# Official Journal C 80/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.080.eng |
| --- | --- |
| Official Journal
  of the European Union | C 80 |
| | |
| English edition | Information and Notices | Volume 5412 March 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.080.eng

Official Journal

of the European Union

C 80

English edition

Information and Notices

Volume 5412 March 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 080/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 72, 5.3.2011 | 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 080/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 72, 5.3.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 080/02 | Case C-382/08: Judgment of the Court (Grand Chamber) of 25 January 2011 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria)) — Michael Neukirchinger v Bezirkshauptmannschaft Grieskirchen (Air transport — Licence for the organisation of commercial balloon flights — Article 12 EC — Condition of residence or company seat — Administrative sanctions) | 2 |
| 2011/C 080/03 | Case C-90/09 P: Judgment of the Court (First Chamber) of 20 January 2011 — General Química SA, Repsol Química SA, Repsol YPF SA v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Rubber chemicals sector — Decision finding an infringement of Article 81 EC — Group of undertakings — Joint and several liability of a parent company for infringements of the competition rules committed by its subsidiaries — Attribution of liability to the parent company at the head of a group) | 2 |
| 2011/C 080/04 | Case C-155/09: Judgment of the Court (First Chamber) of 20 January 2011 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Articles 12 EC, 18 EC, 39 EC and 43 EC — Articles 4, 28 and 31 of the Agreement on the European Economic Area — Tax legislation — Conditions for exemption from transfer tax on the first purchase of immoveable property — Exemption granted solely to persons residing in Greece and to persons of Greek origin not residing in Greece at the date of purchase) | 3 |
| 2011/C 080/05 | Case C-168/09: Judgment of the Court (Second Chamber) of 27 January 2011 (reference for a preliminary ruling from the Tribunale di Milano — Italy) — Flos SpA v Semeraro Casa e Famiglia SpA (Industrial and commercial property — Directive 98/71/EC — Legal protection of designs — Article 17 — Obligation concerning the cumulation of design protection with copyright protection — National law precluding copyright protection or rendering it unenforceable for a certain period in the case of designs which entered the public domain before the entry into force of the law — Principle of the protection of legitimate expectations) | 4 |
| 2011/C 080/06 | Case C-463/09: Judgment of the Court (Third Chamber) of 20 January 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla La Mancha (Spain)) — CLECE SA v María Socorro Martín Valor, Ayuntamiento de Cobisa (Social policy — Directive 2001/23/EC — Transfers of undertakings — Safeguarding of employees’ rights — Concept of transfer — Cleaning — Cleaning carried out directly by a municipal authority with recruitment of new staff) | 4 |
| 2011/C 080/07 | Case C-489/09: Judgment of the Court (Second Chamber) of 27 January 2011 (reference for a preliminary ruling from the Hof van Beroep te Gent — Belgium) — Vandoorne NV v Belgische Staat (Sixth VAT Directive — Articles 11.C(1) and 27(1) and (5) — Taxable amount — Simplification measures — Manufactured tobacco — Tax labels — Single charge of VAT at source — Intermediate supplier — Total or partial non-payment of the price — Refusal to refund VAT) | 5 |
| 2011/C 080/08 | Case C-490/09: Judgment of the Court (Second Chamber) of 27 January 2011 — European Commission v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Article 49 EC — Freedom to provide services — Non-reimbursement of costs relating to laboratory analyses and tests carried out in Member States other than the Grand Duchy of Luxembourg — National rules not providing for acceptance of liability in the form of a reimbursement of the costs paid for such analyses and tests — National rules making acceptance of liability for health care benefits subject to compliance with the conditions laid down by those rules) | 5 |
| 2011/C 080/09 | Case C-92/10 P: Judgment of the Court (Fifth Chamber) of 13 January 2011 — Media-Saturn-Holding GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Absolute ground for refusal — Lack of distinctive character — Mark consisting of an advertising slogan and composed of elements individually devoid of any distinctive character — Figurative sign BEST BUY) | 6 |
| 2011/C 080/10 | Case C-559/08 P: Order of the Court (Fifth Chamber) of 16 September 2010 — Deepak Rajani (Dear!Net Online) v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Artoz-Papier AG (Appeal — Community trade mark — Word mark ATOZ — Opposition by the proprietor of the international word mark ARTOZ — Refusal of registration) | 6 |
| 2011/C 080/11 | Case C-342/09 P: Order of the Court (Sixth Chamber) of 27 October 2010 — Victor Guedes — Indústria e Comércio SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consorci de l’Espai Rural de Gallecs, established in Gallecs (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) and (5) — Figurative mark Gallecs — Opposition by the proprietor of the national figurative marks GALLO, GALLO AZEITE NOVO, Azeite Novo and the Community figurative mark GALLO — Rejection of the opposition — Appeal in part clearly inadmissible and in part clearly unfounded) | 7 |
| 2011/C 080/12 | Case C-459/09 P: Order of the Court (Fifth Chamber) of 16 September 2010 — Dominio de la Vega, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Ambrosio Velasco SA (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Application for Community figurative mark DOMINIO DE LA VEGA — Earlier Community figurative mark PALACIO DE LA VEGA — Existence of a likelihood of confusion in part of the territory of the European Union — Assessment of the similarity between the marks — Dominant element) | 7 |
| 2011/C 080/13 | Case C-487/09: Order of the Court (Eighth Chamber) of 6 October 2010 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Inmogolf SA v Dirección General de Tributos de la Consejería de Economia y Hacienda de la Comunidad Autónoma de Murcia (Article 104(3), first subparagraph, of the Rules of Procedure — Directive 69/335/EEC — Indirect taxes — Raising of capital — Transfer of securities — Capital of a company mostly made up of immovable property) | 8 |
| 2011/C 080/14 | Case C-532/09 P: Order of the Court of 4 October 2010 — Vladimir Ivanov v European Commission (Appeal — Action for non-contractual liability — Loss of an opportunity for recruitment — Abuse of process — Appeal in part manifestly inadmissible and in part manifestly unfounded) | 8 |
| 2011/C 080/15 | Joined Cases C-74/10 P and C-75/10 P: Order of the Court (Seventh Chamber) of 29 September 2010 — European Renewable Energies Federation ASBL v European Commission (Appeal — Article 19 of the Statute of the Court of Justice — Representation of a party by a lawyer who is not a third party — Manifest inadmissibility) | 9 |
| 2011/C 080/16 | Case C-84/10 P: Judgment of the Court (Sixth Chamber) of 22 October 2010 — Longevity Health Products, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Merck KGaA (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Word sign Kids Vits — Opposition by the proprietor of the Community word mark VITS4KIDS — Level of attention of the relevant public — Likelihood of confusion — Similarity of the signs — Right to be heard) | 9 |
| 2011/C 080/17 | Case C-290/10 P: Order of the Court (Eighth Chamber) of 9 September 2010 — Franssons Verkstäder AB v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Lindner Recyclingtech GmbH (Appeal — Action before the General Court against a decision of the Third Board of Appeal of OHIM — Regulation (EC) No 6/2002 — Time-limit allowed for bringing proceedings — Inadmissibility due to delay — Appeal clearly unfounded) | 9 |
| 2011/C 080/18 | Case C-513/10 P: Appeal brought on 14 October 2010 by Dimitris Platis against the order of the General Court (First Chamber) delivered on 30 September 2010 in Case T-311/10 Dimitris Platis v Council and Greece | 10 |
| 2011/C 080/19 | Case C-587/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 December 2010 — Vogtländische Straßen- Tief und Rohrleitungsbau GmbH (VSTR) v Finanzamt Plauen; other participant: Bundesministerium der Finanzen | 10 |
| 2011/C 080/20 | Case C-594/10: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 17 December 2010 — T.G. van Laarhoven v Staatssecretaris van Financiën | 10 |
| 2011/C 080/21 | Case C-600/10: Action brought on 16 December 2010 — European Commission v Federal Republic of Germany | 11 |
| 2011/C 080/22 | Case C-603/10: Reference for a preliminary ruling from the Upravno sodišče (Slovenia) lodged on 21 December 2010 — Pelati d.o.o. v Republic of Slovenia | 12 |
| 2011/C 080/23 | Case C-613/10: Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 30 December 2010 — Danilo Debiasi v Agenzia delle Entrate Ufficio di Parma | 12 |
| 2011/C 080/24 | Case C-622/10: Reference for a preliminary ruling from the Tribunal de première instance, Namur (Belgium) lodged on 22 December 2010 — Rémi Paquot v État Belge — SPF Finances | 12 |
| 2011/C 080/25 | Case C-623/10: Reference for a preliminary ruling from the Tribunal de première instance de Namur (Belgium) lodged on 22 December 2010 — Adrien Daxhelet v État Belge — SPF Finances | 13 |
| 2011/C 080/26 | Case C-7/11: Reference for a preliminary ruling from the Tribunale di Palermo (Italy) lodged on 5 January 2011 — Public Prosecutor v Fabio Caronna | 14 |
| 2011/C 080/27 | Case C-12/11: Reference for a preliminary ruling from Dublin Metropolitan District Court (Ireland) made on 10 January 2011 — Danise McDonagh v Ryanair Ltd | 14 |
| 2011/C 080/28 | Case C-14/11 P: Appeal brought on 11 January 2011 by European Commission against the judgment of the General Court (Fourth Chamber) delivered on 27 October 2010 in Case T-24/05: Alliance One International, Inc. (formerly Standard Commercial Corp.), Standard Commercial Tobacco Company, Inc., Trans-Continental Leaf Tobacco Corp. Ltd v European Commission | 15 |
| 2011/C 080/29 | Case C-20/11: Action brought on 13 January 2011 — European Commission v Republic of Poland | 15 |
| 2011/C 080/30 | Case C-22/11: Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 17 January 2011 — Finnair Oyj v Timy Lassooy | 15 |
| 2011/C 080/31 | Case C-37/11: Action brought on 25 January 2011 — European Commission v Czech Republic | 16 |
| 2011/C 080/32 | Case C-455/09: Order of the President of the Court of 22 September 2010 — European Commission v Republic of Poland | 17 |
| 2011/C 080/33 | Case C-525/09: Order of the President of the Sixth Chamber of the Court of 28 September 2010 — European Commission v Portuguese Republic | 17 |
| | General Court |
| 2011/C 080/34 | Case T-437/09: Judgment of the General Court of 2 February 2011 — Oyster Cosmetics v OHIM — Kadabell (Oyster cosmetics) (Community trade mark — Opposition proceedings — Application for Community figurative mark Oyster cosmetics — Earlier Community figurative mark Kadus oystra AUTO STOP PROTECTION — Relative ground for refusal — Likelihood of confusion — Similarity of signs — Article 8(1)(b) of Regulation (EC) No 207/2009) | 18 |
| 2011/C 080/35 | Case T-54/07: Order of the General Court of 21 January 2011 — Vtesse Networks Ltd v Commission (Application for annulment — State aid — Telecommunications — Tax on non-domestic property of undertakings in the United Kingdom — Decision finding that the measure at issue does not constitute aid — No individual concern — Inadmissibility) | 18 |
| 2011/C 080/36 | Case T-586/10: Action brought on 22 December 2010 — Aktieselskabet af 21. november 2001 v OHMI — Parfums Givenchy (only givenchy) | 19 |
| 2011/C 080/37 | Case T-592/10: Action brought on 27 December 2010 — El Corte Inglés v OHIM — Technisynthese (BTS) | 19 |
| 2011/C 080/38 | Case T-593/10: Action brought on 29 December 2010 — El Corte Inglés v OHIM — Ruan (B) | 20 |
| 2011/C 080/39 | Case T-596/10: Action brought on 28 December 2010 — Almunia Textil v OHIM — FIBA Europe (EuroBasket) | 20 |
| 2011/C 080/40 | Case T-597/10: Action brought on 27 December 2010 — Biodes v OHIM — Manasul International (BIESUL) | 21 |
| 2011/C 080/41 | Case T-598/10: Action brought on 27 December 2010 — Biodes v OHIM — Manasul International (LINEASUL) | 21 |
| 2011/C 080/42 | Case T-14/11: Action brought on 11 January 2011 — Timab Industries and CFPR v Commission | 22 |
| 2011/C 080/43 | Case T-23/11: Action brought on 17 January 2011 — El Corte Inglés v OHIM — BA&SH (ba&sh) | 22 |
| 2011/C 080/44 | Case T-24/11: Action brought on 19 January 2011 — Bank Refah Kargaran v Council | 23 |
| 2011/C 080/45 | Case T-25/11: Action brought on 17 January 2011 — Germans Boada v OHIM (Shape of a ceramics cutter) | 23 |
| 2011/C 080/46 | Case T-29/11: Action brought on 14 January 2011 — Technische Universität Dresden v Commission | 23 |
| 2011/C 080/47 | Case T-33/11: Action brought on 24 January 2011 — Peeters Landbouwmachines v OHIM — Fors MW (BIGAB) | 24 |
| 2011/C 080/48 | Case T-34/11: Action brought on 24 January 2011 — Canon Europa v Commission | 24 |
| 2011/C 080/49 | Case T-35/11: Action brought on 24 January 2011 — Kyocera Mita Europe v Commission | 25 |
| 2011/C 080/50 | Case T-36/11: Action brought on 24 January 2011 — Japan Airlines v Commission | 25 |
| 2011/C 080/51 | Case T-39/11: Action brought on 24 January 2011 — Cargolux Airlines v Commission | 26 |
| 2011/C 080/52 | Case T-40/11: Action brought on 24 January 2011 — Lan Airlines and Lan Cargo v Commission | 27 |
| 2011/C 080/53 | Case T-42/11: Action brought on 19 January 2011 — Universal v Commission | 28 |
| 2011/C 080/54 | Case T-44/11: Action brought on 17 January 2011 — Italy v Commission | 29 |
| 2011/C 080/55 | Case T-45/11: Action brought on 21 January 2011 — Italy v Commission | 30 |
| 2011/C 080/56 | Case T-46/11: Action brought on 24 January 2011 — Deutsche Lufthansa and Others v Commission | 31 |
| 2011/C 080/57 | Case T-48/11: Action brought on 24 January 2011 — British Airways v Commission | 32 |
| 2011/C 080/58 | Case T-54/11: Action brought on 27 January 2011 — Spain v Commission | 33 |
| 2011/C 080/59 | Case T-57/11: Action brought on 27 January 2011 — Castelnou Energía v Commission | 33 |
| 2011/C 080/60 | Case T-399/07: Order of the General Court of 25 January 2011 — Basell Polyolefine v Commission | 34 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 080/02

Case C-382/08: Judgment of the Court (Grand Chamber) of 25 January 2011 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria)) — Michael Neukirchinger v Bezirkshauptmannschaft Grieskirchen (Air transport — Licence for the organisation of commercial balloon flights — Article 12 EC — Condition of residence or company seat — Administrative sanctions)

2

2011/C 080/03

Case C-90/09 P: Judgment of the Court (First Chamber) of 20 January 2011 — General Química SA, Repsol Química SA, Repsol YPF SA v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Rubber chemicals sector — Decision finding an infringement of Article 81 EC — Group of undertakings — Joint and several liability of a parent company for infringements of the competition rules committed by its subsidiaries — Attribution of liability to the parent company at the head of a group)

2

2011/C 080/04

Case C-155/09: Judgment of the Court (First Chamber) of 20 January 2011 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Articles 12 EC, 18 EC, 39 EC and 43 EC — Articles 4, 28 and 31 of the Agreement on the European Economic Area — Tax legislation — Conditions for exemption from transfer tax on the first purchase of immoveable property — Exemption granted solely to persons residing in Greece and to persons of Greek origin not residing in Greece at the date of purchase)

3

2011/C 080/05

Case C-168/09: Judgment of the Court (Second Chamber) of 27 January 2011 (reference for a preliminary ruling from the Tribunale di Milano — Italy) — Flos SpA v Semeraro Casa e Famiglia SpA (Industrial and commercial property — Directive 98/71/EC — Legal protection of designs — Article 17 — Obligation concerning the cumulation of design protection with copyright protection — National law precluding copyright protection or rendering it unenforceable for a certain period in the case of designs which entered the public domain before the entry into force of the law — Principle of the protection of legitimate expectations)

4

2011/C 080/06

Case C-463/09: Judgment of the Court (Third Chamber) of 20 January 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla La Mancha (Spain)) — CLECE SA v María Socorro Martín Valor, Ayuntamiento de Cobisa (Social policy — Directive 2001/23/EC — Transfers of undertakings — Safeguarding of employees’ rights — Concept of transfer — Cleaning — Cleaning carried out directly by a municipal authority with recruitment of new staff)

4

2011/C 080/07

Case C-489/09: Judgment of the Court (Second Chamber) of 27 January 2011 (reference for a preliminary ruling from the Hof van Beroep te Gent — Belgium) — Vandoorne NV v Belgische Staat (Sixth VAT Directive — Articles 11.C(1) and 27(1) and (5) — Taxable amount — Simplification measures — Manufactured tobacco — Tax labels — Single charge of VAT at source — Intermediate supplier — Total or partial non-payment of the price — Refusal to refund VAT)

5

2011/C 080/08

Case C-490/09: Judgment of the Court (Second Chamber) of 27 January 2011 — European Commission v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Article 49 EC — Freedom to provide services — Non-reimbursement of costs relating to laboratory analyses and tests carried out in Member States other than the Grand Duchy of Luxembourg — National rules not providing for acceptance of liability in the form of a reimbursement of the costs paid for such analyses and tests — National rules making acceptance of liability for health care benefits subject to compliance with the conditions laid down by those rules)

5

2011/C 080/09

Case C-92/10 P: Judgment of the Court (Fifth Chamber) of 13 January 2011 — Media-Saturn-Holding GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Absolute ground for refusal — Lack of distinctive character — Mark consisting of an advertising slogan and composed of elements individually devoid of any distinctive character — Figurative sign BEST BUY)

6

2011/C 080/10

Case C-559/08 P: Order of the Court (Fifth Chamber) of 16 September 2010 — Deepak Rajani (Dear!Net Online) v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Artoz-Papier AG (Appeal — Community trade mark — Word mark ATOZ — Opposition by the proprietor of the international word mark ARTOZ — Refusal of registration)

6

2011/C 080/11

Case C-342/09 P: Order of the Court (Sixth Chamber) of 27 October 2010 — Victor Guedes — Indústria e Comércio SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consorci de l’Espai Rural de Gallecs, established in Gallecs (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) and (5) — Figurative mark Gallecs — Opposition by the proprietor of the national figurative marks GALLO, GALLO AZEITE NOVO, Azeite Novo and the Community figurative mark GALLO — Rejection of the opposition — Appeal in part clearly inadmissible and in part clearly unfounded)

7

2011/C 080/12

Case C-459/09 P: Order of the Court (Fifth Chamber) of 16 September 2010 — Dominio de la Vega, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Ambrosio Velasco SA (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Application for Community figurative mark DOMINIO DE LA VEGA — Earlier Community figurative mark PALACIO DE LA VEGA — Existence of a likelihood of confusion in part of the territory of the European Union — Assessment of the similarity between the marks — Dominant element)

7

2011/C 080/13

Case C-487/09: Order of the Court (Eighth Chamber) of 6 October 2010 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Inmogolf SA v Dirección General de Tributos de la Consejería de Economia y Hacienda de la Comunidad Autónoma de Murcia (Article 104(3), first subparagraph, of the Rules of Procedure — Directive 69/335/EEC — Indirect taxes — Raising of capital — Transfer of securities — Capital of a company mostly made up of immovable property)

