. |
| --- | --- |

3.

Orders the European Commission to pay the costs relating to the request for replacement of grounds.

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(1)  OJ C 267, 7.11.2009.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/5 |
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18.2.2012

EN

Official Journal of the European Union

C 49/5

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Judgment of the Court (Second Chamber) of 21 December 2011 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Italy) — Enel Produzione SpA v Autorità per l’energia elettrica e il gas

(Case C-242/10) (1)

(Directive 2003/54/EC - Internal market in electricity - Electricity generating installations essential to the operation of the electricity system - Obligation to submit tenders on the national electricity exchange market in accordance with the limits and criteria laid down by the electricity transmission and distribution system operator - Dispatching and balancing service - Public service obligations)

2012/C 49/09

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Enel Produzione SpA

Defendant: Autorità per l’energia elettrica e il gas

Intervener: Terna rete elettrica nazionale SpA

Re:

Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Lombardia — Interpretation of Articles 23 EC, 43 EC, 49 EC and 56 EC and Article 11(2) and (6) and Article 24 of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37) — National legislation requiring electricity producers, when submitting bids for the supply of electricity, to comply with rules laid down by the company responsible for the management of the electricity transmission and distribution grid

Operative part of the judgment

Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC and, in particular, Article 3(2) and Article 11(2) and (6) of that directive must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which, for the purposes of reducing the price of electricity in the interests of the end consumer and of ensuring the security of the electricity system, imposes on operators which own installations or groups of installations which are considered, on the basis of the criteria laid down by the national regulatory authority, to be essential in order to meet the requirements of the demand for electricity of dispatching services, the obligation to submit bids on the national electricity markets in accordance with conditions pre-determined by that authority, provided that that legislation does not go beyond what is necessary in order to attain the objective which it pursues. It is for the national court to ascertain whether that condition is met in the case before it.

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(1)  OJ C 209, 31.7.2010.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/6 |
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18.2.2012

EN

Official Journal of the European Union

C 49/6

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Judgment of the Court (Fourth Chamber) of 21 December 2011 (reference for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — Haltergemeinschaft LBL GbR v Hauptzollamt Düsseldorf

(Case C-250/10) (1)

(Directive 2003/96/EC - Taxation of energy products and electricity - Article 14(1)(b) - Exemption of energy products used as fuel for the purpose of air navigation - Fuel provided by a person chartering out an aircraft used by charterers of the aircraft for their flights for purposes other than the supply of air services for consideration)

2012/C 49/10

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Haltergemeinschaft LBL GbR

Defendant: Hauptzollamt Düsseldorf

Re:

Reference for a preliminary ruling — Finanzgericht Düsseldorf — Interpretation of Article 14(1)(b) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51) — Scope of the exemption envisaged for energy products supplied for use as fuel for the purpose of air navigation — Exemption of fuel provided by an entity — which is not an airline — leasing or chartering out an aircraft used by lessees of the aircraft for their flights for commercial purposes

Operative part of the judgment

Article 14(1)(b) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as meaning that the tax exemption on energy products supplied for use as fuel for the purpose of air navigation other than in private pleasure-flying provided for under that provision cannot apply in the case of a company, such as the applicant in the main proceedings, where it leases or charters out an aircraft belonging to it with the fuel to undertakings whose air navigation operations are not directly used for the supply, by those undertakings, of air services for consideration.

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(1)  OJ C 226, 30.7.2011.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/6 |
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18.2.2012

EN

Official Journal of the European Union

C 49/6

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Judgment of the Court (Third Chamber) of 21 December 2011 (reference for a preliminary ruling from the Vestre Landsret — Denmark) — Danske Svineproducenter v Justitsministeriet

(Case C-316/10) (1)

(Second paragraph of Article 288 TFEU - Regulation (EC) No 1/2005 - Protection of animals during transport - Transport by road of domestic animals of the porcine species - Minimum height of compartments - Inspection during a journey - Loading density - Right of Member States to adopt detailed standards)

2012/C 49/11

Language of the case: Danish

Referring court

Vestre Landsret

Parties to the main proceedings

Applicant: Danske Svineproducenter

Defendant: Justitsministeriet

Intervener: Union européenne du commerce de bétail et de la viande

Re:

Reference for a preliminary ruling — Vestre Landsret — Interpretation of the second paragraph of Article 249 EC (now the second paragraph of Article 288 TFEU) and of Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 (OJ 2005 L 3, p. 1) — Right of Member States to adopt detailed national rules relating to the minimum height of compartments, inspection height and loading density inside vehicles used to transport pigs

Operative part of the judgment

Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 must be interpreted as meaning that:

| — | it does not preclude the adoption, by a Member State, of standards applicable to the transport by road of pigs which, in order to strengthen legal certainty, define, in compliance with the objective of protecting the welfare of animals and without laying down any excessive criteria in that regard, the requirements provided for by that regulation as regards the minimum internal height of compartments intended for animals, provided that those standards do not result in additional costs or technical difficulties which disadvantage either producers in the Member State which has adopted those standards or producers from other Member States who wish to export their goods to or via that first Member State, that being a matter for the national court to determine. Standards such as those set out in the transitional provisions in Paragraph 36(4) of Order No 1729 of 21 December 2006 on the protection of animals during transport cannot, however, be regarded as proportionate since the same Member State has adopted less restrictive standards, such as those in Paragraph 9(1) of that order, under the system of general law; |
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—

it does not preclude the adoption, by a Member State, of standards applicable to the transport by road of pigs which, in order to strengthen legal certainty, define, in compliance with the objective of protecting the welfare of animals and without laying down any excessive criteria in that regard, the requirements provided for by that regulation as regards the minimum internal height of compartments intended for animals, provided that those standards do not result in additional costs or technical difficulties which disadvantage either producers in the Member State which has adopted those standards or producers from other Member States who wish to export their goods to or via that first Member State, that being a matter for the national court to determine. Standards such as those set out in the transitional provisions in Paragraph 36(4) of Order No 1729 of 21 December 2006 on the protection of animals during transport cannot, however, be regarded as proportionate since the same Member State has adopted less restrictive standards, such as those in Paragraph 9(1) of that order, under the system of general law;

| — | it precludes the adoption, by a Member State, of standards applicable to the transport by road of pigs defining in greater detail the requirements provided for by that regulation in respect of access to animals in order to check regularly their welfare conditions, which relate only to journeys of more than eight hours’ duration; and |
| --- | --- |

—

it precludes the adoption, by a Member State, of standards applicable to the transport by road of pigs defining in greater detail the requirements provided for by that regulation in respect of access to animals in order to check regularly their welfare conditions, which relate only to journeys of more than eight hours’ duration; and

| — | it does not preclude the adoption, by a Member State, of standards according to which, where pigs are being transported by road, the animals must have a minimum surface area which varies according to their weight, that surface area being, for a 100 kg animal, 0.42 m2 where the journey time is less than eight hours and 0.50 m2 for journeys of more than eight hours. |
| --- | --- |

—

it does not preclude the adoption, by a Member State, of standards according to which, where pigs are being transported by road, the animals must have a minimum surface area which varies according to their weight, that surface area being, for a 100 kg animal, 0.42 m2 where the journey time is less than eight hours and 0.50 m2 for journeys of more than eight hours.

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(1)  OJ C 234, 28.8.2010.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/7 |
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18.2.2012

EN

Official Journal of the European Union

C 49/7

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Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the High Court of Justice, Queen’s Bench Division (Administrative Court) — United Kingdom) — Air Transport Association of America, American Airlines Inc., Continental Airlines Inc., United Airlines Inc. v Secretary of State for Energy and Climate Change

(Case C-366/10) (1)

(Reference for a preliminary ruling - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - Directive 2008/101/EC - Inclusion of aviation activities in that scheme - Validity - Chicago Convention - Kyoto Protocol - EU-United States Air Transport Agreement - Principles of customary international law - Legal effects thereof - Whether they may be relied upon - Extraterritoriality of European Union law - Meaning of ‘charges’, ‘fees’ and ‘taxes’)

2012/C 49/12

Language of the case: English

Referring court

High Court of Justice, Queen’s Bench Division (Administrative Court)

Parties to the main proceedings

Claimants: Air Transport Association of America, American Airlines Inc., Continental Airlines Inc., United Airlines Inc.

Defendant: Secretary of State for Energy and Climate Change

Interveners: International Air Transport Association (IATA), National Airlines Council of Canada (NACC), Aviation Environment Federation, WWF-UK, European Federation for Transport and Environment, Environmental Defense Fund, Earthjustice

Re:

Reference for a preliminary ruling — High Court of Justice, Queen’s Bench Division (Administrative Court) — Validity of Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (OJ 2009 L 8, p. 3) — Whether certain rules and/or provisions of international law may be relied upon

Operative part of the judgment

| 1. | The only principles and provisions of international law, from among those mentioned by the referring court, that can be relied upon, in circumstances such as those of the main proceedings and for the purpose of assessing the validity of Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community, are:






  — | first, within the limits of review as to a manifest error of assessment attributable to the European Union regarding its competence, in the light of those principles, to adopt that directive:






  — | the principle that each State has complete and exclusive sovereignty over its airspace, |
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1.

The only principles and provisions of international law, from among those mentioned by the referring court, that can be relied upon, in circumstances such as those of the main proceedings and for the purpose of assessing the validity of Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community, are:

—

first, within the limits of review as to a manifest error of assessment attributable to the European Union regarding its competence, in the light of those principles, to adopt that directive:

—

the principle that each State has complete and exclusive sovereignty over its airspace,

| — | the principle that no State may validly purport to subject any part of the high seas to its sovereignty, and |
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—

the principle that no State may validly purport to subject any part of the high seas to its sovereignty, and

| — | the principle which guarantees freedom to fly over the high seas, |
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—

the principle which guarantees freedom to fly over the high seas,

| — | and second:






  — | Articles 7 and 11(1) and (2)(c) of the Air Transport Agreement concluded on 25 and 30 April 2007 between the United States of America, of the one part, and the European Community and its Member States, of the other part, as amended by the Protocol, and |
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—

and second:

—

Articles 7 and 11(1) and (2)(c) of the Air Transport Agreement concluded on 25 and 30 April 2007 between the United States of America, of the one part, and the European Community and its Member States, of the other part, as amended by the Protocol, and

| — | Article 15(3) of that agreement, read in conjunction with Articles 2 and 3(4) thereof. |
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—

Article 15(3) of that agreement, read in conjunction with Articles 2 and 3(4) thereof.

| 2. | Examination of Directive 2008/101 has disclosed no factor of such a kind as to affect its validity. |
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2.

Examination of Directive 2008/101 has disclosed no factor of such a kind as to affect its validity.

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(1)  OJ C 260, 25.9.2010.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/8 |
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18.2.2012

EN

Official Journal of the European Union

C 49/8

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Judgment of the Court (Grand Chamber) of 21 December 2011 (references for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) and from the High Court of Ireland — United Kingdom, Ireland) — N. S. (C-411/10) v Secretary of State for the Home Department and M. E. (C-493/10), A. S. M., M. T., K. P., E. H. v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform

(Joined Cases C-411/10 and C-493/10) (1)

(European Union law - Principles - Fundamental rights - Implementation of European Union law - Prohibition of inhuman or degrading treatment - Common European Asylum System - Regulation (EC) No 343/2003 - Concept of ‘safe countries’ - Transfer of an asylum seeker to the Member State responsible - Obligation - Rebuttable presumption of compliance, by that Member State, with fundamental rights)

2012/C 49/13

Language of the cases: English

Referring courts

Court of Appeal (England & Wales) (Civil Division), High Court of Ireland

Parties to the main proceedings

Appellants: N. S. (C-411/10), M. E., A. S. M., M. T., K. P., E. H. (C-493/10)

Respondents: Secretary of State for the Home Department (C-411/10), Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (C-493/10)

Intervening parties: Amnesty International Ltd and the AIRE Centre (Advice on Individual Rights in Europe) (UK) (C-411/10), United Nations High Commissioner for Refugees (UNHCR) (UK) (C-411/10), Equality and Human Rights Commission (EHRC) (C-411/10), Amnesty International Ltd and the AIRE Centre (Advice on Individual Rights in Europe) (IRL) (C-493/10), United Nations High Commissioner for Refugees (UNHCR) (IRL) (C-493/10)

Re:

(C-411/10)

Reference for a preliminary ruling — Court of Appeal (England and Wales) (United Kingdom) — Interpretation of Article 3(1) and (2), and the provisions of Chapter III, of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p. 1) — Interpretation of the minimum standards for the reception of asylum seekers, as set out in the provisions of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18), Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12), and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) — Procedure for determining the Member State responsible for dealing with an asylum application submitted by an Afghan national — Risk that fundamental rights may be breached if responsibility is take up again by the Member State which was previously responsible — Nature and scope of the protection conferred on an asylum seeker by the provisions of the Charter of Fundamental Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms

(C-493/10)

Reference for a preliminary ruling — High Court of Ireland — Interpretation of Articles 3(2) and 18 of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p. 1) — Procedure for determining the Member State responsible for examining asylum applications lodged by nationals of several third countries (Afghanistan, Iran and Algeria) — Obligation of a Member State to take responsibility for examining an asylum application on the basis of Article 3(2) of Regulation (EC) No 343/2003 where there may be an infringement of the applicant’s fundamental rights and/or non-compliance with the minimum standards laid down by Directives 2003/9/EC, 2004/83/EC and 2005/85/EC by the Member State responsible for the application in accordance with the criteria established by that regulation.

Operative part of the judgment

| 1. | The decision adopted by a Member State on the basis of Article 3(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, whether to examine an asylum application which is not its responsibility according to the criteria laid down in Chapter III of that Regulation, implements European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter of Fundamental Rights of the European Union. |
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1.

The decision adopted by a Member State on the basis of Article 3(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, whether to examine an asylum application which is not its responsibility according to the criteria laid down in Chapter III of that Regulation, implements European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter of Fundamental Rights of the European Union.

| 2. | European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.
  Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.
  Subject to the right itself to examine the application referred to in Article 3(2) of Regulation No 343/2003, the finding that it is impossible to transfer an applicant to another Member State, where that State is identified as the Member State responsible in accordance with the criteria set out in Chapter III of that regulation, entails that the Member State which should carry out that transfer must continue to examine the criteria set out in that chapter in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application.
  The Member State in which the asylum seeker is present must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, the first mentioned Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003. |
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2.

European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.

Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.

Subject to the right itself to examine the application referred to in Article 3(2) of Regulation No 343/2003, the finding that it is impossible to transfer an applicant to another Member State, where that State is identified as the Member State responsible in accordance with the criteria set out in Chapter III of that regulation, entails that the Member State which should carry out that transfer must continue to examine the criteria set out in that chapter in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application.

The Member State in which the asylum seeker is present must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, the first mentioned Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003.

| 3. | Articles 1, 18 and 47 of the Charter of Fundamental Rights of the European Union do not lead to a different answer. |
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3.

Articles 1, 18 and 47 of the Charter of Fundamental Rights of the European Union do not lead to a different answer.

| 4. | In so far as the preceding questions arise in respect of the obligations of the United Kingdom of Great Britain and Northern Ireland, the answers to the second to sixth questions referred in Case C-411/10 do not require to be qualified in any respect so as to take account of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom. |
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4.

In so far as the preceding questions arise in respect of the obligations of the United Kingdom of Great Britain and Northern Ireland, the answers to the second to sixth questions referred in Case C-411/10 do not require to be qualified in any respect so as to take account of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom.

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(1)  OJ C 274, 09.10.2010

OJ C 13, 15.01.2011.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/9 |
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18.2.2012

EN

Official Journal of the European Union

C 49/9

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Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Tomasz Ziolkowski (C-424/10), Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja (C-425/10) v Land Berlin

(Joined Cases C-424/10 and C-425/10) (1)

(Freedom of movement for persons - Directive 2004/38/EC - Right of permanent residence - Article 16 - Legal residence - Residence based on national law - Period of residence completed before the accession to the European Union of the State of origin of the citizen concerned)

2012/C 49/14

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicants: Tomasz Ziolkowski (C-424/10), Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja (C-425/10)

Defendant: Land Berlin

Intervener: Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 16(1), first sentence, of 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 (OJ 2004 L 158, p. 77) — Union citizen having resided lawfully, in compliance with the law of the host Member State, for more than five years in that State, but never having satisfied, during his period of residence, the conditions laid down in Article 7 of Directive 2004/38/EC — Concept of ‘lawful residence’ — Period of residence which amounts to five years only if periods completed before the date of accession of the Member State of origin of the person concerned to the European Union are taken into account — Determination of the period of residence necessary in order to acquire a right of permanent residence

Operative part of the judgment

| 1. | Article 16(1) of 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, must be interpreted as meaning that a Union citizen who has been resident for more than five years in the territory of the host Member State on the sole basis of the national law of that Member State cannot be regarded as having acquired the right of permanent residence under that provision if, during that period of residence, he did not satisfy the conditions laid down in Article 7(1) of the directive. |
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1.

