# Official Journal C 130/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.130.eng |
| --- | --- |
| Official Journal
  of the European Union | C 130 |
| | |
| English edition | Information and Notices | Volume 5430 April 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.130.eng

Official Journal

of the European Union

C 130

English edition

Information and Notices

Volume 5430 April 2011

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 130/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 120, 16.4.2011 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2011/C 130/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 120, 16.4.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 130/02 | Case C-34/09: Judgment of the Court (Grand Chamber) of 8 March 2011 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles — Belgium) — Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM) (Citizenship of the Union — Article 20 TFEU — Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the previous exercise by him of his right of free movement in the territory of the Member States — Grant, in the same circumstances, of a derived right of residence, to an ascendant relative, a third country national, upon whom the minor child is dependent — Consequences of the right of residence of the minor child on the employment law requirements to be fulfilled by the third-country national ascendant relative of that minor) | 2 |
| 2011/C 130/03 | Case C-41/09: Judgment of the Court (First Chamber) of 3 March 2011 — European Commission v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Value added tax — Sixth VAT Directive — Directive 2006/112/EC — Application of a reduced rate — Live animals normally intended for use in the preparation of foodstuffs for human and animal consumption — Supply, importation and acquisition of horses) | 2 |
| 2011/C 130/04 | Case C-50/09: Judgment of the Court (First Chamber) of 3 March 2011 — European Commission v Ireland (Failure of a Member State to fulfil obligations — Directive 85/337/EEC — Obligation of the competent environmental authority to carry out an assessment of the effects of certain projects on the environment — More than one competent authority — Need to ensure an assessment of the interaction between factors likely to be directly or indirectly affected — Application of the directive to demolition works) | 3 |
| 2011/C 130/05 | Case C-161/09: Judgment of the Court (First Chamber) of 3 March 2011 (Reference for a preliminary ruling from the Symvoulio tis Epikratias (Greece)) — Kakavetsos-Fragkopoulos AE Epexergasias kai Emporias Stafidas, formerly K. Fragkopoulos kai SIA OE v Normarchiaki Aftodioikisi Korinthias (Free movement of goods — Measures having an effect equivalent to quantitative restrictions — Currants — National legislation aimed at protecting the quality of the product — Restrictions imposed on marketing according to different areas of production — Justification — Proportionality) | 3 |
| 2011/C 130/06 | Case C-236/09: Judgment of the Court (Grand Chamber) of 1 March 2011 (reference for a preliminary ruling from the Cour constitutionnelle (Belgium)) — Association Belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v Conseil des ministres (Reference for a preliminary ruling — Fundamental rights — Combating discrimination — Equal treatment for men and women — Access to and supply of goods and services — Insurance premiums and benefits — Actuarial factors — Sex as a factor in the assessment of insurance risks — Private life assurance contracts — Directive 2004/113/EC — Article 5(2) — Derogation not subject to any temporal limitation — Charter of Fundamental Rights of the European Union — Articles 21 and 23 — Invalidity) | 4 |
| 2011/C 130/07 | Case C-240/09: Judgment of the Court (Grand Chamber) of 8 March 2011 (reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia)) — Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky (Environment — Aarhus Convention — Public participation in the decision-making process and access to justice in environmental matters — Direct effect) | 4 |
| 2011/C 130/08 | Case C-437/09: Judgment of the Court (First Chamber) of 3 March 2011 (reference for a preliminary ruling from the Tribunal de grande instance de Périgueux (France)) — AG2R Prévoyance v Beaudout Père et Fils SARL (Competition — Articles 101 TFEU, 102 TFEU and 106 TFEU — Scheme for supplementary reimbursement of healthcare costs — Collective agreement — Compulsory affiliation to a specific insuring body — Express exclusion of any possibility of exemption from affiliation — Concept of an undertaking) | 5 |
| 2011/C 130/09 | Case C-440/09: Judgment of the Court (Fifth Chamber) of 3 March 2011 (reference for a preliminary ruling from the Sąd Najwyższy — Poland)) — Zakład Ubezpieczeń Społecznych Oddział w Nowym Sączu v Stanisława Tomaszewska (Social security for migrant workers — Article 45(1) of Regulation (EEC) No 1408/71 — Minimum period required by national law for acquisition of entitlement to a retirement pension — Account to be taken of the period of contribution completed in another Member State — Aggregation — Rules for calculation) | 5 |
| 2011/C 130/10 | Joined Cases C-497/09, C-499/09, C-501/09 and C-502/09: Judgment of the Court (Third Chamber) of 10 March 2011 (references for a preliminary ruling from the Bundesfinanzhof (Germany)) — Finanzamt Burgdorf (C-497/09), CinemaxX Entertainment GmbH & Co. KG, formerly Hans-Joachim Flebbe Filmtheater GmbH & Co. KG (C-499/09), Lothar Lohmeyer (C-501/09), Fleischerei Nier GmbH & Co. KG (C-502/09) v Manfred Bog (C-497/09), Finanzamt Hamburg-Barmbek-Uhlenhorst (C-499/09), Finanzamt Minden (C-501/09), Finanzamt Detmold (C-502/09) (Taxation — VAT — Sixth Directive 77/388/EEC — Articles 5 and 6 — Classification of a commercial activity as a supply of goods or a supply of services — Supply of food or meals for immediate consumption from snack stalls or mobile snack bars — Supply in a cinema of popcorn and tortilla chips (nachos) for immediate consumption — Party catering service — Annex H, category 1 — Interpretation of the term foodstuffs) | 6 |
| 2011/C 130/11 | Case C-508/09: Judgment of the Court (Eighth Chamber) of 3 March 2011 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Conservation of wild birds — Directive 79/409/EEC — Derogations from the system of protection for wild birds) | 7 |
| 2011/C 130/12 | Case C-134/10: Judgment of the Court (Third Chamber) of 3 March 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2002/22/EC — Article 31 — Criteria for awarding must-carry status — General interest objectives permitting the award of that status — Impact of the number of end-users of communications networks on the award of that status — Principle of proportionality) | 7 |
| 2011/C 130/13 | Case C-203/10: Judgment of the Court (Third Chamber) of 3 March 2011 (reference for a preliminary ruling from the Varhoven administrativen sad (Bulgaria)) — Direktsia Obzhalvane i upravlenie na izpalnenieto — Varna v Auto Nikolovi OOD (Directive 2006/112/EC — Value-added tax — Second-hand parts for motor vehicles — Importation into the European Union by a taxable dealer — Margin scheme or normal VAT scheme — Origin of the right of deduction — Direct effect) | 7 |
| 2011/C 130/14 | Joined Cases C-235/10 to C-239/10: Judgment of the Court (Third Chamber) of 3 March 2011 (references for a preliminary ruling from the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg)) — David Claes v Landsbanki Luxembourg SA, in liquidation (References for a preliminary ruling — Social policy — Directive 98/59/EC — Collective redundancies — Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person — No consultation of employees’ representatives — Equivalence of employer and liquidator) | 8 |
| 2011/C 130/15 | Case C-28/11: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 18 January 2011 — Eurogate Distribution GmbH v Hauptzollamt Hamburg-Stadt | 8 |
| 2011/C 130/16 | Case C-38/11: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 28 January 2011 — Amorim Energia BV v Ministério das Finanças e da Administração Pública | 9 |
| 2011/C 130/17 | Case C-39/11: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 28 January 2011 — VBV — Vorsorgekasse AG v Finanzmarktaufsichtsbehörde (FMA) | 9 |
| 2011/C 130/18 | Case C-45/11 P: Appeal brought on 2 February 2011 by Deutsche Bahn AG against the judgment of the General Court (Eighth Chamber) delivered on 12 November 2010 in Case T-404/09 Deutsche Bahn AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 9 |
| 2011/C 130/19 | Case C-65/11: Action brought on 15 February 2011 — European Commission v Kingdom of the Netherlands | 10 |
| 2011/C 130/20 | Case C-67/11 P: Appeal brought on 16 February 2011 by DTL Corporación, S.L. against the judgment of the General Court (Fourth Chamber) delivered on 15 December 2010 in Case T-188/10, DTL Corporación S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 11 |
| 2011/C 130/21 | Case C-71/11: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 18 February 2011 — Federal Republic of Germany v Y | 11 |
| 2011/C 130/22 | Case C-73/11 P: Appeal brought on 18 February 2011 by Frucona Košice a.s. against the judgment of the General Court (Second Chamber) delivered on 7 December 2010 in Case T-11/07: Frucona Košice a.s. v European Commission, St. Nicolaus — trade a.s. | 12 |
| 2011/C 130/23 | Case C-75/11: Action brought on 21 February 2011 — European Commission v Republic of Austria | 13 |
| 2011/C 130/24 | Case C-101/11 P: Appeal brought on 28 February 2011 by Herbert Neuman and Andoni Galdeano del Sel against the judgment of the General Court (Seventh Chamber) delivered on 16 December 2010 in Case T-513/09 José Manuel Baena Grupo, S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Herbert Neuman and Andoni Galdeano del Sel | 13 |
| 2011/C 130/25 | Case C-102/11 P: Appeal brought on 2 March 2011 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment delivered by the General Court (Seventh Chamber) on 16 December 2010 in Case T-513/09 José Manuel Baena Grupo, S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Herbert Neuman and Andoni Galdeano del Sel | 14 |
| | General Court |
| 2011/C 130/26 | Case T-50/09: Judgment of the General Court of 15 March 2011 — Ifemy’s v OHIM — Dada & Co Kids (Dada & Co. kids) (Community trade mark — Opposition proceedings — Application for Community figurative mark Dada & Co. kids — Earlier national word mark DADA — Relative ground for refusal — Absence of genuine use of the earlier mark — Article 43(2) and (3) of Regulation (EC) No 40/94 (now Article 42(2) and (3) of Regulation (EC) No 207/2009)) | 15 |
| 2011/C 130/27 | Case T-102/11: Action brought on 22 February 2011 — American Express Marketing & Development v OHIM (IP ZONE) | 15 |
| 2011/C 130/28 | Case T-109/11: Action brought on 16 February 2011 — Apollo Tyres v OHIM — Endurance Technologies (ENDURACE) | 15 |
| 2011/C 130/29 | Case T-111/11: Action brought on 21 February 2011 — ClientEarth v Commission | 16 |
| 2011/C 130/30 | Case T-118/11: Action brought on 2 March 2011 — Attey v Council | 17 |
| 2011/C 130/31 | Case T-119/11: Action brought on 2 March 2011 — Gbagbo v Council | 17 |
| 2011/C 130/32 | Case T-120/11: Action brought on 2 March 2011 — BFA v Council | 18 |
| 2011/C 130/33 | Case T-121/11: Action brought on 2 March 2011 — Versus Bank v Council | 18 |
| 2011/C 130/34 | Case T-122/11: Action brought on 2 March 2011 — Yao N’Dré v Council | 18 |
| 2011/C 130/35 | Case T-123/11: Action brought on 2 March 2011 — Legré v Council | 18 |
| 2011/C 130/36 | Case T-124/11: Action brought on 3 March 2011 — Kipré v Council | 19 |
| 2011/C 130/37 | Case T-128/11: Action brought on 23 February 2011 — LG Display and LG Display Taiwan v Commission | 19 |
| 2011/C 130/38 | Case T-130/11: Action brought on 7 March 2011 — Gossio v Council | 20 |
| 2011/C 130/39 | Case T-131/11: Action brought on 7 March 2011 — Ezzedine v Council | 20 |
| 2011/C 130/40 | Case T-132/11: Action brought on 7 March 2011 — Kessé v Council | 21 |
| 2011/C 130/41 | Case T-134/11: Action brought on 3 March 2011 — Al-Faqih and Others v Commission | 21 |
| 2011/C 130/42 | Case T-137/11: Action brought on 11 March 2011 — Guiai Bi Poin v Council | 22 |
| 2011/C 130/43 | Case T-138/11: Action brought on 11 March 2011 — Ahouma v Council | 22 |
| 2011/C 130/44 | Case T-139/11: Action brought on 11 March 2011 — Gnango v Council | 23 |
| 2011/C 130/45 | Case T-140/11: Action brought on 11 March 2011 — Guei v Council | 23 |
| 2011/C 130/46 | Case T-141/11: Action brought on 11 March 2011 — Dogbo v Council | 23 |
| 2011/C 130/47 | Case T-142/11: Action brought on 14 March 2011 — SIR v Council | 24 |
| 2011/C 130/48 | Case T-144/11: Action brought on 14 March 2011 — Kassarate v Council | 24 |
| 2011/C 130/49 | Case T-145/11: Action brought on 14 March 2011 — Vagba v Council | 24 |
| 2011/C 130/50 | Case T-146/11: Action brought on 14 March 2011 — Yoro v Council of the European Union | 25 |
| 2011/C 130/51 | Case T-147/11: Action brought on 14 March 2011 — Robe v Council | 25 |
| 2011/C 130/52 | Case T-148/11: Action brought on 14 March 2011 — Mangou v Council | 25 |
| 2011/C 130/53 | Case T-150/11: Action brought on 14 March 2011 — Government of Aragón and Others v Council | 26 |
| | European Union Civil Service Tribunal |
| 2011/C 130/54 | Case F-59/09: Judgment of the Civil Service Tribunal (First Chamber) of 8 March 2011 — Carlo De Nicola v European Investment Bank (Civil service — Staff of the European Investment Bank — Appraisal — Promotion — Jurisdiction of the Tribunal — Admissibility — Implied decision of rejection — Internal Directive — Staff representative — Principle of respect for the rights of the defence) | 27 |
| 2011/C 130/55 | Case F-86/10: Order of the Civil Service Tribunal of 3 March 2011 — Dubus v Parliament | 27 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 130/02

Case C-34/09: Judgment of the Court (Grand Chamber) of 8 March 2011 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles — Belgium) — Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM) (Citizenship of the Union — Article 20 TFEU — Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the previous exercise by him of his right of free movement in the territory of the Member States — Grant, in the same circumstances, of a derived right of residence, to an ascendant relative, a third country national, upon whom the minor child is dependent — Consequences of the right of residence of the minor child on the employment law requirements to be fulfilled by the third-country national ascendant relative of that minor)

2

2011/C 130/03

Case C-41/09: Judgment of the Court (First Chamber) of 3 March 2011 — European Commission v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Value added tax — Sixth VAT Directive — Directive 2006/112/EC — Application of a reduced rate — Live animals normally intended for use in the preparation of foodstuffs for human and animal consumption — Supply, importation and acquisition of horses)

2

2011/C 130/04

Case C-50/09: Judgment of the Court (First Chamber) of 3 March 2011 — European Commission v Ireland (Failure of a Member State to fulfil obligations — Directive 85/337/EEC — Obligation of the competent environmental authority to carry out an assessment of the effects of certain projects on the environment — More than one competent authority — Need to ensure an assessment of the interaction between factors likely to be directly or indirectly affected — Application of the directive to demolition works)

3

2011/C 130/05

Case C-161/09: Judgment of the Court (First Chamber) of 3 March 2011 (Reference for a preliminary ruling from the Symvoulio tis Epikratias (Greece)) — Kakavetsos-Fragkopoulos AE Epexergasias kai Emporias Stafidas, formerly K. Fragkopoulos kai SIA OE v Normarchiaki Aftodioikisi Korinthias (Free movement of goods — Measures having an effect equivalent to quantitative restrictions — Currants — National legislation aimed at protecting the quality of the product — Restrictions imposed on marketing according to different areas of production — Justification — Proportionality)