8

2011/C 080/14

Case C-532/09 P: Order of the Court of 4 October 2010 — Vladimir Ivanov v European Commission (Appeal — Action for non-contractual liability — Loss of an opportunity for recruitment — Abuse of process — Appeal in part manifestly inadmissible and in part manifestly unfounded)

8

2011/C 080/15

Joined Cases C-74/10 P and C-75/10 P: Order of the Court (Seventh Chamber) of 29 September 2010 — European Renewable Energies Federation ASBL v European Commission (Appeal — Article 19 of the Statute of the Court of Justice — Representation of a party by a lawyer who is not a third party — Manifest inadmissibility)

9

2011/C 080/16

Case C-84/10 P: Judgment of the Court (Sixth Chamber) of 22 October 2010 — Longevity Health Products, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Merck KGaA (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Word sign Kids Vits — Opposition by the proprietor of the Community word mark VITS4KIDS — Level of attention of the relevant public — Likelihood of confusion — Similarity of the signs — Right to be heard)

9

2011/C 080/17

Case C-290/10 P: Order of the Court (Eighth Chamber) of 9 September 2010 — Franssons Verkstäder AB v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Lindner Recyclingtech GmbH (Appeal — Action before the General Court against a decision of the Third Board of Appeal of OHIM — Regulation (EC) No 6/2002 — Time-limit allowed for bringing proceedings — Inadmissibility due to delay — Appeal clearly unfounded)

9

2011/C 080/18

Case C-513/10 P: Appeal brought on 14 October 2010 by Dimitris Platis against the order of the General Court (First Chamber) delivered on 30 September 2010 in Case T-311/10 Dimitris Platis v Council and Greece

10

2011/C 080/19

Case C-587/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 December 2010 — Vogtländische Straßen- Tief und Rohrleitungsbau GmbH (VSTR) v Finanzamt Plauen; other participant: Bundesministerium der Finanzen

10

2011/C 080/20

Case C-594/10: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 17 December 2010 — T.G. van Laarhoven v Staatssecretaris van Financiën

10

2011/C 080/21

Case C-600/10: Action brought on 16 December 2010 — European Commission v Federal Republic of Germany

11

2011/C 080/22

Case C-603/10: Reference for a preliminary ruling from the Upravno sodišče (Slovenia) lodged on 21 December 2010 — Pelati d.o.o. v Republic of Slovenia

12

2011/C 080/23

Case C-613/10: Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 30 December 2010 — Danilo Debiasi v Agenzia delle Entrate Ufficio di Parma

12

2011/C 080/24

Case C-622/10: Reference for a preliminary ruling from the Tribunal de première instance, Namur (Belgium) lodged on 22 December 2010 — Rémi Paquot v État Belge — SPF Finances

12

2011/C 080/25

Case C-623/10: Reference for a preliminary ruling from the Tribunal de première instance de Namur (Belgium) lodged on 22 December 2010 — Adrien Daxhelet v État Belge — SPF Finances

13

2011/C 080/26

Case C-7/11: Reference for a preliminary ruling from the Tribunale di Palermo (Italy) lodged on 5 January 2011 — Public Prosecutor v Fabio Caronna

14

2011/C 080/27

Case C-12/11: Reference for a preliminary ruling from Dublin Metropolitan District Court (Ireland) made on 10 January 2011 — Danise McDonagh v Ryanair Ltd

14

2011/C 080/28

Case C-14/11 P: Appeal brought on 11 January 2011 by European Commission against the judgment of the General Court (Fourth Chamber) delivered on 27 October 2010 in Case T-24/05: Alliance One International, Inc. (formerly Standard Commercial Corp.), Standard Commercial Tobacco Company, Inc., Trans-Continental Leaf Tobacco Corp. Ltd v European Commission

15

2011/C 080/29

Case C-20/11: Action brought on 13 January 2011 — European Commission v Republic of Poland

15

2011/C 080/30

Case C-22/11: Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 17 January 2011 — Finnair Oyj v Timy Lassooy

15

2011/C 080/31

Case C-37/11: Action brought on 25 January 2011 — European Commission v Czech Republic

16

2011/C 080/32

Case C-455/09: Order of the President of the Court of 22 September 2010 — European Commission v Republic of Poland

17

2011/C 080/33

Case C-525/09: Order of the President of the Sixth Chamber of the Court of 28 September 2010 — European Commission v Portuguese Republic

17

General Court

2011/C 080/34

Case T-437/09: Judgment of the General Court of 2 February 2011 — Oyster Cosmetics v OHIM — Kadabell (Oyster cosmetics) (Community trade mark — Opposition proceedings — Application for Community figurative mark Oyster cosmetics — Earlier Community figurative mark Kadus oystra AUTO STOP PROTECTION — Relative ground for refusal — Likelihood of confusion — Similarity of signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

18

2011/C 080/35

Case T-54/07: Order of the General Court of 21 January 2011 — Vtesse Networks Ltd v Commission (Application for annulment — State aid — Telecommunications — Tax on non-domestic property of undertakings in the United Kingdom — Decision finding that the measure at issue does not constitute aid — No individual concern — Inadmissibility)

18

2011/C 080/36

Case T-586/10: Action brought on 22 December 2010 — Aktieselskabet af 21. november 2001 v OHMI — Parfums Givenchy (only givenchy)

19

2011/C 080/37

Case T-592/10: Action brought on 27 December 2010 — El Corte Inglés v OHIM — Technisynthese (BTS)

19

2011/C 080/38

Case T-593/10: Action brought on 29 December 2010 — El Corte Inglés v OHIM — Ruan (B)

20

2011/C 080/39

Case T-596/10: Action brought on 28 December 2010 — Almunia Textil v OHIM — FIBA Europe (EuroBasket)

20

2011/C 080/40

Case T-597/10: Action brought on 27 December 2010 — Biodes v OHIM — Manasul International (BIESUL)

21

2011/C 080/41

Case T-598/10: Action brought on 27 December 2010 — Biodes v OHIM — Manasul International (LINEASUL)

21

2011/C 080/42

Case T-14/11: Action brought on 11 January 2011 — Timab Industries and CFPR v Commission

22

2011/C 080/43

Case T-23/11: Action brought on 17 January 2011 — El Corte Inglés v OHIM — BA&SH (ba&sh)

22

2011/C 080/44

Case T-24/11: Action brought on 19 January 2011 — Bank Refah Kargaran v Council

23

2011/C 080/45

Case T-25/11: Action brought on 17 January 2011 — Germans Boada v OHIM (Shape of a ceramics cutter)

23

2011/C 080/46

Case T-29/11: Action brought on 14 January 2011 — Technische Universität Dresden v Commission

23

2011/C 080/47

Case T-33/11: Action brought on 24 January 2011 — Peeters Landbouwmachines v OHIM — Fors MW (BIGAB)

24

2011/C 080/48

Case T-34/11: Action brought on 24 January 2011 — Canon Europa v Commission

24

2011/C 080/49

Case T-35/11: Action brought on 24 January 2011 — Kyocera Mita Europe v Commission

25

2011/C 080/50

Case T-36/11: Action brought on 24 January 2011 — Japan Airlines v Commission

25

2011/C 080/51

Case T-39/11: Action brought on 24 January 2011 — Cargolux Airlines v Commission

26

2011/C 080/52

Case T-40/11: Action brought on 24 January 2011 — Lan Airlines and Lan Cargo v Commission

27

2011/C 080/53

Case T-42/11: Action brought on 19 January 2011 — Universal v Commission

28

2011/C 080/54

Case T-44/11: Action brought on 17 January 2011 — Italy v Commission

29

2011/C 080/55

Case T-45/11: Action brought on 21 January 2011 — Italy v Commission

30

2011/C 080/56

Case T-46/11: Action brought on 24 January 2011 — Deutsche Lufthansa and Others v Commission

31

2011/C 080/57

Case T-48/11: Action brought on 24 January 2011 — British Airways v Commission

32

2011/C 080/58

Case T-54/11: Action brought on 27 January 2011 — Spain v Commission

33

2011/C 080/59

Case T-57/11: Action brought on 27 January 2011 — Castelnou Energía v Commission

33

2011/C 080/60

Case T-399/07: Order of the General Court of 25 January 2011 — Basell Polyolefine v Commission

34

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 12.3.2011 | EN | Official Journal of the European Union | C 80/1 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/1

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2011/C 80/01

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

OJ C 72, 5.3.2011

Past publications

OJ C 63, 26.2.2011

OJ C 55, 19.2.2011

OJ C 46, 12.2.2011

OJ C 38, 5.2.2011

OJ C 30, 29.1.2011

OJ C 13, 15.1.2011

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 12.3.2011 | EN | Official Journal of the European Union | C 80/2 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/2

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Judgment of the Court (Grand Chamber) of 25 January 2011 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria)) — Michael Neukirchinger v Bezirkshauptmannschaft Grieskirchen

(Case C-382/08) (1)

(Air transport - Licence for the organisation of commercial balloon flights - Article 12 EC - Condition of residence or company seat - Administrative sanctions)

2011/C 80/02

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat des Landes Oberösterreich

Parties to the main proceedings

Applicant: Michael Neukirchinger

Defendant: Bezirkshauptmannschaft Grieskirchen

Re:

Reference for a preliminary ruling — Unabhängiger Verwaltungssenat des Landes Oberösterreich — Interpretation of Article 49 et seq. of the EC Treaty — National legislation prohibiting, on pain of administrative criminal penalties, the organisation of commercial balloon flights without a national licence, the issue of which is subject to the condition that the applicant for the licence has a place of residence or registered office within the country

Operative part of the judgment

Article 12 EC precludes legislation of a Member State, such as that at issue in the main proceedings, which, for the organisation of balloon flights in that Member State and subject to administrative sanctions in the event of failure to comply with that legislation,

requires a person resident or established in another Member State, who is licensed in that second Member State to operate commercial balloon flights, to have a place of residence or company seat in the first Member State, and

obliges that person to obtain a new licence, without due account being taken of the fact that the conditions of issue are, essentially, the same as those which apply to the licence already issued to that person in the second Member State.

---

(1)  OJ C 285, 8.11.2008.

---

| 12.3.2011 | EN | Official Journal of the European Union | C 80/2 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/2

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Judgment of the Court (First Chamber) of 20 January 2011 — General Química SA, Repsol Química SA, Repsol YPF SA v European Commission

(Case C-90/09 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Rubber chemicals sector - Decision finding an infringement of Article 81 EC - Group of undertakings - Joint and several liability of a parent company for infringements of the competition rules committed by its subsidiaries - Attribution of liability to the parent company at the head of a group)

2011/C 80/03

Language of the case: Spanish

Parties

Appellants: General Química SA, Repsol Química SA, Repsol YPF SA (represented by: J.M. Jiménez-Laiglesia Oñate and J. Jiménez-Laiglesia Oñate, abogados)

Other party to the proceedings: European Commission (represented by: F. Castillo de la Torre and E. Grippini Fournier, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Sixth Chamber) of 18 December 2008 in Case T-85/06 General Química and Others v Commission, by which the Court of First Instance dismissed the application for the partial annulment of Commission Decision 2006/902/CE of 21 December 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Flexsys NV, Bayer AG, Crompton Manufacturing Company Inc. (former Uniroyal Chemical Company Inc.), Crompton Europe Ltd, Chemtura Corporation (former Crompton Corporation), General Química SA, Repsol Química SA and Repsol YPF SA (Case No COMP/F/C.38.443 — Rubber chemicals) (OJ 2006 L 353, p. 50) and, in the lesser alternative, seeking a reduction of the fine imposed on the applicants

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 18 December 2008 in Case T-85/06 General Química and Others v Commission, in so far as it dismisses the action brought by General Química SA, Repsol Química SA and Repsol YPF SA seeking annulment of Commission Decision 2006/902/EC of 21 December 2005 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement against Flexsys NV, Bayer AG, Crompton Manufacturing Company Inc. (formerly Uniroyal Chemical Company Inc.), Crompton Europe Ltd, Chemtura Corporation (formerly Crompton Corporation), General Química SA, Repsol Química SA and Repsol YPF SA (Case No COMP/F/C.38.443 — Rubber chemicals), in so far as, first, the Court of First Instance did not set out the reasons behind its conclusion that the order given by Repsol Qímica SA to General Química SA to cease any practice which might constitute an infringement of the competition rules was sufficient, in itself, to prove that Repsol Química SA exercised a decisive influence over General Química SA’s policy not only on the market but also as regards the unlawful conduct at issue in Decision 2006/902 and, second, the Court of First Instance failed to conduct a concrete examination of the evidence submitted by General Química SA, Repsol Química SA and Repsol YPF SA to demonstrate General Química SA’s independence in determining and implementing its commercial policy; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 18 December 2008 in Case T-85/06 General Química and Others v Commission, in so far as it dismisses the action brought by General Química SA, Repsol Química SA and Repsol YPF SA seeking annulment of Commission Decision 2006/902/EC of 21 December 2005 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement against Flexsys NV, Bayer AG, Crompton Manufacturing Company Inc. (formerly Uniroyal Chemical Company Inc.), Crompton Europe Ltd, Chemtura Corporation (formerly Crompton Corporation), General Química SA, Repsol Química SA and Repsol YPF SA (Case No COMP/F/C.38.443 — Rubber chemicals), in so far as, first, the Court of First Instance did not set out the reasons behind its conclusion that the order given by Repsol Qímica SA to General Química SA to cease any practice which might constitute an infringement of the competition rules was sufficient, in itself, to prove that Repsol Química SA exercised a decisive influence over General Química SA’s policy not only on the market but also as regards the unlawful conduct at issue in Decision 2006/902 and, second, the Court of First Instance failed to conduct a concrete examination of the evidence submitted by General Química SA, Repsol Química SA and Repsol YPF SA to demonstrate General Química SA’s independence in determining and implementing its commercial policy;

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

2.

Dismisses the appeal as to the remainder;

| 3. | Dismisses the action brought by General Química SA, Repsol Química SA and Repsol YPF SA before the Court of First Instance of the European Communities; |
| --- | --- |

3.

Dismisses the action brought by General Química SA, Repsol Química SA and Repsol YPF SA before the Court of First Instance of the European Communities;

| 4. | Orders each party to bear its own costs relating to the appeal and orders General Química SA, Repsol Química SA and Repsol YPF SA to pay all of the costs at first instance. |
| --- | --- |

4.

Orders each party to bear its own costs relating to the appeal and orders General Química SA, Repsol Química SA and Repsol YPF SA to pay all of the costs at first instance.

---

(1)  OJ C 90, 18.4.2009.

---

| 12.3.2011 | EN | Official Journal of the European Union | C 80/3 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/3

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Judgment of the Court (First Chamber) of 20 January 2011 — European Commission v Hellenic Republic

(Case C-155/09) (1)

(Failure of a Member State to fulfil obligations - Articles 12 EC, 18 EC, 39 EC and 43 EC - Articles 4, 28 and 31 of the Agreement on the European Economic Area - Tax legislation - Conditions for exemption from transfer tax on the first purchase of immoveable property - Exemption granted solely to persons residing in Greece and to persons of Greek origin not residing in Greece at the date of purchase)

2011/C 80/04

Language of the case: Greek

Parties

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

Defendant: Hellenic Republic (represented by: P. Mylonopoulos and V. Karra, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Arts 18, 39 and 43 EC — Exemption from transfer tax on the purchase of a first property — Exemption solely for persons already resident in the country and for Greek citizens who do not reside there when the property is purchased

Operative part of the judgment

The Court:

| 1. | Declares that,






  — | by granting exemption from the tax on the transfer of immovable property, under Article 1(1) and (3), first subparagraph, of Law 1078/1980, solely to persons permanently resident in Greece, whilst non-residents who intend to settle in Greece in the future are not granted exemption from the tax, and |
| --- | --- | --- |

1.

Declares that,

—

by granting exemption from the tax on the transfer of immovable property, under Article 1(1) and (3), first subparagraph, of Law 1078/1980, solely to persons permanently resident in Greece, whilst non-residents who intend to settle in Greece in the future are not granted exemption from the tax, and

| — | by granting, on certain conditions, exemption from the tax solely to Greek nationals or persons of Greek origin on the purchase of a first residence in Greece, |
| --- | --- |

—

by granting, on certain conditions, exemption from the tax solely to Greek nationals or persons of Greek origin on the purchase of a first residence in Greece,

the Hellenic Republic has failed to fulfil its obligations under Articles 12 EC, 18 EC, 39 EC and 43 EC and under Articles 4, 28 and 31 of the Agreement on the European Economic Area of 2 May 1992.

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 167, 18.7.2009.

---

| 12.3.2011 | EN | Official Journal of the European Union | C 80/4 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/4

---

Judgment of the Court (Second Chamber) of 27 January 2011 (reference for a preliminary ruling from the Tribunale di Milano — Italy) — Flos SpA v Semeraro Casa e Famiglia SpA

(Case C-168/09) (1)

(Industrial and commercial property - Directive 98/71/EC - Legal protection of designs - Article 17 - Obligation concerning the cumulation of design protection with copyright protection - National law precluding copyright protection or rendering it unenforceable for a certain period in the case of designs which entered the public domain before the entry into force of the law - Principle of the protection of legitimate expectations)

2011/C 80/05

Language of the case: Italian

Referring court

Tribunale di Milano

Parties to the main proceedings

Applicant: Flos SpA

Defendant: Semeraro Casa e Famiglia SpA

Intervener: Assoluce — Associazione nazionale delle Imprese degli Apparecchi di Illuminazione

Re:

Reference for a preliminary ruling — Tribunale di Milano — Interpretation of Articles 17 and 19 of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs — National legislation implementing the directive by introducing copyright protection for designs — Entitlement of a Member State to extend the conditions for the granting of such protection

Operative part of the judgment

| 1. | Article 17 of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs must be interpreted as precluding legislation of a Member State which excludes from copyright protection in that Member State designs which were protected by a design right registered in or in respect of a Member State and which entered the public domain before the date of entry into force of that legislation, although they meet all the requirements to be eligible for copyright protection. |
| --- | --- |

1.

Article 17 of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs must be interpreted as precluding legislation of a Member State which excludes from copyright protection in that Member State designs which were protected by a design right registered in or in respect of a Member State and which entered the public domain before the date of entry into force of that legislation, although they meet all the requirements to be eligible for copyright protection.

| 2. | Article 17 of Directive 98/71 must be interpreted as precluding legislation of a Member State which — either for a substantial period of 10 years or completely — excludes from copyright protection designs which, although they meet all the requirements to be eligible for copyright protection, entered the public domain before the date of entry into force of that legislation, that being the case with regard to any third party who has manufactured or marketed products based on such designs in that State — irrespective of the date on which those acts were performed. |
| --- | --- |

2.

Article 17 of Directive 98/71 must be interpreted as precluding legislation of a Member State which — either for a substantial period of 10 years or completely — excludes from copyright protection designs which, although they meet all the requirements to be eligible for copyright protection, entered the public domain before the date of entry into force of that legislation, that being the case with regard to any third party who has manufactured or marketed products based on such designs in that State — irrespective of the date on which those acts were performed.

---

(1)  OJ C 167, 18.7.2009.