Article 16(1) of 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, must be interpreted as meaning that a Union citizen who has been resident for more than five years in the territory of the host Member State on the sole basis of the national law of that Member State cannot be regarded as having acquired the right of permanent residence under that provision if, during that period of residence, he did not satisfy the conditions laid down in Article 7(1) of the directive.

| 2. | Periods of residence completed by a national of a non-Member State in the territory of a Member State before the accession of the non-Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive. |
| --- | --- |

2.

Periods of residence completed by a national of a non-Member State in the territory of a Member State before the accession of the non-Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive.

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(1)  OJ C 301, 6.11.2010.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/10 |
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18.2.2012

EN

Official Journal of the European Union

C 49/10

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Judgment of the Court (Fourth Chamber) of 21 December 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration v Chambre de commerce et d’industrie de l’Indre

(Case C-465/10) (1)

(Reference for a preliminary ruling - Protection of the European Union’s financial interests - Regulation (EC, Euratom) No 2988/95 - Article 3 - Structural Funds - Regulation (EEC) No 2052/88 - Regulation (EEC) No 4253/88 - Contracting authority in receipt of a subsidy from the Structural Funds - Failure to comply with public procurement rules by the recipient of an ERDF subsidy - Basis for the obligation to recover European Union subsidies in the case of an irregularity - Concept of ‘irregularity’ - Concept of ‘continuous irregularity’ - Conditions for recovery - Limitation period - Longer national limitation periods - Principle of proportionality)

2012/C 49/15

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Appellant: Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration

Respondent: Chambre de commerce et d’industrie de l’Indre

Re:

Reference for a preliminary ruling — Conseil d'État (France) — Interpretation of the provisions of Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 185, p. 9), Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 (OJ 1988 L 374, p.1) and Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1) — Failure by a recipient of subsidies paid under the ERDF and the FNADT to observe public procurement rules — Basis of the obligation to recover Community aid in cases of irregularity — Conditions for recovery of aid wrongly paid — Limitation period

Operative part of the judgment

| 1. | In circumstances such as those at issue in the case in the main proceedings, the third indent of Article 23(1) of Council Regulation (EEC) No 4253/88 of 19 December 1998 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation (EEC) No 2082/93 of 20 July 1993, read in conjunction with Article 7(1) of Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation (EEC) No 2081/93 of 20 July 1993, constitutes a legal basis enabling national authorities to recover from the recipient — without there being any need for authority to do so under national law — the whole of a subsidy granted from the European Regional Development Fund (ERDF) on the ground that, in its capacity as ‘contracting authority’, within the meaning of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by Council Directive 93/36/EEC of 14 June 1993, the recipient has not complied with the requirements of that directive so far as concerns the award of a public service contract whose purpose was the implementation of the operation for which the recipient was granted the subsidy. |
| --- | --- |

1.

In circumstances such as those at issue in the case in the main proceedings, the third indent of Article 23(1) of Council Regulation (EEC) No 4253/88 of 19 December 1998 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation (EEC) No 2082/93 of 20 July 1993, read in conjunction with Article 7(1) of Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation (EEC) No 2081/93 of 20 July 1993, constitutes a legal basis enabling national authorities to recover from the recipient — without there being any need for authority to do so under national law — the whole of a subsidy granted from the European Regional Development Fund (ERDF) on the ground that, in its capacity as ‘contracting authority’, within the meaning of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by Council Directive 93/36/EEC of 14 June 1993, the recipient has not complied with the requirements of that directive so far as concerns the award of a public service contract whose purpose was the implementation of the operation for which the recipient was granted the subsidy.

| 2. | The failure, by a contracting authority that receives an ERDF subsidy, to comply with the public procurement rules laid down by Directive 92/50 when awarding the contract whose purpose is to implement the subsidised operation constitutes an ‘irregularity’, within the meaning of Article 1 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests, even if the competent national authority could not have been unaware, when the subsidy was granted, that the recipient had already decided which provider it would entrust with the implementation of the subsidised operation. |
| --- | --- |

2.

The failure, by a contracting authority that receives an ERDF subsidy, to comply with the public procurement rules laid down by Directive 92/50 when awarding the contract whose purpose is to implement the subsidised operation constitutes an ‘irregularity’, within the meaning of Article 1 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests, even if the competent national authority could not have been unaware, when the subsidy was granted, that the recipient had already decided which provider it would entrust with the implementation of the subsidised operation.

| 3. | In circumstances such as those at issue in the main proceedings, where, in its capacity as contracting authority, the recipient of an ERDF subsidy has not complied with the public procurement rules of Directive 92/50 when awarding the contract whose purpose is to implement the subsidised operation:






  — | the irregularity in question must be considered to be a ‘continuous irregularity’, within the meaning of the second subparagraph of Article 3(1) of Regulation No 2988/95, and, consequently, the limitation period of four years laid down by that provision to recover the subsidy wrongly paid to the recipient begins to run from the day on which the performance of the unlawfully awarded public contract is completed; |
| --- | --- | --- |

3.

In circumstances such as those at issue in the main proceedings, where, in its capacity as contracting authority, the recipient of an ERDF subsidy has not complied with the public procurement rules of Directive 92/50 when awarding the contract whose purpose is to implement the subsidised operation:

—

the irregularity in question must be considered to be a ‘continuous irregularity’, within the meaning of the second subparagraph of Article 3(1) of Regulation No 2988/95, and, consequently, the limitation period of four years laid down by that provision to recover the subsidy wrongly paid to the recipient begins to run from the day on which the performance of the unlawfully awarded public contract is completed;

| — | the transmission to the recipient of the subsidy of an audit report finding there to have been a failure to comply with the public procurement rules and recommending, as a result, that the national authority demand repayment of the sums paid constitutes a sufficiently specific act relating to investigation or legal proceedings concerning the ‘irregularity’, within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95. |
| --- | --- |

—

the transmission to the recipient of the subsidy of an audit report finding there to have been a failure to comply with the public procurement rules and recommending, as a result, that the national authority demand repayment of the sums paid constitutes a sufficiently specific act relating to investigation or legal proceedings concerning the ‘irregularity’, within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95.

| 4. | Where the Member States exercise the right afforded them by Article 3(3) of Regulation No 2988/95, the principle of proportionality precludes application of a 30-year limitation period to the recovery of an advantage wrongly obtained from the European Union budget. |
| --- | --- |

4.

Where the Member States exercise the right afforded them by Article 3(3) of Regulation No 2988/95, the principle of proportionality precludes application of a 30-year limitation period to the recovery of an advantage wrongly obtained from the European Union budget.

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(1)  OJ C 346, 18.12.2010.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/11 |
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18.2.2012

EN

Official Journal of the European Union

C 49/11

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Judgment of the Court (Third Chamber) of 21 December 2011 (reference for a preliminary ruling from the Corte dei Conti — Sezione Giurisdizionale per la Regione Siciliana — Italy) — Teresa Cicala v Regione Siciliana

(Case C-482/10) (1)

(National administrative procedure - Administrative acts - Obligation to state reasons - Possibility of failure to state reasons being remedied during legal proceedings against an administrative act - Interpretation of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union - Lack of jurisdiction of the Court)

2012/C 49/16

Language of the case: Italian

Referring court

Corte dei Conti — Sezione Giurisdizionale per la Regione Siciliana

Parties to the main proceedings

Applicant: Teresa Cicala

Defendant: Regione Siciliana

Re:

Reference for a preliminary ruling — Corte dei Conti — Sezione Giurisdizionale per la Regione Siciliana — Interpretation of Article 296 TFEU and of Article 41(2)(c) of the Charter of Fundamental Rights of the European Union — Compatibility of national legislation providing that public authorities are not obliged to state reasons for their acts in certain circumstances or may supplement a lack of reasons for an administrative act in the course of court proceedings brought against that act

Operative part of the judgment

The Court of Justice of the European Union does not have jurisdiction to respond to the questions posed by the Corte dei conti, sezione giurisdizionale per la Regione Siciliana (Italy), by decision of 20 September 2010.

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(1)  OJ C 328, 4.12.2010.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/11 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/11

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Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Centre hospitalier universitaire de Besançon v Thomas Dutrueux, Caisse primaire d’assurance maladie du Jura

(Case C-495/10) (1)

(Directive 85/374/EEC - Liability for defective products - Scope - National rules requiring public healthcare establishments to pay compensation, even when they are not at fault, for damage sustained by a patient as a result of the failure of equipment or products used in the course of treatment)

2012/C 49/17

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Centre hospitalier universitaire de Besançon

Defendants: Thomas Dutrueux, Caisse primaire d’assurance maladie du Jura

Re:

Reference for a preliminary ruling — Conseil d’État — Interpretation of Article 13 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29) — Liability of public health establishments towards their patients — Permissibility of a national liability scheme which allows an injured person to obtain compensation, even in the absence of fault, for injury caused by the failure of defective products — Limitation of the liability of the provider of services

Operative part of the judgment

The liability of a service provider which, in the course of providing services such as treatment given in a hospital, uses defective equipment or products of which it is not the producer within the meaning of Article 3 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, as amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999, and thereby causes damage to the recipient of the service does not fall within the scope of the directive. Directive 85/374 does not therefore prevent a Member State from applying rules, such as those at issue in the main proceedings, under which such a provider is liable for damage thus caused, even in the absence of any fault on its part, provided, however, that the injured person and/or the service provider retain the right to put in issue the producer’s liability on the basis of the directive when the conditions laid down by the latter are fulfilled.

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(1)  OJ C 30, 29.1.2011.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/12 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/12

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Judgment of the Court (Seventh Chamber) of 21 December 2011 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge — Belgium) — Vlaamse Oliemaatschappij NV v FOD Financiën

(Case C-499/10) (1)

(Sixth VAT Directive - Persons liable to pay tax - Third party jointly and severally liable - Warehousing arrangements other than customs warehousing - Joint and several liability of the warehouse-keeper of the goods and the taxable person who owns the goods - Good faith or lack of fault or negligence of the warehouse-keeper)

2012/C 49/18

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brugge

Parties to the main proceedings

Applicant: Vlaamse Oliemaatschappij NV

Defendant: FOD Financiën

Re:

Reference for a preliminary ruling — Rechtbank van eerste aanleg te Brugge (Belgium) — Interpretation of Article 21(3) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Persons liable to pay tax — Third party jointly and severally liable — National legislation holding the warehouse-keeper of the goods jointly and severally liable for payment of tax due by the taxable person who owns the goods, in warehousing arrangements other than customs warehousing, even where the warehouse-keeper acts in good faith or where no fault or negligence can be imputed to him.

Operative part of the judgment

Article 21(3) of 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, as amended by Council Directive 2001/115/EC of 20 December 2001, must be interpreted as not authorising the Member States to provide that a warehouse-keeper other than a customs warehouse-keeper is jointly and severally liable for the value added tax which is owing on a supply of goods made for valuable consideration, and released from the warehouse, by the owner of the goods who is liable for the tax on those goods, even where the warehouse-keeper acts in good faith or where no fault or negligence can be imputed to him.

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(1)  OJ C 13, 15.1.2011.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/12 |
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18.2.2012

EN

Official Journal of the European Union

C 49/12

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Judgment of the Court (Eighth Chamber) of 21 December 2011 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Evroetil AD v Direktor na Agentsia ‘Mitnitsi’

(Case C-503/10) (1)

(Directive 2003/30/EC - Article 2(2)(a) - Concept of bioethanol - Product obtained from biomass, undenatured and with an ethyl alcohol content of over 98,5 % - Relevance of actual use as a biofuel - Regulation (EEC) No 2658/87 - Combined Nomenclature - Tariff classification of bioethanol for the purpose of collecting excise duties - Directive 2003/96/EC - Energy products - Directive 92/83/EEC - First indent of Article 20 and Article 27(1)(a) and (b) - Concept of ethyl alcohol - Exemption from the harmonised duty - Denaturing)

2012/C 49/19

Language of the case: Bulgarian

Referring court

Varhoven administrativen sad

Parties to the main proceedings

Applicant: Evroetil AD

Defendant: Direktor na Agentsia ‘Mitnitsi’

Re:

Reference for a preliminary hearing — Varhoven administrativen sad — interpretation of Article 2(2)(a) of Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport (OJ 2003 L 123, p. 42), of the Combined Nomenclature (CN) of the Common Customs Tariff in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EEC) No 2587/91 of 26 July 1991 (OJ 1991 L 259, p. 1), of Article 2(1) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51), and of the first indent of Article 20 of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (OJ 1992 L 316, p. 21) — Produit obtenu à partir de la biomasse, contenant des esters, des alcools supérieurs et des aldéhydes, ayant une teneur en alcool supérieure à 98 % et n'ayant pas fait l'objet d'une dénaturation — Notion de bioéthanol — Classement dans la sous-position 2207 20 00 (Ethyl alcohol and other spirits, denatured, of any strength) or dans la sous-position 2207 10 00 (Undenatured ethyl alcohol of an alcoholic strength by volume of 80 % or higher), en vue de la perception de droits d'accises.

Operative part of the judgment

| 1. | The definition of bioethanol in Article 2(2)(a) of Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport must be interpreted as meaning that it includes a product such as that at issue in the main proceedings, which is obtained inter alia from biomass and which contains more than 98.5 % ethyl alcohol, once it is offered for sale as biofuel for transport. |
| --- | --- |

1.

The definition of bioethanol in Article 2(2)(a) of Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport must be interpreted as meaning that it includes a product such as that at issue in the main proceedings, which is obtained inter alia from biomass and which contains more than 98.5 % ethyl alcohol, once it is offered for sale as biofuel for transport.

| 2. | European Union law must be interpreted as meaning that a product such as that at issue in the main proceedings, which contains more than 98.5 % ethyl alcohol and has not been denatured in a special denaturing procedure must be subject to the excise duty provided for in Article 19(1) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages, even where it was obtained from biomass using a technology which differs from the technology for the production of agricultural ethyl alcohol, contains substances making it unsuitable for human consumption, satisfies the requirements laid down in European standard prEN 15376 for bioethanol used as fuel and potentially meets the definition of bioethanol in Article 2(2)(a) of Directive 2003/30. |
| --- | --- |

2.

European Union law must be interpreted as meaning that a product such as that at issue in the main proceedings, which contains more than 98.5 % ethyl alcohol and has not been denatured in a special denaturing procedure must be subject to the excise duty provided for in Article 19(1) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages, even where it was obtained from biomass using a technology which differs from the technology for the production of agricultural ethyl alcohol, contains substances making it unsuitable for human consumption, satisfies the requirements laid down in European standard prEN 15376 for bioethanol used as fuel and potentially meets the definition of bioethanol in Article 2(2)(a) of Directive 2003/30.

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(1)  OJ C 346, 18.12.2010.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/13 |
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18.2.2012

EN

Official Journal of the European Union

C 49/13

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Judgment of the Court (Second Chamber) of 21 December 2011 (reference for a preliminary ruling from the Tribunale di Firenze — Italy) — Criminal proceedings against X

(Case C-507/10) (1)

(Police and judicial cooperation in criminal matters - Framework Decision 2001/220/JHA - Standing of victims in criminal proceedings - Protection of vulnerable persons - Hearing of minors as witnesses - Special measure for early taking of evidence - Refusal by the Public Prosecutor to request the judge in charge of preliminary investigations to hear a witness)

2012/C 49/20

Language of the case: Italian

Referring court

Tribunale di Firenze

Party in the main proceedings

X

Intervener: Y

Re:

Reference for a preliminary ruling — Tribunale di Firenze — Interpretation of Articles 2, 3 and 8 of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (OJ 2001 L 82, p 1) — Hearing of minors as witnesses — Hearing of a minor who has been the victim of sexual abuse — Protective measures which are not made mandatory by national legislation

Operative part of the judgment

Articles 2, 3 and 8(4) of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings must be interpreted as not precluding provisions of national law, such as Articles 392(1a), 398(5a) and 394 of the Italian Code of Criminal Procedure, which, first, do not impose on the Public Prosecutor any obligation to apply to the competent court so that a victim who is particularly vulnerable may be heard and give evidence under the arrangements of the incidente probatorio during the investigation phase of criminal proceedings and, second, do not give to that victim the right to bring an appeal before a court against that decision of the Public Prosecutor rejecting his or her request to be heard and to give evidence under those arrangements.