3

2011/C 130/06

Case C-236/09: Judgment of the Court (Grand Chamber) of 1 March 2011 (reference for a preliminary ruling from the Cour constitutionnelle (Belgium)) — Association Belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v Conseil des ministres (Reference for a preliminary ruling — Fundamental rights — Combating discrimination — Equal treatment for men and women — Access to and supply of goods and services — Insurance premiums and benefits — Actuarial factors — Sex as a factor in the assessment of insurance risks — Private life assurance contracts — Directive 2004/113/EC — Article 5(2) — Derogation not subject to any temporal limitation — Charter of Fundamental Rights of the European Union — Articles 21 and 23 — Invalidity)

4

2011/C 130/07

Case C-240/09: Judgment of the Court (Grand Chamber) of 8 March 2011 (reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia)) — Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky (Environment — Aarhus Convention — Public participation in the decision-making process and access to justice in environmental matters — Direct effect)

4

2011/C 130/08

Case C-437/09: Judgment of the Court (First Chamber) of 3 March 2011 (reference for a preliminary ruling from the Tribunal de grande instance de Périgueux (France)) — AG2R Prévoyance v Beaudout Père et Fils SARL (Competition — Articles 101 TFEU, 102 TFEU and 106 TFEU — Scheme for supplementary reimbursement of healthcare costs — Collective agreement — Compulsory affiliation to a specific insuring body — Express exclusion of any possibility of exemption from affiliation — Concept of an undertaking)

5

2011/C 130/09

Case C-440/09: Judgment of the Court (Fifth Chamber) of 3 March 2011 (reference for a preliminary ruling from the Sąd Najwyższy — Poland)) — Zakład Ubezpieczeń Społecznych Oddział w Nowym Sączu v Stanisława Tomaszewska (Social security for migrant workers — Article 45(1) of Regulation (EEC) No 1408/71 — Minimum period required by national law for acquisition of entitlement to a retirement pension — Account to be taken of the period of contribution completed in another Member State — Aggregation — Rules for calculation)

5

2011/C 130/10

Joined Cases C-497/09, C-499/09, C-501/09 and C-502/09: Judgment of the Court (Third Chamber) of 10 March 2011 (references for a preliminary ruling from the Bundesfinanzhof (Germany)) — Finanzamt Burgdorf (C-497/09), CinemaxX Entertainment GmbH & Co. KG, formerly Hans-Joachim Flebbe Filmtheater GmbH & Co. KG (C-499/09), Lothar Lohmeyer (C-501/09), Fleischerei Nier GmbH & Co. KG (C-502/09) v Manfred Bog (C-497/09), Finanzamt Hamburg-Barmbek-Uhlenhorst (C-499/09), Finanzamt Minden (C-501/09), Finanzamt Detmold (C-502/09) (Taxation — VAT — Sixth Directive 77/388/EEC — Articles 5 and 6 — Classification of a commercial activity as a supply of goods or a supply of services — Supply of food or meals for immediate consumption from snack stalls or mobile snack bars — Supply in a cinema of popcorn and tortilla chips (nachos) for immediate consumption — Party catering service — Annex H, category 1 — Interpretation of the term foodstuffs)

6

2011/C 130/11

Case C-508/09: Judgment of the Court (Eighth Chamber) of 3 March 2011 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Conservation of wild birds — Directive 79/409/EEC — Derogations from the system of protection for wild birds)

7

2011/C 130/12

Case C-134/10: Judgment of the Court (Third Chamber) of 3 March 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2002/22/EC — Article 31 — Criteria for awarding must-carry status — General interest objectives permitting the award of that status — Impact of the number of end-users of communications networks on the award of that status — Principle of proportionality)

7

2011/C 130/13

Case C-203/10: Judgment of the Court (Third Chamber) of 3 March 2011 (reference for a preliminary ruling from the Varhoven administrativen sad (Bulgaria)) — Direktsia Obzhalvane i upravlenie na izpalnenieto — Varna v Auto Nikolovi OOD (Directive 2006/112/EC — Value-added tax — Second-hand parts for motor vehicles — Importation into the European Union by a taxable dealer — Margin scheme or normal VAT scheme — Origin of the right of deduction — Direct effect)

7

2011/C 130/14

Joined Cases C-235/10 to C-239/10: Judgment of the Court (Third Chamber) of 3 March 2011 (references for a preliminary ruling from the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg)) — David Claes v Landsbanki Luxembourg SA, in liquidation (References for a preliminary ruling — Social policy — Directive 98/59/EC — Collective redundancies — Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person — No consultation of employees’ representatives — Equivalence of employer and liquidator)

8

2011/C 130/15

Case C-28/11: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 18 January 2011 — Eurogate Distribution GmbH v Hauptzollamt Hamburg-Stadt

8

2011/C 130/16

Case C-38/11: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 28 January 2011 — Amorim Energia BV v Ministério das Finanças e da Administração Pública

9

2011/C 130/17

Case C-39/11: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 28 January 2011 — VBV — Vorsorgekasse AG v Finanzmarktaufsichtsbehörde (FMA)

9

2011/C 130/18

Case C-45/11 P: Appeal brought on 2 February 2011 by Deutsche Bahn AG against the judgment of the General Court (Eighth Chamber) delivered on 12 November 2010 in Case T-404/09 Deutsche Bahn AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

9

2011/C 130/19

Case C-65/11: Action brought on 15 February 2011 — European Commission v Kingdom of the Netherlands

10

2011/C 130/20

Case C-67/11 P: Appeal brought on 16 February 2011 by DTL Corporación, S.L. against the judgment of the General Court (Fourth Chamber) delivered on 15 December 2010 in Case T-188/10, DTL Corporación S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

11

2011/C 130/21

Case C-71/11: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 18 February 2011 — Federal Republic of Germany v Y

11

2011/C 130/22

Case C-73/11 P: Appeal brought on 18 February 2011 by Frucona Košice a.s. against the judgment of the General Court (Second Chamber) delivered on 7 December 2010 in Case T-11/07: Frucona Košice a.s. v European Commission, St. Nicolaus — trade a.s.

12

2011/C 130/23

Case C-75/11: Action brought on 21 February 2011 — European Commission v Republic of Austria

13

2011/C 130/24

Case C-101/11 P: Appeal brought on 28 February 2011 by Herbert Neuman and Andoni Galdeano del Sel against the judgment of the General Court (Seventh Chamber) delivered on 16 December 2010 in Case T-513/09 José Manuel Baena Grupo, S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Herbert Neuman and Andoni Galdeano del Sel

13

2011/C 130/25

Case C-102/11 P: Appeal brought on 2 March 2011 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment delivered by the General Court (Seventh Chamber) on 16 December 2010 in Case T-513/09 José Manuel Baena Grupo, S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Herbert Neuman and Andoni Galdeano del Sel

14

General Court

2011/C 130/26

Case T-50/09: Judgment of the General Court of 15 March 2011 — Ifemy’s v OHIM — Dada & Co Kids (Dada & Co. kids) (Community trade mark — Opposition proceedings — Application for Community figurative mark Dada & Co. kids — Earlier national word mark DADA — Relative ground for refusal — Absence of genuine use of the earlier mark — Article 43(2) and (3) of Regulation (EC) No 40/94 (now Article 42(2) and (3) of Regulation (EC) No 207/2009))

15

2011/C 130/27

Case T-102/11: Action brought on 22 February 2011 — American Express Marketing & Development v OHIM (IP ZONE)

15

2011/C 130/28

Case T-109/11: Action brought on 16 February 2011 — Apollo Tyres v OHIM — Endurance Technologies (ENDURACE)

15

2011/C 130/29

Case T-111/11: Action brought on 21 February 2011 — ClientEarth v Commission

16

2011/C 130/30

Case T-118/11: Action brought on 2 March 2011 — Attey v Council

17

2011/C 130/31

Case T-119/11: Action brought on 2 March 2011 — Gbagbo v Council

17

2011/C 130/32

Case T-120/11: Action brought on 2 March 2011 — BFA v Council

18

2011/C 130/33

Case T-121/11: Action brought on 2 March 2011 — Versus Bank v Council

18

2011/C 130/34

Case T-122/11: Action brought on 2 March 2011 — Yao N’Dré v Council

18

2011/C 130/35

Case T-123/11: Action brought on 2 March 2011 — Legré v Council

18

2011/C 130/36

Case T-124/11: Action brought on 3 March 2011 — Kipré v Council

19

2011/C 130/37

Case T-128/11: Action brought on 23 February 2011 — LG Display and LG Display Taiwan v Commission

19

2011/C 130/38

Case T-130/11: Action brought on 7 March 2011 — Gossio v Council

20

2011/C 130/39

Case T-131/11: Action brought on 7 March 2011 — Ezzedine v Council

20

2011/C 130/40

Case T-132/11: Action brought on 7 March 2011 — Kessé v Council

21

2011/C 130/41

Case T-134/11: Action brought on 3 March 2011 — Al-Faqih and Others v Commission

21

2011/C 130/42

Case T-137/11: Action brought on 11 March 2011 — Guiai Bi Poin v Council

22

2011/C 130/43

Case T-138/11: Action brought on 11 March 2011 — Ahouma v Council

22

2011/C 130/44

Case T-139/11: Action brought on 11 March 2011 — Gnango v Council

23

2011/C 130/45

Case T-140/11: Action brought on 11 March 2011 — Guei v Council

23

2011/C 130/46

Case T-141/11: Action brought on 11 March 2011 — Dogbo v Council

23

2011/C 130/47

Case T-142/11: Action brought on 14 March 2011 — SIR v Council

24

2011/C 130/48

Case T-144/11: Action brought on 14 March 2011 — Kassarate v Council

24

2011/C 130/49

Case T-145/11: Action brought on 14 March 2011 — Vagba v Council

24

2011/C 130/50

Case T-146/11: Action brought on 14 March 2011 — Yoro v Council of the European Union

25

2011/C 130/51

Case T-147/11: Action brought on 14 March 2011 — Robe v Council

25

2011/C 130/52

Case T-148/11: Action brought on 14 March 2011 — Mangou v Council

25

2011/C 130/53

Case T-150/11: Action brought on 14 March 2011 — Government of Aragón and Others v Council

26

European Union Civil Service Tribunal

2011/C 130/54

Case F-59/09: Judgment of the Civil Service Tribunal (First Chamber) of 8 March 2011 — Carlo De Nicola v European Investment Bank (Civil service — Staff of the European Investment Bank — Appraisal — Promotion — Jurisdiction of the Tribunal — Admissibility — Implied decision of rejection — Internal Directive — Staff representative — Principle of respect for the rights of the defence)

27

2011/C 130/55

Case F-86/10: Order of the Civil Service Tribunal of 3 March 2011 — Dubus v Parliament

27

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 30.4.2011 | EN | Official Journal of the European Union | C 130/1 |
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30.4.2011

EN

Official Journal of the European Union

C 130/1

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2011/C 130/01

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

OJ C 120, 16.4.2011

Past publications

OJ C 113, 9.4.2011

OJ C 103, 2.4.2011

OJ C 95, 26.3.2011

OJ C 89, 19.3.2011

OJ C 80, 12.3.2011

OJ C 72, 5.3.2011

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 30.4.2011 | EN | Official Journal of the European Union | C 130/2 |
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30.4.2011

EN

Official Journal of the European Union

C 130/2

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Judgment of the Court (Grand Chamber) of 8 March 2011 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles — Belgium) — Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM)

(Case C-34/09) (1)

(Citizenship of the Union - Article 20 TFEU - Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the previous exercise by him of his right of free movement in the territory of the Member States - Grant, in the same circumstances, of a derived right of residence, to an ascendant relative, a third country national, upon whom the minor child is dependent - Consequences of the right of residence of the minor child on the employment law requirements to be fulfilled by the third-country national ascendant relative of that minor)

2011/C 130/02

Language of the case: French

Referring court

Tribunal du travail de Bruxelles

Parties to the main proceedings

Applicant: Gerardo Ruiz Zambrano

Defendant: Office national de l’emploi (ONEM)

Re:

Reference for a preliminary ruling — Tribunal du travail de Bruxelles — Interpretation of Articles 12, 17 and 18 of the Treaty establishing the European Community, in conjunction with the provisions of Articles 21, 24 and 34 of the Charter of Fundamental Rights — Grant of right of residence to a European Union citizen on the territory of the Member State of which that citizen is a national, irrespective of the previous exercise by him of his right of free movement? — Grant, in the same circumstances, of a derived right of residence, to an ascendant relative, a third country national, upon whom the minor child is dependent

Operative part of the judgment

Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.

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(1)  OJ C 90, 18.4.2009.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/2 |
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30.4.2011

EN

Official Journal of the European Union

C 130/2

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Judgment of the Court (First Chamber) of 3 March 2011 — European Commission v Kingdom of the Netherlands

(Case C-41/09) (1)

(Failure of a Member State to fulfil obligations - Value added tax - Sixth VAT Directive - Directive 2006/112/EC - Application of a reduced rate - Live animals normally intended for use in the preparation of foodstuffs for human and animal consumption - Supply, importation and acquisition of horses)

2011/C 130/03

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: D. Triantafyllou and W. Roels, Agents)

Defendant: Kingdom of the Netherlands (represented by: C.M. Wissels, M. Noort, D.J.M. de Grave and J. Langer, Agents)

Interveners in support of the defendant: Federal Republic of Germany (represented by: M. Lumma and C. Blaschke, Agents), French Republic (represented by: B. Beaupère-Manokha, Agent)

Re:

Failure of a Member State to fulfil obligations — Breach of Article 12 of, in conjunction with Annex H to, 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) and of Articles 96, 97, 98 and 99 of, in conjunction with Annex III to, Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Reduced rate — Supply, importation and acquisition of certain live animals (in particular, horses) which are not intended for the preparation or production of foodstuffs for human or animal consumption

Operative part of the judgment

The Court:

| 1. | Declares that, by applying a reduced rate of value added tax to all supplies, imports, and intra-Community acquisitions of horses, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 12, read in conjunction with Annex H, 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 2006/18/EC of 14 February 2006, and under Articles 96 to 99(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Annex III thereto; |
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1.

Declares that, by applying a reduced rate of value added tax to all supplies, imports, and intra-Community acquisitions of horses, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 12, read in conjunction with Annex H, 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 2006/18/EC of 14 February 2006, and under Articles 96 to 99(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Annex III thereto;

| 2. | Orders the Kingdom of the Netherlands to pay the costs; |
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2.

Orders the Kingdom of the Netherlands to pay the costs;

| 3. | Orders the Federal Republic of Germany and the French Republic to bear their own costs. |
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3.

Orders the Federal Republic of Germany and the French Republic to bear their own costs.