---

| 12.3.2011 | EN | Official Journal of the European Union | C 80/4 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/4

---

Judgment of the Court (Third Chamber) of 20 January 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla La Mancha (Spain)) — CLECE SA v María Socorro Martín Valor, Ayuntamiento de Cobisa

(Case C-463/09) (1)

(Social policy - Directive 2001/23/EC - Transfers of undertakings - Safeguarding of employees’ rights - Concept of ‘transfer’ - Cleaning - Cleaning carried out directly by a municipal authority with recruitment of new staff)

2011/C 80/06

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Castilla La Mancha

Parties to the main proceedings

Applicant: CLECE SA

Defendants: María Socorro Martín Valor, Ayuntamiento de Cobisa

Re:

Reference for a preliminary ruling — Tribunal Superior de Justicia de Castilla La Mancha — Interpretation of Art. 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16) — Scope — Municipal authority, acting as a public authority, taking over the cleaning of a public building

Operative part of the judgment

Article 1(1)(a) and (b) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that the directive does not apply to a situation in which a municipal authority which has contracted out the cleaning of its premises to a private company decides to terminate its contract with that company and to undertake the cleaning of those premises itself by hiring new staff for that purpose.

---

(1)  OJ C 63, 13.3.2010.

---

| 12.3.2011 | EN | Official Journal of the European Union | C 80/5 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/5

---

Judgment of the Court (Second Chamber) of 27 January 2011 (reference for a preliminary ruling from the Hof van Beroep te Gent — Belgium) — Vandoorne NV v Belgische Staat

(Case C-489/09) (1)

(Sixth VAT Directive - Articles 11.C(1) and 27(1) and (5) - Taxable amount - Simplification measures - Manufactured tobacco - Tax labels - Single charge of VAT at source - Intermediate supplier - Total or partial non-payment of the price - Refusal to refund VAT)

2011/C 80/07

Language of the case: Dutch

Referring court

Hof van Beroep te Gent

Parties to the main proceedings

Applicant: Vandoorne NV

Defendant: Belgische Staat

Re:

Reference for a preliminary ruling — Hof van Beroep te Gent — Interpretation of Articles 11.C(1) and 27 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) — Simplification measures — National legislation providing for VAT to be charged at source in the case of manufactured tobacco imported, acquired or produced within the country, precluding a reduction in the basis of assessment for taxpayers who have paid tax on those products

Operative part of the judgment

Articles 11.C(1) and 27(1) and (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, as amended by Council Directive 2004/7/EC of 20 January 2004, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which, by providing, for the purposes of simplifying the procedure for charging value added tax and of combating tax evasion or avoidance in regard to manufactured tobacco, for the levying of that tax by means of tax labels, in a single charge and at source, from the manufacturer or importer of those products, excludes intermediate suppliers operating at a subsequent stage in the supply chain from the right to obtain reimbursement of value added tax in the event of non-payment by the purchaser of the price for those products.

---

(1)  OJ C 37, 13.02.2010.

---

| 12.3.2011 | EN | Official Journal of the European Union | C 80/5 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/5

---

Judgment of the Court (Second Chamber) of 27 January 2011 — European Commission v Grand Duchy of Luxembourg

(Case C-490/09) (1)

(Failure of a Member State to fulfil obligations - Article 49 EC - Freedom to provide services - Non-reimbursement of costs relating to laboratory analyses and tests carried out in Member States other than the Grand Duchy of Luxembourg - National rules not providing for acceptance of liability in the form of a reimbursement of the costs paid for such analyses and tests - National rules making acceptance of liability for health care benefits subject to compliance with the conditions laid down by those rules)

2011/C 80/08

Language of the case: French

Parties

Applicant: European Commission (represented by: G. Rozet and E. Traversa, Agents)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent, A. Rodesch, avocat)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Article 49 EC (Article 56 TFEU) — National provisions precluding the reimbursement of medical analyses and laboratory tests carried out in other Member States — Costs accepted only where such tests and analyses are carried out within a laboratory which fully complies with the conditions laid down by national legislation

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to provide, under its social security rules, for the possibility of acceptance of liability for costs relating to laboratory analyses and tests, within the meaning of Article 24 of the Luxembourg Social Security Code, in the version applicable to the dispute, which are carried out in another Member State, by means of reimbursement of the costs paid for those analyses and tests, but by providing solely for a system of direct billing to sickness insurance funds, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC. |
| --- | --- |

1.

Declares that, by failing to provide, under its social security rules, for the possibility of acceptance of liability for costs relating to laboratory analyses and tests, within the meaning of Article 24 of the Luxembourg Social Security Code, in the version applicable to the dispute, which are carried out in another Member State, by means of reimbursement of the costs paid for those analyses and tests, but by providing solely for a system of direct billing to sickness insurance funds, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC.

| 2. | Dismisses the remainder of the action. |
| --- | --- |

2.

Dismisses the remainder of the action.

| 3. | Orders the European Commission and the Grand Duchy of Luxembourg to bear their own costs. |
| --- | --- |

3.

Orders the European Commission and the Grand Duchy of Luxembourg to bear their own costs.

---

(1)  OJ C 37, 13.2.2010.

---

| 12.3.2011 | EN | Official Journal of the European Union | C 80/6 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/6

---

Judgment of the Court (Fifth Chamber) of 13 January 2011 — Media-Saturn-Holding GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-92/10 P) (1)

(Appeal - Community trade mark - Absolute ground for refusal - Lack of distinctive character - Mark consisting of an advertising slogan and composed of elements individually devoid of any distinctive character - Figurative sign ‘BEST BUY’)

2011/C 80/09

Language of the case: German

Parties

Appellant: Media-Saturn-Holding GmbH (represented by: E. Warnke, Rechtsanwalt)

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

Re:

Appeal brought against the judgment of the General Court (Fourth Chamber) of 15 December 2009 in Case T-476/08 Media-Saturn v OHIM (BEST BUY) in which the General Court dismissed the action against the decision of the Fourth Board of Appeal of OHIM, of 28 August 2008, dismissing the appeal against the examiner’s decision which refused the registration of the figurative sign ‘BEST BUY’ as a Community trade mark for goods and services in Classes 1, 2, 5 to 12, 14 to 17, 20 to 22, 27, 28, 35, 37, 38 and 40 to 42 — distinctive character of a mark consisting of an advertising slogan and composed of elements individually devoid of any distinctive character

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Media-Saturn-Holding GmbH to pay the costs. |
| --- | --- |

2.

Orders Media-Saturn-Holding GmbH to pay the costs.

---

(1)  OJ C 113, 01.05.2010

---

| 12.3.2011 | EN | Official Journal of the European Union | C 80/6 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/6

---

Order of the Court (Fifth Chamber) of 16 September 2010 — Deepak Rajani (Dear!Net Online) v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Artoz-Papier AG

(Case C-559/08 P) (1)

(Appeal - Community trade mark - Word mark ATOZ - Opposition by the proprietor of the international word mark ARTOZ - Refusal of registration)

2011/C 80/10

Language of the case: English

Parties

Appellant: Deepak Rajani (represented by: A. Kockläuner, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent), Artoz-Papier AG

Re:

Appeal brought against the judgment of the Court of First Instance (Eighth Chamber) of 26 November 2008 in Case T-100/06 Rajani v OHIM — Artoz-Papier (ATOZ), by which that Court dismissed an action brought by the applicant for the word mark ATOZ, for services in Classes 35 and 41, against Decision R 1126/2004-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 11 January 2006 dismissing the appeal brought against the decision of the Opposition Division refusing registration of that mark in opposition proceedings brought by the proprietor of the international word mark ‘ARTOZ’ for services in Classes 35 and 41

Operative part of the order

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

1.

The appeal is dismissed.

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

2.

Mr Rajani shall pay the costs.

---

(1)  OJ C 82, 04.04.2009.

---

| 12.3.2011 | EN | Official Journal of the European Union | C 80/7 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/7

---

Order of the Court (Sixth Chamber) of 27 October 2010 — Victor Guedes — Indústria e Comércio SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consorci de l’Espai Rural de Gallecs, established in Gallecs

(Case C-342/09 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) and (5) - Figurative mark Gallecs - Opposition by the proprietor of the national figurative marks GALLO, GALLO AZEITE NOVO, Azeite Novo and the Community figurative mark GALLO - Rejection of the opposition - Appeal in part clearly inadmissible and in part clearly unfounded)

2011/C 80/11

Language of the case: English

Parties

Appellant: Victor Guedes — Indústria e Comércio SA (represented by: B. Braga da Cruz, advogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: J. Crespo Carrillo, Agent), Consorci de l’Espai Rural de Gallecs, established in Gallecs

Re:

Appeal against the judgment of the Court of First Instance (Eighth Chamber) of 11 June 2009 in Case T-151/08 Victor Guedes-Indústria e Comércio, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), by which that Court dismissed an action brought by the proprietor of the national figurative marks ‘GALLO’, ‘GALLO AZEITE NOVO’ and ‘GALLO AZEITE’ and the Community figurative mark ‘GALLO’ for goods and services in Classes 29 and 31 against Decision R 986/2007-2 of the Second Board of Appeal of OHIM of 16 January 2008 dismissing the appeal lodged against the decision of the Opposition Division rejecting the opposition brought by the appellant against the application for registration of the figurative mark ‘Gallecs’ for goods in Classes 29, 31 and 35 — Infringement of Article 8(1)(b) and (5) of Regulation (EC) No 40/94

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Victor Guedes — Indústria e Comércio SA shall pay the costs. |
| --- | --- |

2.

Victor Guedes — Indústria e Comércio SA shall pay the costs.

---

(1)  OJ C 267, 7.11.2009.

---

| 12.3.2011 | EN | Official Journal of the European Union | C 80/7 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/7

---

Order of the Court (Fifth Chamber) of 16 September 2010 — Dominio de la Vega, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Ambrosio Velasco SA

(Case C-459/09 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Application for Community figurative mark DOMINIO DE LA VEGA - Earlier Community figurative mark PALACIO DE LA VEGA - Existence of a likelihood of confusion in part of the territory of the European Union - Assessment of the similarity between the marks - Dominant element)

2011/C 80/12

Language of the case: Spanish

Parties

Appellant: Dominio de la Vega, SL (represented by: E. Caballero Oliver and A. Sanz-Bermell y Martínez, abogados)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, Agent), Ambrosio Velasco SA (represented by: E. Armijo Chávarri, abogado)

Re:

Appeal brought against the judgment of the Court of First Instance (Seventh Chamber) of 16 September 2009 in Case T-458/07 Dominio de la Vega v OHIM dismissing the action brought against the decision of the Second Board of Appeal of OHIM of 3 October 2007 (Case R 1431/2006-2) relating to opposition proceedings between Ambrosio Velasco, SA and Dominio de la Vega, SL

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Dominio de la Vega SL shall pay the costs. |
| --- | --- |

2.

Dominio de la Vega SL shall pay the costs.

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(1)  OJ C 24, 30.1.2010.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/8 |
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12.3.2011

EN

Official Journal of the European Union

C 80/8

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Order of the Court (Eighth Chamber) of 6 October 2010 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Inmogolf SA v Dirección General de Tributos de la Consejería de Economia y Hacienda de la Comunidad Autónoma de Murcia

(Case C-487/09) (1)

(Article 104(3), first subparagraph, of the Rules of Procedure - Directive 69/335/EEC - Indirect taxes - Raising of capital - Transfer of securities - Capital of a company mostly made up of immovable property)

2011/C 80/13

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Inmogolf SA

Defendant: Dirección General de Tributos de la Consejería de Economía y Hacienda de la Comunidad Autónoma de Murcia

Re:

Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Articles 11(a) and 12(1)(a) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ English Special Edition 1969 (II), p. 412) — Prohibition on the taxation of the creation, issue, admission to quotation on a stock exchange, making available on the market or dealing in securities — Derogation — Tax on the transfer of securities — National tax on the transfer of shares in a company in which at least 50 % of the assets comprise immovable property and, where as a result of the transfer, the person acquiring the securities obtains control of the company

Operative part of the order

Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, and, more particularly, Articles 11(a) and 12(1)(a) thereof, does not preclude legislation of a Member State, such as provided in Article 108(2) of Law 24/1988 of 28 July 1988 on stock markets, as amended by Law 18/91 of 6 June 1991, which, in order to prevent tax avoidance in the context of the transfer of immovable assets by companies, subjects transfers of securities to tax on capital transfers where those transfers of shares represent shares in the share capital of companies the assets of which are at least 50 % comprised of immovable property and where the purchaser has following such a transfer a position which allows it to exercise control over the entity at issue, even in cases where, firstly, there was no intention to evade tax and where, secondly, those companies are fully operational and the immovable properties cannot be dissociated from the economic activity carried out by those companies.

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(1)  OJ C 63, 13.3.2010.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/8 |
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12.3.2011

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Official Journal of the European Union

C 80/8

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Order of the Court of 4 October 2010 — Vladimir Ivanov v European Commission

(Case C-532/09 P) (1)

(Appeal - Action for non-contractual liability - Loss of an opportunity for recruitment - Abuse of process - Appeal in part manifestly inadmissible and in part manifestly unfounded)

2011/C 80/14

Language of the case: French

Parties

Appellant: Vladimir Ivanov (represented by: F. Rollinger, avocat)

Other party to the proceedings: European Commission (represented by: J. Currall and B. Eggers, Agents)

Re:

Appeal brought against the order of the Court of First Instance (Third Chamber) of 30 September 2009 in Case T-166/08 Ivanov v Commission dismissing the action brought by the appellant in order to obtain compensation for the damage he allegedly suffered following a Commission decision refusing to recruit him as a local administrative and technical assistance employee at the Commission delegation in Sofia — Autonomous nature of the action for non-contractual liability as opposed to the action for annulment — Abuse of process — Possibility of the Court of First Instance raising that rule of its own motion

Operative part of the order

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

1.

Dismisses the appeal;

| 2. | Orders Mr Ivanov to pay the costs. |
| --- | --- |

2.

Orders Mr Ivanov to pay the costs.

---

(1)  OJ C 51, 27.02.2010.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/9 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/9

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Order of the Court (Seventh Chamber) of 29 September 2010 — European Renewable Energies Federation ASBL v European Commission

(Joined Cases C-74/10 P and C-75/10 P) (1)

(Appeal - Article 19 of the Statute of the Court of Justice - Representation of a party by a lawyer who is not a third party - Manifest inadmissibility)

2011/C 80/15

Language of the case: English

Parties

Appellant: European Renewable Energies Federation ASBL (represented by: J. Kuhbier, Rechtsanwalt)

Other party to the proceedings: European Commission (represented by: B. Martenczuk and N. Khan, Agents)

Re:

Appeal lodged against the order of the Court of First Instance (Sixth Chamber) of 19 November 2009 in Case T-94/07 EREF v Commission, in which the Court dismissed as manifestly inadmissible an action seeking the annulment of Commission Decision C(2006) 4963 final of 24 October 2006 declaring that certain sources of finance used by TVO for the construction of a nuclear reactor in Finland (‘Olkiluoto 3 Project’) do not constitute State aid — Representation by a lawyer who is not a third party

Operative part of the order

| 1. | The appeals are dismissed. |
| --- | --- |

1.

The appeals are dismissed.

| 2. | European Renewable Energies Federation ASBL shall pay the costs. |
| --- | --- |

2.

European Renewable Energies Federation ASBL shall pay the costs.

---

(1)  OJ C 113, 1.5.2010.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/9 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/9

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Judgment of the Court (Sixth Chamber) of 22 October 2010 — Longevity Health Products, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Merck KGaA

(Case C-84/10 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Word sign ‘Kids Vits’ - Opposition by the proprietor of the Community word mark VITS4KIDS - Level of attention of the relevant public - Likelihood of confusion - Similarity of the signs - Right to be heard)

2011/C 80/16

Language of the case: German

Parties

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

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

Re:

Appeal brought against the judgment of the General Court (Eighth Chamber) of 9 December 2009 in Case T-484/08 Longevity Health Products v OHIM — Merck (Kids Vits) in which the General Court dismissed the action against the decision of the Fourth Board of Appeal of OHIM of 28 August 2008, refusing the registration of the word sign ‘Kids Vits’ as a Community trade mark for certain goods in Class 5, by upholding the opposition by the proprietor of the earlier Community word mark ‘VITS4KIDS’ — Infringement of the right to a judicial hearing — Breach of Article 8(1)(b) of Regulation (EC) No 40/94 — Likelihood of confusion between two marks

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Longevity Health Products, Inc. to pay the costs. |
| --- | --- |

2.

Orders Longevity Health Products, Inc. to pay the costs.

---

(1)  OJ C 100, 17.04.2010.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/9 |
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12.3.2011

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Official Journal of the European Union

C 80/9

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Order of the Court (Eighth Chamber) of 9 September 2010 — Franssons Verkstäder AB v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Lindner Recyclingtech GmbH

(Case C-290/10 P) (1)

(Appeal - Action before the General Court against a decision of the Third Board of Appeal of OHIM - Regulation (EC) No 6/2002 - Time-limit allowed for bringing proceedings - Inadmissibility due to delay - Appeal clearly unfounded)

2011/C 80/17

Language of the case: English

Parties

Appellant: Franssons Verkstäder AB (represented by: O. Öhlén, advokat)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Lindner Recyclingtech GmbH

Re:

Appeal against the order of the General Court (Eighth Chamber) of 10 May 2010 in Case T-98/10 Franssons Verkstäder v OHIM in which the General Court dismissed an action brought by the proprietor of Community design No 253778-0001 (chaffcutters) against decision R 690/2007-3 of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 October 2009 annulling the decision of the Invalidity Division which rejected the application for a declaration of invalidity submitted by Lindner Recyclingtech — Time-limit allowed for bringing proceedings — Clear inadmissibility

Operative part of the order

The Court:

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

1.

The appeal is dismissed.

| 2. | Franssons Verkstäder AB shall bear its own costs. |
| --- | --- |

2.

Franssons Verkstäder AB shall bear its own costs.

---

(1)  OJ C 328, 4.12.2010.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/10 |
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12.3.2011

EN

Official Journal of the European Union

C 80/10

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Appeal brought on 14 October 2010 by Dimitris Platis against the order of the General Court (First Chamber) delivered on 30 September 2010 in Case T-311/10 Dimitris Platis v Council and Greece

(Case C-513/10 P)

2011/C 80/18

Language of the case: Greek

Parties

Appellant: Dimitris Platis (represented by P. Theodoropoulos, dikigoros)

Other parties to the proceedings: Council of the European Union, Hellenic Republic

By order of 17 December 2010 the Court (Seventh Chamber) dismisses the appeal in part as clearly unfounded and in part as clearly inadmissible.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/10 |
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12.3.2011

EN

Official Journal of the European Union

C 80/10

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 December 2010 — Vogtländische Straßen- Tief und Rohrleitungsbau GmbH (VSTR) v Finanzamt Plauen; other participant: Bundesministerium der Finanzen

(Case C-587/10)

2011/C 80/19

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: VSTR Vogtländische Straßen- Tief und Rohrleitungsbau GmbH (VSTR)

Defendant: Finanzamt Plauen

Intervening party: Bundesministerium der Finanzen

Questions referred

| 1. | Does Council Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes (1) allow the Member States to accept an intra-Community supply as tax-exempt only where the taxable person provides evidence in the accounts of the VAT identification number of the person acquiring the goods? |
| --- | --- |

1.

Does Council Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes (1) allow the Member States to accept an intra-Community supply as tax-exempt only where the taxable person provides evidence in the accounts of the VAT identification number of the person acquiring the goods?

| 2. | Is it relevant to the answer to that question:
  that the person acquiring the goods was a trader with its seat in a third State, which admittedly dispatched the object of the supply in the course of a chain transaction from one Member State to another Member State, but is not registered for VAT purposes in any Member State,
  and
  whether the taxable person has proved that the person acquiring the goods submitted a tax return concerning the intra-Community acquisition. |
| --- | --- |

2.

Is it relevant to the answer to that question:

that the person acquiring the goods was a trader with its seat in a third State, which admittedly dispatched the object of the supply in the course of a chain transaction from one Member State to another Member State, but is not registered for VAT purposes in any Member State,

and

whether the taxable person has proved that the person acquiring the goods submitted a tax return concerning the intra-Community acquisition.