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(1)  OJ C 13, 15.1.2011.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/13 |
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18.2.2012

EN

Official Journal of the European Union

C 49/13

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Judgment of the Court (Third Chamber) of 21 December 2011 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Criminal proceedings against Mohsen Afrasiabi, Behzad Sahabi, Heinz Ulrich Kessel

(Case C-72/11) (1)

(Common foreign and security policy - Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation - Regulation (EC) No 423/2007 - Article 7(3) and (4) - Supply and installation of a sintering furnace in Iran - Concept of ‘indirectly making available’ an ‘economic resource’ to persons, entities and bodies listed in Annexes IV and V to that regulation - Concept of ‘circumvention’ of the prohibition on making that resource available)

2012/C 49/21

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties in the main proceedings

Mohsen Afrasiabi, Behzad Sahabi, Heinz Ulrich Kessel

Re:

Reference for a preliminary ruling — Oberlandesgericht Düsseldorf — Interpretation of Article 7(3) and (4) of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1) — Delivery of equipment referred to in Annex II of Regulation (EC) No 423/2007 in an unusable condition to an Iranian legal person not referred to in Annexes IV and V of that regulation — Equipment allegedly intended for later production for an entity referred to in those two annexes — Scope of the prohibition on making available economic resources to the persons listed in Annexes IV and V of the aforesaid regulation — Concept of ‘making available indirectly’ — Simultaneous application of the provisions prohibiting the making available of economic resources, on the one hand, and the contravention of the latter prohibition, on the other hand

Operative part of the judgment

| 1. | Article 7(3) of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran must be interpreted as meaning that the prohibition on indirectly making available an economic resource, within the meaning of Article 1(i) of that regulation, encompasses acts relating to the supply and installation in Iran of a sintering furnace in working condition but not yet ready to use for the benefit of a third party which, acting on behalf, under the control or on the instructions of a person, an entity or a body listed in Annexes IV and V to that regulation, intends to use that furnace to manufacture, for the benefit of such a person, entity or body, goods capable of contributing to nuclear proliferation in that State; |
| --- | --- |

1.

Article 7(3) of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran must be interpreted as meaning that the prohibition on indirectly making available an economic resource, within the meaning of Article 1(i) of that regulation, encompasses acts relating to the supply and installation in Iran of a sintering furnace in working condition but not yet ready to use for the benefit of a third party which, acting on behalf, under the control or on the instructions of a person, an entity or a body listed in Annexes IV and V to that regulation, intends to use that furnace to manufacture, for the benefit of such a person, entity or body, goods capable of contributing to nuclear proliferation in that State;

| 2. | Article 7(4) of Regulation No 423/2007 must be interpreted as meaning that:






  — | it covers activities which, under cover of a formal appearance which enables them to avoid the constituent elements of an infringement of Article 7(3) of the regulation, none the less have the object or effect, direct or indirect, of frustrating the prohibition laid down in that provision; |
| --- | --- | --- |

2.

Article 7(4) of Regulation No 423/2007 must be interpreted as meaning that:

—

it covers activities which, under cover of a formal appearance which enables them to avoid the constituent elements of an infringement of Article 7(3) of the regulation, none the less have the object or effect, direct or indirect, of frustrating the prohibition laid down in that provision;

| — | the terms ‘knowingly’ and ‘intentionally’ imply cumulative requirements of knowledge and intent, which are met where the person participating in an activity having such an object or such an effect deliberately seeks that object or effect or is at least aware that his participation may have that object or that effect and he accepts that possibility. |
| --- | --- |

—

the terms ‘knowingly’ and ‘intentionally’ imply cumulative requirements of knowledge and intent, which are met where the person participating in an activity having such an object or such an effect deliberately seeks that object or effect or is at least aware that his participation may have that object or that effect and he accepts that possibility.

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(1)  OJ C 252, 27.8.2011.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/14 |
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18.2.2012

EN

Official Journal of the European Union

C 49/14

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Order of the Court (Seventh Chamber) of 18 November 2011 (reference for a preliminary ruling from the Tribunale di Bari — Italy) — Giovanni Colapietro v Ispettorato Centrale Repressioni Frodi

(Case C-519/10) (1)

(Reference for a preliminary ruling - Articles 92(1), 103(1) and the second subparagraph of 104(3) of the Rules of Procedure - Wine sector - Regulation (EEC) No 822/87 and Regulation (EC) No 343/94 - Answer to the question admitting of no reasonable doubt - Manifest inadmissibility)

2012/C 49/22

Language of the case: Italian

Referring court

Tribunale di Bari

Parties to the main proceedings

Applicant: Giovanni Colapietro

Defendant: Ispettorato Centrale Repressioni Frodi

Re:

Reference for a preliminary ruling — Tribunale di Bari — Wine sector — Compulsory distillation system — 1993/1994 wine year — Scope of temporal application of Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organisation of the market in wine (OJ 1987 L 84, p. 1) — Repealing of that regulation by Commission Regulation (EC) No 343/94 of 15 February 1994 opening compulsory distillation as provided for in Article 39 of Council Regulation (EEC) No 822/87 and derogating for the 1993/94 wine year from certain detailed rules for the application thereof (OJ 1994 L 44, p. 9) — Administrative sanction under national law for infringements of Regulation No 882/87 — Applicability in the case of infringement of Regulation No 343/94 — Proportionality of the administrative sanction imposed

Operative part of the order

Commission Regulation (EC) No 343/94 of 15 February 1994 opening compulsory distillation as provided for in Article 39 of Council Regulation (EEC) No 822/87 and derogating for the 1993/94 wine year from certain detailed rules for the application thereof implements Regulation No 822/87 and neither repeals nor replaces it.

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(1)  OJ C 13, 15.1.2011.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/14 |
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18.2.2012

EN

Official Journal of the European Union

C 49/14

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Order of the Court (Fifth Chamber) of 20 October 2011 — DTL Corporación, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Gestión de Recursos y Soluciones Empresariales SL

(Case C-67/11 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Opposition procedure - Figurative mark containing the word element ‘Solaria’ and earlier national figurative mark containing the word element ‘Solartia’ - Registration refused in part - Likelihood of confusion - Request for a stay of the proceedings before the General Court - Failure to lodge the request in good time)

2012/C 49/23

Language of the case: Spanish

Parties

Appellant: DTL Corporación, SL (represented by: A. Zuazo Araluze, 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), Gestión de Recursos y Soluciones Empresariales SL (represented by: M. Polo Carreño and M. Granado Carpenter, abogadas)

Re:

Appeal brought against the judgment of the General Court (Fourth Chamber) of 15 December 2010 in Case T-188/10 DTL v OHIM — Gestión de Recursos y Soluciones Empresariales (Solaria) in which the General Court dismissed an action brought against the decision of the Second Board of Appeal of OHIM of 17 February 2010 (Case R 767/2009-2) relating to opposition proceedings between Gestión de Recursos y Soluciones Empresariales SL and DTL Corporación SL

Operative part of the order

| 1. | There is no need to adjudicate on the appeal in so far as it concerns the services falling within Class 37 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended. |
| --- | --- |

1.

There is no need to adjudicate on the appeal in so far as it concerns the services falling within Class 37 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

| 2. | The appeal is dismissed in so far as it concerns the services falling within Class 42 of the Nice Agreement. |
| --- | --- |

2.

The appeal is dismissed in so far as it concerns the services falling within Class 42 of the Nice Agreement.

| 3. | DTL Corporación SL shall pay the costs. |
| --- | --- |

3.

DTL Corporación SL shall pay the costs.

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(1)  OJ C 130, 30.4.2011.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/15 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/15

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Reference for a preliminary ruling from the Verwaltungsgericht Karlsruhe (Germany) lodged on 24 November 2011 — Philipp Seeberger v Studentenwerk Heidelberg

(Case C-585/11)

2012/C 49/24

Language of the case: German

Referring court

Verwaltungsgericht Karlsruhe

Parties to the main proceedings

Claimant: Philipp Seeberger

Defendant: Studentenwerk Heidelberg

Question referred

Does European Union law preclude national legislation which denies an education or training grant for studies in another Member State solely on the ground that the student, who has exercised the right to freedom of movement, has not, at the commencement of the studies, had his permanent residence in his Member State of origin for at least three years? (1)

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(1)  Interpretation of Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) — Citizenship of the Union and free movement.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/15 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/15

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Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 28 November 2011 — Anssi Ketelä

(Case C-592/11)

2012/C 49/25

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: Anssi Ketelä

Defendant: Etelä-Pohjanmaan elinkeino-, liikenne- ja ympäristökeskus.

Questions referred

| 1. | How are Article 22(1)(a) of Council Regulation (EC) No 1698/2005 (1) (‘are setting up for the first time on an agricultural holding as head of the holding’) and Article 13(4) and (6) of Commission Regulation (EC) No 1974/2006 (2) to be interpreted in a situation where agriculture is being engaged in as part of activity in company form? When assessing whether a person has started for the first time as head of a holding, is decisive significance to be given (in the assessment of previous activity) to the fact that the person has authority based on share ownership in the company; or to the amount of income he obtains from agriculture; or to whether his activity in the company can be differentiated functionally and economically as an independent production unit? Or is being head of a holding to be assessed as a whole, taking into account (in addition to the above-mentioned factors) the person’s position in the company, and whether he in fact bears the risk pertaining to entrepreneurial activity? |
| --- | --- |

1.

How are Article 22(1)(a) of Council Regulation (EC) No 1698/2005 (1) (‘are setting up for the first time on an agricultural holding as head of the holding’) and Article 13(4) and (6) of Commission Regulation (EC) No 1974/2006 (2) to be interpreted in a situation where agriculture is being engaged in as part of activity in company form? When assessing whether a person has started for the first time as head of a holding, is decisive significance to be given (in the assessment of previous activity) to the fact that the person has authority based on share ownership in the company; or to the amount of income he obtains from agriculture; or to whether his activity in the company can be differentiated functionally and economically as an independent production unit? Or is being head of a holding to be assessed as a whole, taking into account (in addition to the above-mentioned factors) the person’s position in the company, and whether he in fact bears the risk pertaining to entrepreneurial activity?

| 2. | When assessing the significance of previous activity when aid is being granted on the basis of other activity, is ‘being head of a holding’ to be interpreted in the same way in the case of previous activity and in that of the activity which forms the basis of the aid application? Does refusal of setting up aid for young farmers as referred to in Article 22 of the Council Regulation on the basis of activity previously engaged in require that the previous activity would be activity which, in principle, would be eligible for aid under the currently valid provisions? |
| --- | --- |

2.

When assessing the significance of previous activity when aid is being granted on the basis of other activity, is ‘being head of a holding’ to be interpreted in the same way in the case of previous activity and in that of the activity which forms the basis of the aid application? Does refusal of setting up aid for young farmers as referred to in Article 22 of the Council Regulation on the basis of activity previously engaged in require that the previous activity would be activity which, in principle, would be eligible for aid under the currently valid provisions?

| 3. | Is Article 13(4) of the Commission Regulation to be interpreted in such a way that, the criteria mentioned in question 1 above on the basis of which a person is regarded as having set up as head of a holding can be made more precise or defined in more detail in national legislation, or does the provision merely give entitlement to define the date of setting up as a farmer? |
| --- | --- |

3.

Is Article 13(4) of the Commission Regulation to be interpreted in such a way that, the criteria mentioned in question 1 above on the basis of which a person is regarded as having set up as head of a holding can be made more precise or defined in more detail in national legislation, or does the provision merely give entitlement to define the date of setting up as a farmer?

---

(1)  Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD); OJ 2005 L 277, p. 1.

(2)  Commission Regulation (EC) No 1974/2006 of 15 December 2006 laying down detailed rules for the application of Council Regulation (EC) No 1698/2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD); OJ 2006 L 368, p. 15.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/16 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/16

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Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 1 December 2011 — TVI Televisão Independente, SA v Fazenda Pública

(Case C-618/11)

2012/C 49/26

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Appellant: TVI Televisão Independente, SA

Respondent: Fazenda Pública

Questions referred

| 1. | Is Article 16(1) of the CIVA [VAT Code], as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax is inherent in the supply of advertising services, so that it should be included in the taxable amount of the supply of services for the purposes of VAT), compatible with Article 11(A)(1)(a) of Directive 77/388/EC (1) (now Article 73 of Council Directive 2006/112/EC (2) of 28 November 2006) and, in particular, with the concept of ‘consideration which has been or is to be obtained by the supplier ... for such supplies’? |
| --- | --- |

1.

Is Article 16(1) of the CIVA [VAT Code], as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax is inherent in the supply of advertising services, so that it should be included in the taxable amount of the supply of services for the purposes of VAT), compatible with Article 11(A)(1)(a) of Directive 77/388/EC (1) (now Article 73 of Council Directive 2006/112/EC (2) of 28 November 2006) and, in particular, with the concept of ‘consideration which has been or is to be obtained by the supplier ... for such supplies’?

| 2. | Is Article 16(6)(c) of the CIVA, as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax does not constitute an amount paid in the name and on behalf of the customer of the services, even though it is accounted for in third party suspense accounts and is intended to be paid to public bodies, so that it is not excluded from the taxable amount for the purposes of VAT) compatible with Article 11(A)(3)(c) of Directive 77/388/EC (now Article 79(c) of Council Directive 2006/112/EC of 28 November 2006) and, in particular, with the concept of ‘amounts received by a taxable person from his purchaser or customer as repayment for expenses paid out in the name and for the account of the latter and which are entered in his books in a suspense account’? |
| --- | --- |

2.

Is Article 16(6)(c) of the CIVA, as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax does not constitute an amount paid in the name and on behalf of the customer of the services, even though it is accounted for in third party suspense accounts and is intended to be paid to public bodies, so that it is not excluded from the taxable amount for the purposes of VAT) compatible with Article 11(A)(3)(c) of Directive 77/388/EC (now Article 79(c) of Council Directive 2006/112/EC of 28 November 2006) and, in particular, with the concept of ‘amounts received by a taxable person from his purchaser or customer as repayment for expenses paid out in the name and for the account of the latter and which are entered in his books in a suspense account’?

---

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

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

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/16 |
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18.2.2012

EN

Official Journal of the European Union

C 49/16

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Reference for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium) of 30 November 2011 — Patricia Dumont de Chassart v ONAFTS — Office national des allocations familiales pour travailleurs salariés

(Case C-619/11)

2012/C 49/27

Language of the case: French

Referring court

Tribunal du travail de Bruxelles

Parties to the main proceedings

Applicant: Patricia Dumont de Chassart

Defendant: ONAFTS — Office national des allocations familiales pour travailleurs salariés

Question referred

Does Article 79(1) 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 (1) breach the general principles of equality and non-discrimination, enshrined, inter alia, in Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, read, where appropriate, in conjunction with Articles 17, 39 and/or 43 of the consolidated version of the Treaty establishing the European Community, when it is interpreted as allowing the rules equating periods of insurance, employment or self-employment laid down in Article 72 of 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 to apply to the deceased parent alone with the consequence that Article 56bis(1) of the Laws on Family Allowances consolidated on 19 December 1939 excludes, in the case of the surviving parent, irrespective of that parent’s nationality provided he or she is a national of a Member State or provided he or she comes within the scope ratione personae of 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, who has worked in another country of the European Union during the 12-month period referred to in Article 56bis(1) of the Laws on Family Allowances consolidated on 19 December 1939, the opportunity for that parent to provide evidence that he or she fulfils the condition that, in his or her capacity as claimant for the purposes of Article 51(3)(1) of the Laws on Family Allowances consolidated on 19 December 1939, he or she could have received six flat-rate monthly benefit payments during the 12 months preceding the death, whereas the surviving parent, whether he or she is of Belgian nationality or is a national of another Member State of the European Union, who has worked exclusively in Belgium during the 12-month period referred to in Article 56bis(1) of the Laws on Family Allowances consolidated on 19 December 1939, in some cases because he or she has never left Belgian territory, is allowed to adduce such evidence?