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(1)  OJ C 129, 6.6.2009.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/3 |
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30.4.2011

EN

Official Journal of the European Union

C 130/3

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Judgment of the Court (First Chamber) of 3 March 2011 — European Commission v Ireland

(Case C-50/09) (1)

(Failure of a Member State to fulfil obligations - Directive 85/337/EEC - Obligation of the competent environmental authority to carry out an assessment of the effects of certain projects on the environment - More than one competent authority - Need to ensure an assessment of the interaction between factors likely to be directly or indirectly affected - Application of the directive to demolition works)

2011/C 130/04

Language of the case: English

Parties

Applicant: European Commission (represented by: P. Oliver, C. Clyne and J.-B. Laignelot, Agents)

Defendant: Ireland (represented by: D. O’Hagan, Agent, G. Simons SC, D. McGrath BL)

Re:

Failure of a Member State to fulfil obligations — Articles 2, 3 and 4 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) — Obligation to describe and assess the direct and indirect effects of a project on the factors listed in Article 3 of the Directive

Operative part of the judgment

The Court:

| 1. | Declares that:






  — | by failing to transpose Article 3 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997 and by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003; |
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1.

Declares that:

—

by failing to transpose Article 3 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997 and by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003;

| — | by failing to ensure that, where Irish planning authorities and the Environmental Protection Agency both have decision-making powers concerning a project, there will be complete fulfilment of the requirements of Articles 2 to 4 of Directive 85/337, as amended by Directive 2003/35; and |
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—

by failing to ensure that, where Irish planning authorities and the Environmental Protection Agency both have decision-making powers concerning a project, there will be complete fulfilment of the requirements of Articles 2 to 4 of Directive 85/337, as amended by Directive 2003/35; and

| — | by excluding demolition works from the scope of its legislation transposing Directive 85/337, as amended by Directive 2003/35, |
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—

by excluding demolition works from the scope of its legislation transposing Directive 85/337, as amended by Directive 2003/35,

Ireland has failed to fulfil its obligations under that directive;

| 2. | Orders Ireland to pay the costs. |
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2.

Orders Ireland to pay the costs.

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(1)  OJ C 82, 4.4.2009.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/3 |
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30.4.2011

EN

Official Journal of the European Union

C 130/3

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Judgment of the Court (First Chamber) of 3 March 2011 (Reference for a preliminary ruling from the Symvoulio tis Epikratias (Greece)) — Kakavetsos-Fragkopoulos AE Epexergasias kai Emporias Stafidas, formerly K. Fragkopoulos kai SIA OE v Normarchiaki Aftodioikisi Korinthias

(Case C-161/09) (1)

(Free movement of goods - Measures having an effect equivalent to quantitative restrictions - Currants - National legislation aimed at protecting the quality of the product - Restrictions imposed on marketing according to different areas of production - Justification - Proportionality)

2011/C 130/05

Language of the case: Greek

Referring court

Symvoulio tis Epikratias

Parties to the main proceedings

Applicant: Kakavetsos-Fragkopoulos AE Epexergasias kai Emporias Stafidas, formerly K. Fragkopoulos kai SIA OE

Defendant: Normarchiaki Aftodioikisi Korinthias

intervening parties: Ypourgos Georgias, Enosis Agrotikon Synaiterismon Aigialeias tou Nomou Achaïas

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Free movement of goods — Quantitative restrictions on exports– Measures having equivalent effect — National legislation distinguishing between regions producing dried grapes according to their quality — Prohibition on bringing drying grapes from Region B, where the drying grapes are of inferior quality, into Region A, where they are of superior quality, to be processed and marketed — Prohibition on bringing into Region A best drying grapes from a particular area of that region to be processed and marketed — Compatibility with Articles 29 EC and 30 EC

Operative part of the judgment

Article 29 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which lays down an absolute prohibition on bringing in, storing, processing and packing for export dried grapes both as between the two sub-areas of area A and as between the second sub-area of area A and area B, since it does not enable the legitimate objectives pursued to be met consistently and goes beyond what is necessary to ensure the attainment of those objectives.

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(1)  OJ C 153, 4.7.2009.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/4 |
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30.4.2011

EN

Official Journal of the European Union

C 130/4

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Judgment of the Court (Grand Chamber) of 1 March 2011 (reference for a preliminary ruling from the Cour constitutionnelle (Belgium)) — Association Belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v Conseil des ministres

(Case C-236/09) (1)

(Reference for a preliminary ruling - Fundamental rights - Combating discrimination - Equal treatment for men and women - Access to and supply of goods and services - Insurance premiums and benefits - Actuarial factors - Sex as a factor in the assessment of insurance risks - Private life assurance contracts - Directive 2004/113/EC - Article 5(2) - Derogation not subject to any temporal limitation - Charter of Fundamental Rights of the European Union - Articles 21 and 23 - Invalidity)

2011/C 130/06

Language of the case: French

Referring court

Cour constitutionnelle (Belgium)

Parties to the main proceedings

Applicants: Association Belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier

Defendant: Conseil des ministres

Re:

Reference for a preliminary ruling — Cour constitutionnelle (Belgium) — Validity of Article 5(2) of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (OJ 2004 L 373, p. 37) — Gender used as a determining factor in the assessment of risk and in the calculation of insurance premiums and benefits on the basis of relevant and accurate actuarial and statistical data — Life assurance contracts — Whether a difference in treatment is permissible and justified

Operative part of the judgment

Article 5(2) of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services is invalid with effect from 21 December 2012.

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(1)  OJ C 205, 29.8.2009.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/4 |
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30.4.2011

EN

Official Journal of the European Union

C 130/4

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Judgment of the Court (Grand Chamber) of 8 March 2011 (reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia)) — Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky

(Case C-240/09) (1)

(Environment - Aarhus Convention - Public participation in the decision-making process and access to justice in environmental matters - Direct effect)

2011/C 130/07

Language of the case: Slovakian

Referring court

Najvyšší súd Slovenskej republiky

Parties to the main proceedings

Applicant: Lesoochranárske zoskupenie VLK

Defendant: Ministerstvo životného prostredia Slovenskej republiky

Re:

Request for a preliminary ruling — Supreme Court of the Slovak Republic — Interpretation of Article 9(3) of the Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 1) — Direct effect of that provision — Interpretation of the concept of ‘acts of public authorities’ — Inclusion or not of the decisions of a public authority, the unlawfulness of which lies in their effect on the environment

Operative part of the judgment

Article 9(3) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 does not have direct effect in European Union law. It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by European Union law, in order to enable an environmental protection organisation, such as the Lesoochranárske zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to European Union environmental law.

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(1)  OJ C 233, 26.9.2009.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/5 |
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30.4.2011

EN

Official Journal of the European Union

C 130/5

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Judgment of the Court (First Chamber) of 3 March 2011 (reference for a preliminary ruling from the Tribunal de grande instance de Périgueux (France)) — AG2R Prévoyance v Beaudout Père et Fils SARL

(Case C-437/09) (1)

(Competition - Articles 101 TFEU, 102 TFEU and 106 TFEU - Scheme for supplementary reimbursement of healthcare costs - Collective agreement - Compulsory affiliation to a specific insuring body - Express exclusion of any possibility of exemption from affiliation - Concept of an undertaking)

2011/C 130/08

Language of the case: French

Referring court

Tribunal de grande instance de Périgueux

Parties to the main proceedings

Applicant: AG2R Prévoyance

Defendant: Beaudout Père et Fils SARL

Re:

Reference for a preliminary ruling — Tribunal de Grande Instance de Périgueux — Competition — National legislation making affiliation to a single designated insurer compulsory for all undertakings in a given professional sector — Concept of undertaking within the meaning of Article 81 EC — Body claiming payment of contributions from an undertaking which had already entered into a contract of insurance offering better cover — Explicit exclusion of any possibility of waiver of the affiliation obligation — Whether such an affiliation scheme is compatible with Articles 81 EC and 82 EC — Possible risk of abuse of a dominant position

Operative part of the judgment

| 1. | Article 101 TFEU, read in conjunction with Article 4(3) EU, must be interpreted as not precluding the decision by the public authorities to make compulsory, at the request of the organisations representing employers and employees within a given occupational sector, an agreement which is the result of collective bargaining and which provides for compulsory affiliation to a scheme for supplementary reimbursement of healthcare costs for all undertakings within the sector concerned, without any possibility of exemption. |
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1.

Article 101 TFEU, read in conjunction with Article 4(3) EU, must be interpreted as not precluding the decision by the public authorities to make compulsory, at the request of the organisations representing employers and employees within a given occupational sector, an agreement which is the result of collective bargaining and which provides for compulsory affiliation to a scheme for supplementary reimbursement of healthcare costs for all undertakings within the sector concerned, without any possibility of exemption.

| 2. | Inasmuch as the activity consisting in the management of a scheme for supplementary reimbursement of healthcare costs such as that at issue in the main proceedings is to be classified as economic — this being a matter for the national court to determine — Articles 102 TFEU and 106 TFEU must be interpreted as not precluding, in circumstances such as those of the case in the main proceedings, public authorities from granting a provident society an exclusive right to manage that scheme, without any possibility for undertakings within the occupational sector concerned to be exempted from affiliation to that scheme. |
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2.

Inasmuch as the activity consisting in the management of a scheme for supplementary reimbursement of healthcare costs such as that at issue in the main proceedings is to be classified as economic — this being a matter for the national court to determine — Articles 102 TFEU and 106 TFEU must be interpreted as not precluding, in circumstances such as those of the case in the main proceedings, public authorities from granting a provident society an exclusive right to manage that scheme, without any possibility for undertakings within the occupational sector concerned to be exempted from affiliation to that scheme.

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(1)  OJ C 24, 30.1.2010.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/5 |
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30.4.2011

EN

Official Journal of the European Union

C 130/5

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Judgment of the Court (Fifth Chamber) of 3 March 2011 (reference for a preliminary ruling from the Sąd Najwyższy — Poland)) — Zakład Ubezpieczeń Społecznych Oddział w Nowym Sączu v Stanisława Tomaszewska

(Case C-440/09) (1)

(Social security for migrant workers - Article 45(1) of Regulation (EEC) No 1408/71 - Minimum period required by national law for acquisition of entitlement to a retirement pension - Account to be taken of the period of contribution completed in another Member State - Aggregation - Rules for calculation)

2011/C 130/09

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: Zakład Ubezpieczeń Społecznych Oddział w Nowym Sączu

Defendant: Stanisława Tomaszewska

Re:

Reference for a preliminary ruling — Sąd Najwyższy — Interpretation of Article 45(1) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416) and of Article 15(1)(a) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 (OJ, English Special Edition 1972 (I), p. 159) — Early retirement pension based on the duration of contribution periods — Method of calculating benefits — Aggregation of contribution periods completed in another Member State and those completed in the Member State concerned prior to or after the addition of the additional periods provided for under national law and amounting to one third of the contribution periods

Operative part of the judgment

Article 45(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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, must be interpreted as meaning that, in the determination of the minimum insurance period required by national law for the purpose of the acquisition by a migrant worker of entitlement to a retirement pension, the competent institution of the Member State concerned must take into consideration, for the purposes of determining the limit which non-contribution periods may not exceed in relation to contribution periods, as provided for by the legislation of that Member State, all insurance periods completed in the course of the migrant worker’s career, including those completed in other Member States.

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(1)  OJ C 37, 13.2.2010.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/6 |
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30.4.2011

EN

Official Journal of the European Union

C 130/6

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Judgment of the Court (Third Chamber) of 10 March 2011 (references for a preliminary ruling from the Bundesfinanzhof (Germany)) — Finanzamt Burgdorf (C-497/09), CinemaxX Entertainment GmbH & Co. KG, formerly Hans-Joachim Flebbe Filmtheater GmbH & Co. KG (C-499/09), Lothar Lohmeyer (C-501/09), Fleischerei Nier GmbH & Co. KG (C-502/09) v Manfred Bog (C-497/09), Finanzamt Hamburg-Barmbek-Uhlenhorst (C-499/09), Finanzamt Minden (C-501/09), Finanzamt Detmold (C-502/09)

(Joined Cases C-497/09, C-499/09, C-501/09 and C-502/09) (1)

(Taxation - VAT - Sixth Directive 77/388/EEC - Articles 5 and 6 - Classification of a commercial activity as a ‘supply of goods’ or a ‘supply of services’ - Supply of food or meals for immediate consumption from snack stalls or mobile snack bars - Supply in a cinema of popcorn and tortilla chips (nachos) for immediate consumption - Party catering service - Annex H, category 1 - Interpretation of the term ‘foodstuffs’)

2011/C 130/10

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicants: Finanzamt Burgdorf (C-497/09), CinemaxX Entertainment GmbH & Co. KG, formerly Hans-Joachim Flebbe Filmtheater GmbH & Co. KG (C-499/09), Lothar Lohmeyer (C-501/09), Fleischerei Nier GmbH & Co. KG (C-502/09)

Defendants: Manfred Bog (C-497/09), Finanzamt Hamburg-Barmbek-Uhlenhorst (C-499/09), Finanzamt Minden (C-501/09), Finanzamt Detmold (C-502/09)

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 5 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) and the term ‘foodstuffs’ in Annex H to that directive — Whether a particular commercial activity is to be regarded as a ‘supply of goods’ or a ‘supply of services’ — Sale of food (sausages, chips etc.) from a van for immediate consumption

Operative part of the judgment

| 1. | Articles 5 and 6 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 92/111/EEC of 14 December 1992, must be interpreted as meaning that:






  — | the supply of food or meals freshly prepared for immediate consumption from snack stalls or mobile snack bars or in cinema foyers is a supply of goods within the meaning of Article 5 if a qualitative examination of the entire transaction shows that the elements of supply of services preceding and accompanying the supply of the food are not predominant; |
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1.

Articles 5 and 6 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 92/111/EEC of 14 December 1992, must be interpreted as meaning that:

—

the supply of food or meals freshly prepared for immediate consumption from snack stalls or mobile snack bars or in cinema foyers is a supply of goods within the meaning of Article 5 if a qualitative examination of the entire transaction shows that the elements of supply of services preceding and accompanying the supply of the food are not predominant;

| — | except in cases in which a party catering service does no more than deliver standard meals without any additional elements of supply of services, or in which other special circumstances show that the supply of the food represents the predominant element of a transaction, the activities of a party catering service are supplies of services within the meaning of Article 6. |
| --- | --- |

—

except in cases in which a party catering service does no more than deliver standard meals without any additional elements of supply of services, or in which other special circumstances show that the supply of the food represents the predominant element of a transaction, the activities of a party catering service are supplies of services within the meaning of Article 6.

| 2. | In cases of the supply of goods, the term ‘foodstuffs’ in category 1 of Annex H to the Sixth Directive 77/388, as amended by Directive 92/111, must be interpreted as also covering food and meals which have been prepared for immediate consumption by boiling, grilling, roasting, baking or other means. |
| --- | --- |

2.

In cases of the supply of goods, the term ‘foodstuffs’ in category 1 of Annex H to the Sixth Directive 77/388, as amended by Directive 92/111, must be interpreted as also covering food and meals which have been prepared for immediate consumption by boiling, grilling, roasting, baking or other means.

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(1)  OJ C 63, 13.3.2010.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/7 |
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30.4.2011

EN

Official Journal of the European Union

C 130/7

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Judgment of the Court (Eighth Chamber) of 3 March 2011 — European Commission v Italian Republic

(Case C-508/09) (1)

(Failure of a Member State to fulfil obligations - Conservation of wild birds - Directive 79/409/EEC - Derogations from the system of protection for wild birds)

2011/C 130/11

Language of the case: Italian

Parties

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

Defendant: Italian Republic (represented by: G. Palmieri and G. Fiengo, agents, S. Fiorentino, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) — Derogations — Region of Sardinia

Operative part of the judgment

The Court:

| 1. | Since the region of Sardinia has adopted and applies legislation, relating to the authorisation of derogations from the rules for the protection of wild birds, which does not comply with the conditions laid down in Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Italian Republic has failed to fulfil its obligations under Article 9 of that directive; |
| --- | --- |

1.