---

(1)  OJ 1977 L 145, p. 1.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/10 |
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12.3.2011

EN

Official Journal of the European Union

C 80/10

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 17 December 2010 — T.G. van Laarhoven v Staatssecretaris van Financiën

(Case C-594/10)

2011/C 80/20

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: T.G. van Laarhoven

Defendant: Staatssecretaris van Financiën

Questions referred

| 1. | Does the second subparagraph of Article 17(6) of the Sixth Directive (1) preclude amendments to deduction-limiting legislation such as that in question, according to which a Member State has sought to take advantage of the possibility, for which that provision provides, of (retaining) the exclusion of deduction in respect of certain goods and services if, as a consequence of those amendments, the amount excluded from deduction has been increased in most cases, but the approach and scheme of the deduction-limiting legislation have remained unchanged? |
| --- | --- |

1.

Does the second subparagraph of Article 17(6) of the Sixth Directive (1) preclude amendments to deduction-limiting legislation such as that in question, according to which a Member State has sought to take advantage of the possibility, for which that provision provides, of (retaining) the exclusion of deduction in respect of certain goods and services if, as a consequence of those amendments, the amount excluded from deduction has been increased in most cases, but the approach and scheme of the deduction-limiting legislation have remained unchanged?

| 2. | If the answer to the first question is in the affirmative, should the national courts refrain from applying the deduction-limiting legislation as a whole, or is it sufficient for them to refrain from applying the legislation to the extent that it has increased the scale of the exclusion or restriction existing at the time when the Sixth Directive entered into force? |
| --- | --- |

2.

If the answer to the first question is in the affirmative, should the national courts refrain from applying the deduction-limiting legislation as a whole, or is it sufficient for them to refrain from applying the legislation to the extent that it has increased the scale of the exclusion or restriction existing at the time when the Sixth Directive entered into force?

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

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/11 |
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12.3.2011

EN

Official Journal of the European Union

C 80/11

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Action brought on 16 December 2010 — European Commission v Federal Republic of Germany

(Case C-600/10)

2011/C 80/21

Language of the case: German

Parties

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

Defendant: Federal Republic of Germany

Form of order sought

| — | Declare that, by maintaining legal provisions according to which dividends paid to pension funds subject to limited tax liability and interest which is paid to such pension funds and to pension insurance schemes subject to limited tax liability are taxed less favourably than dividends or interest paid to pension insurance schemes subject to unlimited tax liability or pension funds subject to unlimited tax liability, the Federal Republic of Germany has failed to fulfil its obligations under Article 63 TFEU and Article 40 of the EEA Agreement; |
| --- | --- |

—

Declare that, by maintaining legal provisions according to which dividends paid to pension funds subject to limited tax liability and interest which is paid to such pension funds and to pension insurance schemes subject to limited tax liability are taxed less favourably than dividends or interest paid to pension insurance schemes subject to unlimited tax liability or pension funds subject to unlimited tax liability, the Federal Republic of Germany has failed to fulfil its obligations under Article 63 TFEU and Article 40 of the EEA Agreement;

| — | Order the Federal Republic of Germany to pay the costs. |
| --- | --- |

—

Order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The subject of the present action are the German rules according to which dividends which are paid to pension funds subject to limited tax liability (non-resident funds) and interest which is paid to such pension funds and to pension insurance schemes subject to limited tax liability are taxed less favourably than dividends or interest paid to pension insurance schemes subject to unlimited tax liability (domestic schemes) or pension funds subject to unlimited tax liability.

The non-resident pension funds and pension insurance schemes are discriminated against compared to similar domestic funds or schemes for the following three reasons:

| | Interest received by pension insurance schemes is not subject to the tax on revenue from capital assets or corporation tax where the recipient of that interest is a tax-exempt domestic pension insurance scheme. There is thus no taxation of the income concerned. There is no similar exemption from the tax on revenue from capital assets for non-resident pension insurance schemes, meaning that that tax is levied in every case to the extent of 25 % of the gross sum, including solidarity supplement. |
| --- | --- |

Interest received by pension insurance schemes is not subject to the tax on revenue from capital assets or corporation tax where the recipient of that interest is a tax-exempt domestic pension insurance scheme. There is thus no taxation of the income concerned. There is no similar exemption from the tax on revenue from capital assets for non-resident pension insurance schemes, meaning that that tax is levied in every case to the extent of 25 % of the gross sum, including solidarity supplement.

| | With regard to the taxation of dividends received by pension funds, domestic pension funds may include the tax on revenue from capital assets in an assessment procedure. That means, first, that operating costs can be deducted from tax and only net revenue is taxed. Second, the tax on revenue from capital assets is set off against general tax liability, with the result that the general corporation tax rate of 15 % is applied. Non-resident pension funds are however not entitled to such adjustments: the contested rules exclude them entirely from deducting operating costs, including those which are directly related to income received in Germany. |
| --- | --- |

With regard to the taxation of dividends received by pension funds, domestic pension funds may include the tax on revenue from capital assets in an assessment procedure. That means, first, that operating costs can be deducted from tax and only net revenue is taxed. Second, the tax on revenue from capital assets is set off against general tax liability, with the result that the general corporation tax rate of 15 % is applied. Non-resident pension funds are however not entitled to such adjustments: the contested rules exclude them entirely from deducting operating costs, including those which are directly related to income received in Germany.

| | Finally, with regard to the taxation of the interest received by pension funds, the legal situation is essentially the same as that which applies where dividends are received by pension funds: as in the case of dividends, non-resident pension funds are therefore discriminated against, both with regard to the deduction of operating costs and the rate of taxation. |
| --- | --- |

Finally, with regard to the taxation of the interest received by pension funds, the legal situation is essentially the same as that which applies where dividends are received by pension funds: as in the case of dividends, non-resident pension funds are therefore discriminated against, both with regard to the deduction of operating costs and the rate of taxation.

| | According to the Commission, that discrimination of non-resident pension insurance schemes and pension funds is incompatible with the free movement of capital. In none of the cases is there an objective justification for the distinction in question. |
| --- | --- |

According to the Commission, that discrimination of non-resident pension insurance schemes and pension funds is incompatible with the free movement of capital. In none of the cases is there an objective justification for the distinction in question.

| | Article 63 TFEU prohibits all measures which treat the cross-border movement of capital less favourably than the movement of capital within a Member State. In that context, Article 65(1)(a) TFEU cannot be understood as meaning that all tax law provisions which distinguish between taxpayers with regard to their place of residence or with regard to the place where their capital is invested are without further consideration compatible with the Treaty. That provision is subject to the limitation contained in Article 65(3) TFEU, according to which the national measures referred to in Article 63(1) are not to constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63. Such distinctions are compatible with EU law only in so far as they are applied to situations which are not objectively comparable or if they are justified by overriding reasons in the public interest. Such a justification is valid only to the extent that the provisions do not go beyond what is necessary in order to achieve the intended objective. |
| --- | --- |

Article 63 TFEU prohibits all measures which treat the cross-border movement of capital less favourably than the movement of capital within a Member State. In that context, Article 65(1)(a) TFEU cannot be understood as meaning that all tax law provisions which distinguish between taxpayers with regard to their place of residence or with regard to the place where their capital is invested are without further consideration compatible with the Treaty. That provision is subject to the limitation contained in Article 65(3) TFEU, according to which the national measures referred to in Article 63(1) are not to constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63. Such distinctions are compatible with EU law only in so far as they are applied to situations which are not objectively comparable or if they are justified by overriding reasons in the public interest. Such a justification is valid only to the extent that the provisions do not go beyond what is necessary in order to achieve the intended objective.

| | With regard to the deduction of operating costs, the Commission would like to point out that the Member States must also comply with the prohibitions on discrimination enshrined in the Treaty with regard to withholding taxes. In that context, the source State may not rely on unilateral rules in another Member State in order to avoid complying with its own obligations. Germany has not submitted that agreement has been reached with the other Member States that they deduct operating costs instead of Germany. Even if there were such an agreement, it would often not achieve the objective, for example where the revenue concerned is tax-exempt in the other State or the taxpayer does not make any overall profit. In addition, where the imputation method is used, the deduction of operating costs in the State of residence cannot replace that in the source State. In that case both States namely tax, in principle, the same income. Accordingly, taxation of net revenue rather than gross revenue is guaranteed only where both States apply their provisions on the deduction of operating costs. Deduction by the source State does not therefore lead to a double burden but merely establishes equal treatment vis-à-vis purely internal situations. |
| --- | --- |

With regard to the deduction of operating costs, the Commission would like to point out that the Member States must also comply with the prohibitions on discrimination enshrined in the Treaty with regard to withholding taxes. In that context, the source State may not rely on unilateral rules in another Member State in order to avoid complying with its own obligations. Germany has not submitted that agreement has been reached with the other Member States that they deduct operating costs instead of Germany. Even if there were such an agreement, it would often not achieve the objective, for example where the revenue concerned is tax-exempt in the other State or the taxpayer does not make any overall profit. In addition, where the imputation method is used, the deduction of operating costs in the State of residence cannot replace that in the source State. In that case both States namely tax, in principle, the same income. Accordingly, taxation of net revenue rather than gross revenue is guaranteed only where both States apply their provisions on the deduction of operating costs. Deduction by the source State does not therefore lead to a double burden but merely establishes equal treatment vis-à-vis purely internal situations.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/12 |
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Official Journal of the European Union

C 80/12

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Reference for a preliminary ruling from the Upravno sodišče (Slovenia) lodged on 21 December 2010 — Pelati d.o.o. v Republic of Slovenia

(Case C-603/10)

2011/C 80/22

Language of the case: Slovenian

Referring court

Upravno sodišče

Parties to the main proceedings

Applicant: Pelati d.o.o.

Defendant: Republic of Slovenia

Question referred

Must Article 11 of Council Directive 90/434/EEC (1) be interpreted as precluding a provision of domestic law in accordance with which the Republic of Slovenia, as a Member State, makes tax relief for a commercial company wishing to effect a division (splitting off of part of the company and formation of a new company) subject to the presentation within time-limits of a request for the issuing of authorisation of the grant of tax advantages, consequent upon the division if the conditions laid down have been satisfied, or in accordance with which the person liable to pay the tax automatically loses, because the time-limit has been passed, the tax advantages provided for under domestic law?

---

(1)  Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States, OJ 1990 L 225, p. 1.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/12 |
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12.3.2011

EN

Official Journal of the European Union

C 80/12

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Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 30 December 2010 — Danilo Debiasi v Agenzia delle Entrate Ufficio di Parma

(Case C-613/10)

2011/C 80/23

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Parma

Parties to the main proceedings

Applicant: Danilo Debiasi

Defendant: Agenzia delle Entrate Ufficio di Parma

Question referred

Is there a conflict between, on the one hand, Articles 19(5) and 19a of Presidential Decree No 633/72 and, on the other hand, Article 17(2)(a) of Directive 77/388/EEC, and the documents COM(2001) 260 final of 23.05.2001 and COM(2000) 348 final of 07.06.2000, and is there also unequal treatment of the VAT rules at Community level and consequently a need of harmonisation with the other European systems, given that various Member States apply, subject to certain conditions, a system of taxation at a lower rate?

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/12 |
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12.3.2011

EN

Official Journal of the European Union

C 80/12

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Reference for a preliminary ruling from the Tribunal de première instance, Namur (Belgium) lodged on 22 December 2010 — Rémi Paquot v État Belge — SPF Finances

(Case C-622/10)

2011/C 80/24

Language of the case: French

Referring court

Tribunal de première instance, Namur

Parties to the main proceedings

Applicant: Rémi Paquot

Defendant: État Belge — SPF Finances

Questions referred

| 1. | Do Article 6 of Title I, ‘Common Provisions’, of the Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union signed at Maastricht on 7 February 1992 and in force since 1 December 2009 (substantially reproducing the provisions previously laid down in Article 6 of Title I of the Treaty on European Union signed at Maastricht on 7 February 1992, which itself entered into force on 1 November 1993) and Article 234 (formerly Article 177) of the Treaty establishing the European Community (EC Treaty) of 25 March 1957, on the one hand, and/or Article 47 of the Charter of Fundamental Rights of the European Union of 7 December 2000, on the other, preclude national legislation — in the present case, Article 9(2) of the Belgian Law of 6 January 1989 on the Cour d’arbitrage (now called the Cour constitutionnelle) — under which the national courts are required to follow the case-law flowing from judgments delivered by a court which occupies a higher rank in the national court system (in the present case, the Cour constitutionnelle, referred to above) in actions for annulment of provisions of domestic law brought before them, where those actions are based on an alleged infringement of provisions of European Union law, which is directly applicable in the domestic legal order and takes precedence over domestic law? |
| --- | --- |

1.

Do Article 6 of Title I, ‘Common Provisions’, of the Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union signed at Maastricht on 7 February 1992 and in force since 1 December 2009 (substantially reproducing the provisions previously laid down in Article 6 of Title I of the Treaty on European Union signed at Maastricht on 7 February 1992, which itself entered into force on 1 November 1993) and Article 234 (formerly Article 177) of the Treaty establishing the European Community (EC Treaty) of 25 March 1957, on the one hand, and/or Article 47 of the Charter of Fundamental Rights of the European Union of 7 December 2000, on the other, preclude national legislation — in the present case, Article 9(2) of the Belgian Law of 6 January 1989 on the Cour d’arbitrage (now called the Cour constitutionnelle) — under which the national courts are required to follow the case-law flowing from judgments delivered by a court which occupies a higher rank in the national court system (in the present case, the Cour constitutionnelle, referred to above) in actions for annulment of provisions of domestic law brought before them, where those actions are based on an alleged infringement of provisions of European Union law, which is directly applicable in the domestic legal order and takes precedence over domestic law?

| 2. | Do Article 6 of Title I, ‘Common Provisions’, of the Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union signed at Maastricht on 7 February 1992 and in force since 1 December 2009 (substantially reproducing the provisions previously laid down in Article 6 of Title I of the Treaty on European Union signed at Maastricht on 7 February 1992, which itself entered into force on 1 November 1993) and Article 234 (formerly Article 177) of the Treaty establishing the European Community (EC Treaty) of 25 March 1957, on the one hand, and/or Article 47 of the Charter of Fundamental Rights of the European Union of 7 December 2000, on the other hand, preclude national legislation — in the present case, Article 26(4) of the Belgian Law of 6 January 1989 on the Cour d’arbitrage (now called the Cour constitutionnelle), as amended by the Law of 12 July 2009, whether read separately or in conjunction with Article 9(2) of that Special Law of 6 January 1989 — under which the national courts are required to refer to a court which occupies a higher rank in the national court system (in the present case, the Cour constitutionnelle, referred to above), for a preliminary ruling, any question concerning the interpretation of provisions of European Union law, which is directly applicable in the domestic legal order and takes precedence over domestic law, where those provisions are also laid down in the national Constitution and where the national courts suppose those provisions to have been infringed in the circumstances of the disputes brought before them, with the result that those courts have been divested of jurisdiction to apply European Union law immediately, at the very least in cases where the higher court has already ruled on an identical issue? |
| --- | --- |

2.

Do Article 6 of Title I, ‘Common Provisions’, of the Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union signed at Maastricht on 7 February 1992 and in force since 1 December 2009 (substantially reproducing the provisions previously laid down in Article 6 of Title I of the Treaty on European Union signed at Maastricht on 7 February 1992, which itself entered into force on 1 November 1993) and Article 234 (formerly Article 177) of the Treaty establishing the European Community (EC Treaty) of 25 March 1957, on the one hand, and/or Article 47 of the Charter of Fundamental Rights of the European Union of 7 December 2000, on the other hand, preclude national legislation — in the present case, Article 26(4) of the Belgian Law of 6 January 1989 on the Cour d’arbitrage (now called the Cour constitutionnelle), as amended by the Law of 12 July 2009, whether read separately or in conjunction with Article 9(2) of that Special Law of 6 January 1989 — under which the national courts are required to refer to a court which occupies a higher rank in the national court system (in the present case, the Cour constitutionnelle, referred to above), for a preliminary ruling, any question concerning the interpretation of provisions of European Union law, which is directly applicable in the domestic legal order and takes precedence over domestic law, where those provisions are also laid down in the national Constitution and where the national courts suppose those provisions to have been infringed in the circumstances of the disputes brought before them, with the result that those courts have been divested of jurisdiction to apply European Union law immediately, at the very least in cases where the higher court has already ruled on an identical issue?

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/13 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/13

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Reference for a preliminary ruling from the Tribunal de première instance de Namur (Belgium) lodged on 22 December 2010 — Adrien Daxhelet v État Belge — SPF Finances

(Case C-623/10)

2011/C 80/25

Language of the case: French

Referring court

Tribunal de première instance de Namur

Parties to the main proceedings

Applicant: Adrien Daxhelet

Defendant: État Belge — SPF Finances

Questions referred

| 1. | Do Article 6 of Title I, ‘Common Provisions’, of the Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union signed at Maastricht on 7 February 1992 and in force since 1 December 2009 (substantially reproducing the provisions previously laid down in Article 6 of Title I of the Treaty on European Union signed at Maastricht on 7 February 1992, which itself entered into force on 1 November 1993) and Article 234 (formerly Article 177) of the Treaty establishing the European Community (EC Treaty) of 25 March 1957, on the one hand, and/or Article 47 of the Charter of Fundamental Rights of the European Union of 7 December 2000, on the other, preclude national legislation — in the present case, Article 9(2) of the Belgian Law of 6 January 1989 on the Cour d’arbitrage (now called the Cour constitutionnelle) — under which the national courts are required to follow the case-law flowing from judgments delivered by a court which occupies a higher rank in the national court system (in the present case, the Cour constitutionnelle, referred to above) in actions for annulment of provisions of domestic law brought before them, where those actions are based on an alleged infringement of provisions of European Union law, which is directly applicable in the domestic legal order and takes precedence over domestic law? |
| --- | --- |

1.

Do Article 6 of Title I, ‘Common Provisions’, of the Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union signed at Maastricht on 7 February 1992 and in force since 1 December 2009 (substantially reproducing the provisions previously laid down in Article 6 of Title I of the Treaty on European Union signed at Maastricht on 7 February 1992, which itself entered into force on 1 November 1993) and Article 234 (formerly Article 177) of the Treaty establishing the European Community (EC Treaty) of 25 March 1957, on the one hand, and/or Article 47 of the Charter of Fundamental Rights of the European Union of 7 December 2000, on the other, preclude national legislation — in the present case, Article 9(2) of the Belgian Law of 6 January 1989 on the Cour d’arbitrage (now called the Cour constitutionnelle) — under which the national courts are required to follow the case-law flowing from judgments delivered by a court which occupies a higher rank in the national court system (in the present case, the Cour constitutionnelle, referred to above) in actions for annulment of provisions of domestic law brought before them, where those actions are based on an alleged infringement of provisions of European Union law, which is directly applicable in the domestic legal order and takes precedence over domestic law?

| 2. | Do Article 6 of Title I, ‘Common Provisions’, of the Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union signed at Maastricht on 7 February 1992 and in force since 1 December 2009 (substantially reproducing the provisions previously laid down in Article 6 of Title I of the Treaty on European Union signed at Maastricht on 7 February 1992, which itself entered into force on 1 November 1993) and Article 234 (formerly Article 177) of the Treaty establishing the European Community (EC Treaty) of 25 March 1957, on the one hand, and/or Article 47 of the Charter of Fundamental Rights of the European Union of 7 December 2000, on the other hand, preclude national legislation — in the present case, Article 26(4) of the Belgian Law of 6 January 1989 on the Cour d’arbitrage (now called the Cour constitutionnelle), as amended by the Law of 12 July 2009, whether read separately or in conjunction with Article 9(2) of that Special Law of 6 January 1989 — under which the national courts are required to refer to a court which occupies a higher rank in the national court system (in the present case, the Cour constitutionnelle, referred to above), for a preliminary ruling, any question concerning the interpretation of provisions of European Union law, which is directly applicable in the domestic legal order and takes precedence over domestic law, where those provisions are also laid down in the national Constitution and where the national courts suppose those provisions to have been infringed in the circumstances of the disputes brought before them, with the result that those courts have been divested of jurisdiction to apply European Union law immediately, at the very least in cases where the higher court has already ruled on an identical issue? |
| --- | --- |

2.