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(1)  OJ, English Special Edition 1971(II), p. 416.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/17 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/17

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Appeal brought on 8 December 2011 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Second Chamber) delivered on 20 September 2011 in Case T-298/09: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission

(Case C-629/11 P)

2012/C 49/28

Language of the case: English

Parties

Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis, M. Dermitzakis, Δικηγόροι)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | Set aside the Judgment of the General Court. |
| --- | --- |

—

Set aside the Judgment of the General Court.

| — | Exercise its full Jurisdiction and annul DG EAC's decision to select the bids of the Appellant, filed in response to the open Call for Tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) (OJ 2008/S 158-212752) Lot 1 for the ‘IS Development and Maintenance’ and Lot 2 for ‘IS Studies, Testing, Training & Support’, as second contractor in the cascade mechanism, communicated to the Appellant by two separate letters dated 12 May 2009, as well as the request for damages according to ex Articles 225, 235 and 288 EC (now 256, 268 and 340 TFEU) for the damages suffered on account of the tendering procedure in question for an amount of 9 544 480 Euro (3 945 040 Euro for Lot 1 and 5 599 440 Euro for Lot 2). |
| --- | --- |

—

Exercise its full Jurisdiction and annul DG EAC's decision to select the bids of the Appellant, filed in response to the open Call for Tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) (OJ 2008/S 158-212752) Lot 1 for the ‘IS Development and Maintenance’ and Lot 2 for ‘IS Studies, Testing, Training & Support’, as second contractor in the cascade mechanism, communicated to the Appellant by two separate letters dated 12 May 2009, as well as the request for damages according to ex Articles 225, 235 and 288 EC (now 256, 268 and 340 TFEU) for the damages suffered on account of the tendering procedure in question for an amount of 9 544 480 Euro (3 945 040 Euro for Lot 1 and 5 599 440 Euro for Lot 2).

| — | Alternatively, refer back the Case to the General Court in order to rule on the substance of the Case. |
| --- | --- |

—

Alternatively, refer back the Case to the General Court in order to rule on the substance of the Case.

| — | Order the Commission to pay the Appellant's legal and other costs incurred in connection with this Appeal, including those incurred in connection with the initial procedure of the Action for annulment before the General Court. |
| --- | --- |

—

Order the Commission to pay the Appellant's legal and other costs incurred in connection with this Appeal, including those incurred in connection with the initial procedure of the Action for annulment before the General Court.

Pleas in law and main arguments

| 1. | The Appellant founds its Appeal on a single plea concerning the erroneous interpretation of Article 100(2) of the Financial Regulation (1) and Article 149(2) of the Implementing Rules. |
| --- | --- |

1.

The Appellant founds its Appeal on a single plea concerning the erroneous interpretation of Article 100(2) of the Financial Regulation (1) and Article 149(2) of the Implementing Rules.

| 2. | The Appellant requests the annulment of the Judgment in case T-298/09 since the Commission failed to comply in time with the provisions of Article 100(2) of the FR and 149(2) of the Implementing Rules, that being an essential procedural requirement. In addition, the limited information communicated, with delay, to the Appellant can by no means be considered as sufficient and fulfilling the obligation to state reasons, as provided for by Article 100(2) of the FR, since it did not give any reasons or justification for the respective evaluation and does not contain any information concerning the characteristics and the relative merits of the best-ranked tenderer. |
| --- | --- |

2.

The Appellant requests the annulment of the Judgment in case T-298/09 since the Commission failed to comply in time with the provisions of Article 100(2) of the FR and 149(2) of the Implementing Rules, that being an essential procedural requirement. In addition, the limited information communicated, with delay, to the Appellant can by no means be considered as sufficient and fulfilling the obligation to state reasons, as provided for by Article 100(2) of the FR, since it did not give any reasons or justification for the respective evaluation and does not contain any information concerning the characteristics and the relative merits of the best-ranked tenderer.

---

(1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities

OJ L 248, p. 1

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/17 |
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18.2.2012

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Official Journal of the European Union

C 49/17

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Reference for a preliminary ruling from the Tribunal Central Administrativo Sul (Portugal) lodged on 12 December 2011 — TVI Televisão Independente SA v Fazenda Pública

(Case C-637/11)

2012/C 49/29

Language of the case: Portuguese

Referring court

Tribunal Central Administrativo Sul

Parties to the main proceedings

Applicant: TVI Televisão Independente SA

Defendant: Fazenda Pública

Questions referred

| 1. | Is Article 16(1) of the CIVA [VAT Code], as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax is inherent in the supply of advertising services, so that it should be included in the taxable amount of the supply of services for the purposes of VAT), compatible with Article 11(A)(1)(a) of Directive 77/388/EC (1) (now Article 73 of Council Directive 2006/112/EC (2) of 28 November 2006) and, in particular, with the concept of ‘consideration which has been or is to be obtained by the supplier for such supplies’? |
| --- | --- |

1.

Is Article 16(1) of the CIVA [VAT Code], as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax is inherent in the supply of advertising services, so that it should be included in the taxable amount of the supply of services for the purposes of VAT), compatible with Article 11(A)(1)(a) of Directive 77/388/EC (1) (now Article 73 of Council Directive 2006/112/EC (2) of 28 November 2006) and, in particular, with the concept of ‘consideration which has been or is to be obtained by the supplier for such supplies’?

| 2. | Is Article 16(6)(c) of the CIVA, as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax does not constitute an amount paid in the name and on behalf of the customer of the services, even though it is accounted for in third party suspense accounts and is intended to be paid to public bodies, so that it is not excluded from the taxable amount for the purposes of VAT) compatible with Article 11(A)(3)(c) of Directive 77/388/EC (now Article 79(c) of Council Directive 2006/112/EC of 28 November 2006) and, in particular, with the concept of ‘amounts received by a taxable person from his purchaser or customer as repayment for expenses paid out in the name and for the account of the latter and which are entered in his books in a suspense account’? |
| --- | --- |

2.

Is Article 16(6)(c) of the CIVA, as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax does not constitute an amount paid in the name and on behalf of the customer of the services, even though it is accounted for in third party suspense accounts and is intended to be paid to public bodies, so that it is not excluded from the taxable amount for the purposes of VAT) compatible with Article 11(A)(3)(c) of Directive 77/388/EC (now Article 79(c) of Council Directive 2006/112/EC of 28 November 2006) and, in particular, with the concept of ‘amounts received by a taxable person from his purchaser or customer as repayment for expenses paid out in the name and for the account of the latter and which are entered in his books in a suspense account’?

---

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

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

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/18 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/18

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Appeal brought on 19 December 2011 by Dimos Peramatos against the judgment delivered by the General Court (First Chamber) on 12 October 2011 in Case T-312/07 Dimos Peramatos v European Commission

(Case C-647/11 P)

2012/C 49/30

Language of the case: Greek

Parties

Appellant: Dimos Peramatos (Municipality of Perama) (represented by: G. Gerapetritis, dikigoros)

Other party to the proceedings: European Commission

Form of order sought

| — | set aside the judgment of the General Court inasmuch as it dismisses the action which sought cessation of any obligation on the part of the appellant to refund sums paid within the framework of the project LIFE97/ENV/GR/000380 or, in the alternative, amendment of the contested measure so as to oblige the appellant to pay EUR 93 795,32, the sum determined for accounting purposes as the ineligible expenditure, as the Commission itself acknowledged; |
| --- | --- |

—

set aside the judgment of the General Court inasmuch as it dismisses the action which sought cessation of any obligation on the part of the appellant to refund sums paid within the framework of the project LIFE97/ENV/GR/000380 or, in the alternative, amendment of the contested measure so as to oblige the appellant to pay EUR 93 795,32, the sum determined for accounting purposes as the ineligible expenditure, as the Commission itself acknowledged;

| — | refer the case back to the General Court for re-examination; |
| --- | --- |

—

refer the case back to the General Court for re-examination;

| — | order the European Commission to pay the appellant’s costs including the costs in respect of its lawyers. |
| --- | --- |

—

order the European Commission to pay the appellant’s costs including the costs in respect of its lawyers.

Pleas in law and main arguments

The appellant puts forward two pleas in law in support of its appeal:

| 1. | Erroneous interpretation both of the terms of the subsidy agreement concluded between Dimos Peramatos and the European Commission on 17 July 1997 under No C(97) 1997/final/29 in the context of performance of action falling within the LIFE Programme and of the agreement’s regulatory framework (Regulation No 1973/92), in so far as the General Court considered that the municipality’s obligation to plant trees, as resulting from the subsidy agreement, was performed deficiently. |
| --- | --- |

1.

Erroneous interpretation both of the terms of the subsidy agreement concluded between Dimos Peramatos and the European Commission on 17 July 1997 under No C(97) 1997/final/29 in the context of performance of action falling within the LIFE Programme and of the agreement’s regulatory framework (Regulation No 1973/92), in so far as the General Court considered that the municipality’s obligation to plant trees, as resulting from the subsidy agreement, was performed deficiently.

| 2. | Erroneous interpretation and infringement of the principles of good administration and of legal certainty on account of deficient reasoning in the judgment under appeal in the section concerning the obligation to state reasons for unfavourable administrative acts adopted by institutions of the European Union. |
| --- | --- |

2.

Erroneous interpretation and infringement of the principles of good administration and of legal certainty on account of deficient reasoning in the judgment under appeal in the section concerning the obligation to state reasons for unfavourable administrative acts adopted by institutions of the European Union.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/18 |
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18.2.2012

EN

Official Journal of the European Union

C 49/18

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Reference for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia), lodged on 19 December 2011 — Ilgvars Brunovskis v Lauku atbalsta dienests

(Case C-650/11)

2012/C 49/31

Language of the case: Latvian

Referring court

Augstākās tiesas Senāts

Parties to the main proceedings

Appellant: Ilgvars Brunovskis

Respondent: Lauku atbalsta dienests

Questions referred

| 1. | Should Article 125(1) of Regulation No 1782/2003 (1) be interpreted as meaning that the premium which is to be established per suckler cow is applicable to all suckler cows which come into existence during the calendar year? |
| --- | --- |

1.

Should Article 125(1) of Regulation No 1782/2003 (1) be interpreted as meaning that the premium which is to be established per suckler cow is applicable to all suckler cows which come into existence during the calendar year?

| 2. | Should Article 102(2) of Regulation No 1973/2004 (2) be interpreted as meaning that the period of six months should be regarded as a time-limit for lodging applications for a premium? |
| --- | --- |

2.

Should Article 102(2) of Regulation No 1973/2004 (2) be interpreted as meaning that the period of six months should be regarded as a time-limit for lodging applications for a premium?

| 3. | If the answer to the second question is affirmative, where a Member State has reduced that time-limit, would the Member State be obliged to pay compensation for losses incurred by a farmer if he did not have the opportunity to make full use of the time-limit for applications established in the regulation? |
| --- | --- |

3.

If the answer to the second question is affirmative, where a Member State has reduced that time-limit, would the Member State be obliged to pay compensation for losses incurred by a farmer if he did not have the opportunity to make full use of the time-limit for applications established in the regulation?

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(1)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

(2)  Commission Regulation (EC) No 1973/2004 of 29 October 2004 laying down detailed rules for the application of Council Regulation (EC) No 1782/2003 as regards the support schemes provided for in Titles IV and IVa of that Regulation and the use of land set aside for the production of raw materials (OJ 2004 L 345, p. 1).

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/19 |
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18.2.2012

EN

Official Journal of the European Union

C 49/19

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Appeal brought on 19 December 2011 by Mindo Srl against the judgment of the General Court (Third Chamber) delivered on 5 October 2011 in Case T-19/06: Mindo Srl v European Commission

(Case C-652/11 P)

2012/C 49/32

Language of the case: English

Parties

Appellant: Mindo Srl (represented by: C. Osti, A. Prastaro, G. Mastrantonio, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | Set aside, in its entirety, the judgment of the General Court, on 5 October 2011, in case T-19/06 Mindo v. Commission and, consequently, |
| --- | --- |

—

Set aside, in its entirety, the judgment of the General Court, on 5 October 2011, in case T-19/06 Mindo v. Commission and, consequently,

| — | Refer the case back to the General Court and order the latter to assess it on the merits, as its judgment deprived Mindo of its right to a full judicial review at the first instance, |
| --- | --- |

—

Refer the case back to the General Court and order the latter to assess it on the merits, as its judgment deprived Mindo of its right to a full judicial review at the first instance,

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

—

Order the Commission to pay all the costs.

Pleas in law and main arguments

The appellant's request is based on the following pleas in law:

| | The General Court affirms that Mindo has no interest in pursuing the proceedings, because it could not take any advantage of the annulment of the Contested Judgment in itself, nor in relation to Alliance One International Inc.’s (“Alliance One”) claim for contribution, or to third parties’ follow-on actions for damages. |
| --- | --- |

The General Court affirms that Mindo has no interest in pursuing the proceedings, because it could not take any advantage of the annulment of the Contested Judgment in itself, nor in relation to Alliance One International Inc.’s (“Alliance One”) claim for contribution, or to third parties’ follow-on actions for damages.

| | Firstly, the Appellant submits that the above mentioned findings should be annulled, as thy violate the applicable laws, are based on distortion of facts and, in any case, are characterized by insufficient and contradictory reasoning. |
| --- | --- |

Firstly, the Appellant submits that the above mentioned findings should be annulled, as thy violate the applicable laws, are based on distortion of facts and, in any case, are characterized by insufficient and contradictory reasoning.

| | Secondly, the Appellant argues that the Contested Judgment should be annulled because I either deprives Mindo of its right of access to the court (and consequently of its rights to have its case fully reviewed) or, should the Contested Judgment be interpreted as requiring Mindo and Alliance One to have jointly lodged the application at first instance, it breaches Mindo's and Alliance One's right of defense. |
| --- | --- |

Secondly, the Appellant argues that the Contested Judgment should be annulled because I either deprives Mindo of its right of access to the court (and consequently of its rights to have its case fully reviewed) or, should the Contested Judgment be interpreted as requiring Mindo and Alliance One to have jointly lodged the application at first instance, it breaches Mindo's and Alliance One's right of defense.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/19 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/19

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Appeal brought on 20 December 2011 by Transcatab SpA, in liquidation, against the judgment delivered on 5 October 2011 in Case T-39/06 Transcatab v Commission

(Case C-654/11 P)

2012/C 49/33

Language of the case: Italian

Parties

Appellant: Transcatab SpA, in liquidation (represented by: C. Osti, A. Prastaro and G. Mastrantonio, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment in Case T-39/06 Transcatab v Commission (‘the judgment under appeal’), in which the General Court (Third Chamber) found that Standard Commercial Corp (SCC) (hence Alliance One) had to be treated as jointly liable for the infringements committed by Transcatab; |
| --- | --- |

—

set aside the judgment in Case T-39/06 Transcatab v Commission (‘the judgment under appeal’), in which the General Court (Third Chamber) found that Standard Commercial Corp (SCC) (hence Alliance One) had to be treated as jointly liable for the infringements committed by Transcatab;

| — | reduce in consequence the fine imposed on Transcatab, annulling in part Article 2(c) of Commission Decision C(2005) 4012 final relating to a proceeding under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw tobacco — Italy) (‘the Decision’), finding that the fine must be calculated by reference to Transcatab’s turnover — which, for the financial year ending in March 2005, amounted to EUR 32 338 000 — in accordance with the provision made under Article 15(2) of Regulation No 17/62 and Article 23(2) of Regulation No 1/2003; |
| --- | --- |

—

reduce in consequence the fine imposed on Transcatab, annulling in part Article 2(c) of Commission Decision C(2005) 4012 final relating to a proceeding under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw tobacco — Italy) (‘the Decision’), finding that the fine must be calculated by reference to Transcatab’s turnover — which, for the financial year ending in March 2005, amounted to EUR 32 338 000 — in accordance with the provision made under Article 15(2) of Regulation No 17/62 and Article 23(2) of Regulation No 1/2003;

| — | annul, in consequence, the Decision in so far as it applies to the basic amount of Transcatab’s fine a multiplier of 1.25 %; |
| --- | --- |

—

annul, in consequence, the Decision in so far as it applies to the basic amount of Transcatab’s fine a multiplier of 1.25 %;

| — | set aside the judgment under appeal — in so far as it rejects Transcatab’s complaints in relation to (i) failure to reduce the fine imposed to reflect the fact that there had been no actual impact on the market; (ii) the diminishing intensity of the infringement during the period from 1999 to 2002; and (iii) the attenuating factor of ‘reasonable doubt’, applied instead in the analogous Spanish case — and, in consequence, reduce the fine; |
| --- | --- |

—

set aside the judgment under appeal — in so far as it rejects Transcatab’s complaints in relation to (i) failure to reduce the fine imposed to reflect the fact that there had been no actual impact on the market; (ii) the diminishing intensity of the infringement during the period from 1999 to 2002; and (iii) the attenuating factor of ‘reasonable doubt’, applied instead in the analogous Spanish case — and, in consequence, reduce the fine;

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

—

order the Commission to pay the costs in their entirety.