Since the region of Sardinia has adopted and applies legislation, relating to the authorisation of derogations from the rules for the protection of wild birds, which does not comply with the conditions laid down in Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Italian Republic has failed to fulfil its obligations under Article 9 of that directive;

| 2. | The Italian Republic is ordered to pay the costs. |
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2.

The Italian Republic is ordered to pay the costs.

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(1)  OJ C 24 of 30.01.2010

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/7 |
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30.4.2011

EN

Official Journal of the European Union

C 130/7

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Judgment of the Court (Third Chamber) of 3 March 2011 — European Commission v Kingdom of Belgium

(Case C-134/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/22/EC - Article 31 - Criteria for awarding ‘must-carry’ status - General interest objectives permitting the award of that status - Impact of the number of end-users of communications networks on the award of that status - Principle of proportionality)

2011/C 130/12

Language of the case: French

Parties

Applicant: European Commission (represented by: A. Nijenhuis and C. Vrignon, Agents)

Defendant: Kingdom of Belgium (represented by: M. Jacobs and T. Materne, Agents)

Re:

Failure of a Member State to fulfil obligations - Incorrect transposition of Article 31 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51) - Criteria for the award of the ‘must-carry’ status concerning radio and television - General interest objectives for the award of such status - Impact of the number of the network’s end-users on the award of such status - Principle of proportionality

Operative part of the judgment

The Court:

| 1. | Declares that, by failing correctly to transpose Article 31 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (‘Universal Service Directive’), the Kingdom of Belgium has failed to fulfil its obligations under the provisions of that Directive and Article 56 TFEU. |
| --- | --- |

1.

Declares that, by failing correctly to transpose Article 31 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (‘Universal Service Directive’), the Kingdom of Belgium has failed to fulfil its obligations under the provisions of that Directive and Article 56 TFEU.

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

2.

Orders the Kingdom of Belgium to pay the costs.

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(1)  OJ C 161, 19.6.2010.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/7 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/7

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Judgment of the Court (Third Chamber) of 3 March 2011 (reference for a preliminary ruling from the Varhoven administrativen sad (Bulgaria)) — Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna v ‘Auto Nikolovi’ OOD

(Case C-203/10) (1)

(Directive 2006/112/EC - Value-added tax - Second-hand parts for motor vehicles - Importation into the European Union by a taxable dealer - Margin scheme or normal VAT scheme - Origin of the right of deduction - Direct effect)

2011/C 130/13

Language of the case: Bulgarian

Referring court

Varhoven administrativen sad

Parties to the main proceedings

Applicant: Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna

Defendant:‘Auto Nikolovi’ OOD

Re:

Reference for a preliminary ruling — Varhoven administrativen sad na Republika Balgaria — Interpretation of Articles 311(1)(1) and 314, and Article 320(1), first subparagraph, and Article 320(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Margin scheme implemented by a taxable dealer, when he imports second-hand goods into the Community — Concept of ‘second-hand goods’ and relevance, for that concept, of the possibility of actually identifying the goods in question — Moment at which the right to deduct VAT as input tax arises in favour of the taxable dealer — Direct effect of Article 314 of the Directive.

Operative part of the judgment

| 1. | Article 314 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the margin scheme is not applicable to supplies of goods such as spare parts for motor vehicles, which the taxable dealer himself imported into the European Union under the normal value-added tax scheme. |
| --- | --- |

1.

Article 314 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the margin scheme is not applicable to supplies of goods such as spare parts for motor vehicles, which the taxable dealer himself imported into the European Union under the normal value-added tax scheme.

| 2. | The first subparagraph of Article 320(1) and Article 320(2) of Directive 2006/112 must be interpreted as meaning that they preclude a national provision which provides for the deferral, until the subsequent supply under the normal value added tax scheme, of the right of the taxable dealer to deduct value added tax paid on importation of goods other than works of art, collectors’ items or antiques. |
| --- | --- |

2.

The first subparagraph of Article 320(1) and Article 320(2) of Directive 2006/112 must be interpreted as meaning that they preclude a national provision which provides for the deferral, until the subsequent supply under the normal value added tax scheme, of the right of the taxable dealer to deduct value added tax paid on importation of goods other than works of art, collectors’ items or antiques.

| 3. | Article 314, the first subparagraph of Article 320(1) and Article 320(2) of Directive 2006/112 have direct effect which authorises an individual to rely on them before a national court for the purposes of having national legislation which is incompatible with those provisions disapplied. |
| --- | --- |

3.

Article 314, the first subparagraph of Article 320(1) and Article 320(2) of Directive 2006/112 have direct effect which authorises an individual to rely on them before a national court for the purposes of having national legislation which is incompatible with those provisions disapplied.

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(1)  OJ C 195, 17.7.2010.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/8 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/8

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Judgment of the Court (Third Chamber) of 3 March 2011 (references for a preliminary ruling from the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg)) — David Claes v Landsbanki Luxembourg SA, in liquidation

(Joined Cases C-235/10 to C-239/10) (1)

(References for a preliminary ruling - Social policy - Directive 98/59/EC - Collective redundancies - Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person - No consultation of employees’ representatives - Equivalence of employer and liquidator)

2011/C 130/14

Language of the case: French

Referring court

Cour de cassation du Grand-Duché de Luxembourg

Parties to the main proceedings

Applicants: David Claes (C-235/10), Sophie Jeanjean (C-236/10), Miguel Rémy (C-237/10), Volker Schneider (C-238/10), Xuan-Mai Tran (C-239/10)

Defendant: Landsbanki Luxembourg SA, in liquidation

Re:

Reference for a preliminary ruling — Cour de cassation (Luxembourg) — Interpretation of Articles 1, 2 and 3 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16) — Provisions of national law providing for the immediate termination of employment contracts following a judicial declaration of insolvency as a result of termination of activities — No consultation of employees’ representatives before such redundancies — Assimilation of liquidator in insolvency and the employer

Operative part of the judgment

| 1. | Articles 1 to 3 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as applying to a termination of the activities of an employing establishment as a result of a judicial decision ordering its dissolution and winding up on grounds of insolvency, even though, in the event of such a termination, national legislation provides for the termination of employment contracts with immediate effect. |
| --- | --- |

1.

Articles 1 to 3 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as applying to a termination of the activities of an employing establishment as a result of a judicial decision ordering its dissolution and winding up on grounds of insolvency, even though, in the event of such a termination, national legislation provides for the termination of employment contracts with immediate effect.

| 2. | Until the legal personality of an establishment whose dissolution and winding up have been ordered has ceased to exist, the obligations under Articles 2 and 3 of Directive 98/59 must be fulfilled. The employer’s obligations pursuant to those provisions must be carried out by the management of the establishment in question, where it is still in place, even with limited powers of management over that establishment, or by its liquidator, where that establishment’s management has been taken over in its entirety by the liquidator. |
| --- | --- |

2.

Until the legal personality of an establishment whose dissolution and winding up have been ordered has ceased to exist, the obligations under Articles 2 and 3 of Directive 98/59 must be fulfilled. The employer’s obligations pursuant to those provisions must be carried out by the management of the establishment in question, where it is still in place, even with limited powers of management over that establishment, or by its liquidator, where that establishment’s management has been taken over in its entirety by the liquidator.

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(1)  OJ C 209, 31.7.2010.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/8 |
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30.4.2011

EN

Official Journal of the European Union

C 130/8

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Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 18 January 2011 — Eurogate Distribution GmbH v Hauptzollamt Hamburg-Stadt

(Case C-28/11)

2011/C 130/15

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Eurogate Distribution GmbH

Defendant: Hauptzollamt Hamburg-Stadt

Question referred

On a proper interpretation of Article 204(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1) (‘the Customs Code’) does infringement of the obligation, in the case of non-Community goods which were in the customs warehousing procedure and acquired a new customs destination at the termination of that procedure, to record the removal of the goods from the customs warehouse in the apposite computer programme forthwith upon termination of the customs warehousing procedure — rather than considerably later — cause a customs debt to arise in respect of the goods?

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(1)  OJ 1992 L 302, p. 1

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/9 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/9

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Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 28 January 2011 — Amorim Energia BV v Ministério das Finanças e da Administração Pública

(Case C-38/11)

2011/C 130/16

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Amorim Energia BV

Defendant: Ministério das Finanças e da Administração Pública

Question referred

Do Articles 63 TFEU and 65 TFEU (formerly Articles 56 EC and 58 EC) preclude legislation of a Member State, such as Articles 46(1), 96(2) and (3), 14(3) and 89 of the Corporation Tax Code, which, in the context of elimination of economic double taxation of distributed profits, while complying with Council Directive 90/435/EEC (1) of 23 July 1990, does not enable shareholder companies resident in another Member State to secure repayment of the tax deducted at source in the same circumstances as shareholder companies resident in Portugal, requiring for that purpose a longer minimum period of share ownership and a minimum but significant shareholding, delaying or rendering impracticable the elimination of economic double taxation?

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(1)  Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States

OJ L 225, p. 6

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/9 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/9

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Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 28 January 2011 — VBV — Vorsorgekasse AG v Finanzmarktaufsichtsbehörde (FMA)

(Case C-39/11)

2011/C 130/17

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: VBV — Vorsorgekasse AG

Defendant: Finanzmarktaufsichtsbehörde (FMA)

Question referred

Is a provision which permits a severance fund to invest assets allocated to a collective investment fund only in shares in investment funds which are authorised to sell in Austria compatible with the freedom of movement of capital set out in Article 63 et seq. TFEU?

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/9 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/9

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Appeal brought on 2 February 2011 by Deutsche Bahn AG against the judgment of the General Court (Eighth Chamber) delivered on 12 November 2010 in Case T-404/09 Deutsche Bahn AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-45/11 P)

2011/C 130/18

Language of the case: German

Parties

Appellant: Deutsche Bahn AG (represented by: K. Schmidt-Hern, Rechtsanwalt)

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

Form of order sought

| — | Set aside the judgment of the General Court of the European Union of 12 November 2010 in Case T-404/09; |
| --- | --- |

—

Set aside the judgment of the General Court of the European Union of 12 November 2010 in Case T-404/09;

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 (Case R 379/2009-1); |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 (Case R 379/2009-1);

| — | Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to pay the costs of both sets of proceedings. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to pay the costs of both sets of proceedings.

Pleas in law and main arguments

The present appeal is against the judgment of the General Court by which that Court dismissed the appellant’s action for annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 July 2009 relating to the rejection of its application for registration of a figurative mark, which consists of a horizontal combination of the colours grey and red.

The appellant relies on four grounds of appeal in support of its appeal, which is based on infringement of Article 7(1)(b) of Regulation (EC) No 207/2009.

First of all, the General Court based its examination of distinctive character on a sign other than the mark applied for. The General Court did not examine the sign in its entirety, but merely based that examination on a random combination of the colours light grey and traffic-light red. The specific features of the colour system were not taken into account in the present case although the specific arrangement of those colours in the mark at issue is a part of the trade mark application and makes the sign specific.

Secondly, in the course of the assessment of distinctive character, the General Court did not consider for which specific services the trade mark application has been filed and examined its inability to be protected with regard to completely different goods. The alleged lack of distinctive character of the mark was deduced in the judgment from the circumstance that particular items or goods usually bear the colours in question (parts of railway engines and safety enclosures for electrical equipment beside railway lines; traffic signs; level crossing barriers and rail transport traffic signs; trains and the borders of railway platforms). The trade mark application in respect of the mark at issue has not however been filed in respect of those goods. The General Court did not state a reason why the circumstance that the mark at issue may possibly be incapable of being protected in respect of certain goods from the transport or rail transport sector should also provide a reason why the mark applied for in the present case in respect of services should be incapable of being protected.

Thirdly, the General Court based its assessment of the mark’s distinctive character on incorrect legal bases in that it assessed the distinctive character of marks in respect of goods and marks in respect of services in the same way. The General Court failed to recognise that the public does not necessarily perceive different categories of signs in the same way. Whereas the consumer may not be accustomed to deducing the origin of the goods from their colour or packaging in the absence of graphical or word elements since goods and packaging are usually coloured, the situation is completely different as regards services. As services are by nature colourless, the consumer’s perception of colours for services is totally different from his perception of colours for goods. Consequently, a difference should be made between goods and services in assessing the distinctive character of colours.

Fourthly, in assessing the distinctive character of the mark in question the General Court distorted the relevant facts and did not sufficiently state the reasons for its judgment. The General Court assumed without any grounds that horizontal bands of colour are usually used as decorative elements on trains. In doing so, it failed to recognise that the present case relates to an assessment of the distinctive character of a specific colour mark and not to stripes on railway wagons in general. Likewise, the General Court failed to recognise that the trade mark application in respect of mark at issue was not filed in respect of railway wagons, but in respect of services in Class 39. Lastly, the appellant made extensive submissions on the point that colour elements in the rail transport sector are not understood as decorative elements, but as indications of origin. The General Court did not assess those arguments put forward by the appellant.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/10 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/10

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Action brought on 15 February 2011 — European Commission v Kingdom of the Netherlands

(Case C-65/11)

2011/C 130/19

Language of the case: Dutch

Parties

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

Defendant: Kingdom of the Netherlands

Form of order sought

| — | Declare that, by failing to consult the VAT Committee and by allowing non-taxable persons to join a fiscal unit, as is apparent from the resolution of 18 February 1991, No VB91/347, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 9 and 11 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax; |
| --- | --- |

—

Declare that, by failing to consult the VAT Committee and by allowing non-taxable persons to join a fiscal unit, as is apparent from the resolution of 18 February 1991, No VB91/347, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 9 and 11 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax;

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

—

order Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

Article 9(1) of Directive 2006/112/EC provides that ‘taxable person’ means any person who, independently, carries out in any place any economic activity, whatever the results of that activity. Article 11 of the VAT Directive provides that after consulting the advisory committee on value added tax (‘the VAT Committee’) each Member State may regard as a single taxable person any persons established in the territory of that Member State who, while legally independent, are closely bound to one another by financial, economic and organisational links.

According to the Commission, the Netherlands has failed to fulfil its obligations under Articles 9 and 11 of Directive 2006/112/EC because it permits non-taxable persons to join a fiscal unit. Furthermore, in failing to consult the VAT Committee, the Netherlands has failed to comply with Article 11.

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

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/11 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/11

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Appeal brought on 16 February 2011 by DTL Corporación, S.L. against the judgment of the General Court (Fourth Chamber) delivered on 15 December 2010 in Case T-188/10, DTL Corporación S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-67/11 P)

2011/C 130/20

Language of the case: Spanish

Parties

Appellant: DTL Corporación, SL (represented by: A. Zuazo Araluza, abogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Gestión de Recursos y Soluciones Empresariales, S.L.

Form of order sought

Annulment in its entirety of the judgment of the General Court (Fourth Chamber) of 15 December 2010 in Case T-188/10.