Do Article 6 of Title I, ‘Common Provisions’, of the Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union signed at Maastricht on 7 February 1992 and in force since 1 December 2009 (substantially reproducing the provisions previously laid down in Article 6 of Title I of the Treaty on European Union signed at Maastricht on 7 February 1992, which itself entered into force on 1 November 1993) and Article 234 (formerly Article 177) of the Treaty establishing the European Community (EC Treaty) of 25 March 1957, on the one hand, and/or Article 47 of the Charter of Fundamental Rights of the European Union of 7 December 2000, on the other hand, preclude national legislation — in the present case, Article 26(4) of the Belgian Law of 6 January 1989 on the Cour d’arbitrage (now called the Cour constitutionnelle), as amended by the Law of 12 July 2009, whether read separately or in conjunction with Article 9(2) of that Special Law of 6 January 1989 — under which the national courts are required to refer to a court which occupies a higher rank in the national court system (in the present case, the Cour constitutionnelle, referred to above), for a preliminary ruling, any question concerning the interpretation of provisions of European Union law, which is directly applicable in the domestic legal order and takes precedence over domestic law, where those provisions are also laid down in the national Constitution and where the national courts suppose those provisions to have been infringed in the circumstances of the disputes brought before them, with the result that those courts have been divested of jurisdiction to apply European Union law immediately, at the very least in cases where the higher court has already ruled on an identical issue?

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/14 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/14

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Reference for a preliminary ruling from the Tribunale di Palermo (Italy) lodged on 5 January 2011 — Public Prosecutor v Fabio Caronna

(Case C-7/11)

2011/C 80/26

Language of the case: Italian

Referring court

Tribunale di Palermo

Parties to the main proceedings

Fabio Caronna

Questions referred

| 1. | Is Article 77(2) of Directive 2001/83/EC (1) of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use to be construed as meaning that pharmacists are included among the persons who must obtain authorisation for the wholesale distribution of medicinal products or was it the Community legislature’s intention, instead, to exempt pharmacists from the requirement to apply for that authorisation, as would appear to be suggested by a reading of recital 36 in the preamble to the directive? It is appropriate to set out the arguments put forward by the suspect’s lawyer in support of the latter interpretation. |
| --- | --- |

1.

Is Article 77(2) of Directive 2001/83/EC (1) of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use to be construed as meaning that pharmacists are included among the persons who must obtain authorisation for the wholesale distribution of medicinal products or was it the Community legislature’s intention, instead, to exempt pharmacists from the requirement to apply for that authorisation, as would appear to be suggested by a reading of recital 36 in the preamble to the directive? It is appropriate to set out the arguments put forward by the suspect’s lawyer in support of the latter interpretation.

| 2. | In more general terms, what is the correct interpretation to be given to the rules governing authorisation to distribute medicinal products laid down by Article 76 to 84 of the Directive, with particular reference to the requirements to be met in order for a pharmacist (that is, a natural person, not a company) who, by virtue of that status, is already authorised to retail medicinal products under national law, also to be able to distribute medicinal products? |
| --- | --- |

2.

In more general terms, what is the correct interpretation to be given to the rules governing authorisation to distribute medicinal products laid down by Article 76 to 84 of the Directive, with particular reference to the requirements to be met in order for a pharmacist (that is, a natural person, not a company) who, by virtue of that status, is already authorised to retail medicinal products under national law, also to be able to distribute medicinal products?

---

(1)  OJ 2001 L 311, p. 67.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/14 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/14

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Reference for a preliminary ruling from Dublin Metropolitan District Court (Ireland) made on 10 January 2011 — Danise McDonagh v Ryanair Ltd

(Case C-12/11)

2011/C 80/27

Language of the case: English

Referring court

Dublin Metropolitan District Court

Parties to the main proceedings

Applicant: Denise McDonagh

Defendant: Ryanair Ltd

Questions referred

| 1. | Do circumstances such as the closures of European airspace as a result of the eruption of the Eyjafjallajökull volcano in Iceland, which caused widespread and prolonged disruption to air travel, go beyond ‘extraordinary circumstances’ within the meaning of Regulation 261/2004 (1)? |
| --- | --- |

1.

Do circumstances such as the closures of European airspace as a result of the eruption of the Eyjafjallajökull volcano in Iceland, which caused widespread and prolonged disruption to air travel, go beyond ‘extraordinary circumstances’ within the meaning of Regulation 261/2004 (1)?

| 2. | If the answer to question 1 is yes, is liability for the duty to provide care excluded under Articles 5 and 9 in such circumstances? |
| --- | --- |

2.

If the answer to question 1 is yes, is liability for the duty to provide care excluded under Articles 5 and 9 in such circumstances?

| 3. | If the answer to question 2 is no, are Articles 5 and 9 invalid in so far as they violate the principles of proportionality and non-discrimination, the principle of an ‘equitable balance of interests’ enshrined in the Montreal Convention, and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union? |
| --- | --- |

3.

If the answer to question 2 is no, are Articles 5 and 9 invalid in so far as they violate the principles of proportionality and non-discrimination, the principle of an ‘equitable balance of interests’ enshrined in the Montreal Convention, and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union?

| 4. | Is the obligation in Articles 5 and 9 to be interpreted as containing an implied limitation, such as a temporal and/or a monetary limit, to provide care in cases where cancellation is caused by ‘extraordinary circumstances’? |
| --- | --- |

4.

Is the obligation in Articles 5 and 9 to be interpreted as containing an implied limitation, such as a temporal and/or a monetary limit, to provide care in cases where cancellation is caused by ‘extraordinary circumstances’?

| 5. | If the answer to question 4 is no, are Articles 5 and 9 invalid in so far as they violate the principles of proportionality and non-discrimination, the principle of an ‘equitable balance of interests’ enshrined in the Montreal Convention, and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union? |
| --- | --- |

5.

If the answer to question 4 is no, are Articles 5 and 9 invalid in so far as they violate the principles of proportionality and non-discrimination, the principle of an ‘equitable balance of interests’ enshrined in the Montreal Convention, and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union?

---

(1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91

OJ L 46, p. 1

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/15 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/15

---

Appeal brought on 11 January 2011 by European Commission against the judgment of the General Court (Fourth Chamber) delivered on 27 October 2010 in Case T-24/05: Alliance One International, Inc. (formerly Standard Commercial Corp.), Standard Commercial Tobacco Company, Inc., Trans-Continental Leaf Tobacco Corp. Ltd v European Commission

(Case C-14/11 P)

2011/C 80/28

Language of the case: English

Parties

Appellant: European Commission (represented by: F. Castillo de la Torre, E. Gippini Fournier, R. Sauer, Agents)

Other parties to the proceedings: Alliance One International, Inc. (formerly Standard Commercial Corp.), Standard Commercial Tobacco Company, Inc., Trans-Continental Leaf Tobacco Corp. Ltd

Form of order sought

The appellant claim that the Court should:

| — | set aside point 1 of the operative part of the contested judgment; |
| --- | --- |

—

set aside point 1 of the operative part of the contested judgment;

| — | dismiss the action before the General Court in its entirety; |
| --- | --- |

—

dismiss the action before the General Court in its entirety;

| — | require TCLT to bear the costs of these proceedings and to require the three Applicants to bear the entirety of the cots of the proceedings in first instance. |
| --- | --- |

—

require TCLT to bear the costs of these proceedings and to require the three Applicants to bear the entirety of the cots of the proceedings in first instance.

Pleas in law and main arguments

The Appellant submits that the contested judgment should be set aside on the following grounds:

| 1. | The General Court misapplied the principle of equal treatment and disregarded a well established line of case law according to which the liability of each company must be assessed on its own merits. |
| --- | --- |

1.

The General Court misapplied the principle of equal treatment and disregarded a well established line of case law according to which the liability of each company must be assessed on its own merits.

| 2. | The General Court erred in law in considering that the Commission's treatment of certain parent companies determined the legal standard for holding other parent companies liable, even if such standard went beyond what the case law requires. |
| --- | --- |

2.

The General Court erred in law in considering that the Commission's treatment of certain parent companies determined the legal standard for holding other parent companies liable, even if such standard went beyond what the case law requires.

| 3. | By preventing the Commission from raising arguments in response to claims of discrimination, the General Court breached the Commission's rights to an adversarial procedure and misinterpreted the duty to state reasons. |
| --- | --- |

3.

By preventing the Commission from raising arguments in response to claims of discrimination, the General Court breached the Commission's rights to an adversarial procedure and misinterpreted the duty to state reasons.

| 4. | The General Court misapplied the principle of equal treatment since Trans-Continental Leaf Tobacco Corp. Ltd. was in an objectively different situation from Intabex and Universal. |
| --- | --- |

4.

The General Court misapplied the principle of equal treatment since Trans-Continental Leaf Tobacco Corp. Ltd. was in an objectively different situation from Intabex and Universal.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/15 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/15

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Action brought on 13 January 2011 — European Commission v Republic of Poland

(Case C-20/11)

2011/C 80/29

Language of the case: Polish

Parties

Applicant: European Commission (represented by: I. Hadjiyiannis and Ł. Habiak, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 17(1) of that directive; |
| --- | --- |

—

declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 17(1) of that directive;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of Directive 2007/60 expired on 26 November 2009.

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(1)  OJ 2007 L 288, p. 27.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/15 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/15

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Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 17 January 2011 — Finnair Oyj v Timy Lassooy

(Case C-22/11)

2011/C 80/30

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicant: Finnair Oyj

Defendant: Timy Lassooy

Questions referred

| 1. | Is Regulation No 261/2004 (1) and in particular Article 4 thereof to be interpreted as meaning that its application is limited only to cases of denied boarding which are caused by overbooking by the air carrier for economic reasons, or is the regulation applicable also to situations in which boarding is denied for other reasons, such as operational reasons? |
| --- | --- |

1.

Is Regulation No 261/2004 (1) and in particular Article 4 thereof to be interpreted as meaning that its application is limited only to cases of denied boarding which are caused by overbooking by the air carrier for economic reasons, or is the regulation applicable also to situations in which boarding is denied for other reasons, such as operational reasons?

| 2. | Is Article 2(j) of the regulation to be interpreted as meaning that the reasonable grounds laid down therein are limited only to factors relating to passengers, or may denied boarding be reasonable on other grounds? If the regulation is to be interpreted as meaning that denied boarding may be reasonable on grounds other than those relating to passengers, is it to be interpreted as meaning that denied boarding may also be reasonable on the grounds of the rescheduling of flights as a result of the extraordinary circumstances mentioned in recitals 14 and 15? |
| --- | --- |

2.

Is Article 2(j) of the regulation to be interpreted as meaning that the reasonable grounds laid down therein are limited only to factors relating to passengers, or may denied boarding be reasonable on other grounds? If the regulation is to be interpreted as meaning that denied boarding may be reasonable on grounds other than those relating to passengers, is it to be interpreted as meaning that denied boarding may also be reasonable on the grounds of the rescheduling of flights as a result of the extraordinary circumstances mentioned in recitals 14 and 15?

| 3. | Is the regulation to be interpreted as meaning that an air carrier may be exempted from liability under Article 5(3) in extraordinary circumstances not only with respect to a flight which it cancelled, but also with respect to passengers on later flights, on the ground that by its actions it attempted to spread the negative effects of the extraordinary circumstances it encountered in its operations, such as a strike, among a wider class of passengers than the cancelled flight’s passengers by rescheduling its later flights so that no passenger’s journey was unreasonably delayed? In other words, may an air carrier rely on extraordinary circumstances also with respect to a passenger on a later flight whose journey was not directly affected by that factor? Does it make a significant difference whether the passenger’s situation and right to compensation are assessed in accordance with Article 4 on denied boarding or with Article 5 on flight cancellation? |
| --- | --- |

3.

Is the regulation to be interpreted as meaning that an air carrier may be exempted from liability under Article 5(3) in extraordinary circumstances not only with respect to a flight which it cancelled, but also with respect to passengers on later flights, on the ground that by its actions it attempted to spread the negative effects of the extraordinary circumstances it encountered in its operations, such as a strike, among a wider class of passengers than the cancelled flight’s passengers by rescheduling its later flights so that no passenger’s journey was unreasonably delayed? In other words, may an air carrier rely on extraordinary circumstances also with respect to a passenger on a later flight whose journey was not directly affected by that factor? Does it make a significant difference whether the passenger’s situation and right to compensation are assessed in accordance with Article 4 on denied boarding or with Article 5 on flight cancellation?

---

(1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (Text with EEA relevance) — Commission Statement (OJ 2004 L 46, p. 1).

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/16 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/16

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Action brought on 25 January 2011 — European Commission v Czech Republic

(Case C-37/11)

2011/C 80/31

Language of the case: Czech

Parties

Applicant: European Commission (represented by: Z. Malůšková and H. Tserepa-Lacombe, acting as Agents,)

Defendant: Czech Republic

Form of order sought

| — | declare that, by providing in Paragraph 1(2)(q) of Decree No 77/2003 Coll. that ‘spreadable butter’ (pomazánkové máslo) shall mean a milk product from soured cream, enriched by powdered milk or buttermilk, containing, by weight, not less than 31 % milk fat and 42 % dry material, and by allowing such a product to be marketed under the commercial designation ‘spreadable butter’, the Czech Republic has failed to fulfil its obligations under Article 115 of Regulation (EC) No 1234/2007 (1) in conjunction with point I, clause 2, first and second subclauses of Annex XV to Regulation (EC) No 1234/2007 and Part A, points 1 and 4 of the Appendix to Annex XV to Regulation (EC) No 1234/2007; |
| --- | --- |

—

declare that, by providing in Paragraph 1(2)(q) of Decree No 77/2003 Coll. that ‘spreadable butter’ (pomazánkové máslo) shall mean a milk product from soured cream, enriched by powdered milk or buttermilk, containing, by weight, not less than 31 % milk fat and 42 % dry material, and by allowing such a product to be marketed under the commercial designation ‘spreadable butter’, the Czech Republic has failed to fulfil its obligations under Article 115 of Regulation (EC) No 1234/2007 (1) in conjunction with point I, clause 2, first and second subclauses of Annex XV to Regulation (EC) No 1234/2007 and Part A, points 1 and 4 of the Appendix to Annex XV to Regulation (EC) No 1234/2007;

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

—

order Czech Republic to pay the costs.

Pleas in law and main arguments

Article 115 of Regulation (EC) No 1234/2007, in conjunction with point I, clause 2, first and second subclauses of Annex XV and Part A, point 1 of the Appendix to Annex XV to Regulation (EC) No 1234/2007, provides that the commercial designation ‘butter’ is reserved for products with a milk fat content of at least 80 % and a water content not exceeding 16 %. In the Czech Republic, by Paragraph 1(2)(q) of Ministry of Agriculture Decree No 77/2003 Coll. of 6 March 2003, a product is introduced to the market under the commercial designation ‘spreadable butter’. That product is a solid, tractable emulsion of the water in oil type, obtained primarily from soured cream and containing, by weight, not less than 31 % milk fat and 42 % dry material. On account of its lower than prescribed content in milk fat, the product ‘spreadable butter’ does not fulfil the conditions for use of the commercial designation ‘butter’, and the above-mentioned EU legal provisions are thereby infringed.

Point I, second subclause of Annex XV, in conjunction with Part A, point 4 of the Appendix to Annex XV to Regulation (EC) No 1234/2007 requires that, for milk products with a milk fat content of less than 39 %, the commercial designation ‘Dairy spread X %’ be used. ‘Spreadable butter’ is not marketed under that designation, and accordingly the above-mentioned EU legal provisions are infringed.

By way of exception, products may be marketed under the commercial designation ‘butter’ even if they do not fulfil the above parameters, if the requirements laid down by point I, clause 2, third subclause (a) of Annex XV to Regulation (EC) No 1234/2007 are fulfilled. Such products are exhaustively listed in the list of products in Annex I to Commission Regulation (EC) No 445/2007. (2)‘Spreadable butter’ has not been entered on that list, as it does not fulfil the conditions laid down by point I, clause 2, third subclause (a) of Annex XV to Regulation (EC) No 1234/2007. ‘Spreadable butter’ cannot therefore use those exceptions.

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(1)  OJ 2007 L 299, 16.11.2007, p. 1

(2)  OJ 2007 L 106, 24.4.2007, p. 24

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/17 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/17

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Order of the President of the Court of 22 September 2010 — European Commission v Republic of Poland

(Case C-455/09) (1)

2011/C 80/32

Language of the case: Polish

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

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(1)  OJ C 24, 30.1.2010.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/17 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/17

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Order of the President of the Sixth Chamber of the Court of 28 September 2010 — European Commission v Portuguese Republic

(Case C-525/09) (1)

2011/C 80/33

Language of the case: Portuguese

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

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(1)  OJ C 51, 27.2.2010.

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General Court

| 12.3.2011 | EN | Official Journal of the European Union | C 80/18 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/18

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Judgment of the General Court of 2 February 2011 — Oyster Cosmetics v OHIM — Kadabell (Oyster cosmetics)

(Case T-437/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark Oyster cosmetics - Earlier Community figurative mark Kadus oystra AUTO STOP PROTECTION - Relative ground for refusal - Likelihood of confusion - Similarity of signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 80/34

Language of the case: English

Parties

Applicant: Oyster Cosmetics SpA (Castiglione delle Stiviere, Italy) (represented by: A. Perani and P. Pozzi, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Kadabell GmbH & Co. KG (Darmstadt, Germany) (represented by: K. Sandberg, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 5 August 2009 (Case R 1367/2008-1) concerning opposition proceedings between Kadabell GmbH & Co. KG and Oyster Cosmetics SpA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Oyster Cosmetics SpA to pay the costs. |
| --- | --- |

2.

Orders Oyster Cosmetics SpA to pay the costs.

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(1)  OJ C 11, 16.1.2010.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/18 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/18

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Order of the General Court of 21 January 2011 — Vtesse Networks Ltd v Commission

(Case T-54/07) (1)

(Application for annulment - State aid - Telecommunications - Tax on non-domestic property of undertakings in the United Kingdom - Decision finding that the measure at issue does not constitute aid - No individual concern - Inadmissibility)

2011/C 80/35

Language of the case: English

Parties

Applicant: Vtesse Networks Ltd (Hertford, Hertfordshire, United Kingdom) (represented by: H. Mercer, Barrister, and J. Ballard, Solicitor)

Defendant: European Commission (represented by: N. Khan and H. van Vliet, Agents)

Interveners in support of the applicant: AboveNet Communications UK Ltd, (London, United Kingdom); Gamma Telecom Ltd (Newbury, Berkshire, United Kingdom) and VTL (UK) Ltd (Egham, Surrey, United Kingdom), represented by I. Forrester QC, C. Arhold and K. Struckmann, lawyers)

Interveners in support of the defendant: British Telecommunications plc, (London, United Kingdom), (represented by G. Robert and C. Berg, Solicitors) and United Kingdom of Great Britain and Northern Ireland (represented by V. Jackson, Agent, and by C. Vajda QC and T. Morshead, Barrister)

Re:

Application for annulment in part of Commission Decision 2006/951/EC of 12 October 2006 on the United Kingdom’s application of the tax on non-domestic property to telecommunications infrastructure in the United Kingdom (No C-4/2005 (ex NN 57/2004, ex CP 26/2004)) (OJ 2006 L 383, p. 70)

Operative part of the order

| 1. | The application is dismissed as inadmissible. |
| --- | --- |

1.