Pleas in law and main arguments

It is claimed, in the first place, that the judgment under appeal is in breach of Article 296 TFEU, Articles 48 and 49 of the Charter of Fundamental Rights of the European Union and, in any event, of the principles which govern the burden of proof and Transcatab’s rights of defence. In the course of the proceedings at first instance, arguments and evidence were put forward to overturn the presumption that SCC had exerted decisive influence over Transcatab’s conduct. In so far as those arguments and that evidence were important or, at any rate, not insignificant in the light of the recent case-law of the Court of Justice, they warranted at least a specific appraisal and, in the event of being rejected, that adequate reasons be stated for that rejection. Transcatab maintains that the General Court neither undertook a specific appraisal nor provided an adequate statement of reasons. In any event, Transcatab claims that, in finding that the use of new evidence in the Decision was permissible, the judgment under appeal acted in breach of the principles governing the burden of proof and, in any event, it infringed Transcatab’s rights of defence.

In the second place, Transcatab claims that, in not upholding the complaints relating to the fact that the infringement had not had any actual impact on the market and to the diminishing intensity of the infringement during the period from 1999 to 2002, the General Court erred in distorting the facts and, in any event, acted in breach of: the general principles governing the interpretation of administrative acts of the European institutions; its duty to state reasons; the rules governing the burden of proof; Transcatab’s rights of defence; and the principle requiring correspondence between the ruling and the application.

In the third place, Transcatab claims that the judgment under appeal is flawed by error of law and by the failure to state reasons, or by reasoning which is illogical, in so far as the General Court rejected Transcatab’s complaint alleging breach of the principle of equal treatment, in so far as it failed to take account of the attenuating circumstance consisting in a ‘reasonable doubt’ whereas, in the analogous Spanish case, this was treated as an attenuating circumstance.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/20 |
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18.2.2012

EN

Official Journal of the European Union

C 49/20

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Action brought on 21 December 2011 — United Kingdom of Great Britain and Northern Ireland v Council of the European Union

(Case C-656/11)

2012/C 49/34

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: C. Murrell, Agent and A. Dashwood QC)

Defendant: Council of the European Union

The applicant claims that the Court should:

| — | annul the Council Decision of 16 December 2011 (1) on the position to be taken by the European Union in the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, as regards the replacement of Annex II on the coordination of social security schemes; |
| --- | --- |

—

annul the Council Decision of 16 December 2011 (1) on the position to be taken by the European Union in the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, as regards the replacement of Annex II on the coordination of social security schemes;

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

—

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

Pleas in law and main arguments

| 1. | By an action brought under Article 263 TFEU, the United Kingdom of Great Britain and Northern Ireland is seeking the annulment, pursuant to Article 264 TFEU, of the Council Decision of 16 December 2011 on the position to be taken by the Union in the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, as regards the replacement of Annex II on the coordination of social security schemes. |
| --- | --- |

1.

By an action brought under Article 263 TFEU, the United Kingdom of Great Britain and Northern Ireland is seeking the annulment, pursuant to Article 264 TFEU, of the Council Decision of 16 December 2011 on the position to be taken by the Union in the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, as regards the replacement of Annex II on the coordination of social security schemes.

| 2. | Article 48 TFEU is the sole substantive legal basis specified in the Decision. |
| --- | --- |

2.

Article 48 TFEU is the sole substantive legal basis specified in the Decision.

| 3. | The Decision relates to the amendment of Annex II to the Agreement of 21 June 1999 between the European Union and its Member States, of the one part, and the Swiss Confederation, of the other part, on the free movement of persons. Annex II to the Agreement is exclusively concerned with the coordination, as between the EU and Switzerland, of social security systems. The purpose of the amendments to Annex II that the disputed Decision would introduce is to reflect changes in the EU machinery of social security coordination. One effect of the contemplated changes to Annex II would be to extend to Swiss nationals who are neither themselves economically active nor members of the family of a person who is so active (‘non-actives’), rights that they do not derive from the present Annex II regime. |
| --- | --- |

3.

The Decision relates to the amendment of Annex II to the Agreement of 21 June 1999 between the European Union and its Member States, of the one part, and the Swiss Confederation, of the other part, on the free movement of persons. Annex II to the Agreement is exclusively concerned with the coordination, as between the EU and Switzerland, of social security systems. The purpose of the amendments to Annex II that the disputed Decision would introduce is to reflect changes in the EU machinery of social security coordination. One effect of the contemplated changes to Annex II would be to extend to Swiss nationals who are neither themselves economically active nor members of the family of a person who is so active (‘non-actives’), rights that they do not derive from the present Annex II regime.

| 4. | In the contention of the United Kingdom, Article 48 TFEU cannot serve as the sole substantive legal basis of a measure intended to have such consequences. It is a provision designed to facilitate freedom of movement (a) within the Union, not between the Union and third countries; and (b) by persons who are economically active or their families, not by non-actives. The correct legal basis is Article 79 (2) (b) TFEU. This confers competence for the adoption of measures in the area of ‘the definition of the rights of third country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States’. |
| --- | --- |

4.

In the contention of the United Kingdom, Article 48 TFEU cannot serve as the sole substantive legal basis of a measure intended to have such consequences. It is a provision designed to facilitate freedom of movement (a) within the Union, not between the Union and third countries; and (b) by persons who are economically active or their families, not by non-actives. The correct legal basis is Article 79 (2) (b) TFEU. This confers competence for the adoption of measures in the area of ‘the definition of the rights of third country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States’.

| 5. | Article 79 (2) (b) TFEU is found in Title V of Part Three of the Treaty. Pursuant to Protocol 21 to the Treaties, measures adopted under Title V do not apply to the United Kingdom (or Ireland) unless it signals its willingness to ‘opt into’ them. By its erroneous choice of Article 48 TFEU, instead of Article 79 (2) (b) TFEU, as the substantive legal basis of the Decision, the Council refused to recognise the right of the United Kingdom to choose not to participate in the Decision and be bound by it. |
| --- | --- |

5.

Article 79 (2) (b) TFEU is found in Title V of Part Three of the Treaty. Pursuant to Protocol 21 to the Treaties, measures adopted under Title V do not apply to the United Kingdom (or Ireland) unless it signals its willingness to ‘opt into’ them. By its erroneous choice of Article 48 TFEU, instead of Article 79 (2) (b) TFEU, as the substantive legal basis of the Decision, the Council refused to recognise the right of the United Kingdom to choose not to participate in the Decision and be bound by it.

| 6. | The annulment of the Council Decision of 16 December 2011 is, therefore, sought on the ground that it was adopted on the wrong legal basis, with the consequence that the rights of the United Kingdom under Protocol 21 were not recognised. |
| --- | --- |

6.

The annulment of the Council Decision of 16 December 2011 is, therefore, sought on the ground that it was adopted on the wrong legal basis, with the consequence that the rights of the United Kingdom under Protocol 21 were not recognised.

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(1)  OJ L 341 p. 1

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/21 |
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18.2.2012

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Official Journal of the European Union

C 49/21

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Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 27 December 2011 — TVI Televisão Independente SA v Fazenda Pública

(Case C-659/11)

2012/C 49/35

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: TVI Televisão Independente SA

Defendant: Fazenda Pública

Questions referred

| 1. | Is Article 16(1) of the CIVA [VAT Code], as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax is inherent in the supply of advertising services, so that it should be included in the taxable amount of the supply of services for the purposes of VAT), compatible with Article 11(A)(1)(a) of Directive 77/388/EC (1) (now Article 73 of Council Directive 2006/112/EC (2) of 28 November 2006) and, in particular, with the concept of ‘consideration which has been or is to be obtained by the supplier ... for such supplies’? |
| --- | --- |

1.

Is Article 16(1) of the CIVA [VAT Code], as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax is inherent in the supply of advertising services, so that it should be included in the taxable amount of the supply of services for the purposes of VAT), compatible with Article 11(A)(1)(a) of Directive 77/388/EC (1) (now Article 73 of Council Directive 2006/112/EC (2) of 28 November 2006) and, in particular, with the concept of ‘consideration which has been or is to be obtained by the supplier ... for such supplies’?

| 2. | Is Article 16(6)(c) of the CIVA, as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax does not constitute an amount paid in the name and on behalf of the customer of the services, even though it is accounted for in third party suspense accounts and is intended to be paid to public bodies, so that it is not excluded from the taxable amount for the purposes of VAT) compatible with Article 11(A)(3)(c) of Directive 77/388/EC (now Article 79(c) of Council Directive 2006/112/EC of 28 November 2006) and, in particular, with the concept of ‘amounts received by a taxable person from his purchaser or customer as repayment for expenses paid out in the name and for the account of the latter and which are entered in his books in a suspense account’? |
| --- | --- |

2.

Is Article 16(6)(c) of the CIVA, as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax does not constitute an amount paid in the name and on behalf of the customer of the services, even though it is accounted for in third party suspense accounts and is intended to be paid to public bodies, so that it is not excluded from the taxable amount for the purposes of VAT) compatible with Article 11(A)(3)(c) of Directive 77/388/EC (now Article 79(c) of Council Directive 2006/112/EC of 28 November 2006) and, in particular, with the concept of ‘amounts received by a taxable person from his purchaser or customer as repayment for expenses paid out in the name and for the account of the latter and which are entered in his books in a suspense account’?

---

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

(2)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

OJ 2006 L 347, p. 1.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/21 |
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18.2.2012

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Official Journal of the European Union

C 49/21

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Order of the President of the Third Chamber of the Court of 22 November 2011 — European Commission v Ireland

(Case C-356/10) (1)

2012/C 49/36

Language of the case: English

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

---

(1)  OJ C 246, 11.9.2010.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/21 |
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18.2.2012

EN

Official Journal of the European Union

C 49/21

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Order of the President of the Court of 14 November 2011 — 4care AG v Office For Harmonization in the Internal Market (Trade marks and designs), Laboratorios Diafarm, SA

(Case C-535/10 P) (1)

2012/C 49/37

Language of the case: German

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

---

(1)  OJ C 30, 29.1.2011.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/22 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/22

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Order of the President of the Court of 22 November 2011 — European Commission v Austrian Republic

(Case C-568/10) (1)

2012/C 49/38

Language of the case: German

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

---

(1)  OJ C 55, 19.2.2011.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/22 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/22

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Order of the President of the Sixth Chamber of the Court of 22 November 2011 — European Commission v Austrian Republic

(Case C-582/10) (1)

2012/C 49/39

Language of the case: German

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

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(1)  OJ C 30, 29.1.2011.

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General Court

| 18.2.2012 | EN | Official Journal of the European Union | C 49/23 |
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18.2.2012

EN

Official Journal of the European Union

C 49/23

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Judgment of the General Court of 12 January 2012 — Storck v OHIM — RAI (Ragolizia)

(Case T-462/09) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark Ragolizia - Earlier Community word mark FAVOLIZIA - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 49/40

Language of the case: German

Parties

Applicant: August Storck KG (Berlin, Germany) (represented by: I. Rohr, P. Goldenbaum and T. Melchert, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Radiotelevisione italiana SpA (RAI) (Rome, Italy)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 September 2009 (Case R 1779/2008-4) concerning opposition proceedings between Radiotelevisione italiana SpA (RAI) and August Storck KG.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders August Storck KG to pay the costs. |
| --- | --- |

2.

Orders August Storck KG to pay the costs.

---

(1)  OJ C 11, 16.1.2010.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/23 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/23

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Order of the General Court of 13 December 2011 — Marcuccio v Commission

(Case T-311/09 P) (1)

(Appeal - Civil Service - Officials - Social security - Reimbursement of medical expenses - Decision of the Commission refusing 100 % reimbursement of certain medical expenses incurred by the applicant - Distortion - Duty to state reasons - Investigation - Act adversely affecting the appellant - Authority of res judicata - Lis pendens - Confirmatory act)

2012/C 49/41

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Other party to the proceedings: European Commission (represented by: J. Currall and C. Berardis-Kayser, acting as Agents, and A. Dal Ferro, lawyer)

Re:

Appeal against the order of the Civil Service Tribunal of the European Union (First Chamber) delivered on 20 May 2009 in Case F-73/08 Marcuccio v Commission seeking the annulment of that order

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Luigi Marcuccio shall bear his own costs and pay those incurred by the European Commission at the present instance. |
| --- | --- |

2.

Mr Luigi Marcuccio shall bear his own costs and pay those incurred by the European Commission at the present instance.

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(1)  OJ C 233, 26.9.2009.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/23 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/23

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Order of the General Court of 16 December 2011 — Stichting Woonlinie and Others v Commission

(Case T-202/10) (1)

(State aid - Scheme of aid granted by the Netherlands to housing corporations - Existing aid - Decision accepting Member State’s commitments - Action for annulment - Not individually concerned - Inadmissibility)

2012/C 49/42

Language of the case: Dutch

Parties

Applicants: Stichting Woonlinie (Woudrichem, Netherlands); Stichting Allee Wonen (Roosendaal, Netherlands); Woningstichting Volksbelang (Wijk bij Duurstede, Netherlands); Stichting WoonInvest (Leidschendam-Voorburg, Netherlands); and Stichting Woonstede (Ede, Netherlands) (represented by: P. Glazener, E. Henny and T. Ottervanger, lawyers)

Defendant: European Commission (represented by: H. van Vliet, S. Noë and S. Thomas, Agents, and by H. Gilliams, lawyer)

Re:

Application for partial annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 (Netherlands) — Existing and special project aid to housing corporations.

Operative part of the order

| 1. | The action is dismissed as inadmissible; |
| --- | --- |

1.

The action is dismissed as inadmissible;

| 2. | There is no need to adjudicate on the applications for leave to intervene of Vesteda Groep BV, the Netherlands Vereniging van Institutionele Beleggers in Vastgoed, the Société wallonne du logement, the Union sociale pour l’habitat and The European Liaison Committee for Social Housing (Cecodhas); |
| --- | --- |

2.

There is no need to adjudicate on the applications for leave to intervene of Vesteda Groep BV, the Netherlands Vereniging van Institutionele Beleggers in Vastgoed, the Société wallonne du logement, the Union sociale pour l’habitat and The European Liaison Committee for Social Housing (Cecodhas);

| 3. | Stichting Woonlinie, Stichting Allee Wonen, Woningstichting Volksbelang, Stichting WoonInvest and Stichting Woonstede are ordered to bear their own costs and pay those incurred by the European Commission; |
| --- | --- |

3.

Stichting Woonlinie, Stichting Allee Wonen, Woningstichting Volksbelang, Stichting WoonInvest and Stichting Woonstede are ordered to bear their own costs and pay those incurred by the European Commission;

| 4. | Vesteda Groep, the Netherlands Vereniging van Institutionele Beleggers in Vastgoed, the Société wallonne du logement, the Union sociale pour l’habitat and Cecodhas, applicants for leave to intervene, are ordered to bear their own costs. |
| --- | --- |

4.

Vesteda Groep, the Netherlands Vereniging van Institutionele Beleggers in Vastgoed, the Société wallonne du logement, the Union sociale pour l’habitat and Cecodhas, applicants for leave to intervene, are ordered to bear their own costs.

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(1)  OJ C 179, 3.7.2010.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/24 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/24

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Order of the General Court of 16 December 2011 — Stichting Woonpunt and Others v Commission

(Case T-203/10) (1)

(State aid - Scheme of aid granted by the Netherlands to housing corporations - Existing aid - Decision accepting Member State’s commitments - Decision declaring new aid compatible - Action for annulment - Not individually concerned - No interest in bringing proceedings - Inadmissibility)

2012/C 49/43

Language of the case: Dutch

Parties

Applicants: Stichting Woonpunt (Beek, Netherlands); Stichting Com.wonen (Rotterdam, Netherlands); Woningstichting Haag Wonen (The Hague, Netherlands); and Stichting Woonbedrijf SWS.Hhvl (Eindhoven, Netherlands) (represented by: P. Glazener, E. Henny and T. Ottervanger, lawyers)

Defendant: European Commission (represented by: H. van Vliet, S. Noë and S. Thomas, Agents, and by H. Gilliams, lawyer)

Re:

Application for annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 (Netherlands) — Existing and special project aid to housing corporations.

Operative part of the order

| 1. | The action is dismissed as inadmissible; |
| --- | --- |

1.

The action is dismissed as inadmissible;

| 2. | There is no need to adjudicate on the applications for leave to intervene of Vesteda Groep BV and the Netherlands Vereniging van Institutionele Beleggers in Vastgoed; |
| --- | --- |

2.

There is no need to adjudicate on the applications for leave to intervene of Vesteda Groep BV and the Netherlands Vereniging van Institutionele Beleggers in Vastgoed;

| 3. | Stichting Woonpunt, Stichting Com.wonen, Woningstichting Haag Wonen and Stichting Woonbedrijf SWS.Hhvl are ordered to bear their own costs and pay those incurred by the European Commission; |
| --- | --- |

3.