Grant of the following forms of order sought at first instance:

| 1. | annulment of the decision of the Second Board of Appeal of OHIM of 17 February 2010 in Case R 767/2009-2; |
| --- | --- |

1.

annulment of the decision of the Second Board of Appeal of OHIM of 17 February 2010 in Case R 767/2009-2;

| 2. | replacement of that decision by another rejecting the opposition brought by Gestión de Recursos y Soluciones Empresariales, S.L. against the Community trade figurative mark No 5153325 ‘SOLARIA’, permitting that Community trade mark to be registered for all the services applied for in Classes 37 and 42; |
| --- | --- |

2.

replacement of that decision by another rejecting the opposition brought by Gestión de Recursos y Soluciones Empresariales, S.L. against the Community trade figurative mark No 5153325 ‘SOLARIA’, permitting that Community trade mark to be registered for all the services applied for in Classes 37 and 42;

| 3. | order OHIM and the other parties to the proceedings which oppose this action to pay the costs thereof. |
| --- | --- |

3.

order OHIM and the other parties to the proceedings which oppose this action to pay the costs thereof.

Pleas in law and main arguments

| 1. | Breach of procedure before the General Court which prejudices the interests of the applicant: the application to stay proceedings under Article 77(c) and (d) of the Rules of Procedure of the General Court was totally ignored (Article 58 of the Statute of the Court of Justice of the European Union). |
| --- | --- |

1.

Breach of procedure before the General Court which prejudices the interests of the applicant: the application to stay proceedings under Article 77(c) and (d) of the Rules of Procedure of the General Court was totally ignored (Article 58 of the Statute of the Court of Justice of the European Union).

| 2. | Infringement of the law of the European Union by the General Court: the judgment infringes Article 8(1)(b) of Council Regulation (EC) No 40/94 (1) — now Council Regulation (EC) No 207/2009 (2) — on the Community trade mark, by expressly stating:






  (a) | that the word element of the Community trade mark the subject of the dispute is the dominant feature of the mark; |
| --- | --- | --- |

2.

Infringement of the law of the European Union by the General Court: the judgment infringes Article 8(1)(b) of Council Regulation (EC) No 40/94 (1) — now Council Regulation (EC) No 207/2009 (2) — on the Community trade mark, by expressly stating:

(a)

that the word element of the Community trade mark the subject of the dispute is the dominant feature of the mark;

| (b) | that that word element is not the dominant feature of the mark, which contradiction decisively influences the assessment of the likelihood of confusion (Article 58 of the Statute of the Court of Justice of the European Union). |
| --- | --- |

(b)

that that word element is not the dominant feature of the mark, which contradiction decisively influences the assessment of the likelihood of confusion (Article 58 of the Statute of the Court of Justice of the European Union).

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(1)  Regulation of 20 December 1993, on the Community trade mark (OJ 1994 L 11, p. 1)

(2)  Regulation of 24 March 2009 (OJ 2009 L 78, p. 1)

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/11 |
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30.4.2011

EN

Official Journal of the European Union

C 130/11

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 18 February 2011 — Federal Republic of Germany v Y

(Case C-71/11)

2011/C 130/21

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Federal Republic of Germany

Defendant: Y

Other parties: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht (The Representative of the Federal Interest before the Bundesverwaltungsgericht); Der Bundesbeauftragte für Asylangelegenheiten beim Bundesamt für Migration und Flüchtlinge (The Federal Commissioner for Asylum Matters at the Federal Office for Migration and Refugees)

Questions referred

| 1. | Is Article 9(1)(a) of Directive 2004/83/EC (1) to be interpreted as meaning that not every interference with religious freedom which breaches Article 9 of the European Convention on Human Rights constitutes an act of persecution within the meaning of Article 9(1)(a) of Directive 2004/83/EC, but that a severe violation of religious freedom as a basic human right arises only if the core area of that religious freedom is adversely affected? |
| --- | --- |

1.

Is Article 9(1)(a) of Directive 2004/83/EC (1) to be interpreted as meaning that not every interference with religious freedom which breaches Article 9 of the European Convention on Human Rights constitutes an act of persecution within the meaning of Article 9(1)(a) of Directive 2004/83/EC, but that a severe violation of religious freedom as a basic human right arises only if the core area of that religious freedom is adversely affected?

| 2. | If Question 1 is to be answered in the affirmative:






  (a) | Is the core area of religious freedom limited to the profession and practice of faith in the areas of the home and neighbourhood, or can there also be an act of persecution, within the meaning of Article 9(1)(a) of Directive 2004/83/EC, in cases where, in the country of origin, the practice of faith in public gives rise to a risk to body, life or physical freedom and the applicant accordingly abstains from such practice? |
| --- | --- | --- |

2.

If Question 1 is to be answered in the affirmative:

(a)

Is the core area of religious freedom limited to the profession and practice of faith in the areas of the home and neighbourhood, or can there also be an act of persecution, within the meaning of Article 9(1)(a) of Directive 2004/83/EC, in cases where, in the country of origin, the practice of faith in public gives rise to a risk to body, life or physical freedom and the applicant accordingly abstains from such practice?

| (b) | If the core area of religious freedom can also comprise certain religious practices in public: | Does it suffice in that case, in order for there to be a severe violation of religious freedom, that the applicant feels that such practice of his faith is indispensable in order for him to preserve his religious identity, |
| --- | --- | --- |

(b)

If the core area of religious freedom can also comprise certain religious practices in public:

Does it suffice in that case, in order for there to be a severe violation of religious freedom, that the applicant feels that such practice of his faith is indispensable in order for him to preserve his religious identity,

| | or is it further necessary that the religious community to which the applicant belongs should regard that religious practice as constituting a central part of its doctrine, |
| --- | --- |

or is it further necessary that the religious community to which the applicant belongs should regard that religious practice as constituting a central part of its doctrine,

| | or can further restrictions arise as a result of other circumstances, such as the general conditions in the country of origin? |
| --- | --- |

or can further restrictions arise as a result of other circumstances, such as the general conditions in the country of origin?

| 3. | If Question 1 is to be answered in the affirmative:
  Is there a well-founded fear of persecution, within the meaning of Article 2(c) of Directive 2004/83/EC, if it is established that the applicant will carry out certain religious practices — other than those falling within the core area — after returning to the country of origin, even though these will give rise to a risk to body, life or physical freedom, or is the applicant to be expected to abstain from engaging in such religious practices in the future? |
| --- | --- |

3.

If Question 1 is to be answered in the affirmative:

Is there a well-founded fear of persecution, within the meaning of Article 2(c) of Directive 2004/83/EC, if it is established that the applicant will carry out certain religious practices — other than those falling within the core area — after returning to the country of origin, even though these will give rise to a risk to body, life or physical freedom, or is the applicant to be expected to abstain from engaging in such religious practices in the future?

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(1)  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).

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/12 |
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30.4.2011

EN

Official Journal of the European Union

C 130/12

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Appeal brought on 18 February 2011 by Frucona Košice a.s. against the judgment of the General Court (Second Chamber) delivered on 7 December 2010 in Case T-11/07: Frucona Košice a.s. v European Commission, St. Nicolaus — trade a.s.

(Case C-73/11 P)

2011/C 130/22

Language of the case: English

Parties

Appellant: Frucona Košice a.s. (represented by: P. Lasok QC, J. Holmes, Barrister, B. Hartnett, Barrister, O. Geiss, Rechtsanwalt)

Other parties to the proceedings: European Commission, St. Nicolaus — trade a.s.

Form of order sought

The appellant claims that the Court should:

| 1. | set aside the General Court’s decision of 7 December 2010 in Case T-11/07 as it relates to the fourth and sixth pleas in the Appellant’s Application before the General Court; |
| --- | --- |

1.

set aside the General Court’s decision of 7 December 2010 in Case T-11/07 as it relates to the fourth and sixth pleas in the Appellant’s Application before the General Court;

| 2. | uphold those pleas as well-founded; |
| --- | --- |

2.

uphold those pleas as well-founded;

| 3. | refer the case back to the General Court so that it can decide upon the Appellant’s fifth, sixth, seventh, eighth and ninth pleas as they relate to the tax execution procedure; and |
| --- | --- |

3.

refer the case back to the General Court so that it can decide upon the Appellant’s fifth, sixth, seventh, eighth and ninth pleas as they relate to the tax execution procedure; and

| 4. | order the Commission to pay the Appellant’s costs. |
| --- | --- |

4.

order the Commission to pay the Appellant’s costs.

Pleas in law and main arguments

In support of the action, the applicants rely on the following two pleas.

1.   First plea: the General Court failed to assess the Commission’s application of the private creditor test against the correct legal standard.

2.   Second plea: the General Court impermissibly sought to substitute its own reasoning for that of the Commission as regards the application of the private creditor test; and/or assessed the existing evidence relevant to that test in a manner that was manifestly incorrect, thereby distorting the clear sense of the evidence.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/13 |
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30.4.2011

EN

Official Journal of the European Union

C 130/13

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Action brought on 21 February 2011 — European Commission v Republic of Austria

(Case C-75/11)

2011/C 130/23

Language of the case: German

Parties

Applicant: European Commission (represented by: V. Kreuschitz and D. Roussanov, Agents)

Defendant: Republic of Austria

Forms of order sought

| — | declare that the Republic of Austria has failed to fulfil its obligations under Article 18 TFEU in conjunction with Articles 20 and 21 TFEU and Article 24 of Directive 2004/38/EC (1) 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, by granting reduced fares on means of public transport in principle only to students in respect of whom Austrian family assistance is granted; |
| --- | --- |

—

declare that the Republic of Austria has failed to fulfil its obligations under Article 18 TFEU in conjunction with Articles 20 and 21 TFEU and Article 24 of Directive 2004/38/EC (1) 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, by granting reduced fares on means of public transport in principle only to students in respect of whom Austrian family assistance is granted;

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

—

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Union citizens have the right to move freely within the territory of the Member States subject to the conditions and limits defined by the Treaties and by the measures adopted thereunder. In so far as Union citizens exercise that right they must in principle be treated in the same way as citizens of the host Member State.

The linkage of the fare reduction for students at issue in the present dispute to the receipt of family assistance in Austria is by nature such as to disadvantage nationals of other Members States compared to Austrian citizens and therefore infringes the principle of equal treatment of Union citizens and a Member State’s own nationals.

Contrary to the view of the Austrian Government, the price reduction does not constitute a contribution in kind to compensate for family burdens, as it is clearly a benefit which can be claimed only by matriculated students at a college or university.

The unequal treatment of students whose parents cannot claim Austrian family assistance is also not covered by the exception contained in Article 24(2) of Directive 2004/38, according to which a host Member State may in certain circumstances refuse to grant aid for studies consisting in student grants or student loans to students from other Member States.

Exceptions from the equality principle must be interpreted strictly. Therefore reduced travel fares for students cannot be regarded as aid for studies consisting in student grants or student loans. The exclusion of students whose parents do not receive Austrian family assistance from the fare reduction at issue in the present case therefore infringes European Union law.

---

(1)  OJ 2004 L 158, p. 77.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/13 |
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Official Journal of the European Union

C 130/13

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Appeal brought on 28 February 2011 by Herbert Neuman and Andoni Galdeano del Sel against the judgment of the General Court (Seventh Chamber) delivered on 16 December 2010 in Case T-513/09 José Manuel Baena Grupo, S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Herbert Neuman and Andoni Galdeano del Sel

(Case C-101/11 P)

2011/C 130/24

Language of the case: Spanish

Parties

Appellants: Herbert Neuman and Andoni Galdeano del Sel (represented by: S. Míguez Pereira, abogada)

Other parties to the proceedings: José Manuel Baena Grupo, S.A. and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Form of order sought

| — | declare the present appeal to be admissible and well founded; |
| --- | --- |

—

declare the present appeal to be admissible and well founded;

| — | set aside in its entirety the judgment of the General Court (Seventh Chamber) delivered on 16 December 2010 in Case T-513/09; |
| --- | --- |

—

set aside in its entirety the judgment of the General Court (Seventh Chamber) delivered on 16 December 2010 in Case T-513/09;

| — | declare Community design No 000 426 895-0002 invalid; |
| --- | --- |

—

declare Community design No 000 426 895-0002 invalid;

| — | in the alternative, refer the matter back to the General Court for a fresh ruling on the merits; |
| --- | --- |

—

in the alternative, refer the matter back to the General Court for a fresh ruling on the merits;

| — | order José Manuel Baena Grupo, S.A. to pay the costs incurred at first instance and, should it be granted leave to intervene in the appeal in its capacity as proprietor of the industrial design in respect of which invalidity proceedings have been brought, the costs of the present appeal proceedings as well. |
| --- | --- |

—

order José Manuel Baena Grupo, S.A. to pay the costs incurred at first instance and, should it be granted leave to intervene in the appeal in its capacity as proprietor of the industrial design in respect of which invalidity proceedings have been brought, the costs of the present appeal proceedings as well.

Pleas in law and main arguments

| (a) | Infringement of Article 25(1)(b) of Council Regulation No 6/2002 (1) and related provisions.
  Error by the General Court in declaring that the overall impression made by the disputed design on informed users is different from that made by the earlier design relied on in support of the application for invalidity. |
| --- | --- |

(a)

Infringement of Article 25(1)(b) of Council Regulation No 6/2002 (1) and related provisions.

Error by the General Court in declaring that the overall impression made by the disputed design on informed users is different from that made by the earlier design relied on in support of the application for invalidity.

| (b) | Infringement of Article 25(1)(e) of Council Regulation No 6/2002 and related provisions.
  Omission and error on the part of the General Court in the assessment and application of Article 25(1)(e) of Council Regulation No 6/2002. |
| --- | --- |

(b)

Infringement of Article 25(1)(e) of Council Regulation No 6/2002 and related provisions.

Omission and error on the part of the General Court in the assessment and application of Article 25(1)(e) of Council Regulation No 6/2002.

| (c) | Error on the part of the General Court in failing to state adequate reasons in the judgment under appeal.
  Failure by the General Court, in delivering the judgment under appeal, to state reasons and to provide justification; and exceeding of its jurisdiction. |
| --- | --- |

(c)

Error on the part of the General Court in failing to state adequate reasons in the judgment under appeal.

Failure by the General Court, in delivering the judgment under appeal, to state reasons and to provide justification; and exceeding of its jurisdiction.

---

(1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/14 |
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Official Journal of the European Union

C 130/14

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Appeal brought on 2 March 2011 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment delivered by the General Court (Seventh Chamber) on 16 December 2010 in Case T-513/09 José Manuel Baena Grupo, S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Herbert Neuman and Andoni Galdeano del Sel

(Case C-102/11 P)

2011/C 130/25

Language of the case: Spanish

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: J. Crespo Carillo and A. Folliard-Monguiral, Agents)

Other parties to the proceedings: José Manuel Baena Grupo, S.A. and Herbert Neuman and Andoni Galdeano del Sel

Form of order sought

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

—

set aside the judgment under appeal;

| — | deliver a new judgment on the merits of the case, dismissing the action brought against the contested decision, or refer the case back to the General Court; |
| --- | --- |

—

deliver a new judgment on the merits of the case, dismissing the action brought against the contested decision, or refer the case back to the General Court;

| — | order the applicant at first instance to pay the costs. |
| --- | --- |

—

order the applicant at first instance to pay the costs.