The application is dismissed as inadmissible.

| 2. | Vtesse Networks Ltd shall bear its own costs and pay the costs of the European Commission. |
| --- | --- |

2.

Vtesse Networks Ltd shall bear its own costs and pay the costs of the European Commission.

| 3. | The United Kingdom of Great Britain and Northern Ireland, AboveNet Communications UK Ltd, Gamma Telecom Ltd, VTL (UK) Ltd and British Telecommunications plc shall bear their own costs. |
| --- | --- |

3.

The United Kingdom of Great Britain and Northern Ireland, AboveNet Communications UK Ltd, Gamma Telecom Ltd, VTL (UK) Ltd and British Telecommunications plc shall bear their own costs.

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(1)  OJ C 82, 14.4.2007.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/19 |
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12.3.2011

EN

Official Journal of the European Union

C 80/19

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Action brought on 22 December 2010 — Aktieselskabet af 21. november 2001 v OHMI — Parfums Givenchy (only givenchy)

(Case T-586/10)

2011/C 80/36

Language in which the application was lodged: English

Parties

Applicant: Aktieselskabet af 21. november 2001 (Brande, Denmark) (represented by: C. Christiansen, lawyer)

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

Other party to the proceedings before the Board of Appeal: Parfums Givenchy SA (Levallois Perret, France)

Form of order sought

| — | Set aside the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 October 2010 in case R 1556/2009-2; and |
| --- | --- |

—

Set aside the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 October 2010 in case R 1556/2009-2; and

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark in colour ‘only givenchy’, for goods in class 3 — Community trade mark application No 3980241

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Danish trade mark registration No VR 2001 03359 of the word mark ‘ONLY’, inter alia for goods in classes 3 and 9; Danish trade mark registration No VR 2000 02183 of the word mark ‘ONLY’, for goods in class 25; Community trade mark registration No 638833 of the word mark ‘ONLY’, for goods in classes 14, 18 and 25

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009, as the Board of Appeal erred in finding that there is no likelihood of confusion and that the relevant public would not establish a link or a connection between the earlier marks and the contested mark.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/19 |
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12.3.2011

EN

Official Journal of the European Union

C 80/19

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Action brought on 27 December 2010 — El Corte Inglés v OHIM — Technisynthese (BTS)

(Case T-592/10)

2011/C 80/37

Language in which the application was lodged: Spanish

Parties

Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: M. E. López Camba and J. L. Rivas Zurdo, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Technisynthese SARL (Saint Pierre Montlimart, France)

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 23 September 2010 in Case R 1380/2009-1 in its entirety; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 September 2010 in Case R 1380/2009-1 in its entirety;

| — | order the defendant and any interveners to pay all the costs of the proceedings. |
| --- | --- |

—

order the defendant and any interveners to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: El Corte Inglés, SA.

Community trade mark concerned: Word mark ‘BTS’ for goods in Classes 14, 18, 25 and 28.

Proprietor of the mark or sign cited in the opposition proceedings: Technisynthese SARL.

Mark or sign cited in opposition: National and Community figurative marks containing the word element ‘TBS’ for goods in Classes 18 and 25.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Decision of the Opposition Division annulled and opposition upheld.

Pleas in law: Failure to demonstrate that the earlier marks have a reputation and have been put to use, and infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks at issue.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/20 |
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12.3.2011

EN

Official Journal of the European Union

C 80/20

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Action brought on 29 December 2010 — El Corte Inglés v OHIM — Ruan (B)

(Case T-593/10)

2011/C 80/38

Language in which the application was lodged: Spanish

Parties

Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: J. L. Rivas Zurdo and E. Seijo Veiguela, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Jian Min Ruan (Mem Martins, Portugal)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 October 2010, in Case R 576/2010-2, and declare that, in accordance with Article 8(1)(b) of the CTMR, the opponent’s appeal before OHIM ought to have been upheld and the Opposition Division’s decision to grant in full the complex Community trade mark ‘B’ (No 6.379.721) annulled; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 October 2010, in Case R 576/2010-2, and declare that, in accordance with Article 8(1)(b) of the CTMR, the opponent’s appeal before OHIM ought to have been upheld and the Opposition Division’s decision to grant in full the complex Community trade mark ‘B’ (No 6.379.721) annulled;

| — | order the party or parties which oppose this action to pay the costs. |
| --- | --- |

—

order the party or parties which oppose this action to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Jian Min Ruan.

Community trade mark concerned: Red and white figurative mark containing the letter ‘B’ for goods in Class 25.

Proprietor of the mark or sign cited in the opposition proceedings: El Corte Inglés, SA.

Mark or sign cited in opposition: Figurative mark containing the letter ‘B’ for goods in Class 25.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed.

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

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/20 |
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12.3.2011

EN

Official Journal of the European Union

C 80/20

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Action brought on 28 December 2010 — Almunia Textil v OHIM — FIBA Europe (EuroBasket)

(Case T-596/10)

2011/C 80/39

Language in which the application was lodged: Spanish

Parties

Applicant: Almunia Textil, SA (La Almunia de Doña Godina, Spain) (represented by: J. E. Astiz Suárez, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: FIBA Europe eV (Munich, Germany)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 October 2010 in Case R 280/2010-1. |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 October 2010 in Case R 280/2010-1.

Pleas in law and main arguments

Applicant for a Community trade mark: FIBA Europe eV.

Community trade mark concerned: Word mark ‘EuroBasket’ for goods and services in Classes 9, 14, 16, 24, 25, 26, 28, 35, 38 and 41.

Proprietor of the mark or sign cited in the opposition proceedings: Almunia Textil, SA.

Mark or sign cited in opposition: Community and national figurative marks containing the word element ‘Basket’, for goods in Classes 18, 25 and 28.

Decision of the Opposition Division: Opposition upheld in part and Community trade mark application rejected in part for goods in Classes 9, 25, 28 and 41.

Decision of the Board of Appeal: Appeal allowed and opposition rejected.

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

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/21 |
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12.3.2011

EN

Official Journal of the European Union

C 80/21

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Action brought on 27 December 2010 — Biodes v OHIM — Manasul International (BIESUL)

(Case T-597/10)

2011/C 80/40

Language in which the application was lodged: Spanish

Parties

Applicant: Biodes, SL (Madrid, Spain) (represented by: E. Manresa Medina, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Manasul International, SL (Ponferrada, Spain)

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 23 September 2010 in Case R 1519/2009-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 September 2010 in Case R 1519/2009-1;

| — | order the defendant and any interveners to pay all the costs of the proceedings. |
| --- | --- |

—

order the defendant and any interveners to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Biodes, SL.

Community trade mark concerned: Figurative mark containing the word element ‘BIESUL’ for goods in Classes 5, 30 and 31.

Proprietor of the mark or sign cited in the opposition proceedings: Manasul International, SL.

Mark or sign cited in opposition: National figurative marks containing the word elements ‘MANASUL’ and ‘MANASUL ORO’ for goods in Classes 5, 30 and 31.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal upheld and mark applied for refused.

Pleas in law: Infringement of Article 8(1)(b) and (5) of Regulation (EC) No 207/2009, (1) since there is no similarity between the marks at issue and the Board of Appeal failed to examine the proof of use of the earlier marks.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/21 |
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12.3.2011

EN

Official Journal of the European Union

C 80/21

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Action brought on 27 December 2010 — Biodes v OHIM — Manasul International (LINEASUL)

(Case T-598/10)

2011/C 80/41

Language in which the application was lodged: Spanish

Parties

Applicant: Biodes, SL (Madrid, Spain) (represented by: E. Manresa Medina, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Manasul International, SL (Ponferrada, Spain)

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 23 September 2010 in Case R 1520/2009-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 September 2010 in Case R 1520/2009-1;

| — | order the defendant and any interveners to pay all the costs of the proceedings. |
| --- | --- |

—

order the defendant and any interveners to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Biodes, SL.

Community trade mark concerned: Figurative mark containing the word element ‘LINEASUL’ for goods in Classes 5, 30 and 31.

Proprietor of the mark or sign cited in the opposition proceedings: Manasul International, SL.

Mark or sign cited in opposition: National figurative marks containing the word elements ‘MANASUL’ and ‘MANASUL ORO’ for goods in Classes 5, 30 and 31.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal upheld and mark applied for refused.

Pleas in law: Infringement of Article 8(1)(b) and (5) of Regulation (EC) No 207/2009, (1) since there is no similarity between the marks at issue and the Board of Appeal failed to examine the proof of use of the earlier marks.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/22 |
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12.3.2011

EN

Official Journal of the European Union

C 80/22

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

(Case T-14/11)

2011/C 80/42

Language of the case: French

Parties

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

Defendant: European Commission

Form of order sought

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

—

annul the decision;

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

—

order the Commission to pay the costs in their entirety.

Pleas in law and main arguments

The applicants seek the annulment of the Commission’s decision of 17 November 2010 implicitly refusing access to Commission documents relating to the procedure initiated by the Commission in Case COMP/38.866 concerning a cartel in the European market for animal feed phosphates.

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

| 1. | The first plea in law alleges infringement of the obligation to state reasons in so far as the Commission did not reply to the confirmatory application for access to its decision or decisions fixing the probable ranges of fines as regards the addressees of Decision C(2010) 5004 Final, which was adopted as a result of settlement proceedings. |
| --- | --- |

1.

The first plea in law alleges infringement of the obligation to state reasons in so far as the Commission did not reply to the confirmatory application for access to its decision or decisions fixing the probable ranges of fines as regards the addressees of Decision C(2010) 5004 Final, which was adopted as a result of settlement proceedings.

| 2. | The second plea in law alleges errors of law and manifest errors of assessment in so far as the Commission relied, during the examination procedure in respect of the application for access to the documents, on the first and third indents of Article 4(2) and the second subparagraph of Article 4(3) of Regulation No 1049/2001 (1) to justify the refusal of access. The applicants submit that the documents requested:






  — | are not opinions, but decisions in respect of which it is not established that communication of them may seriously undermine the decision-making process; |
| --- | --- | --- |

2.

The second plea in law alleges errors of law and manifest errors of assessment in so far as the Commission relied, during the examination procedure in respect of the application for access to the documents, on the first and third indents of Article 4(2) and the second subparagraph of Article 4(3) of Regulation No 1049/2001 (1) to justify the refusal of access. The applicants submit that the documents requested:

—

are not opinions, but decisions in respect of which it is not established that communication of them may seriously undermine the decision-making process;

| — | do not contain any sensitive commercial data; |
| --- | --- |

—

do not contain any sensitive commercial data;

| — | have no connection with inspections, investigations and audits. |
| --- | --- |

—

have no connection with inspections, investigations and audits.

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

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/22 |
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12.3.2011

EN

Official Journal of the European Union

C 80/22

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Action brought on 17 January 2011 — El Corte Inglés v OHIM — BA&SH (ba&sh)

(Case T-23/11)

2011/C 80/43

Language in which the application was lodged: English

Parties

Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: M. López Camba and J. Rivas Zurdo, lawyers)

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

Other party to the proceedings before the Board of Appeal: BA&SH SAS (Paris, France)

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 7 October 2010 in case R 94/2010-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 October 2010 in case R 94/2010-2;

| — | Order the defendant and the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings. |
| --- | --- |

—

Order the defendant and the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘ba&sh’, for goods in classes 3, 14, 18 and 25 — Community trade mark application No 5679758

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Spanish trade mark registration No 2211312 of the figurative mark in colour ‘BASS10’, for goods in class 3; Spanish trade mark registration No 2140717 of the figurative mark in colour ‘BASS10’, for goods in class 18; Spanish trade mark registration No 2140718 of the figurative mark in colour ‘BASS10’, for goods in class 25; Spanish trade mark registration No 2223832 of the figurative mark in colour ‘BASS10’, for goods in class 14

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Articles 42(2) and 42(3) of Council Regulation (EC) No 207/2009, as the Board of Appeal wrongly concluded that no genuine use for the goods concerned was proved. The applicant also considers that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as the concerned trade marks are confusingly similar and as the products designated by the contested trade mark are partially identical and partially similar to those covered by the earlier registrations.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/23 |
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12.3.2011

EN

Official Journal of the European Union

C 80/23

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Action brought on 19 January 2011 — Bank Refah Kargaran v Council

(Case T-24/11)

2011/C 80/44

Language of the case: French

Parties

Applicant: Bank Refah Kargaran (Tehran, Iran) (represented by: J.-M. Thouvenin, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | Annul Decision 2010/644/CSFP of 26 October 2010 in so far as it concerns the applicant; |
| --- | --- |

—

Annul Decision 2010/644/CSFP of 26 October 2010 in so far as it concerns the applicant;

| — | Annul Council Regulation (EU) No 961/2010 of 25 October 2010 in so far as it concerns the applicant; |
| --- | --- |

—

Annul Council Regulation (EU) No 961/2010 of 25 October 2010 in so far as it concerns the applicant;

| — | Declare that Decision 2010/413/CSFP does not apply to the applicant; |
| --- | --- |

—

Declare that Decision 2010/413/CSFP does not apply to 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 principal arguments raised by the applicant are, in essence, identical or similar to those raised in Case T-4/11 Export Development Bank of Iran v Council.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/23 |
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12.3.2011

EN

Official Journal of the European Union

C 80/23

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Action brought on 17 January 2011 — Germans Boada v OHIM (Shape of a ceramics cutter)

(Case T-25/11)

2011/C 80/45

Language of the case: Spanish

Parties

Applicant: Germans Boada (Rubí, Spain) (represented by J. Carbonell Callicó, lawyer)

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

Form of order sought

The applicant claims that the Court should:

| — | alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 October 2010, in Case R 771/2010-1, in accordance with Article 65(3) CTMR and on grounds of infringement of the principle of equal treatment and infringement of Article 7(1)(b) and (3) CTMR, and register three-dimensional trade mark 7.317.911; |
| --- | --- |

—

alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 October 2010, in Case R 771/2010-1, in accordance with Article 65(3) CTMR and on grounds of infringement of the principle of equal treatment and infringement of Article 7(1)(b) and (3) CTMR, and register three-dimensional trade mark 7.317.911;

| — | in the alternative and solely in the event that the first claim does not succeed, annul the decision of the First Board of Appeal of OHIM of 28 October 2010, in Case R 771/2010-1, on the ground of infringement of Articles 75 and 76 CTMR; |
| --- | --- |

—

in the alternative and solely in the event that the first claim does not succeed, annul the decision of the First Board of Appeal of OHIM of 28 October 2010, in Case R 771/2010-1, on the ground of infringement of Articles 75 and 76 CTMR;

| — | order OHIM to pay the costs, in accordance with Article 87(2) CTMR. |
| --- | --- |

—

order OHIM to pay the costs, in accordance with Article 87(2) CTMR.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark in the shape of a ceramics cutter, for goods in Class 8

Decision of the Examiner: Application refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 207/2009, (1) since the mark applied for has distinctive character, and of Article 7(3) of Regulation (EC) No 207/2009, on the ground that it has been shown that the mark concerned has acquired distinctiveness through use. Infringement of the principle of equal treatment and of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, since OHIM should have taken into account only the facts and evidence submitted by the parties in due time. Infringement of Articles 75 and 76 of Regulation (EC) No 207/2009, on the ground that OHIM failed to take into account facts and evidence submitted by the applicant in due form and in due time.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/23 |
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12.3.2011

EN

Official Journal of the European Union

C 80/23

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Action brought on 14 January 2011 — Technische Universität Dresden v Commission

(Case T-29/11)

2011/C 80/46

Language of the case: German

Parties

Applicant: Technische Universität Dresden (Dresden, Germany) (represented by: G. Brüggen, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul the decision of the Commission of 4 November 2010, debit note No 3241011712, concerning the repayment of a sum in the amount of EUR 55 377,62; |
| --- | --- |

—

Annul the decision of the Commission of 4 November 2010, debit note No 3241011712, concerning the repayment of a sum in the amount of EUR 55 377,62;

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

—

Order the defendant to pay the costs

Pleas in law and main arguments

The applicant relies on the following in support of its action:

| 1. | Infringement of Community law due to an erroneous assessment of the facts and failure to assess the facts
  The applicant submits that there was an erroneous assessment of the facts and failure to assess the facts as regards the eligibility of certain personnel expenses, subsistence expenses and travel costs. It also submits that there was an erroneous assessment of the facts and failure to assess the facts in connection with various services. |
| --- | --- |

1.

Infringement of Community law due to an erroneous assessment of the facts and failure to assess the facts

The applicant submits that there was an erroneous assessment of the facts and failure to assess the facts as regards the eligibility of certain personnel expenses, subsistence expenses and travel costs. It also submits that there was an erroneous assessment of the facts and failure to assess the facts in connection with various services.

| 2. | Infringement of Community law due to serious errors of reasoning
  The applicant submits in this connection that there is a failure to state reasons in the debit note, erroneous reasoning as regards the granting and withdrawal of subsistence expenses and travel costs and a failure to state the reasons for the increase in the ineligible sum regarding the category of ‘various services’. |
| --- | --- |

2.

Infringement of Community law due to serious errors of reasoning

The applicant submits in this connection that there is a failure to state reasons in the debit note, erroneous reasoning as regards the granting and withdrawal of subsistence expenses and travel costs and a failure to state the reasons for the increase in the ineligible sum regarding the category of ‘various services’.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/24 |
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12.3.2011

EN

Official Journal of the European Union

C 80/24

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Action brought on 24 January 2011 — Peeters Landbouwmachines v OHIM — Fors MW (BIGAB)

(Case T-33/11)

2011/C 80/47

Language in which the application was lodged: English

Parties

Applicant: Peeters Landbouwmachines BV (Etten-Leur, Netherlands) (represented by: P.N.A.M. Claassen, lawyer)

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

Other party to the proceedings before the Board of Appeal: AS Fors MW (Saue, Republic of Estonia)

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 4 November 2010 in case R 210/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 November 2010 in case R 210/2010-1;

| — | Order the defendant to declare invalid the registered Community trade mark subject of the application for invalidity, or order the defendant to declare invalid the registered Community trade mark subject of the application for invalidity as far as it concerns the registration for Class 7; and |
| --- | --- |

—

Order the defendant to declare invalid the registered Community trade mark subject of the application for invalidity, or order the defendant to declare invalid the registered Community trade mark subject of the application for invalidity as far as it concerns the registration for Class 7; and

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘BIGAB’ for goods in classes 6, 7 and 12 — Community trade mark registration No 4363842

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request on absolute and relative grounds for invalidity pursuant to Articles 52(1)(b) and 53(1)(b) in conjunction with Article 8(4) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the application for a declaration of invalidity in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant contends that the Board of Appeal erred in its assessment of bad faith and failed to recognise the importance of similarity between the goods covered by the compared trade marks.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/24 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/24

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Action brought on 24 January 2011 — Canon Europa v Commission

(Case T-34/11)

2011/C 80/48

Language of the case: English

Parties

Applicants: Canon Europa NV (Amstelveen, The Netherlands), (represented by: P. De Baere and P. Muñiz, lawyers)

Defendant: European Commission

Form of order sought

| — | Declare the action admissible; |
| --- | --- |

—

Declare the action admissible;

| — | Annul Commission Regulation (EU) No 861/2010 of 5 October 2010 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2010 L 284, p. 1) and in particular the subdivisions introduced under Harmonized System (‘HS’) subheading 8443 31 and the corresponding duty rates; and |
| --- | --- |

—

Annul Commission Regulation (EU) No 861/2010 of 5 October 2010 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2010 L 284, p. 1) and in particular the subdivisions introduced under Harmonized System (‘HS’) subheading 8443 31 and the corresponding duty rates; and

| — | Order the defendant to pay the costs of these proceedings. |
| --- | --- |

—

Order the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

By means of its application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of Commission Regulation (EU) No 861/2010 of 5 October 2010 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2010 L 284, p. 1) and in particular the subdivisions introduced under HS subheading 8443 31 and the corresponding duty rates.