Stichting Woonpunt, Stichting Com.wonen, Woningstichting Haag Wonen and Stichting Woonbedrijf SWS.Hhvl are ordered to bear their own costs and pay those incurred by the European Commission;

| 4. | Vesteda Groep and the Netherlands Vereniging van Institutionele Beleggers in Vastgoed, applicants for leave to intervene, are ordered to bear their own costs. |
| --- | --- |

4.

Vesteda Groep and the Netherlands Vereniging van Institutionele Beleggers in Vastgoed, applicants for leave to intervene, are ordered to bear their own costs.

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(1)  OJ C 179, 3.7.2010.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/24 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/24

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Order of the General Court of 15 December 2011 — Gooré v Council

(Case T-285/11) (1)

(Common foreign and security policy - Restrictive measures adopted in view of the situation in Côte d’Ivoire - Withdrawal of the list of persons concerned - Action for annulment - No need to adjudicate - Action for damages - Action manifestly unfounded)

2012/C 49/44

Language of the case: French

Parties

Applicant: Charles Kader Gooré (Abidjan, Côte d'Ivoire) (represented by: F. Meynot, lawyer)

Defendant: Council of the European Union (represented by: B. Driessen, G. Étienne and M. Chavrier, acting as Agents)

Re:

Firstly, annulment of Council Regulation (EU) No 330/2011 of 6 April 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire (OJ 2011 L 93, p. 10), as regards the applicant’s name and, secondly, an application for damages.

Operative part of the order

| 1. | There is no further need to adjudicate on the application for annulment of Council Regulation (EU) No 330/2011 of 6 April 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire. |
| --- | --- |

1.

There is no further need to adjudicate on the application for annulment of Council Regulation (EU) No 330/2011 of 6 April 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire.

| 2. | The application for damages is dismissed. |
| --- | --- |

2.

The application for damages is dismissed.

| 3. | Each party shall bear its own costs. |
| --- | --- |

3.

Each party shall bear its own costs.

| 4. | There is no need to adjudicate on the application for leave to intervene by the European Commission. |
| --- | --- |

4.

There is no need to adjudicate on the application for leave to intervene by the European Commission.

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(1)  OJ C 238, 13.8.2011.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/25 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/25

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Order of the President of the General Court of 22 December 2011 — Al-Chihabi v Council

(Case T-593/11 R)

(Interim relief - Common foreign and security policy - Restrictive measures against Syria - Freezing of funds and economic resources - Application for interim measures - No urgency - No serious and irreparable damage)

2012/C 49/45

Language of the case: English

Parties

Applicant: Fares Al-Chihabi (Aleppo, Syria) (represented by: L. Ruessmann and W. Berg, lawyers)

Defendant: Council of the European Union (represented by: M. Bishop and R. Liudvinaviciute-Cordeiro, Agents)

Re:

Application for, in essence, the suspension of operation of Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 228, p. 16), Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 228, p. 1), Council Decision 2011/684/CFSP of 13 October 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 269, p. 33) and Council Regulation (EU) No 1011/2011 of 13 October 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 269, p. 18), to the extent that those measures affect the applicant.

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

The costs are reserved.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/25 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/25

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Appeal brought on 24 November 2011 by A against the judgment of the Civil Service Tribunal of 14 September 2011 in Case F-12/09, A v Commission

(Case T-595/11 P)

2012/C 49/46

Language of the case: French

Parties

Appellant: A (Port-Vendres, France) (represented by B. Cambier, A. Paternostre and L. Levi, lawyers)

Other party to the proceedings: European Commission

Form of order sought by the appellant

| — | Annul the judgment of the Civil Service Tribunal of the European Union of 14 September 2011 in Case F-12/09; |
| --- | --- |

—

Annul the judgment of the Civil Service Tribunal of the European Union of 14 September 2011 in Case F-12/09;

| — | Consequently, uphold the claims of the appellant at first instance and, accordingly,






  — | annul the decisions by which the European Commission refuses to pay the appellant the compensation due under Article 73 of the Staff Regulations and order the European Commission to pay that compensation to the appellant immediately, together with additional compensation under common law representing the difference between the amount of the actual loss suffered and the part of that loss for which compensation is paid under Article 73 of the Staff Regulations, |
| --- | --- | --- |

—

Consequently, uphold the claims of the appellant at first instance and, accordingly,

—

annul the decisions by which the European Commission refuses to pay the appellant the compensation due under Article 73 of the Staff Regulations and order the European Commission to pay that compensation to the appellant immediately, together with additional compensation under common law representing the difference between the amount of the actual loss suffered and the part of that loss for which compensation is paid under Article 73 of the Staff Regulations,

| — | order the Commission to pay the appellant late-payment interest calculated from the month of December 2004, the date at which the work-related origin of the sickness, the amount of the loss sufferance and the stabilisation of his state of health ought to have been acknowledged, |
| --- | --- |

—

order the Commission to pay the appellant late-payment interest calculated from the month of December 2004, the date at which the work-related origin of the sickness, the amount of the loss sufferance and the stabilisation of his state of health ought to have been acknowledged,

| — | order the European Commission to pay the appellant any sum which appears to the General Court to be adequate to compensate the appellant for the non-pecuniary harm suffered by him as a result of the numerous errors and irregularities committed by the services of the European Commission in the investigation of the medical procedures concerning him, |
| --- | --- |

—

order the European Commission to pay the appellant any sum which appears to the General Court to be adequate to compensate the appellant for the non-pecuniary harm suffered by him as a result of the numerous errors and irregularities committed by the services of the European Commission in the investigation of the medical procedures concerning him,

| — | order the defendant to pay the costs at both instances. |
| --- | --- |

—

order the defendant to pay the costs at both instances.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the right to action within a reasonable time, of the principle of the duty of care, of the principle of legitimate expectations and distortion of the file. |
| --- | --- |

1.

First plea in law, alleging infringement of the right to action within a reasonable time, of the principle of the duty of care, of the principle of legitimate expectations and distortion of the file.

| 2. | Second plea in law, alleging infringement of the right to full compensation for the loss suffered. |
| --- | --- |

2.

Second plea in law, alleging infringement of the right to full compensation for the loss suffered.

| 3. | Third plea in law, alleging, firstly, infringement of Articles 73 and 90 of the Staff Regulations of Officials of the European Union and of the principles of sound administration, procedural economy, non-retroactivity, hierarchy of norms and the concept of consolidation and, secondly, distortion of the facts and of the appellant’s arguments. |
| --- | --- |

3.

Third plea in law, alleging, firstly, infringement of Articles 73 and 90 of the Staff Regulations of Officials of the European Union and of the principles of sound administration, procedural economy, non-retroactivity, hierarchy of norms and the concept of consolidation and, secondly, distortion of the facts and of the appellant’s arguments.

---

| 18.2.2012 | EN | Official Journal of the European Union | C 49/26 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/26

---

Action brought on 2 December 2011 — Sky Deutschland and Sky Deutschland Fernsehen v Commission

(Case T-626/11)

2012/C 49/47

Language of the case: German

Parties

Applicants: Sky Deutschland AG (Unterföhring, Germany) and Sky Deutschland Fernsehen GmbH & Co. KG (Unterföhring) (represented by: A. Cordewener, F. Kutt and C. Jehke, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul in its entirety the defendant’s decision of 26 January 2011 in the procedure on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) ‘KStG, Sanierungsklausel’ (‘Law on corporation tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’); |
| --- | --- |

—

annul in its entirety the defendant’s decision of 26 January 2011 in the procedure on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) ‘KStG, Sanierungsklausel’ (‘Law on corporation tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’);

| — | in the alternative, annul that decision at least in so far as it does not provide for any exception on the basis of the principle of the protection of legitimate expectations in favour of undertakings in the applicants’ position to the obligation to recover aid set out in Articles 4 and 5 of that decision or at least does not provide for any transitional provisions in favour of such undertakings; |
| --- | --- |

—

in the alternative, annul that decision at least in so far as it does not provide for any exception on the basis of the principle of the protection of legitimate expectations in favour of undertakings in the applicants’ position to the obligation to recover aid set out in Articles 4 and 5 of that decision or at least does not provide for any transitional provisions in favour of such undertakings;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely in essence on the following:

| — | The defendant incorrectly comes to the conclusion in the contested decision that the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is unlawful State aid pursuant to Article 107(1) TFEU. In that regard the applicants submit inter alia that the defendant incorrectly assumes that the provision in Paragraph 8c(1a) of the KStG is selective and constitutes an unjustified exception to the principle set out in Paragraph 8c(1) of the KStG according to which the tax losses of a corporation are under certain conditions extinguished if there is a change in the shareholders of that corporation. The applicants take the view that the provision in Paragraph 8c(1) of the KStG is incorrectly regarded by the defendant as the relevant domestic reference system for the investigation of the aid. |
| --- | --- |

—

The defendant incorrectly comes to the conclusion in the contested decision that the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is unlawful State aid pursuant to Article 107(1) TFEU. In that regard the applicants submit inter alia that the defendant incorrectly assumes that the provision in Paragraph 8c(1a) of the KStG is selective and constitutes an unjustified exception to the principle set out in Paragraph 8c(1) of the KStG according to which the tax losses of a corporation are under certain conditions extinguished if there is a change in the shareholders of that corporation. The applicants take the view that the provision in Paragraph 8c(1) of the KStG is incorrectly regarded by the defendant as the relevant domestic reference system for the investigation of the aid.

| — | The relevant reference system is the possibility, which is fundamentally given under German law, of transferring losses between different tax periods, which arises out of the principle known as the principle of net profit or loss. The applicants take the view that that reference system is merely confirmed by the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG. In addition, Paragraph 8c(1) of the KStG cannot constitute the relevant domestic reference system because that legal provision is unconstitutional according to the requirements of the German Basic Law. |
| --- | --- |

—

The relevant reference system is the possibility, which is fundamentally given under German law, of transferring losses between different tax periods, which arises out of the principle known as the principle of net profit or loss. The applicants take the view that that reference system is merely confirmed by the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG. In addition, Paragraph 8c(1) of the KStG cannot constitute the relevant domestic reference system because that legal provision is unconstitutional according to the requirements of the German Basic Law.

| — | Moreover, the provision in Paragraph 8c(1a) of the KStG constitutes what is known as a general measure, which potentially benefits all economic operators encumbered with losses and does not give preference to a delimited group of operators on the market. The applicants take the view that the provision enabling the fiscal carry forward of losses is not therefore selective. |
| --- | --- |

—

Moreover, the provision in Paragraph 8c(1a) of the KStG constitutes what is known as a general measure, which potentially benefits all economic operators encumbered with losses and does not give preference to a delimited group of operators on the market. The applicants take the view that the provision enabling the fiscal carry forward of losses is not therefore selective.

| — | The provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG is also justified on the basis of the nature and general scheme of the German tax system because that provision limits the effects of the restriction on the deduction of losses in Paragraph 8c(1) of the KStG. The applicants submit in that regard that the original version of Paragraph 8c of the KStG was a provision to avoid abuse which had become too wide and that the subsequent (and retroactive) amendment of that provision by Paragraph 8c(1) of the KStG merely reduced the surplus normative content of Paragraph 8c(1) of the KStG and in that respect restored the general transfer of losses between different tax periods as the relevant reference system. |
| --- | --- |

—

The provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG is also justified on the basis of the nature and general scheme of the German tax system because that provision limits the effects of the restriction on the deduction of losses in Paragraph 8c(1) of the KStG. The applicants submit in that regard that the original version of Paragraph 8c of the KStG was a provision to avoid abuse which had become too wide and that the subsequent (and retroactive) amendment of that provision by Paragraph 8c(1) of the KStG merely reduced the surplus normative content of Paragraph 8c(1) of the KStG and in that respect restored the general transfer of losses between different tax periods as the relevant reference system.

| — | Lastly, the applicants submit that they have legitimate expectations because the defendant’s negative decision was unforeseeable and the defendant did not complain about the similarly structured preceding provision in Paragraph 8(4) of the older version of the KStG and comparable provisions in other Member States. |
| --- | --- |

—

Lastly, the applicants submit that they have legitimate expectations because the defendant’s negative decision was unforeseeable and the defendant did not complain about the similarly structured preceding provision in Paragraph 8(4) of the older version of the KStG and comparable provisions in other Member States.

---

| 18.2.2012 | EN | Official Journal of the European Union | C 49/26 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/26

---

Action brought on 2 December 2011 — ATMvision v European Commission

(Case T-627/11)

2012/C 49/48

Language of the case: German

Parties

Applicant: ATMvision AG (Salem, Germany) (represented by: A. Cordewener, F. Kutt and C. Jehke, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul in its entirety the defendant’s decision of 26 January 2011 in the procedure on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) ‘KStG, Sanierungsklausel’ (‘Law on corporation tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’); |
| --- | --- |

—

annul in its entirety the defendant’s decision of 26 January 2011 in the procedure on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) ‘KStG, Sanierungsklausel’ (‘Law on corporation tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’);

| — | in the alternative, annul that decision at least in so far as it does not provide for any exception on the basis of the principle of the protection of legitimate expectations in favour of undertakings in the applicant’s position to the obligation to recover aid set out in Articles 4 and 5 of that decision or at least does not provide for any transitional provisions in favour of such undertakings; |
| --- | --- |

—

in the alternative, annul that decision at least in so far as it does not provide for any exception on the basis of the principle of the protection of legitimate expectations in favour of undertakings in the applicant’s position to the obligation to recover aid set out in Articles 4 and 5 of that decision or at least does not provide for any transitional provisions in favour of such undertakings;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies in essence on the following:

| — | The defendant incorrectly comes to the conclusion in the contested decision that the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is unlawful State aid pursuant to Article 107(1) TFEU. In that regard the applicant submits inter alia that the defendant incorrectly assumes that the provision in Paragraph 8c(1a) of the KStG is selective and constitutes an unjustified exception to the principle set out in Paragraph 8c(1) of the KStG according to which the tax losses of a corporation are under certain conditions extinguished if there is a change in the shareholders of that corporation. The applicant takes the view that the provision in Paragraph 8c(1) of the KStG is incorrectly regarded by the defendant as the relevant domestic reference system for the investigation of the aid. |
| --- | --- |

—

The defendant incorrectly comes to the conclusion in the contested decision that the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is unlawful State aid pursuant to Article 107(1) TFEU. In that regard the applicant submits inter alia that the defendant incorrectly assumes that the provision in Paragraph 8c(1a) of the KStG is selective and constitutes an unjustified exception to the principle set out in Paragraph 8c(1) of the KStG according to which the tax losses of a corporation are under certain conditions extinguished if there is a change in the shareholders of that corporation. The applicant takes the view that the provision in Paragraph 8c(1) of the KStG is incorrectly regarded by the defendant as the relevant domestic reference system for the investigation of the aid.

| — | The relevant reference system is the possibility, which is fundamentally given under German law, of transferring losses between different tax periods, which arises out of the principle known as the principle of net profit or loss. The applicant takes the view that that reference system is merely confirmed by the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG. In addition, Paragraph 8c(1) of the KStG cannot constitute the relevant domestic reference system because that legal provision is unconstitutional according to the requirements of the German Basic Law. |
| --- | --- |

—

The relevant reference system is the possibility, which is fundamentally given under German law, of transferring losses between different tax periods, which arises out of the principle known as the principle of net profit or loss. The applicant takes the view that that reference system is merely confirmed by the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG. In addition, Paragraph 8c(1) of the KStG cannot constitute the relevant domestic reference system because that legal provision is unconstitutional according to the requirements of the German Basic Law.

| — | Moreover, the provision in Paragraph 8c(1a) of the KStG constitutes what is known as a general measure, which potentially benefits all economic operators encumbered with losses and does not give preference to a delimited group of operators on the market. The applicant takes the view that the provision enabling the fiscal carry forward of losses is not therefore selective. |
| --- | --- |

—

Moreover, the provision in Paragraph 8c(1a) of the KStG constitutes what is known as a general measure, which potentially benefits all economic operators encumbered with losses and does not give preference to a delimited group of operators on the market. The applicant takes the view that the provision enabling the fiscal carry forward of losses is not therefore selective.

| — | The provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG is also justified on the basis of the nature and general scheme of the German tax system because that provision limits the effects of the restriction on the deduction of losses in Paragraph 8c(1) of the KStG. The applicant submits in that regard that the original version of Paragraph 8c of the KStG was a provision to avoid abuse which had become too wide and that the subsequent (and retroactive) amendment of that provision by Paragraph 8c(1) of the KStG merely reduced the surplus normative content of Paragraph 8c(1) of the KStG and in that respect restored the general transfer of losses between different tax periods as the relevant reference system. |
| --- | --- |

—

The provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG is also justified on the basis of the nature and general scheme of the German tax system because that provision limits the effects of the restriction on the deduction of losses in Paragraph 8c(1) of the KStG. The applicant submits in that regard that the original version of Paragraph 8c of the KStG was a provision to avoid abuse which had become too wide and that the subsequent (and retroactive) amendment of that provision by Paragraph 8c(1) of the KStG merely reduced the surplus normative content of Paragraph 8c(1) of the KStG and in that respect restored the general transfer of losses between different tax periods as the relevant reference system.

| — | Lastly, the applicant submits that it has legitimate expectations because the defendant’s negative decision was unforeseeable and the defendant did not complain about the similarly structured preceding provision in Paragraph 8(4) of the older version of the KStG and comparable provisions in other Member States. |
| --- | --- |

—

Lastly, the applicant submits that it has legitimate expectations because the defendant’s negative decision was unforeseeable and the defendant did not complain about the similarly structured preceding provision in Paragraph 8(4) of the older version of the KStG and comparable provisions in other Member States.