Pleas in law and main arguments

OHIM submits that the judgment under appeal should be set aside on the ground that the General Court infringed Article 61 CDR. (1) In support of that plea, OHIM puts forward the reasons set out below, which may be summarised as follows:

| (a) | By substituting its assessment of the facts for that of the Board of Appeal, without having found any ‘manifest errors of assessment’, the General Court went beyond what Article 61 CDR permits in relation to Community designs. Instead of reviewing the lawfulness of the decision, the General Court exercised the same jurisdiction as that reserved to the Board of Appeal under Article 60 CDR. |
| --- | --- |

(a)

By substituting its assessment of the facts for that of the Board of Appeal, without having found any ‘manifest errors of assessment’, the General Court went beyond what Article 61 CDR permits in relation to Community designs. Instead of reviewing the lawfulness of the decision, the General Court exercised the same jurisdiction as that reserved to the Board of Appeal under Article 60 CDR.

| (b) | The General Court infringed Article 25(1)(c) CDR, together with Article 6 CDR, in that it:






  — | applied an incorrect test in examining whether the designs compared produce a different overall impression on informed users. The error of law arises from the fact that the General Court examined whether the similarities and differences would be ‘preserved in the memory’ of an informed user (see paragraphs 22 and 23 of the judgement under appeal). However, the comparison cannot be based on the memory of the user. As this case involves designs — and not trade marks — the correct test consists in determining whether the similarities and differences between the designs produce a different overall impression when an informed user makes a direct comparison of the designs. |
| --- | --- | --- |

(b)

The General Court infringed Article 25(1)(c) CDR, together with Article 6 CDR, in that it:

—

applied an incorrect test in examining whether the designs compared produce a different overall impression on informed users. The error of law arises from the fact that the General Court examined whether the similarities and differences would be ‘preserved in the memory’ of an informed user (see paragraphs 22 and 23 of the judgement under appeal). However, the comparison cannot be based on the memory of the user. As this case involves designs — and not trade marks — the correct test consists in determining whether the similarities and differences between the designs produce a different overall impression when an informed user makes a direct comparison of the designs.

| — | analysed perception only from the point of view of one section of the relevant public and did not give any reasons at all concerning the perception of users of some of the goods in question, namely, ‘printed material, including advertising material’. |
| --- | --- |

—

analysed perception only from the point of view of one section of the relevant public and did not give any reasons at all concerning the perception of users of some of the goods in question, namely, ‘printed material, including advertising material’.

---

(1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

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General Court

| 30.4.2011 | EN | Official Journal of the European Union | C 130/15 |
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C 130/15

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Judgment of the General Court of 15 March 2011 — Ifemy’s v OHIM — Dada & Co Kids (Dada & Co. kids)

(Case T-50/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark Dada & Co. kids - Earlier national word mark DADA - Relative ground for refusal - Absence of genuine use of the earlier mark - Article 43(2) and (3) of Regulation (EC) No 40/94 (now Article 42(2) and (3) of Regulation (EC) No 207/2009))

2011/C 130/26

Language of the case: English

Parties

Applicant: Ifemy’s Holding GmbH (Munich, Germany) (represented by: H.-G. Augustinowski, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: A. Folliard-Monguiral, Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Dada & Co. Kids Srl (Prato, Italy)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 27 November 2008 (Case R 911/2008-4), relating to opposition proceedings between Ifemy’s Holding GmbH and Dada & Co. Kids Srl.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ifemy’s Holding GmbH to pay the costs. |
| --- | --- |

2.

Orders Ifemy’s Holding GmbH to pay the costs.

---

(1)  OJ C 90, 18.4.2009.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/15 |
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Official Journal of the European Union

C 130/15

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Action brought on 22 February 2011 — American Express Marketing & Development v OHIM (IP ZONE)

(Case T-102/11)

2011/C 130/27

Language of the case: English

Parties

Applicant: American Express Marketing & Development Corp. (New York, United States) (represented by: V. Spitz, A. Gaul, T. Golda and S. Kirschstein-Freund, lawyers)

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

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 December 2010 in case R 1125/2010-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 December 2010 in case R 1125/2010-2;

| — | In the alternative, amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 December 2010 in case R 1125/2010-2, and rule that the appeal is justified; |
| --- | --- |

—

In the alternative, amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 December 2010 in case R 1125/2010-2, and rule that the appeal is justified;

| — | Order the defendant to pay the costs of the appeal proceedings and of the proceedings before the Court. |
| --- | --- |

—

Order the defendant to pay the costs of the appeal proceedings and of the proceedings before the Court.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘IP ZONE’ for services in class 42

Decision of the Examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009, as the Board of Appeal found that the trade mark lacks the necessary distinctiveness and is descriptive with respect to the services in question.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/15 |
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30.4.2011

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Official Journal of the European Union

C 130/15

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Action brought on 16 February 2011 — Apollo Tyres v OHIM — Endurance Technologies (ENDURACE)

(Case T-109/11)

2011/C 130/28

Language in which the application was lodged: English

Parties

Applicant: Apollo Tyres AG (Baden, Switzerland) (represented by: S. Szilvasi, lawyer)

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

Other party to the proceedings before the Board of Appeal: Endurance Technologies Pvt Ltd (Aurangabad, India)

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 25 November 2010 in case R 625/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 November 2010 in case R 625/2010-1;

| — | Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ENDURACE’, for goods in class 12 and services in classes 35 and 37 — Community trade mark application No 6419824

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Community trade mark registration No 5819149 of the figurative mark ‘ENDURANCE’ and device in colours, for goods in class 12

Decision of the Opposition Division: Partially rejected the Community trade mark application

Decision of the Board of Appeal: Rejected the applicant’s appeal and partially allowed the opponents’ request submitted under Article 8(3) RPBoA (1), and as a result partially rejected the Community trade mark application

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly found that there was likelihood of confusion.

---

(1)  Commission Regulation (EC) No 216/96, of 5 February 1996, laying down the rules of procedure of the Boards of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs), amended by Commission Regulation (EC) No 2082/2004, of 6 December 2004

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/16 |
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30.4.2011

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Official Journal of the European Union

C 130/16

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Action brought on 21 February 2011 — ClientEarth v Commission

(Case T-111/11)

2011/C 130/29

Language of the case: English

Parties

Applicant: ClientEarth (London, United Kingdom) (represented by: P. Kirch, lawyer)

Defendant: European Commission

Form of order sought

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

—

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

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

—

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

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

—

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

| — | annul the implied decision under Article 8(3) of Regulation No 1049/2001, which is the failure by the Commission to reply within the prescribed time-limits to the applicants confirmatory application by which the Commission withheld the requested documents; and |
| --- | --- |

—

annul the implied decision under Article 8(3) of Regulation No 1049/2001, which is the failure by the Commission to reply within the prescribed time-limits to the applicants confirmatory application by which the Commission withheld the requested documents; and

| — | order the Commission to pay the applicant’s costs, including the costs of any intervening parties. |
| --- | --- |

—

order the Commission to pay the applicant’s costs, including the costs of any intervening parties.

Pleas in law and main arguments

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

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

1.

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

| 2. | Second plea in law, alleging that the contested decision violates Article 4(1)(2) and (4) of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters for failure to provide the applicant access to the requested conformity-checking studies and implementation action plans and to provide detailed reasons to do so. The contested decision also violates Article 6(1) of Regulation No 1367/2006 for failure to interpret the exceptions provided under Article 4 of Regulation No 1049/2001 in a restrictive way. |
| --- | --- |

2.

Second plea in law, alleging that the contested decision violates Article 4(1)(2) and (4) of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters for failure to provide the applicant access to the requested conformity-checking studies and implementation action plans and to provide detailed reasons to do so. The contested decision also violates Article 6(1) of Regulation No 1367/2006 for failure to interpret the exceptions provided under Article 4 of Regulation No 1049/2001 in a restrictive way.

| 3. | Third plea in law, alleging that the contested decision violates Article 4(2)(b) of Regulation No 1367/2006 for not disseminating the requested information in the registers of the Commission. |
| --- | --- |

3.

Third plea in law, alleging that the contested decision violates Article 4(2)(b) of Regulation No 1367/2006 for not disseminating the requested information in the registers of the Commission.

| 4. | Fourth plea in law, alleging that the contested decision violates Article 7 of Regulation No 1367/2006 for not informing the applicant to which Directorate General it should request to have access to the documents concerning Directives 1998/81/EC (3) and 2001/18/EC (4) or transferring the request to the relevant Directorate General. |
| --- | --- |

4.

Fourth plea in law, alleging that the contested decision violates Article 7 of Regulation No 1367/2006 for not informing the applicant to which Directorate General it should request to have access to the documents concerning Directives 1998/81/EC (3) and 2001/18/EC (4) or transferring the request to the relevant Directorate General.

| 5. | Fifth plea in law, alleging that the contested decision violates Article 4(2) third indent of Regulation No 1049/2001 for failure to provide the applicant access to the requested conformity-checking studies and implementation action plans. The disclosure of the requested documents would not undermine the protection of the purpose of investigations under Article 4(2) or prevent the proper conduct of potential infringement procedures based on Article 258 of the TFEU. The contested decision violates Article 4(6) of Regulation No 1049/2001 for failure to provide partial access to the requested documents. |
| --- | --- |

5.

Fifth plea in law, alleging that the contested decision violates Article 4(2) third indent of Regulation No 1049/2001 for failure to provide the applicant access to the requested conformity-checking studies and implementation action plans. The disclosure of the requested documents would not undermine the protection of the purpose of investigations under Article 4(2) or prevent the proper conduct of potential infringement procedures based on Article 258 of the TFEU. The contested decision violates Article 4(6) of Regulation No 1049/2001 for failure to provide partial access to the requested documents.

| 6. | Sixth plea in law, alleging that the contested decision violates article 4(3) first subparagraph of Regulation No 1049/2001. The disclosure of the requested documents would not seriously undermine the Commission’s decision-making process. |
| --- | --- |

6.

Sixth plea in law, alleging that the contested decision violates article 4(3) first subparagraph of Regulation No 1049/2001. The disclosure of the requested documents would not seriously undermine the Commission’s decision-making process.

| 7. | Seventh plea in law, alleging that the contested decision violates Article 4(2) last indent and Article 4(3) of Regulation No 1049/2001 for failure to assess whether there is an overriding public interest in disclosure and to provide a detailed statement of reasons for such a refusal. |
| --- | --- |

7.

Seventh plea in law, alleging that the contested decision violates Article 4(2) last indent and Article 4(3) of Regulation No 1049/2001 for failure to assess whether there is an overriding public interest in disclosure and to provide a detailed statement of reasons for such a refusal.

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

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

(3)  Council Directive 98/81/EC of 26 October 1998 amending Directive 90/219/EEC on the contained use of genetically modified micro-organisms (OJ 1998 L 330, p. 13)

(4)  Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC — Commission Declaration (OJ 2001 L 106, p. 1)

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/17 |
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Action brought on 2 March 2011 — Attey v Council

(Case T-118/11)

2011/C 130/30

Language of the case: French

Parties

Applicant: Philipp Attey (Abidjan, Côte d’Ivoire) (represented by: J. –C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant; |
| --- | --- |

—

annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant puts forward four pleas in law.

| 1. | First plea in law alleging a manifest error of assessment, in so far as the restrictive measures taken against the applicant on the ground that he is obstructing the process of peace and reconciliation in Côte d’Ivoire and refuses to accept the result of the presidential election are based on the fact that the defendant wrongly considered that A. Ouattara had been elected president of the Republic of Côte d’Ivoire, whereas L. Gbagbo was declared elected president by the Constitutional Council. |
| --- | --- |

1.

First plea in law alleging a manifest error of assessment, in so far as the restrictive measures taken against the applicant on the ground that he is obstructing the process of peace and reconciliation in Côte d’Ivoire and refuses to accept the result of the presidential election are based on the fact that the defendant wrongly considered that A. Ouattara had been elected president of the Republic of Côte d’Ivoire, whereas L. Gbagbo was declared elected president by the Constitutional Council.

| 2. | Second plea in law alleging a misuse of powers, in so far as the contested acts (i) pursue an aim other than that defined in Article 21 TEU, namely the advancement in the wider world of democracy and of the rule of law, L. Gbagbo having been proclaimed president of the Republic of Côte d’Ivoire in a democratic manner and (ii) infringe the Charter of the United Nations, of which the European Union promotes the observance, the defendant having disregarded the principle of non-interference in a State's internal affairs. |
| --- | --- |

2.

Second plea in law alleging a misuse of powers, in so far as the contested acts (i) pursue an aim other than that defined in Article 21 TEU, namely the advancement in the wider world of democracy and of the rule of law, L. Gbagbo having been proclaimed president of the Republic of Côte d’Ivoire in a democratic manner and (ii) infringe the Charter of the United Nations, of which the European Union promotes the observance, the defendant having disregarded the principle of non-interference in a State's internal affairs.

| 3. | Third plea in law alleging an infringement of Article 215(3) TFEU, the contested acts not containing any legal safeguard. |
| --- | --- |

3.

Third plea in law alleging an infringement of Article 215(3) TFEU, the contested acts not containing any legal safeguard.

| 4. | Fourth plea in law alleging an infringement of the Charter of Fundamental Rights of the European Union,






  — | in that the rights of the defence of the applicant have been infringed, in so far as the defendant has not notified him of the evidence held against him, thereby not allowing the applicant duly to present his point of view in that regard, and |
| --- | --- | --- |

4.

Fourth plea in law alleging an infringement of the Charter of Fundamental Rights of the European Union,

—

in that the rights of the defence of the applicant have been infringed, in so far as the defendant has not notified him of the evidence held against him, thereby not allowing the applicant duly to present his point of view in that regard, and

| — | in that there has been an infringement of the right to property of the applicant to a disproportionate extent. |
| --- | --- |

—

in that there has been an infringement of the right to property of the applicant to a disproportionate extent.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/17 |
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30.4.2011

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C 130/17

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Action brought on 2 March 2011 — Gbagbo v Council

(Case T-119/11)

2011/C 130/31

Language of the case: French

Parties

Applicant: Simone Gbagbo (Abidjan, Côte d'Ivoire) (represented by: J. –C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant; |
| --- | --- |

—

annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-118/11 Attey v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/18 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/18

---

Action brought on 2 March 2011 — BFA v Council

(Case T-120/11)

2011/C 130/32

Language of the case: French

Parties

Applicant: Banque pour le financement de l’agriculture (BFA) (Abidjan, Côte d’Ivoire) (represented by: J. –C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant; |
| --- | --- |

—

annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-118/11 Attey v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/18 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/18

---

Action brought on 2 March 2011 — Versus Bank v Council

(Case T-121/11)

2011/C 130/33

Language of the case: French

Parties

Applicant: Versus Bank (Abidjan, Côte d’Ivoire) (represented by: J. -C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant; |
| --- | --- |

—

annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-118/11 Attey v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/18 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/18

---

Action brought on 2 March 2011 — Yao N’Dré v Council

(Case T-122/11)

2011/C 130/34

Language of the case: French

Parties

Applicant: Paul Yao N’Dré (represented by: J. -C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant; |
| --- | --- |

—

annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-118/11 Attey v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/18 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/18

---

Action brought on 2 March 2011 — Legré v Council

(Case T-123/11)

2011/C 130/35

Language of the case: French

Parties

Applicant: Thierry Legré (Abidjan, Côte d’Ivoire) (represented by: J. -C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant; |
| --- | --- |

—

annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-118/11 Attey v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/19 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/19

---

Action brought on 3 March 2011 — Kipré v Council

(Case T-124/11)

2011/C 130/36

Language of the case: French

Parties

Applicant: Stéphane Kipré (Abidjan, Côte d’Ivoire) (represented by: J. -C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant; |
| --- | --- |

—

annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 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, to the extent that they concern the applicant;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-118/11 Attey v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/19 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/19

---

Action brought on 23 February 2011 — LG Display and LG Display Taiwan v Commission

(Case T-128/11)

2011/C 130/37

Language of the case: English

Parties

Applicants: LG Display Co. Ltd (Seoul, Korea) and LG Display Taiwan (Taiwan, Republic of China) (represented by: A. Winckler and F.-C. Laprévote, lawyers)

Defendant: European Commission

Form of order sought

| — | partially annul or substantially reduce the fine imposed; |
| --- | --- |

—

partially annul or substantially reduce the fine imposed;

| — | order the Commission to pay legal and others costs and expenses in relation to this matter; and |
| --- | --- |

—

order the Commission to pay legal and others costs and expenses in relation to this matter; and

| — | take any other measure that the Court considers appropriate. |
| --- | --- |

—

take any other measure that the Court considers appropriate.