In support of its application, the applicant puts forward the following pleas in law:

| | Firstly, the applicant claims that the application for annulment is admissible under Article 263 TFEU since the contested measure is a regulatory act which is of direct concern to the applicant and which does not entail any further implementing measures. |
| --- | --- |

Firstly, the applicant claims that the application for annulment is admissible under Article 263 TFEU since the contested measure is a regulatory act which is of direct concern to the applicant and which does not entail any further implementing measures.

| | In addition, the applicant argues that the contested act is invalid because it reduces the scope of HS 2007 subheading 8443 31 by excluding Multifunctional Machines (‘MFMs’) which were previously classifiable under HS 2002 subheading 8471 60 from its scope, while the defendant may not modify the scope of HS subheadings pursuant to Article 3 of the HS Convention (1), and Article 1.2(a) of Council Regulation (EEC) No 2658/87 (2). |
| --- | --- |

In addition, the applicant argues that the contested act is invalid because it reduces the scope of HS 2007 subheading 8443 31 by excluding Multifunctional Machines (‘MFMs’) which were previously classifiable under HS 2002 subheading 8471 60 from its scope, while the defendant may not modify the scope of HS subheadings pursuant to Article 3 of the HS Convention (1), and Article 1.2(a) of Council Regulation (EEC) No 2658/87 (2).

| | Furthermore, the applicant claims that the contested act is invalid because it modifies the duty rates applicable to certain MFMs previously classifiable under HS 2002 subheadings 8471 60 and 8517 21, and thereby violates Article 9.2 of Council Regulation (EEC) No. 2658/87. |
| --- | --- |

Furthermore, the applicant claims that the contested act is invalid because it modifies the duty rates applicable to certain MFMs previously classifiable under HS 2002 subheadings 8471 60 and 8517 21, and thereby violates Article 9.2 of Council Regulation (EEC) No. 2658/87.

| | Finally, the contested act violates Article II of GATT 1994 (3) and the obligations undertaken by the EU in its Schedule of concessions because it imposes duties on certain MFMs for which the EU had undertaken to eliminate all customs duties. |
| --- | --- |

Finally, the contested act violates Article II of GATT 1994 (3) and the obligations undertaken by the EU in its Schedule of concessions because it imposes duties on certain MFMs for which the EU had undertaken to eliminate all customs duties.

---

(1)  International Convention on the Harmonized Commodity Description and Coding System of 14 June 1983.

(2)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1).

(3)  The General Agreement on Tariffs and Trade 1994.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/25 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/25

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Action brought on 24 January 2011 — Kyocera Mita Europe v Commission

(Case T-35/11)

2011/C 80/49

Language of the case: English

Parties

Applicant: Kyocera Mita Europe BV (represented by: P. De Baere and P. Muñiz, lawyers)

Defendant: European Commission

Form of order sought

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

—

declare the action admissible;

| — | annul Commission Regulation (EU) No 861/2010 of 5 October 2010 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (1) and in particular to the extent that it introduces the subdivisions under Harmonized System (‘HS’) subheading 8443 31 and the corresponding duty rates; and |
| --- | --- |

—

annul Commission Regulation (EU) No 861/2010 of 5 October 2010 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (1) and in particular to the extent that it introduces the subdivisions under Harmonized System (‘HS’) subheading 8443 31 and the corresponding duty rates; and

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

—

order the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on pleas in law that are identical to the ones relied on by the applicant in Case T-34/11, Canon Europa v Commission.

---

(1)  OJ 2010 L 284, p.1

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/25 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/25

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Action brought on 24 January 2011 — Japan Airlines v Commission

(Case T-36/11)

2011/C 80/50

Language of the case: English

Parties

Applicant: Japan Airlines International Co., Ltd. (represented by: J.-F. Bellis and K. Van Hove, lawyers, and R. Burton, Solicitor)

Defendant: European Commission

Form of order sought

| — | annul the Commission Decision of 9 November 2010; |
| --- | --- |

—

annul the Commission Decision of 9 November 2010;

| — | in the alternative, in the exercise of its unlimited jurisdiction, to reduce the fine imposed on the applicant and AL and Japan Airlines Corporation; and |
| --- | --- |

—

in the alternative, in the exercise of its unlimited jurisdiction, to reduce the fine imposed on the applicant and AL and Japan Airlines Corporation; and

| — | order the Commission to pay the cost of the proceedings. |
| --- | --- |

—

order the Commission to pay the cost of the proceedings.

Pleas in law and main arguments

Application for annulment of Commission Decision C(2010) 7694 Final of 9 November 2010 in case COMP/39.258 — Airfreight. This Decision finds that the applicant, along with Japan Airlines Corporation (JAC) (which has been absorbed by the applicant and ceased to exist), infringed Article 101 TFEU and Article 53 EEA by coordinating with other carriers its pricing behaviour for air freight services in respect (i) fuel surcharges, (ii) security surcharges, and (iii) the non-payment of commissions on surcharges.

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

| 1. | First plea in law, alleging that the decision violates Article 101 TFEU and Article 53 EEA in defining the scope of the infringement in which the applicant was found to have participated to include routes that the applicant did not serve and had no legal right to serve. |
| --- | --- |

1.

First plea in law, alleging that the decision violates Article 101 TFEU and Article 53 EEA in defining the scope of the infringement in which the applicant was found to have participated to include routes that the applicant did not serve and had no legal right to serve.

| 2. | Second plea in law, alleging that the decision violates Article 101 TFEU and Article 53 EEA in asserting jurisdiction over inbound airfreight services on EEA-third country routes to the extent that such services are sold to customers located outside of the EEA. |
| --- | --- |

2.

Second plea in law, alleging that the decision violates Article 101 TFEU and Article 53 EEA in asserting jurisdiction over inbound airfreight services on EEA-third country routes to the extent that such services are sold to customers located outside of the EEA.

| 3. | Third plea in law, alleging that the decision violates the principles of non-discrimination and proportionality in applying different standards of proof to different carriers. |
| --- | --- |

3.

Third plea in law, alleging that the decision violates the principles of non-discrimination and proportionality in applying different standards of proof to different carriers.

| 4. | Fourth plea in law, alleging that the decision violates the 2006 Fining Guidelines and the principle of proportionality by including in the relevant value of sales used as the basis for calculating the fine revenues derived from elements of price for airfreight services unrelated to the infringement. |
| --- | --- |

4.

Fourth plea in law, alleging that the decision violates the 2006 Fining Guidelines and the principle of proportionality by including in the relevant value of sales used as the basis for calculating the fine revenues derived from elements of price for airfreight services unrelated to the infringement.

| 5. | Fifth plea in law, alleging that the decision violates the 2006 Fining Guidelines and the principle of legitimate expectations by including in the relevant value of sales used as the basis for calculating the fine revenues derived from airfreight services on inbound routes between EEA States and third countries. |
| --- | --- |

5.

Fifth plea in law, alleging that the decision violates the 2006 Fining Guidelines and the principle of legitimate expectations by including in the relevant value of sales used as the basis for calculating the fine revenues derived from airfreight services on inbound routes between EEA States and third countries.

| 6. | Sixth plea in law, alleging that the decision violates the principle of proportionality in limiting the reduction in the fine granted to the applicant on account of the regulatory framework to 15 %. |
| --- | --- |

6.

Sixth plea in law, alleging that the decision violates the principle of proportionality in limiting the reduction in the fine granted to the applicant on account of the regulatory framework to 15 %.

| 7. | Seventh plea in law, alleging that the decision violates the principle of non-discrimination in failing to grant the applicant a 10 % reduction in the fine on account of limited involvement in the infringement where such a reduction was granted to other addressees of the decision that are in a position objectively similar to that of the applicant. |
| --- | --- |

7.

Seventh plea in law, alleging that the decision violates the principle of non-discrimination in failing to grant the applicant a 10 % reduction in the fine on account of limited involvement in the infringement where such a reduction was granted to other addressees of the decision that are in a position objectively similar to that of the applicant.

| 8. | Eighth plea in law, alleging that the decision violates the principle of proportionality in failing to take account of the specific circumstances of the case. |
| --- | --- |

8.

Eighth plea in law, alleging that the decision violates the principle of proportionality in failing to take account of the specific circumstances of the case.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/26 |
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12.3.2011

EN

Official Journal of the European Union

C 80/26

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Action brought on 24 January 2011 — Cargolux Airlines v Commission

(Case T-39/11)

2011/C 80/51

Language of the case: English

Parties

Applicant: Cargolux Airlines International SA (Sandweiler, Luxembourg) (represented by: J. Joshua, Barrister, and G. Goeteyn, Solicitor)

Defendant: European Commission

Form of order sought

| — | annul Articles 1-4 in whole or in part insofar as they relate to the applicant; |
| --- | --- |

—

annul Articles 1-4 in whole or in part insofar as they relate to the applicant;

| — | cancel the fine imposed on the applicant in Article 5; |
| --- | --- |

—

cancel the fine imposed on the applicant in Article 5;

| — | alternatively, substantially reduce the fine pursuant to the unlimited jurisdiction of the Court; |
| --- | --- |

—

alternatively, substantially reduce the fine pursuant to the unlimited jurisdiction of the Court;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

Application for annulment of Commission Decision C(2010) 7694 final of 9 November 2010 in case COMP/39.258 — Airfreight insofar as it finds that the applicant infringed Article 101 TFEU and Article 53 EEA by coordinating with other carriers its pricing behaviour for air freight services in respect of (i) fuel surcharges, (ii) security surcharges, and (iii) the non-payment of commissions on surcharges.

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

| 1. | First plea in law, alleging the manifest error of assessment since the Commission wrongly categorised the conduct as a restriction by object and has demonstrated no anti-competitive effect. In this regard the applicant submits that:






  — | the existence of the concept of restriction by object does not liberate the Commission from the duty to conduct some kind of assessment which it failed to do; |
| --- | --- | --- |

1.

First plea in law, alleging the manifest error of assessment since the Commission wrongly categorised the conduct as a restriction by object and has demonstrated no anti-competitive effect. In this regard the applicant submits that:

—

the existence of the concept of restriction by object does not liberate the Commission from the duty to conduct some kind of assessment which it failed to do;

| — | the decision does not articulate any theory of harm, in particular given that all allegations on the fixing of underlying rates have been dropped. |
| --- | --- |

—

the decision does not articulate any theory of harm, in particular given that all allegations on the fixing of underlying rates have been dropped.

| 2. | Second plea in law, alleging the breach of essential procedural requirement, failure to give reasons, violation of rights of defence and manifest error of assessment since the Commission failed to identify with sufficient particularity the scope and parameters of conduct supposedly constitutive of the single continuous infringements. |
| --- | --- |

2.

Second plea in law, alleging the breach of essential procedural requirement, failure to give reasons, violation of rights of defence and manifest error of assessment since the Commission failed to identify with sufficient particularity the scope and parameters of conduct supposedly constitutive of the single continuous infringements.

| 3. | Third plea in law, alleging a manifest error of assessment since the Commission failed to establish a reliable evidential basis for its conclusions or to prove the facts on which it bases its findings to the required legal standard. In this regard, the applicant submits that:






  — | none of the errors contained in the statement of objections and brought to the Commission’s attention at the time have been corrected in the decision; |
| --- | --- | --- |

3.

Third plea in law, alleging a manifest error of assessment since the Commission failed to establish a reliable evidential basis for its conclusions or to prove the facts on which it bases its findings to the required legal standard. In this regard, the applicant submits that:

—

none of the errors contained in the statement of objections and brought to the Commission’s attention at the time have been corrected in the decision;

| — | the Commission has abused the concept of the single continuous infringement by insisting that entirely innocent conduct can form part of the illegal enterprise and has used the label of a ‘global cartel’ as an excuse to bring in entirely prejudicial and irrelevant evidence. |
| --- | --- |

—

the Commission has abused the concept of the single continuous infringement by insisting that entirely innocent conduct can form part of the illegal enterprise and has used the label of a ‘global cartel’ as an excuse to bring in entirely prejudicial and irrelevant evidence.

| 4. | Fourth plea in law, alleging that the Commission erred in law by wrongly asserting jurisdiction over supposed anti-competitive coordination in relation to flights from third country airports to airports inside the EEA (‘inbound flights’). In the applicant’s submissions such activities are outside of the territorial scope of Article 101 TFUE and Article 53 of the EEA Agreement. |
| --- | --- |

4.

Fourth plea in law, alleging that the Commission erred in law by wrongly asserting jurisdiction over supposed anti-competitive coordination in relation to flights from third country airports to airports inside the EEA (‘inbound flights’). In the applicant’s submissions such activities are outside of the territorial scope of Article 101 TFUE and Article 53 of the EEA Agreement.

| 5. | Fifth plea in law, put forward as regards to the review of the fine under the unlimited jurisdiction of the Court, alleging a manifest error of assessment and breach of principle of proportionality. In this regard the applicant submits that:






  — | the 2006 Fine Guidelines are not compatible with the requirement of Article 23(2) of Regulation 1/2003 (1) to base the fine on gravity and duration; |
| --- | --- | --- |

5.

Fifth plea in law, put forward as regards to the review of the fine under the unlimited jurisdiction of the Court, alleging a manifest error of assessment and breach of principle of proportionality. In this regard the applicant submits that:

—

the 2006 Fine Guidelines are not compatible with the requirement of Article 23(2) of Regulation 1/2003 (1) to base the fine on gravity and duration;

| — | the Commission grossly overstated the overall gravity of the alleged infringement. Neither the percentage level (16 % of the value of sales), nor the additional amount are warranted in the present case; |
| --- | --- |

—

the Commission grossly overstated the overall gravity of the alleged infringement. Neither the percentage level (16 % of the value of sales), nor the additional amount are warranted in the present case;

| — | in relation to the applicant, the Commission wrongly assessed the duration of the infringements, mistakenly rejected mitigating factors and failed to take account of all relevant circumstances including the overall fairness of the sanctions and the economic situation of the applicant. |
| --- | --- |

—

in relation to the applicant, the Commission wrongly assessed the duration of the infringements, mistakenly rejected mitigating factors and failed to take account of all relevant circumstances including the overall fairness of the sanctions and the economic situation of the applicant.

---

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1, p. 1

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/27 |
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12.3.2011

EN

Official Journal of the European Union

C 80/27

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Action brought on 24 January 2011 — Lan Airlines and Lan Cargo v Commission

(Case T-40/11)

2011/C 80/52

Language of the case: English

Parties

Applicants: Lan Airlines SA and Lan Cargo SA (Santiago, Chile) (represented by: B. Hartnett, Barrister, and O. Geiss, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul the contested decision insofar as it relates to the applicants; |
| --- | --- |

—

Annul the contested decision insofar as it relates to the applicants;

| — | In the alternative, reduce the fine imposed on the applicants; and |
| --- | --- |

—

In the alternative, reduce the fine imposed on the applicants; and

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

By means of their application, the applicants seek, pursuant to Article 263 TFEU, the annulment of the Commission Decision of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (‘TFEU’), Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258 — Airfreight), insofar as it relates to the applicants.

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

| 1. | First plea in law, alleging that the Commission failed to establish, to the requisite legal standards, that the applicants participated in a single and continuous infringement and, as a result, committed an error in law and in fact when applying Article 101 TFEU, as:






  — | The Commission did not establish that Lan Cargo was aware or ought to have been aware of the existence of a common anti-competitive plan; |
| --- | --- | --- |

1.

First plea in law, alleging that the Commission failed to establish, to the requisite legal standards, that the applicants participated in a single and continuous infringement and, as a result, committed an error in law and in fact when applying Article 101 TFEU, as:

—

The Commission did not establish that Lan Cargo was aware or ought to have been aware of the existence of a common anti-competitive plan;

| — | The Commission did not establish that Lan Cargo intended by its own conduct to contribute to such common anti-competitive plan; and |
| --- | --- |

—

The Commission did not establish that Lan Cargo intended by its own conduct to contribute to such common anti-competitive plan; and

| — | The Commission did not establish that Lan Cargo was aware of an infringement in relation to the security surcharge or commissioning on surcharges. |
| --- | --- |

—

The Commission did not establish that Lan Cargo was aware of an infringement in relation to the security surcharge or commissioning on surcharges.

| 2. | Second plea in law, alleging that the Commission breached the applicants’ rights of defence, as:






  — | The Commission breached the applicants’ rights of defence by relying on evidence that was not referred to in the Statement of Objections; |
| --- | --- | --- |

2.

Second plea in law, alleging that the Commission breached the applicants’ rights of defence, as:

—

The Commission breached the applicants’ rights of defence by relying on evidence that was not referred to in the Statement of Objections;

| — | The Commission breached the applicants’ rights of defence by relying on an interpretation of evidence that was not clearly set out in the Statement of Objections; |
| --- | --- |

—

The Commission breached the applicants’ rights of defence by relying on an interpretation of evidence that was not clearly set out in the Statement of Objections;

| — | The Commission breached the applicants’ rights of defence by raising objections in the contested decision on which the applicants had not had an opportunity to comment. |
| --- | --- |

—

The Commission breached the applicants’ rights of defence by raising objections in the contested decision on which the applicants had not had an opportunity to comment.

| 3. | Third plea in law, alleging that the Commission breached the principles of equal treatment, individual liability and proportionality when determining the basic amount of the fine imposed on the applicants, as:






  — | The Commission’s determination of the duration of the infringement did not correspond to the finding of both knowledge of and intent to participate in the alleged common anti-competitive plan; |
| --- | --- | --- |

3.

Third plea in law, alleging that the Commission breached the principles of equal treatment, individual liability and proportionality when determining the basic amount of the fine imposed on the applicants, as:

—

The Commission’s determination of the duration of the infringement did not correspond to the finding of both knowledge of and intent to participate in the alleged common anti-competitive plan;

| — | The Commission erred when calculating the basic amount; |
| --- | --- |

—

The Commission erred when calculating the basic amount;

| — | The Commission’s calculation of the basic element of the fine failed to reflect the Applicants’ limited participation in the alleged infringement; and |
| --- | --- |

—

The Commission’s calculation of the basic element of the fine failed to reflect the Applicants’ limited participation in the alleged infringement; and

| — | The Commission’s calculation of the basic element of the fine failed to reflect that the alleged infringement did not cover the entire price of the relevant services. |
| --- | --- |

—

The Commission’s calculation of the basic element of the fine failed to reflect that the alleged infringement did not cover the entire price of the relevant services.

| 4. | Fourth plea in law, alleging that the Commission breached the principle of equal treatment and failed to state reasons when adjusting the basic fine amount for mitigating circumstances, as:






  — | The Commission failed to account for the very significant differences between the applicants’ level of participation and the much greater participation of other airlines; and |
| --- | --- | --- |

4.