---

| 18.2.2012 | EN | Official Journal of the European Union | C 49/27 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/27

---

Action brought on 5 December 2011 — Biogas Nord v Commission

(Case T-628/11)

2012/C 49/49

Language of the case: German

Parties

Applicant: Biogas Nord AG (Bielefeld, Germany) (represented by: C. Birkemeyer, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the European Commission of 26 January 2011 on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) implemented by Germany ‘KStG, Sanierungsklausel’ (‘Law on corporate tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’) (document C(2011) 275) pursuant to Article 264 TFEU; |
| --- | --- |

—

annul the decision of the European Commission of 26 January 2011 on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) implemented by Germany ‘KStG, Sanierungsklausel’ (‘Law on corporate tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’) (document C(2011) 275) pursuant to Article 264 TFEU;

| — | order the Commission to pay the applicant’s costs pursuant to Article 87(2) of the Rules of Procedure of the General Court. |
| --- | --- |

—

order the Commission to pay the applicant’s costs pursuant to Article 87(2) of the Rules of Procedure of the General Court.

Pleas in law and main arguments

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

| 1. | First plea in law: compliance with the private creditor principle
  In the context of the first plea, the applicant submits that Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is not aid within the meaning of Article 107 et seq. TFEU because the beneficiary undertakings provide consideration of equal value in return which bears comparison with the conduct of a private creditor in a market economy. |
| --- | --- |

1.

First plea in law: compliance with the private creditor principle

In the context of the first plea, the applicant submits that Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is not aid within the meaning of Article 107 et seq. TFEU because the beneficiary undertakings provide consideration of equal value in return which bears comparison with the conduct of a private creditor in a market economy.

| 2. | Second plea in law: no selectivity
  The applicant submits in that regard that Paragraph 8c(1a) of the KStG is not aid within the meaning of Article 107 et seq. TFEU because that provision does not have the effect of selectively favouring certain undertakings. |
| --- | --- |

2.

Second plea in law: no selectivity

The applicant submits in that regard that Paragraph 8c(1a) of the KStG is not aid within the meaning of Article 107 et seq. TFEU because that provision does not have the effect of selectively favouring certain undertakings.

| 3. | Third plea in law: protection of legitimate expectations
  In the context of the third plea, the applicant submits that the legitimate expectations of undertakings which have made arrangements regarding assets before they know about a procedure initiated by the Commission under Article 108(2) TFEU enjoy protection. |
| --- | --- |

3.

Third plea in law: protection of legitimate expectations

In the context of the third plea, the applicant submits that the legitimate expectations of undertakings which have made arrangements regarding assets before they know about a procedure initiated by the Commission under Article 108(2) TFEU enjoy protection.

---

| 18.2.2012 | EN | Official Journal of the European Union | C 49/28 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/28

---

Action brought on 5 December 2011 — Biogas Nord Anlagenbau v Commission

(Case T-629/11)

2012/C 49/50

Language of the case: German

Parties

Applicant: Biogas Nord Anlagenbau GmbH (Bielefeld, Germany) (represented by: C. Birkemeyer, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the European Commission of 26 January 2011 on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) implemented by Germany ‘KStG, Sanierungsklausel’ (‘Law on corporate tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’) (document C(2011) 275) pursuant to Article 264 TFEU; |
| --- | --- |

—

annul the decision of the European Commission of 26 January 2011 on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) implemented by Germany ‘KStG, Sanierungsklausel’ (‘Law on corporate tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’) (document C(2011) 275) pursuant to Article 264 TFEU;

| — | order the Commission to pay the applicant’s costs pursuant to Article 87(2) of the Rules of Procedure of the General Court. |
| --- | --- |

—

order the Commission to pay the applicant’s costs pursuant to Article 87(2) of the Rules of Procedure of the General Court.

Pleas in law and main arguments

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

| 1. | First plea in law: compliance with the private creditor principle
  In the context of the first plea, the applicant submits that Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is not aid within the meaning of Article 107 et seq. TFEU because the beneficiary undertakings provide consideration of equal value in return which bears comparison with the conduct of a private creditor in a market economy. |
| --- | --- |

1.

First plea in law: compliance with the private creditor principle

In the context of the first plea, the applicant submits that Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is not aid within the meaning of Article 107 et seq. TFEU because the beneficiary undertakings provide consideration of equal value in return which bears comparison with the conduct of a private creditor in a market economy.

| 2. | Second plea in law: no selectivity
  The applicant submits in that regard that Paragraph 8c(1a) of the KStG is not aid within the meaning of Article 107 et seq. TFEU because that provision does not have the effect of selectively favouring certain undertakings. |
| --- | --- |

2.

Second plea in law: no selectivity

The applicant submits in that regard that Paragraph 8c(1a) of the KStG is not aid within the meaning of Article 107 et seq. TFEU because that provision does not have the effect of selectively favouring certain undertakings.

| 3. | Third plea in law: protection of legitimate expectations
  In the context of the third plea, the applicant submits that the legitimate expectations of undertakings which have made arrangements regarding assets before they know about a procedure initiated by the Commission under Article 108(2) TFEU enjoy protection. |
| --- | --- |

3.

Third plea in law: protection of legitimate expectations

In the context of the third plea, the applicant submits that the legitimate expectations of undertakings which have made arrangements regarding assets before they know about a procedure initiated by the Commission under Article 108(2) TFEU enjoy protection.

---

| 18.2.2012 | EN | Official Journal of the European Union | C 49/28 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/28

---

Appeal brought on 6 December 2011 by Peter Strobl against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-56/05 Strobl v Commission

(Case T-630/11 P)

2012/C 49/51

Language of the case: German

Parties

Appellant: Peter Strobl (Besozzo, Italy) (represented by H.-J. Rüber, lawyer)

Other parties to the proceedings: European Commission, Council of the European Union

Form of order sought by the appellant

| — | Set aside the judgment of the Civil Service Tribunal of 29 September 2011 in Strobl v Commission; |
| --- | --- |

—

Set aside the judgment of the Civil Service Tribunal of 29 September 2011 in Strobl v Commission;

| — | declare the defendant’s grading decision in [Mr Strobl’s] appointment of 7 October 2004 incorrect and annul it; |
| --- | --- |

—

declare the defendant’s grading decision in [Mr Strobl’s] appointment of 7 October 2004 incorrect and annul it;

| — | order the defendant to cease to discriminate against Mr Strobl and to compensate him for the disadvantage suffered; |
| --- | --- |

—

order the defendant to cease to discriminate against Mr Strobl and to compensate him for the disadvantage suffered;

| — | order the defendant to pay the costs of the entire proceedings. |
| --- | --- |

—

order the defendant to pay the costs of the entire proceedings.

Pleas in law and main arguments

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

| 1. | Incorrect findings of fact by the Civil Service Tribunal with regard to the professional experience required for the appellant’s post. |
| --- | --- |

1.

Incorrect findings of fact by the Civil Service Tribunal with regard to the professional experience required for the appellant’s post.

| 2. | Incorrect findings of fact by the Civil Service Tribunal and contradictory interpretation of the evidence with regard to the grading of the appellant and, to that extent, infringement of the obligation to state the reasons on which a decision is based. |
| --- | --- |

2.

Incorrect findings of fact by the Civil Service Tribunal and contradictory interpretation of the evidence with regard to the grading of the appellant and, to that extent, infringement of the obligation to state the reasons on which a decision is based.

| 3. | Infringement by the Civil Service Tribunal of the obligation to state reasons in relation to its rejection of a number of the appellant’s complaints. |
| --- | --- |

3.

Infringement by the Civil Service Tribunal of the obligation to state reasons in relation to its rejection of a number of the appellant’s complaints.

| 4. | Infringement by the Civil Service Tribunal of the obligation to state reasons with regard to the review of the appellant’s step in grade. |
| --- | --- |

4.

Infringement by the Civil Service Tribunal of the obligation to state reasons with regard to the review of the appellant’s step in grade.

| 5. | Failure on the part of the Civil Service Tribunal to state reasons with regard to the applicability of the relevant case-law. |
| --- | --- |

5.

Failure on the part of the Civil Service Tribunal to state reasons with regard to the applicability of the relevant case-law.

---

| 18.2.2012 | EN | Official Journal of the European Union | C 49/29 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/29

---

Action brought on 12 December 2011 — European Dynamics Belgium and Others v European Medicines Agency

(Case T-638/11)

2012/C 49/52

Language of the case: Greek

Parties

Applicants: European Dynamics Belgium SA (Brussels, Belgium), European Dynamics Luxembourg SA (Ettelbruck, Luxembourg), Evropaiki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE (Athens, Greece), European Dynamics UK Ltd (London, United Kingdom) (represented by: V. Khristianos, lawyer)

Defendant: European Medicines Agency

Form of order sought

The applicants claim that the General Court should:

| — | annul the decision under number EMA/787935/2011 of the European Medicines Agency (‘the EMA’), of which the applicants were notified on 3 October 2011, and by which the EMA rejected their tender in the procurement procedure at issue; |
| --- | --- |

—

annul the decision under number EMA/787935/2011 of the European Medicines Agency (‘the EMA’), of which the applicants were notified on 3 October 2011, and by which the EMA rejected their tender in the procurement procedure at issue;

| — | annul the decision under number EMA/882467/2011 of the Acting Executive Director of the EMA of 9 November 2011 rejecting the applicants’ request for the composition of the evaluation committee to be disclosed to them; |
| --- | --- |

—

annul the decision under number EMA/882467/2011 of the Acting Executive Director of the EMA of 9 November 2011 rejecting the applicants’ request for the composition of the evaluation committee to be disclosed to them;

| — | order the EMA to pay all the applicants’ entire costs. |
| --- | --- |

—

order the EMA to pay all the applicants’ entire costs.

Pleas in law and main arguments

By this action, the applicants seek annulment of the following measures: (i) the EMA’s decision under number EMA/787935/2011 of which the applicants were notified on 3 October 2011 and by which the EMA rejected their tender in the open procurement procedure under number EMA/2011/05/DV and (ii) the decision under number EMA/882467/2011 of the Acting Executive Director of the EMA of 9 November 2011 by which the EMA, following a confirmatory application by the applicants, rejected their request for access to documents in the procurement procedure, relating to the composition of the evaluation committee.

The applicants request the annulment of the first of the contested decisions for breach of essential procedural requirements, more specifically, because of a defective or inadequate statement of reasons and also because of a complete absence of reasons, since: (a) that decision did not contain and continues not to contain a sufficient statement of reasons as to the grounds for rejecting the applicants’ tender and in any event the statement of reasons is defective, the applicants submitting in particular that the decision does not contain comments regarding the places where their tender was inferior and regarding those where the tenders submitted by the other tenderers excelled; (b) it did not contain and continues not to contain a statement of reasons regarding the mathematical formula (algorithm) on the basis of which the applicants’ precise mark (to the second decimal place) was reached; (c) it did not contain and continues not to contain a statement of reasons as to why the financial offer of one of the tenderers was not considered abnormally low.

The applicants submit that the second of the contested decisions must be annulled, under Article 263 TFEU, for infringement of a rule of law of the European Union, namely of Regulation No 1049/2001, as rendered more specific by the provisions applying that regulation to the EMA, because the EMA rejected the applicants’ request for access to the names and other details of the members of the evaluation committee for the procurement procedure at issue.

---

| 18.2.2012 | EN | Official Journal of the European Union | C 49/29 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/29

---

Action brought on 14 December 2011 — Heads! v OHIM (HEADS)

(Case T-639/11)

2012/C 49/53

Language of the case: German

Parties

Applicant: Heads! GmbH & Co. KG (Munich, Germany) (represented by A. Jaeger-Lenz and T. Bösling, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 October 2011 in Case R 2348/2010-1 in so far as the registration of trade mark No 8327926 ‘HEADS’ for services in Class 35 (Business management; Business administration; Personnel and management consulting services; Personnel marketing; Recruitment of specialist and senior staff; Provision of temporary specialist and senior staff (temporary management)) was refused; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 October 2011 in Case R 2348/2010-1 in so far as the registration of trade mark No 8327926 ‘HEADS’ for services in Class 35 (Business management; Business administration; Personnel and management consulting services; Personnel marketing; Recruitment of specialist and senior staff; Provision of temporary specialist and senior staff (temporary management)) was refused;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘HEADS’ for services in Class 35.

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed in part.

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009 since the Community trade mark at issue has distinctive character and since the Board of Appeal did not make any specific findings with regard to the ground for refusal under Article 7(1)(b) of Regulation No 207/2009 on which its decision is based; wrongfully took as a basis for its assessment word combinations not covered by the application for registration; wrongly relied on a decision of the (German) Federal Patent Court; and the conclusions drawn from the presumed point of view of the target public do not apply.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/30 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/30

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Appeal brought on 8 December 2011 by Harald Mische against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-70/05 Mische v Commission

(Case T-641/11 P)

2012/C 49/54

Language of the case: English

Parties

Appellant: Harald Mische (Brussels, Belgium) (represented by: R. Holland, J. Mische and M. Velardo, lawyers)

Other parties to the proceedings: European Commission, Council of the European Union

Form of order sought by the appellant

| — | Set aside the judgment of the European Civil Service Tribunal of 29 September 2011 in Case F-70/05 and, to the extent possible based on the facts before the Court deliver judgment, and: |
| --- | --- |

—

Set aside the judgment of the European Civil Service Tribunal of 29 September 2011 in Case F-70/05 and, to the extent possible based on the facts before the Court deliver judgment, and:

| — | Annul the Commission’s decision of 11 November 2004 in so far as it determines the appelant’s grading; |
| --- | --- |

—

Annul the Commission’s decision of 11 November 2004 in so far as it determines the appelant’s grading;

| — | Order the Commission to make good any damage caused (including damages to his career, legal and regular pay, immaterial damages, with default interest etc.); |
| --- | --- |

—

Order the Commission to make good any damage caused (including damages to his career, legal and regular pay, immaterial damages, with default interest etc.);

| — | Order the Commission to pay the cost of these proceedings and those before the Civil Service Tribunal. |
| --- | --- |

—

Order the Commission to pay the cost of these proceedings and those before the Civil Service Tribunal.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Civil Service Tribunal erroneously failed to examine the plea of infringement of Article 41(1) of the Charter of Fundamental Rights of the European Union, as well as the paragraph 3 of the said provision related to the right for damage compensation, namely its conditions of ‘fairness’ and ‘timeliness’ for handling the appellant's affairs in relation to a number of factual situations, although such a plea of infringement had been explicitly raised. |
| --- | --- |

1.

First plea in law, alleging that the Civil Service Tribunal erroneously failed to examine the plea of infringement of Article 41(1) of the Charter of Fundamental Rights of the European Union, as well as the paragraph 3 of the said provision related to the right for damage compensation, namely its conditions of ‘fairness’ and ‘timeliness’ for handling the appellant's affairs in relation to a number of factual situations, although such a plea of infringement had been explicitly raised.

| 2. | Second plea in law, alleging that the Civil Service Tribunal erroneously declared as inadmissible the plea of infringement of Article 5(5) of the Staff Regulations (1) with its specific legal conditions providing that not just equal, but, in fact, ‘identical conditions of recruitment and service career shall apply to all officials’. |
| --- | --- |

2.