Pleas in law and main arguments

By means of their application, the applicants seek partial annulment of Commission decision C(2010)8761 final of 8 December 2010 in Case COMP/39.309 — LCD — Liquid Crystal Displays, by which the Commission found that the applicants, together with other undertakings, had infringed Article 101 TFEU and Article 53 EEA by participating in a single and continuous agreement and concerted practice in the sector of Liquid Crystal Display panels for TV, notebook and monitor applications, insofar as the decision imposes the fine on the applicants.

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

| 1. | First plea in law, alleging that the Commission wrongly and unjustifiably included LG Display’s sales to its parent companies in the value of sales for the calculation of the fines and violated due process principles such as the rights of defence. In this regard, they submit that:






  — | first, the Commission’s allegation that the infringement related to sales to LG Display’s parents was not a part of the Statement of Objections and the discrepancies between the Statement of Objections and the contested decision violates the applicants’ right to be heard; |
| --- | --- | --- |

1.

First plea in law, alleging that the Commission wrongly and unjustifiably included LG Display’s sales to its parent companies in the value of sales for the calculation of the fines and violated due process principles such as the rights of defence. In this regard, they submit that:

—

first, the Commission’s allegation that the infringement related to sales to LG Display’s parents was not a part of the Statement of Objections and the discrepancies between the Statement of Objections and the contested decision violates the applicants’ right to be heard;

| — | second, the Commission misapplied the Fining Guidelines by including LG Display’s sales to its parents in the fine calculation; |
| --- | --- |

—

second, the Commission misapplied the Fining Guidelines by including LG Display’s sales to its parents in the fine calculation;

| — | third, the Commission’s characterization of the affected sales as ‘direct EEA sales’ and ‘direct EEA sales through transformed products’ violates the principle of equal treatment. |
| --- | --- |

—

third, the Commission’s characterization of the affected sales as ‘direct EEA sales’ and ‘direct EEA sales through transformed products’ violates the principle of equal treatment.

The applicants contend that any fine imposed on LG Display should only be based on ‘free market’ sales that were made to non-related entities, as only these sales may have been affected by the infringement.

| 2. | Second plea in law, alleging that the Commission wrongly denied LG Display immunity from fines for 2005 and thus violated the 2002 Leniency Notice. In this regard the applicants submit that:






  — | first, LG Display’s access to the case file was seriously hindered by procedural inadequacies; |
| --- | --- | --- |

2.

Second plea in law, alleging that the Commission wrongly denied LG Display immunity from fines for 2005 and thus violated the 2002 Leniency Notice. In this regard the applicants submit that:

—

first, LG Display’s access to the case file was seriously hindered by procedural inadequacies;

| — | second, LG Display satisfied the requirements for partial immunity under the applicable 2002 Leniency Notice; |
| --- | --- |

—

second, LG Display satisfied the requirements for partial immunity under the applicable 2002 Leniency Notice;

| — | third, the Commission’s rejection of LG Display’s application is not reasoned, rests on several errors in law and is erroneous in fact. |
| --- | --- |

—

third, the Commission’s rejection of LG Display’s application is not reasoned, rests on several errors in law and is erroneous in fact.

The applicants contend that LG Display’s fine should therefore reflect partial immunity for 2005.

| 3. | Third plea in law, alleging that despite the fact that LG Display provided exceptional assistance to the Commission that went well beyond its obligations under the 2002 Leniency Notice the Commission refused to grant additional reduction of the fine for at least 10 % for such cooperation and thus violated the Leniency Notice. |
| --- | --- |

3.

Third plea in law, alleging that despite the fact that LG Display provided exceptional assistance to the Commission that went well beyond its obligations under the 2002 Leniency Notice the Commission refused to grant additional reduction of the fine for at least 10 % for such cooperation and thus violated the Leniency Notice.

| 4. | Fourth plea in law alleging that the Commission’s exclusion of the Japanese suppliers of LCD from the contested decision, even though two of them admitted their participation in the same single and continuous infringement, violates the principle of legal certainty, subjects LG Display to significant risk of double jeopardy and violates the principle of proportionality. |
| --- | --- |

4.

Fourth plea in law alleging that the Commission’s exclusion of the Japanese suppliers of LCD from the contested decision, even though two of them admitted their participation in the same single and continuous infringement, violates the principle of legal certainty, subjects LG Display to significant risk of double jeopardy and violates the principle of proportionality.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/20 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/20

---

Action brought on 7 March 2011 — Gossio v Council

(Case T-130/11)

2011/C 130/38

Language of the case: French

Parties

Applicant: Marcel Gossio (Abidjan, Côte d’Ivoire) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Marcel GOSSIO, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Marcel GOSSIO, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | alternatively, order that the name of Mr Marcel GOSSIO be removed from the lists annexed to that regulation and to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Marcel GOSSIO be removed from the lists annexed to that regulation and to that decision.

Pleas in law and main arguments

In support of the action, the applicant puts forward two pleas in law.

| 1. | First plea in law alleging a breach of the obligation to state reasons, in so far as the grounds for including the applicant on the list of persons and entities to which the restrictive measures apply are stereotyped without any specific factual element making it possible to assess the relevance of that inclusion being mentioned. |
| --- | --- |

1.

First plea in law alleging a breach of the obligation to state reasons, in so far as the grounds for including the applicant on the list of persons and entities to which the restrictive measures apply are stereotyped without any specific factual element making it possible to assess the relevance of that inclusion being mentioned.

| 2. | Second plea in law alleging a manifest error of assessment, in so far as the applicant, being part of the administration, does not have, in view of his duties, power to recognise the authority of a specific president, but must perform his duties in the continuation of the administration to which he belongs. |
| --- | --- |

2.

Second plea in law alleging a manifest error of assessment, in so far as the applicant, being part of the administration, does not have, in view of his duties, power to recognise the authority of a specific president, but must perform his duties in the continuation of the administration to which he belongs.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/20 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/20

---

Action brought on 7 March 2011 — Ezzedine v Council

(Case T-131/11)

2011/C 130/39

Language of the case: French

Parties

Applicant: Ibrahim Ezzedine (Treichville, Côte d’Ivoire) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Ibrahim EZZEDINE, Council Decision 2011/71/CFSP of 31 January 2011, published on 2 February 2011 in the Official Journal of the European Union, is not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Ibrahim EZZEDINE, Council Decision 2011/71/CFSP of 31 January 2011, published on 2 February 2011 in the Official Journal of the European Union, is not justified in fact,

| — | consequently,






  — | annul Council Decision 2011/71/CFSP of 31 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Decision 2011/71/CFSP of 31 January 2011;

| — | alternatively, order that the name of Mr Ibrahim EZZEDINE be removed from the list annexed to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Ibrahim EZZEDINE be removed from the list annexed to that decision.

Pleas in law and main arguments

In support of the action, the applicant puts forward two pleas in law.

| 1. | First plea in law alleging a breach of the obligation to state reasons, in so far as the grounds for including the applicant on the list of persons and entities to which the restrictive measures apply are stereotyped without any specific factual element making it possible to assess the relevance of that inclusion being mentioned. |
| --- | --- |

1.

First plea in law alleging a breach of the obligation to state reasons, in so far as the grounds for including the applicant on the list of persons and entities to which the restrictive measures apply are stereotyped without any specific factual element making it possible to assess the relevance of that inclusion being mentioned.

| 2. | Second plea in law alleging a manifest error of assessment, in so far as the applicant is accused of helping to fund the illegitimate administration of L. Gbagbo, whereas the applicant is only carrying out the activity of a private businessman and is therefore simply helping to fund the Republic of Côte d’Ivoire and not a specific regime by the payment of taxes and levies. |
| --- | --- |

2.

Second plea in law alleging a manifest error of assessment, in so far as the applicant is accused of helping to fund the illegitimate administration of L. Gbagbo, whereas the applicant is only carrying out the activity of a private businessman and is therefore simply helping to fund the Republic of Côte d’Ivoire and not a specific regime by the payment of taxes and levies.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/21 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/21

---

Action brought on 7 March 2011 — Kessé v Council

(Case T-132/11)

2011/C 130/40

Language of the case: French

Parties

Applicant: Feh Lambert Kessé (Abidjan, Côte d’Ivoire) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Feh Lambert KESSE, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Feh Lambert KESSE, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | alternatively, order that the name of Mr Feh Lambert KESSE be removed from the lists annexed to that regulation and to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Feh Lambert KESSE be removed from the lists annexed to that regulation and to that decision.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-130/11 Gossio v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/21 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/21

---

Action brought on 3 March 2011 — Al-Faqih and Others v Commission

(Case T-134/11)

2011/C 130/41

Language of the case: English

Parties

Applicants: Al-Bashir Mohammed Al-Faqih (Birmingham, United Kingdom), Ghunia Abdrabbah (Birmingham, United Kingdom), Taher Nasuf (Manchester, United Kingdom), and Sanabel Relief Agency Ltd (Birmingham, United Kingdom) (represented by: E. Grieves, Barrister, and N. Garcia-Lora, Solicitor)

Defendant: European Commission

Form of order sought

| — | Annul Commission Regulation (EU) No 1139/2010 (1) and Commission Regulation (EU) No 1138/2010 (2) insofar as they relate to the applicants; and |
| --- | --- |

—

Annul Commission Regulation (EU) No 1139/2010 (1) and Commission Regulation (EU) No 1138/2010 (2) insofar as they relate to the applicants; and

| — | Order that the Council of the European Union pays, in addition to its own costs, those incurred by the applicants and any sums advanced by way of legal aid by the cashier of the Court of Justice. |
| --- | --- |

—

Order that the Council of the European Union pays, in addition to its own costs, those incurred by the applicants and any sums advanced by way of legal aid by the cashier of the Court of Justice.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Commission has deliberately ignored binding case-law of the Court of Justice and failed to independently review the basis of the applicants’ designations or required any reasons for those designations. |
| --- | --- |

1.

First plea in law, alleging that the Commission has deliberately ignored binding case-law of the Court of Justice and failed to independently review the basis of the applicants’ designations or required any reasons for those designations.

| 2. | Second plea in law, alleging that Commission Regulation (EU) No 1139/2010 and Commission Regulation (EU) No 1138/2010 did not respect the right to judicial review and infringed the rights of the defence, thereby interfering with Article 6 of the European Convention on Human Rights and Fundamental Freedoms. |
| --- | --- |

2.

Second plea in law, alleging that Commission Regulation (EU) No 1139/2010 and Commission Regulation (EU) No 1138/2010 did not respect the right to judicial review and infringed the rights of the defence, thereby interfering with Article 6 of the European Convention on Human Rights and Fundamental Freedoms.

| 3. | Third plea in law, alleging that the conclusions reached in the Commission’s review concerning one of the applicants, Sanabel Relief Agency Ltd, are wrong and unsustainable in law. |
| --- | --- |

3.

Third plea in law, alleging that the conclusions reached in the Commission’s review concerning one of the applicants, Sanabel Relief Agency Ltd, are wrong and unsustainable in law.

| 4. | Fourth plea in law, alleging that Commission Regulation (EU) No 1139/2010 and Commission Regulation (EU) No 1138/2010 are a disproportionate interference to all four applicants’ rights to property and their private life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms. In addition, such legislation is irrational, particularly given the United Kingdom’s stance that the first three applicants no longer fulfil the relevant criteria. |
| --- | --- |

4.

Fourth plea in law, alleging that Commission Regulation (EU) No 1139/2010 and Commission Regulation (EU) No 1138/2010 are a disproportionate interference to all four applicants’ rights to property and their private life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms. In addition, such legislation is irrational, particularly given the United Kingdom’s stance that the first three applicants no longer fulfil the relevant criteria.

---

(1)  Commission Regulation (EU) No 1139/2010 of 7 December 2010 amending for the 141st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2010 L 322, p. 6)

(2)  Commission Regulation (EU) No 1138/2010 of 7 December 2010 amending for the 140th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2010 L 322, p. 4)

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/22 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/22

---

Action brought on 11 March 2011 — Guiai Bi Poin v Council

(Case T-137/11)

2011/C 130/42

Language of the case: French

Parties

Applicant: Georges Guiai Bi Poin (Abidjan, Côte d’Ivoire) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Georges GUIAI BI POIN, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Georges GUIAI BI POIN, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | alternatively, order that the name of Mr Georges GUIAI BI POIN be removed from the lists annexed to that regulation and to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Georges GUIAI BI POIN be removed from the lists annexed to that regulation and to that decision.

Pleas in law and main arguments

In support of the action, the applicant puts forward two pleas in law.

| 1. | First plea in law alleging a breach of the obligation to state reasons, in so far as the grounds for including the applicant on the list of persons and entities to which the restrictive measures apply are stereotyped without any specific factual element making it possible to assess the relevance of that inclusion being mentioned. |
| --- | --- |

1.

First plea in law alleging a breach of the obligation to state reasons, in so far as the grounds for including the applicant on the list of persons and entities to which the restrictive measures apply are stereotyped without any specific factual element making it possible to assess the relevance of that inclusion being mentioned.

| 2. | Second plea in law alleging a manifest error of assessment, in so far as:






  — | the applicant is accused of refusing to place himself under the authority of the democratically elected president, A. Ouattara, whereas the applicant may not in the capacity of a soldier avoid obeying the constitutional authorities of his country which have declared L. Gbagbo elected president and |
| --- | --- | --- |

2.