Second plea in law, alleging that the Civil Service Tribunal erroneously declared as inadmissible the plea of infringement of Article 5(5) of the Staff Regulations (1) with its specific legal conditions providing that not just equal, but, in fact, ‘identical conditions of recruitment and service career shall apply to all officials’.

| 3. | Third plea in law, alleging that the Civil Service Tribunal erroneously failed to consider the legally acquired continuity of career of former temporary agents, as clarified by the Court of Justice in its recent case-law (case C-177/10). In addition, the Civil Service Tribunal erroneously declared as inadmissible the plea of illegality of Article 5(4) of Annex XIII to the Staff Regulations arguing that the appellant had not been graded under that provision. |
| --- | --- |

3.

Third plea in law, alleging that the Civil Service Tribunal erroneously failed to consider the legally acquired continuity of career of former temporary agents, as clarified by the Court of Justice in its recent case-law (case C-177/10). In addition, the Civil Service Tribunal erroneously declared as inadmissible the plea of illegality of Article 5(4) of Annex XIII to the Staff Regulations arguing that the appellant had not been graded under that provision.

---

(1)  Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1).

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/30 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/30

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Appeal brought on 8 December 2011 by Harald Mische against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-93/05 Mische v Parliament

(Case T-642/11 P)

2012/C 49/55

Language of the case: English

Parties

Appellant: Harald Mische (Brussels, Belgium) (represented by: R. Holland, J. Mische, and M. Velardo, lawyers)

Other parties to the proceedings: European Parliament, Council of the European Union

Form of order sought by the appellant

| — | Set aside the judgment of the European Civil Service Tribunal of 29 September 2011 in Case F-93/05 Mische v Parliament and, to the extent possible based on the facts before the Court deliver judgment, and: |
| --- | --- |

—

Set aside the judgment of the European Civil Service Tribunal of 29 September 2011 in Case F-93/05 Mische v Parliament and, to the extent possible based on the facts before the Court deliver judgment, and:

| — | Annul the Parliament’s decision of 4 October 2004 in so far as it determines the appellant’s grading; |
| --- | --- |

—

Annul the Parliament’s decision of 4 October 2004 in so far as it determines the appellant’s grading;

| — | Order the Parliament to make good any damage caused (including damages to his career, legal and regular pay, immaterial damages, with default interest etc.); |
| --- | --- |

—

Order the Parliament to make good any damage caused (including damages to his career, legal and regular pay, immaterial damages, with default interest etc.);

| — | Order the Parliament to pay the cost of these proceedings and those before the Civil Service Tribunal. |
| --- | --- |

—

Order the Parliament to pay the cost of these proceedings and those before the Civil Service Tribunal.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Civil Service Tribunal erred in declaring the action inadmissible for having been lodged out of time. |
| --- | --- |

1.

First plea in law, alleging that the Civil Service Tribunal erred in declaring the action inadmissible for having been lodged out of time.

| 2. | Second plea in law, alleging that the Civil Service Tribunal erred in ruling that the action is inadmissible because it would not have been liable to procure any advantage to the appellant, and thus he did not have an interest in bringing the action. |
| --- | --- |

2.

Second plea in law, alleging that the Civil Service Tribunal erred in ruling that the action is inadmissible because it would not have been liable to procure any advantage to the appellant, and thus he did not have an interest in bringing the action.

| 3. | Third plea in law, alleging that the Civil Service Tribunal erroneously failed to rule on the pleas raised on the merits of the application, in particular the infringement of Article 41(3) of the Charter of Fundamental Rights of the European Union and/or of Article 5(5) of the Staff Regulations (1). |
| --- | --- |

3.

Third plea in law, alleging that the Civil Service Tribunal erroneously failed to rule on the pleas raised on the merits of the application, in particular the infringement of Article 41(3) of the Charter of Fundamental Rights of the European Union and/or of Article 5(5) of the Staff Regulations (1).

---

(1)  Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1)

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/31 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/31

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Action brought on 15 December 2011 — Crown Equipment (Suzhou) and Crown Gabelstapler v Council

(Case T-643/11)

2012/C 49/56

Language of the case: English

Parties

Applicants: Crown Equipment (Suzhou) Co. Ltd (Suzhou, China) and Crown Gabelstapler GmbH & Co. KG (Roding, Germany) (represented by: K. Neuhaus, H. Freund and B. Ecker, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | Declare the application admissible; |
| --- | --- |

—

Declare the application admissible;

| — | Annul Council Implementing Regulation (EU) No 1008/2011 (1), as far as it concerns the applicants; |
| --- | --- |

—

Annul Council Implementing Regulation (EU) No 1008/2011 (1), as far as it concerns the applicants;

| — | Order the defendant to bear its own costs and those of the applicants. |
| --- | --- |

—

Order the defendant to bear its own costs and those of the applicants.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging a violation of the applicants’ rights of defence in so far as the defendant explicitly ignored parts of the applicants’ submissions. |
| --- | --- |

1.

First plea in law, alleging a violation of the applicants’ rights of defence in so far as the defendant explicitly ignored parts of the applicants’ submissions.

| 2. | Second plea in law, alleging an infringement of Articles 11(2), 3(2), (6) and (7) of Council Regulation (EC) No 1225/2009 (2) in so far as the defendant based its injury and causation findings on several errors in fact. The defendant based its findings on facts contrary to those set out in the contested regulation:






  — | Firstly, with regard to the relative development of the injury indicators production and sales volume against Union consumption; |
| --- | --- | --- |

2.

Second plea in law, alleging an infringement of Articles 11(2), 3(2), (6) and (7) of Council Regulation (EC) No 1225/2009 (2) in so far as the defendant based its injury and causation findings on several errors in fact. The defendant based its findings on facts contrary to those set out in the contested regulation:

—

Firstly, with regard to the relative development of the injury indicators production and sales volume against Union consumption;

| — | Secondly, with regard to the development of the Union industry’s profitability; and |
| --- | --- |

—

Secondly, with regard to the development of the Union industry’s profitability; and

| — | Thirdly, with regard to the development of the Union industry’s sales prices. |
| --- | --- |

—

Thirdly, with regard to the development of the Union industry’s sales prices.

| 3. | Third plea in law, alleging an infringement of Articles 11(2), 3(2), (6) and (7) of Council Regulation (EC) No 1225/2009 or of Article 296(2) TFEU in so far as the defendant based its injury and causation findings on manifest errors of assessment or failed to provide sufficient reasons. The defendant committed manifest errors of assessment:






  — | Firstly, when assessing injury indicators in the abstract instead of in relation to the development of demand; and |
| --- | --- | --- |

3.

Third plea in law, alleging an infringement of Articles 11(2), 3(2), (6) and (7) of Council Regulation (EC) No 1225/2009 or of Article 296(2) TFEU in so far as the defendant based its injury and causation findings on manifest errors of assessment or failed to provide sufficient reasons. The defendant committed manifest errors of assessment:

—

Firstly, when assessing injury indicators in the abstract instead of in relation to the development of demand; and

| — | Secondly, when implicitly relying on the market shares as the essential indicator of a causal link despite the fact that market shares show no clear trend and developed contrary to the other injury factors the Council referred to as important. |
| --- | --- |

—

Secondly, when implicitly relying on the market shares as the essential indicator of a causal link despite the fact that market shares show no clear trend and developed contrary to the other injury factors the Council referred to as important.

In any event, the defendant committed a procedural error as the contested regulation does not contain explanations on the obvious impact of the contraction in demand on the injury allegedly suffered by the Union industry.

---

(1)  Council Implementing Regulation (EU) No 1008/2011 of 10 October 2011 imposing a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China as extended to imports of hand pallet trucks and their essential parts consigned from Thailand, whether declared as originating in Thailand or not, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 (OJ 2011 L 268, p. 1)

(2)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51)

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/32 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/32

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Action brought on 21 December 2011 — Italy v Commission

(Case T-661/11)

2012/C 49/57

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Aiello, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul Commission Decision C(2011) 7105 of 14 October 2011 in so far as it excludes from Community financing, and charges to the Italian Republic’s budget, certain expenditure incurred 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. |
| --- | --- |

—

Annul Commission Decision C(2011) 7105 of 14 October 2011 in so far as it excludes from Community financing, and charges to the Italian Republic’s budget, certain expenditure incurred 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.

Pleas in law and main arguments

The decision challenged in this case results from two investigations initiated by the Commission, in respect of the milks years 2003/2004, 2004/2005, 2005/2006 and 2006/2007, and proposes in that regard an overall financial correction, to be borne by Italy, amounting to EUR 85 625 455.

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

| (a) | Infringement and/or incorrect application of Article 11 of Regulation (EC) No 885/2006 (1) and of the Guidelines for the calculation of financial consequences when preparing the decision regarding the clearance of the accounts of the EAGGF Guarantee, document VI/5330/97 adopted on 23 December 1997, as well as infringement of Article 230 EC by reason of a misuse of powers. |
| --- | --- |

(a)

Infringement and/or incorrect application of Article 11 of Regulation (EC) No 885/2006 (1) and of the Guidelines for the calculation of financial consequences when preparing the decision regarding the clearance of the accounts of the EAGGF Guarantee, document VI/5330/97 adopted on 23 December 1997, as well as infringement of Article 230 EC by reason of a misuse of powers.

It is maintained in this regard that the application in the present case of a flat-rate correction should be challenged since it was possible, following the carrying out of controls, albeit in some cases belatedly, to identify possible ‘under-declarations’ and to impose penalties on the persons making false declarations, thereby recovering any additional levy that might be due and thus preventing financial damage being caused to Community funds as a result of a shortfall in receipts.

| (b) | Infringement and/or incorrect application of Articles 21 and 22(1)(b) of Regulation (EC) No 595/2004 of 30 March 2004 (2). |
| --- | --- |

(b)

Infringement and/or incorrect application of Articles 21 and 22(1)(b) of Regulation (EC) No 595/2004 of 30 March 2004 (2).

It is alleged in this regard that the legislation applicable in relation to controls on buyers establishes a correlation not on the basis of the number of buyers but on the basis of the percentage of milk which must be subject to controls and which must represent at least 40 % of the milk declared before correction for the period concerned. In fact, it is clear that the risk for the EAGGF financing system is closely linked to the total quantity of milk produced in each Member State. It is precisely on the basis of that volume that it is necessary to assess the risk of prejudice which may be caused to Community funds as a result of non-payment of the additional levy.

| (c) | Infringement and/or incorrect application of Article 11 of Regulation (EC) No 885/2006 of 21 June 2006 and of the Guidelines for the calculation of financial consequences when preparing the decision regarding the clearance of the accounts of the EAGGF Guarantee, document VI/5330/97 adopted on 23 December 1997, as well as infringement of (i) the principle of proportionality and (ii) Article 230 EC on account of a misuse of powers. |
| --- | --- |

(c)

Infringement and/or incorrect application of Article 11 of Regulation (EC) No 885/2006 of 21 June 2006 and of the Guidelines for the calculation of financial consequences when preparing the decision regarding the clearance of the accounts of the EAGGF Guarantee, document VI/5330/97 adopted on 23 December 1997, as well as infringement of (i) the principle of proportionality and (ii) Article 230 EC on account of a misuse of powers.

The applicant State submits that the Commission has used the financial correction percentage to estimate the possible overrun of the quota and the consequent levy, adding it to the overrun of the national production quota and dividing it up for re-allocation to the individual regions subject to controls for the clearance of accounts. If that type of approach is taken, the concept of financial correction becomes an arbitrary one with the consequent infringement of the principle of proportionality.

| (d) | Finally, it is also alleged that Article 253 EC has been infringed or misapplied on the ground that no, or only inadequate, reasons have been stated. |
| --- | --- |

(d)

Finally, it is also alleged that Article 253 EC has been infringed or misapplied on the ground that no, or only inadequate, reasons have been stated.

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(1)  Commission Regulation (EC) No 885/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD (OJ 2006 L 171, p. 90).

(2)  Commission Regulation (EC) No 595/2004 of 30 March 2004 laying down detailed rules for applying Council Regulation (EC) No 1788/2003 establishing a levy in the milk and milk products sector (OJ 2004 L 94, p. 22).

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/32 |
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18.2.2012

EN

Official Journal of the European Union

C 49/32

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Action brought on 28 December 2011 — Müller v OHIM — Loncar (Sunless)

(Case T-662/11)

2012/C 49/58

Language in which the application was lodged: German

Parties

Applicant: Thomas Müller (Gütersloh, Germany) (represented by: J. Schmidt, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Loncar, SL (Sabadell (Barcelona), Spain)

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 27 September 2011 in Case R 2508/2010-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 September 2011 in Case R 2508/2010-2;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Thomas Müller

Community trade mark concerned: Figurative mark containing the word element ‘Sunless’, for goods in Classes 6, 19, 22 and 24.

Proprietor of the mark or sign cited in the opposition proceedings: Loncar, SL

Mark or sign cited in opposition: Word marks ‘SUNLESS’ and ‘LONCAR-SUNLESS’ for goods in Classes 22, 23 and 24 and ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags (not included in other classes); padding and stuffing materials (except of rubber or plastics); raw fibrous textile materials.

Decision of the Opposition Division: Opposition allowed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue.

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/33 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/33

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Action brought on 5 January 2012 — Godrej Industries and V V F v Council

(Case T-6/12)

2012/C 49/59

Language of the case: English

Parties

Applicants: Godrej Industries Ltd (Mumbai, India), V V F Ltd (Mumbai) (represented by: B. Servais, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council implementing Regulation (EU) No 1138/2011 of 8 November 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia (OJ L 293, 11.11.2011, p. 1), in so far as it concerns the applicants; |
| --- | --- |

—

Annul Council implementing Regulation (EU) No 1138/2011 of 8 November 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia (OJ L 293, 11.11.2011, p. 1), in so far as it concerns the applicants;

| — | Order the Council to pay the costs of the proceedings. |
| --- | --- |

—

Order the Council to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging






  — | that by failing to grant the adjustment for currency conversion which the applicants claimed for sales made in Euro between January and June 2010, in view of the fact that there had been a sustained appreciation of the Indian Rupee against the Euro during an important part of the investigation period, the Council violated Article 2(10) (and, in particular, paragraph (j) thereof) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1), as interpreted in accordance with Articles 2.4 and 2.4.1 of the World Trade Organization’s Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994; |
| --- | --- | --- |

1.

First plea in law, alleging

—

that by failing to grant the adjustment for currency conversion which the applicants claimed for sales made in Euro between January and June 2010, in view of the fact that there had been a sustained appreciation of the Indian Rupee against the Euro during an important part of the investigation period, the Council violated Article 2(10) (and, in particular, paragraph (j) thereof) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1), as interpreted in accordance with Articles 2.4 and 2.4.1 of the World Trade Organization’s Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994;

| 2. | Second plea in law, alleging






  — | that by not excluding the sales of the product concerned, to the Union industry, for the purpose of the calculation of the injury margin and for the purpose of the injury and causality analysis, the Council violated Article 3 of Council Regulation (EC) No 1225/2009 of 30 November 2009 and, in particular, paragraphs 2, 6 and 7 thereof, as well as Article 9(4) thereof; |
| --- | --- | --- |

2.

Second plea in law, alleging

—

that by not excluding the sales of the product concerned, to the Union industry, for the purpose of the calculation of the injury margin and for the purpose of the injury and causality analysis, the Council violated Article 3 of Council Regulation (EC) No 1225/2009 of 30 November 2009 and, in particular, paragraphs 2, 6 and 7 thereof, as well as Article 9(4) thereof;

| 3. | Third plea in law, alleging






  — | that by failing to exclude sales to the Union industry for the purpose of the calculation of the dumping margin, the Council violated Articles 1(1) and 2(10) of Council Regulation (EC) No 1225/2009 of 30 November 2009, interpreted in accordance with the relevant provisions of the World Trade Organization’s Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, in particular Article 9(1) thereof, as well as the principle of proportionality and reasonableness. |
| --- | --- | --- |

3.

Third plea in law, alleging

—

that by failing to exclude sales to the Union industry for the purpose of the calculation of the dumping margin, the Council violated Articles 1(1) and 2(10) of Council Regulation (EC) No 1225/2009 of 30 November 2009, interpreted in accordance with the relevant provisions of the World Trade Organization’s Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, in particular Article 9(1) thereof, as well as the principle of proportionality and reasonableness.

---

(1)  OJ L 343, 22.12.2009, p. 51

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| 18.2.2012 | EN | Official Journal of the European Union | C 49/33 |
| --- | --- | --- | --- |

18.2.2012

EN

Official Journal of the European Union

C 49/33

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Order of the President of the General Court of 15 December 2011 — Maxima Grupė v OHIM — Bodegas Maximo (MAXIMA PREMIUM)

(Case T-523/11) (1)

2012/C 49/60

Language of the case: English

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

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(1)  OJ C 355, 3.12.2011.

---