Second plea in law alleging a manifest error of assessment, in so far as:

—

the applicant is accused of refusing to place himself under the authority of the democratically elected president, A. Ouattara, whereas the applicant may not in the capacity of a soldier avoid obeying the constitutional authorities of his country which have declared L. Gbagbo elected president and

| — | the applicant is accused of being responsible for serious breaches of human rights and international humanitarian law, whereas the applicant has not been challenged by the International Criminal Court whose jurisdiction has been recognised by the Republic of Côte d’Ivoire. |
| --- | --- |

—

the applicant is accused of being responsible for serious breaches of human rights and international humanitarian law, whereas the applicant has not been challenged by the International Criminal Court whose jurisdiction has been recognised by the Republic of Côte d’Ivoire.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/22 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/22

---

Action brought on 11 March 2011 — Ahouma v Council

(Case T-138/11)

2011/C 130/43

Language of the case: French

Parties

Applicant: Brouha Nathanaël Ahouma (Abidjan, Côte d’Ivoire) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Brouha Nathanaël AHOUMA, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Brouha Nathanaël AHOUMA, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | alternatively, order that the name of Mr Brouha Nathanaël AHOUMA be removed from the lists annexed to that regulation and to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Brouha Nathanaël AHOUMA be removed from the lists annexed to that regulation and to that decision.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-137/11 Guiai Bi Poin v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/23 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/23

---

Action brought on 11 March 2011 — Gnango v Council

(Case T-139/11)

2011/C 130/44

Language of the case: French

Parties

Applicant: Loba Emmanuel Patrice Gnango (Abidjan, Côte d’Ivoire) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Loba Emmanuel Patrice GNANGO, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Loba Emmanuel Patrice GNANGO, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | alternatively, order that the name of Mr Loba Emmanuel Patrice GNANGO be removed from the lists annexed to that regulation and to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Loba Emmanuel Patrice GNANGO be removed from the lists annexed to that regulation and to that decision.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-137/11 Guiai Bi Poin v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/23 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/23

---

Action brought on 11 March 2011 — Guei v Council

(Case T-140/11)

2011/C 130/45

Language of the case: French

Parties

Applicant: Badia Brice Guei (Abidjan, Côte d’Ivoire) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Badia Brice GUEI, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Badia Brice GUEI, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | alternatively, order that the name of Mr Badia Brice GUEI be removed from the lists annexed to that regulation and to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Badia Brice GUEI be removed from the lists annexed to that regulation and to that decision.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-137/11 Guiai Bi Poin v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/23 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/23

---

Action brought on 11 March 2011 — Dogbo v Council

(Case T-141/11)

2011/C 130/46

Language of the case: French

Parties

Applicant: Blé Brunot Dogbo (Abidjan, Côte d’Ivoire) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Blé Brunot DOGBO, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Blé Brunot DOGBO, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | alternatively, order that the name of Mr Blé Brunot DOGBO be removed from the lists annexed to that regulation and to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Blé Brunot DOGBO be removed from the lists annexed to that regulation and to that decision.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-137/11 Guiai Bi Poin v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/24 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/24

---

Action brought on 14 March 2011 — SIR v Council

(Case T-142/11)

2011/C 130/47

Language of the case: French

Parties

Applicant: Société ivoirienne de raffinage (SIR) (Abidjan, Côte d’Ivoire) (represented by: M. Ceccaldi, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision 2011/18/CFSP and Council Regulation (EU) 25/2011 of 14 January 2011 imposing restrictive measures directed against certain persons and entities and in particular as regards the SIR; |
| --- | --- |

—

annul Council Decision 2011/18/CFSP and Council Regulation (EU) 25/2011 of 14 January 2011 imposing restrictive measures directed against certain persons and entities and in particular as regards the SIR;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant puts forward five pleas in law.

| 1. | First plea in law alleging infringement of the Charter of the United Nations, and of Articles 3(5) and (6) and 21(1) TEU and 7 TFEU, in so far as the defendant has exceeded its powers in imposing restrictive measures, the name of the applicant not being among the persons covered by United Nations Security Council Resolution 1572 (2004). |
| --- | --- |

1.

First plea in law alleging infringement of the Charter of the United Nations, and of Articles 3(5) and (6) and 21(1) TEU and 7 TFEU, in so far as the defendant has exceeded its powers in imposing restrictive measures, the name of the applicant not being among the persons covered by United Nations Security Council Resolution 1572 (2004).

| 2. | Second plea in law alleging infringement of the principle of non-interference in a State's internal affairs, the defendant going against the sovereign decision of the Constitutional Council of the Republic of Côte d’Ivoire which declared elected president L. Gbagbo and not A. Ouattara. |
| --- | --- |

2.

Second plea in law alleging infringement of the principle of non-interference in a State's internal affairs, the defendant going against the sovereign decision of the Constitutional Council of the Republic of Côte d’Ivoire which declared elected president L. Gbagbo and not A. Ouattara.

| 3. | Third plea in law alleging the substantive unlawfulness of the contested measures which cannot be linked to a competence and/or to a power of the defendant. |
| --- | --- |

3.

Third plea in law alleging the substantive unlawfulness of the contested measures which cannot be linked to a competence and/or to a power of the defendant.

| 4. | Fourth plea in law alleging infringement of the rights of the defence, in so far as the applicant could not have been apprised of the evidence against him and could not therefore have duly put forward his point of view in that regard. |
| --- | --- |

4.

Fourth plea in law alleging infringement of the rights of the defence, in so far as the applicant could not have been apprised of the evidence against him and could not therefore have duly put forward his point of view in that regard.

| 5. | Fifth plea in law alleging infringement of the principle of proportionality, the consequences of the measures taken both for the applicant and for the population of Côte d’Ivoire being excessive in relation to the objective being pursued. |
| --- | --- |

5.

Fifth plea in law alleging infringement of the principle of proportionality, the consequences of the measures taken both for the applicant and for the population of Côte d’Ivoire being excessive in relation to the objective being pursued.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/24 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/24

---

Action brought on 14 March 2011 — Kassarate v Council

(Case T-144/11)

2011/C 130/48

Language of the case: French

Parties

Applicant: Tiapé Edouard Kassarate (Abidjan, Côte d’Ivoire) (represented by: G. Collard and L. Aliot, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Tiapé Edouard KASSARATE, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Tiapé Edouard KASSARATE, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | alternatively, order that the name of Mr Tiapé Edouard KASSARATE be removed from the lists annexed to that regulation and to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Tiapé Edouard KASSARATE be removed from the lists annexed to that regulation and to that decision.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-137/11 Guiai Bi Poin v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/24 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/24

---

Action brought on 14 March 2011 — Vagba v Council

(Case T-145/11)

2011/C 130/49

Language of the case: French

Parties

Applicant: Gagbei Faussignaux Vagba (Abidjan, Côte d’Ivoire) (represented by: G. Collard and L. Aliot, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Gagbei Faussignaux VAGBA, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Gagbei Faussignaux VAGBA, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | alternatively, order that the name of Mr Gagbei Faussignaux VAGBA be removed from the lists annexed to that regulation and to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Gagbei Faussignaux VAGBA be removed from the lists annexed to that regulation and to that decision.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-137/11 Guiai Bi Poin v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/25 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/25

---

Action brought on 14 March 2011 — Yoro v Council of the European Union

(Case T-146/11)

2011/C 130/50

Language of the case: French

Parties

Applicant: Claude Yoro (Abidjan, Côte d’Ivoire) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Forms of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Claude YORO, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, have no factual basis, |
| --- | --- |

—

declare that, concerning the applicant, Mr Claude YORO, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, have no factual basis,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | in the alterntive, order that the name of Mr Claude YORO be removed from the lists annexed to the aforementioned Regulation and the aforementioned Decision. |
| --- | --- |

—

in the alterntive, order that the name of Mr Claude YORO be removed from the lists annexed to the aforementioned Regulation and the aforementioned Decision.

Pleas in law and main arguments

The pleas in law and principal arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-137/11 Guiai Bi Poin v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/25 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/25

---

Action brought on 14 March 2011 — Robe v Council

(Case T-147/11)

2011/C 130/51

Language of the case: French

Parties

Applicant: Gogo Joachim Robe (Abidjan, Côte d’Ivoire) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Gogo Joachim ROBE, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Gogo Joachim ROBE, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | alternatively, order that the name of Mr Gogo Joachim ROBE be removed from the lists annexed to that regulation and to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Gogo Joachim ROBE be removed from the lists annexed to that regulation and to that decision.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-137/11 Guiai Bi Poin v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/25 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/25

---

Action brought on 14 March 2011 — Mangou v Council

(Case T-148/11)

2011/C 130/52

Language of the case: French

Parties

Applicant: Philippe Mangou (Abidjan, Côte d’Ivoire) (represented by: G. Collard and L. Aliot, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Philippe MANGOU, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact, |
| --- | --- |

—

declare that, concerning the applicant, Mr Philippe MANGOU, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,

| — | consequently,






  — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011; |
| --- | --- | --- |

—

consequently,

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011;

| — | alternatively, order that the name of Mr Philippe MANGOU be removed from the lists annexed to that regulation and to that decision. |
| --- | --- |

—

alternatively, order that the name of Mr Philippe MANGOU be removed from the lists annexed to that regulation and to that decision.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-137/11 Guiai Bi Poin v Council.

---

| 30.4.2011 | EN | Official Journal of the European Union | C 130/26 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/26

---

Action brought on 14 March 2011 — Government of Aragón and Others v Council

(Case T-150/11)

2011/C 130/53

Language of the case: Spanish

Parties

Applicants: Government of Aragón (Aragón, Spain), Principado de Asturias, Junta de Castilla y León (represented by: C. Fernández Vicién, I. Moreno-Tapia Rivas, E. Echeverría Álvarez, M. López Garrido, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

| — | annul Article 3(1)(a), (b) and (f), Article 3(3) and Article 7(2) and (3) of Council Decision 2010/787/EU; and |
| --- | --- |

—

annul Article 3(1)(a), (b) and (f), Article 3(3) and Article 7(2) and (3) of Council Decision 2010/787/EU; and

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The purpose of this action is to obtain the partial annulment of Council Decision of 10 December 2010 on State aid to facilitate the closure of uncompetitive coal mines (2010/787/EU).

In support of their action, the applicants raise three pleas in law.

| 1. | First plea in law, based on a manifest error of assessment of the facts and consequent breach of Article 194 TFEU
  The Decision makes a manifest error in the assessment of the facts when it states that the small contribution of subsidised coal to the overall energy mix no longer justifies the maintenance of such subsidies for securing the supply of energy in the European Union. In making that error, the Decision at issue infringes one of the objectives of the energy policy established in Article 194 TFEU, which at paragraph (b) establishes the obligation to guarantee to the security of the energy supply of the European Union. |
| --- | --- |

1.

First plea in law, based on a manifest error of assessment of the facts and consequent breach of Article 194 TFEU

The Decision makes a manifest error in the assessment of the facts when it states that the small contribution of subsidised coal to the overall energy mix no longer justifies the maintenance of such subsidies for securing the supply of energy in the European Union. In making that error, the Decision at issue infringes one of the objectives of the energy policy established in Article 194 TFEU, which at paragraph (b) establishes the obligation to guarantee to the security of the energy supply of the European Union.

| 2. | Second plea in law, based on breach of the principle of proportionality
  The requirement of the closure or reduction of aid received pursuant to the Decision at issue for mines which, while not competitive in 2011, may become competitive by 2018, is not proportionate with respect to the objectives pursued by the Decision at issue. Thus, the provisions contested by this action go further than is necessary to guarantee the protection of the environment, insofar as they do not lead to the reduction of the percentage of energy that is produced from carbon. Nor are the contested provisions proportional in order to achieve the objectives of competitiveness of the carbon industry, since (i) they may give rise to the closure in 2018 of mines that are competitive at that time, but by reason of the Decision at issue had had to undertake to close because in 2011 they could not continue without the aid provided for by that decision and (ii) they do not promote the maintenance of competitive mines from an environmental and security point of view. |
| --- | --- |

2.

Second plea in law, based on breach of the principle of proportionality

The requirement of the closure or reduction of aid received pursuant to the Decision at issue for mines which, while not competitive in 2011, may become competitive by 2018, is not proportionate with respect to the objectives pursued by the Decision at issue. Thus, the provisions contested by this action go further than is necessary to guarantee the protection of the environment, insofar as they do not lead to the reduction of the percentage of energy that is produced from carbon. Nor are the contested provisions proportional in order to achieve the objectives of competitiveness of the carbon industry, since (i) they may give rise to the closure in 2018 of mines that are competitive at that time, but by reason of the Decision at issue had had to undertake to close because in 2011 they could not continue without the aid provided for by that decision and (ii) they do not promote the maintenance of competitive mines from an environmental and security point of view.

| 3. | Third plea in law, based on breach of the principle of protection of legitimate expectations
  The applicants submit that certain aspects of the Decision at issue, by removing the security of supply as an objective which may be protected by the new rule, breaches the Community principle of protection of legitimate expectations. |
| --- | --- |

3.

Third plea in law, based on breach of the principle of protection of legitimate expectations

The applicants submit that certain aspects of the Decision at issue, by removing the security of supply as an objective which may be protected by the new rule, breaches the Community principle of protection of legitimate expectations.

| 4. | Fourth plea in law, based on the absence of reasons
  The applicants submit that the Decision does not give sufficient reasons for the adoption of the measures that depart from those established in the earlier Regulation and the regulatory context in which it exists. |
| --- | --- |

4.

Fourth plea in law, based on the absence of reasons

The applicants submit that the Decision does not give sufficient reasons for the adoption of the measures that depart from those established in the earlier Regulation and the regulatory context in which it exists.

---

European Union Civil Service Tribunal

| 30.4.2011 | EN | Official Journal of the European Union | C 130/27 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/27

---

Judgment of the Civil Service Tribunal (First Chamber) of 8 March 2011 — Carlo De Nicola v European Investment Bank

(Case F-59/09) (1)

(Civil service - Staff of the European Investment Bank - Appraisal - Promotion - Jurisdiction of the Tribunal - Admissibility - Implied decision of rejection - Internal Directive - Staff representative - Principle of respect for the rights of the defence)

2011/C 130/54

Language of the case: Italian

Parties

Applicant: Carlo De Nicola (Strassen, Luxembourg) (represented by: L. Isola, lawyer)

Defendant: European Investment Bank (represented by: C. Gómez de la Cruz, T. Gilliams and F. Martin, agents, and A. Dal Ferro, lawyer)

Re:

First, annulment of the promotions of 29 April 2008 which do not include the applicant’s name and the assessment of the applicant for 2007. Second, annulment of the decision of the Appeal Committee to remain seized of the matter notwithstanding an objection. Finally, a declaration that the applicant has been the victim of psychological harassment and an order that the defendant desist from such conduct and compensate the non-material and material damage suffered.

Operative part of the judgment

The Tribunal:

| 1. | Annuls the staff report for 2007 and the decision refusing M. De Nicola promotion. |
| --- | --- |

1.

Annuls the staff report for 2007 and the decision refusing M. De Nicola promotion.

| 2. | Dismisses the remainder of the heads of claim. |
| --- | --- |

2.

Dismisses the remainder of the heads of claim.

| 3. | Orders Mr De Nicola and the European Investment Bank to bear their own costs. |
| --- | --- |

3.

Orders Mr De Nicola and the European Investment Bank to bear their own costs.

---

(1)  OJ C 205 of 29.8.09 p. 49.

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| 30.4.2011 | EN | Official Journal of the European Union | C 130/27 |
| --- | --- | --- | --- |

30.4.2011

EN

Official Journal of the European Union

C 130/27

---

Order of the Civil Service Tribunal of 3 March 2011 — Dubus v Parliament

(Case F-86/10) (1)

2011/C 130/55

Language of the case: French

The President of the First Chamber has ordered that the case be removed from the register, following amicable settlement.

---

(1)  OJ C 317, 20.11.10, p. 49.

---