Fourth plea in law, alleging that the Commission breached the principle of equal treatment and failed to state reasons when adjusting the basic fine amount for mitigating circumstances, as:

—

The Commission failed to account for the very significant differences between the applicants’ level of participation and the much greater participation of other airlines; and

| — | The Commission failed to objectively justify its identical treatment of different airlines despite their significantly different situations. |
| --- | --- |

—

The Commission failed to objectively justify its identical treatment of different airlines despite their significantly different situations.

| 5. | Fifth plea in law, alleging that the Commission failed to state the reasons for its exclusion of eleven addressees of the Statement of Objections in the contested decision, for its finding that the applicants engaged in a single and continuous infringement, and for its calculation of the fine imposed as:






  — | The Commission failed to state its reasons for omitting from the contested decision eleven carriers that were addressed by its Statement of Objections; |
| --- | --- | --- |

5.

Fifth plea in law, alleging that the Commission failed to state the reasons for its exclusion of eleven addressees of the Statement of Objections in the contested decision, for its finding that the applicants engaged in a single and continuous infringement, and for its calculation of the fine imposed as:

—

The Commission failed to state its reasons for omitting from the contested decision eleven carriers that were addressed by its Statement of Objections;

| — | The Commission failed to state its reasoning in relation to the constituent elements required by the Court to find that the applicant engaged in a single and continuous infringement; and |
| --- | --- |

—

The Commission failed to state its reasoning in relation to the constituent elements required by the Court to find that the applicant engaged in a single and continuous infringement; and

| — | The Commission failed to state the reasoning that underlies its calculation of the fine imposed on the applicants under Article 5 of the contested decision. |
| --- | --- |

—

The Commission failed to state the reasoning that underlies its calculation of the fine imposed on the applicants under Article 5 of the contested decision.

| 6. | Sixth plea in law, alleging that the Commission breached the applicants’ right to a fair trial and, as a result, breached Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 of the European Convention on Human Rights, as:






  — | The applicants were denied the opportunity to examine or cross-examine witnesses; |
| --- | --- | --- |

6.

Sixth plea in law, alleging that the Commission breached the applicants’ right to a fair trial and, as a result, breached Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 of the European Convention on Human Rights, as:

—

The applicants were denied the opportunity to examine or cross-examine witnesses;

| — | The applicants were denied the opportunity to comment on the calculation of the fine imposed on them; |
| --- | --- |

—

The applicants were denied the opportunity to comment on the calculation of the fine imposed on them;

| — | The fine was imposed following an oral hearing that was not public and which the decision-maker did not attend; and |
| --- | --- |

—

The fine was imposed following an oral hearing that was not public and which the decision-maker did not attend; and

| — | The contested decision was adopted by an administrative body, and no judicial body has full jurisdiction to review all aspects of it. |
| --- | --- |

—

The contested decision was adopted by an administrative body, and no judicial body has full jurisdiction to review all aspects of it.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/28 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/28

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Action brought on 19 January 2011 — Universal v Commission

(Case T-42/11)

2011/C 80/53

Language of the case: English

Parties

Applicant: Universal Corp. (Richmond, United States) (represented by: C.R.A. Swaak, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul the contested decision set out in the letters of 12 and 30 November 2010; and/or |
| --- | --- |

—

Annul the contested decision set out in the letters of 12 and 30 November 2010; and/or

| — | Declare that the applicant cannot be held liable to pay for any part or all of the fine imposed in this case until a definitive judgment in case T-12/06 Deltafina v Commission or any follow-on proceedings is issued; and |
| --- | --- |

—

Declare that the applicant cannot be held liable to pay for any part or all of the fine imposed in this case until a definitive judgment in case T-12/06 Deltafina v Commission or any follow-on proceedings is issued; and

| — | Condemn the Commission to the costs of the proceedings. |
| --- | --- |

—

Condemn the Commission to the costs of the proceedings.

Pleas in law and main arguments

By means of its application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of the Commission Decision contained in the letter from the Commission to Universal Corporation, dated 12 November 2010, and confirmed by the letter dated 30 November 2010, requiring the latter to pay the joint and several fine imposed on Universal Corporation and Deltafina SpA in case COMP/C.38.281.B2 — Raw Tobacco Italy of 20 October 2005 following the withdrawal of case T-34/06 Universal Corp. v Commission but prior to the resolution of case T-12/06 Deltafina SpA v Commission and any follow-on proceedings.

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

| 1. | First plea in law, alleging that the contested decision is vitiated;






  — | The contested decision is vitiated insofar as the fine is fully covered by the guarantee provided by its subsidiary Deltafina. The applicant is only jointly and severally liable as the 100 % parent company for the payment of the fine imposed by the Commission on Deltafina for its direct participation in the infringement. The withdrawal of the application for annulment lodged by the applicant is therefore irrelevant to the question of when the fine must be paid. |
| --- | --- | --- |

1.

First plea in law, alleging that the contested decision is vitiated;

—

The contested decision is vitiated insofar as the fine is fully covered by the guarantee provided by its subsidiary Deltafina. The applicant is only jointly and severally liable as the 100 % parent company for the payment of the fine imposed by the Commission on Deltafina for its direct participation in the infringement. The withdrawal of the application for annulment lodged by the applicant is therefore irrelevant to the question of when the fine must be paid.

| 2. | Second plea in law, alleging a breach of the principle of protection of legitimate expectations;






  — | The contested decision violates the principle of protection of legitimate expectations in relation to the validity of the bank guarantee until the conclusion of the Deltafina proceedings. On the basis of the Commission's acceptance of a bank guarantee relating to the application for annulment by Deltafina, the Commission created the legitimate expectation that it would refrain from seeking payment of the fine prior to a definitive judgment in case T-12/06. The Commission further violated the applicant's legitimate expectation of consistent treatment by the Commission of the applicant and Deltafina as a single undertaking for the purposes of liability and enforcement. |
| --- | --- | --- |

2.

Second plea in law, alleging a breach of the principle of protection of legitimate expectations;

—

The contested decision violates the principle of protection of legitimate expectations in relation to the validity of the bank guarantee until the conclusion of the Deltafina proceedings. On the basis of the Commission's acceptance of a bank guarantee relating to the application for annulment by Deltafina, the Commission created the legitimate expectation that it would refrain from seeking payment of the fine prior to a definitive judgment in case T-12/06. The Commission further violated the applicant's legitimate expectation of consistent treatment by the Commission of the applicant and Deltafina as a single undertaking for the purposes of liability and enforcement.

| 3. | Third plea in law, alleging breach of the obligation of good administration flowing from Article 266 TFEU;






  — | The contested decision violates the obligation of good administration flowing from Article 266 TFEU by requiring premature payment of the joint fine pending the outcome of the Deltafina proceedings, with which the Commission must comply. In the event that Deltafina is wholly or partly successful the Commission will be obliged to reduce or eliminate the amount for which Universal is held jointly and severally liable. |
| --- | --- | --- |

3.

Third plea in law, alleging breach of the obligation of good administration flowing from Article 266 TFEU;

—

The contested decision violates the obligation of good administration flowing from Article 266 TFEU by requiring premature payment of the joint fine pending the outcome of the Deltafina proceedings, with which the Commission must comply. In the event that Deltafina is wholly or partly successful the Commission will be obliged to reduce or eliminate the amount for which Universal is held jointly and severally liable.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/29 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/29

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Action brought on 17 January 2011 — Italy v Commission

(Case T-44/11)

2011/C 80/54

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: L. Ventrella, avvocato dello Stato)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul in part Commission Decision C(2010) 7555, notified on 5 November 2010, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and the European Agricultural Fund for Rural Development (EAFRD). |
| --- | --- |

—

Annul in part Commission Decision C(2010) 7555, notified on 5 November 2010, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and the European Agricultural Fund for Rural Development (EAFRD).

Pleas in law and main arguments

The applicant relies on three grounds in support of its action.

| 1. | First ground, alleging infringement of essential procedural requirements (Article 269 TEU, formerly Article 253 EC), on the basis of failure to state reasons; distortion of facts; infringement of the principle of proportionality; infringement of Article 24(2) of Commission Regulation (EC) No 2799/1999 of 17 December 1999 laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder (OJ 1999 L 340, p. 3).
  It is submitted in this connection that the Commission applied a number of financial corrections in the skimmed milk powder sector on the basis of the allegedly incorrect application of regulatory aid reductions and sanctions. In particular, on the basis of a strict interpretation of Article 24(2) of Regulation (EC) No 2799/0999, which was incorrect and inconsistent with the spirit of that provision, it found that the quarterly check, carried out the week following that in which the irregular sample was taken, was not the special enquiry provided for by Community legislation and could not therefore act as a substitute for it. Moreover, on the basis of a small number of specific cases, the Commission made generalisations concerning any failure — wholly hypothetical — on the part of the Italian authorities to impose penalties, which also led it to distort the facts. Lastly, since the amount which, it is claimed, has not yet been paid by way of penalties is considerably below the total amount of penalties which it was intended to impose on Italy, it is impossible to understand the reasons for the application of flat-rate corrections, which are in any event disproportionate and excessive. It therefore follows that, in addition to the clear failure to state reasons, there has also been infringement of the principle of proportionality. |
| --- | --- |

1.

First ground, alleging infringement of essential procedural requirements (Article 269 TEU, formerly Article 253 EC), on the basis of failure to state reasons; distortion of facts; infringement of the principle of proportionality; infringement of Article 24(2) of Commission Regulation (EC) No 2799/1999 of 17 December 1999 laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder (OJ 1999 L 340, p. 3).

It is submitted in this connection that the Commission applied a number of financial corrections in the skimmed milk powder sector on the basis of the allegedly incorrect application of regulatory aid reductions and sanctions. In particular, on the basis of a strict interpretation of Article 24(2) of Regulation (EC) No 2799/0999, which was incorrect and inconsistent with the spirit of that provision, it found that the quarterly check, carried out the week following that in which the irregular sample was taken, was not the special enquiry provided for by Community legislation and could not therefore act as a substitute for it. Moreover, on the basis of a small number of specific cases, the Commission made generalisations concerning any failure — wholly hypothetical — on the part of the Italian authorities to impose penalties, which also led it to distort the facts. Lastly, since the amount which, it is claimed, has not yet been paid by way of penalties is considerably below the total amount of penalties which it was intended to impose on Italy, it is impossible to understand the reasons for the application of flat-rate corrections, which are in any event disproportionate and excessive. It therefore follows that, in addition to the clear failure to state reasons, there has also been infringement of the principle of proportionality.

| 2. | Second ground, alleging infringement of essential procedural requirements (Article 269 TEU, formerly Article 253 EC), on the basis of failure to state reasons; infringement of the principle of proportionality; infringement of Article 6(3) TEU, on the basis of infringement of the fundamental principles of the protection of legitimate expectations, legal certainty and the principle of non-retroactivity of substantive rules; infringement of Article 32(5) of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1): infringement of the principle of ne bis in idem.
  The applicant submits in this connection that, following an investigation initiated in 2003, the Commission applied a correction to the Member State for the 2009 financial year, regarding the organisation of the recovery system of the paying agencies, which took account of the value of the cases which, as they had not yet been decided on by the Commission in accordance with the Community rules in force at the material time, it is claimed are covered by the new rules, thus making them subject to what is known as the fifty-fifty rule introduced by Regulation (EC) No 1290/2005. The financial adjustment in question is unlawful in that it made the Member State automatically liable for 50 per cent of the sums in question, in accordance with the provision in Article 32(5) of Regulation No 1290/2005, which was unlawfully applied retroactively in connection with an investigation into debt management concerning, essentially, ‘the situation as observed in 2002/2003’, as expressly acknowledged by the Commission itself. Moreover, in respect of the same cases in which checks were carried out, a financial correction of 50 % has already been applied to the Italian State under Article 32 of Regulation 1290/2005 by Commission C(2007) 1901 of 27 April 2007. By the contested decision, the Commission is applying, in respect of the same cases and on the basis of the same findings, a further specific financial correction amounting to 100 % of the claims that have not been recovered. It is therefore unlawful and wholly disproportionate to require payment of the additional 50 % by way of penalties after so many years and essentially amounts to a flagrant breach of the principle of ne bis in idem.
  Third ground, alleging that the Commission’s power to impose penalties is time-barred; the reasonable period for concluding the investigations at issue was exceeded; infringement of Article 32(5) of Regulation 1290/2005; infringement of the principle of ne bis in idem.
  In the alternative to the second ground, if, which is denied, Article 32(5) of Regulation 1290/2005, applied retroactively by the Commission to the investigations at issue, should be regarded as a procedural provision, it is submitted that the correction in question is unlawful, since it was applied after the four-year limitation period within which the Commission can exercise its powers to impose penalties. In the further alternative, it is submitted that the corrections at issue are unlawful, on the ground that the reasonable period for concluding the investigations in question was exceeded. As a result of the failure to conclude the investigations within a reasonable period (eight years after the investigations commenced), the national budget has already suffered a significant loss of revenue due to Commission Decision C(2007) 1901 to apply a 50 % flat-rate correction with regard to the same cases which are also the subject of the contested decision, amounting essentially to a flagrant breach of the principle of ne bis in idem. |
| --- | --- |

2.

Second ground, alleging infringement of essential procedural requirements (Article 269 TEU, formerly Article 253 EC), on the basis of failure to state reasons; infringement of the principle of proportionality; infringement of Article 6(3) TEU, on the basis of infringement of the fundamental principles of the protection of legitimate expectations, legal certainty and the principle of non-retroactivity of substantive rules; infringement of Article 32(5) of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1): infringement of the principle of ne bis in idem.

The applicant submits in this connection that, following an investigation initiated in 2003, the Commission applied a correction to the Member State for the 2009 financial year, regarding the organisation of the recovery system of the paying agencies, which took account of the value of the cases which, as they had not yet been decided on by the Commission in accordance with the Community rules in force at the material time, it is claimed are covered by the new rules, thus making them subject to what is known as the fifty-fifty rule introduced by Regulation (EC) No 1290/2005. The financial adjustment in question is unlawful in that it made the Member State automatically liable for 50 per cent of the sums in question, in accordance with the provision in Article 32(5) of Regulation No 1290/2005, which was unlawfully applied retroactively in connection with an investigation into debt management concerning, essentially, ‘the situation as observed in 2002/2003’, as expressly acknowledged by the Commission itself. Moreover, in respect of the same cases in which checks were carried out, a financial correction of 50 % has already been applied to the Italian State under Article 32 of Regulation 1290/2005 by Commission C(2007) 1901 of 27 April 2007. By the contested decision, the Commission is applying, in respect of the same cases and on the basis of the same findings, a further specific financial correction amounting to 100 % of the claims that have not been recovered. It is therefore unlawful and wholly disproportionate to require payment of the additional 50 % by way of penalties after so many years and essentially amounts to a flagrant breach of the principle of ne bis in idem.

Third ground, alleging that the Commission’s power to impose penalties is time-barred; the reasonable period for concluding the investigations at issue was exceeded; infringement of Article 32(5) of Regulation 1290/2005; infringement of the principle of ne bis in idem.

In the alternative to the second ground, if, which is denied, Article 32(5) of Regulation 1290/2005, applied retroactively by the Commission to the investigations at issue, should be regarded as a procedural provision, it is submitted that the correction in question is unlawful, since it was applied after the four-year limitation period within which the Commission can exercise its powers to impose penalties. In the further alternative, it is submitted that the corrections at issue are unlawful, on the ground that the reasonable period for concluding the investigations in question was exceeded. As a result of the failure to conclude the investigations within a reasonable period (eight years after the investigations commenced), the national budget has already suffered a significant loss of revenue due to Commission Decision C(2007) 1901 to apply a 50 % flat-rate correction with regard to the same cases which are also the subject of the contested decision, amounting essentially to a flagrant breach of the principle of ne bis in idem.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/30 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/30

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Action brought on 21 January 2011 — Italy v Commission

(Case T-45/11)

2011/C 80/55

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision C(2010) 7893 final of 10 November 2010, notified to the Italian Republic by memorandum SG-Greffe (2010) D/18018 of 11 November 2010, refusing to refer Case COMP/M.5960 — Crédit Agricole/Cassa di Risparmio della Spezia/Agenzie Intesa Sanpaolo. |
| --- | --- |

—

annul Commission Decision C(2010) 7893 final of 10 November 2010, notified to the Italian Republic by memorandum SG-Greffe (2010) D/18018 of 11 November 2010, refusing to refer Case COMP/M.5960 — Crédit Agricole/Cassa di Risparmio della Spezia/Agenzie Intesa Sanpaolo.

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the Commission’s decision refusing the Italian authorities’ request for a referral to the competition authorities, pursuant to Article 9 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), of the concentration notified to the Commission by means of which Crédit Agricole S. A. acquired, through its subsidiary Cassa di Risparmio di Parma e Piacenza S.p.A., sole control over Cassa di Risparmio della Spezia S.p.A., which is currently controlled by Intesa Sanpaolo.

The applicant relies on five grounds in support of its action.

| 1. | First ground, alleging infringement of Article 9 of Regulation (EC) No 139/2004 in so far as the Commission claimed that the request to refer the case was out of time and unreasoned. |
| --- | --- |

1.

First ground, alleging infringement of Article 9 of Regulation (EC) No 139/2004 in so far as the Commission claimed that the request to refer the case was out of time and unreasoned.

| 2. | Second ground, alleging infringement of Article 9(2)(a), subparagraph (b) of the first subparagraph of Article 9(3) and the second subparagraph of Article 9(3) of Regulation (EC) No 139/2004 and failure to state reasons.
  It is submitted in that connection that the Commission incorrectly attached importance to the fact that after the concentration the market shares would remain unchanged. In fact, Crédit Agricole would achieve such shares by means of concentration and not, like Intesa Sanapaolo pre-concentration, as a result of internal expansion. There was therefore an impact on the provincial retail banking services market. |
| --- | --- |

2.

Second ground, alleging infringement of Article 9(2)(a), subparagraph (b) of the first subparagraph of Article 9(3) and the second subparagraph of Article 9(3) of Regulation (EC) No 139/2004 and failure to state reasons.

It is submitted in that connection that the Commission incorrectly attached importance to the fact that after the concentration the market shares would remain unchanged. In fact, Crédit Agricole would achieve such shares by means of concentration and not, like Intesa Sanapaolo pre-concentration, as a result of internal expansion. There was therefore an impact on the provincial retail banking services market.

| 3. | Third ground, alleging infringement of Article 9(2)(a) and (b), subparagraph (b) of the first subparagraph of Article 9(3) and the second subparagraph of Article 9(3) of Regulation (EC) No 139/2004 and failure to state reasons.
  The applicant considers, contrary to what is claimed by the Commission, that the provincial banking services market exists: the users of such services are not inclined to move and it is difficult for other operators to enter a saturated provincial market. There was therefore a restricted market which did not form a substantive part of the common market. |
| --- | --- |

3.

Third ground, alleging infringement of Article 9(2)(a) and (b), subparagraph (b) of the first subparagraph of Article 9(3) and the second subparagraph of Article 9(3) of Regulation (EC) No 139/2004 and failure to state reasons.

The applicant considers, contrary to what is claimed by the Commission, that the provincial banking services market exists: the users of such services are not inclined to move and it is difficult for other operators to enter a saturated provincial market. There was therefore a restricted market which did not form a substantive part of the common market.

| 4. | Fourth ground, alleging infringement of Article 9(2)(a) and (b), subparagraph (b) of the first subparagraph of Article 9(3) and the second subparagraph of Article 9(3) of Regulation (EC) No 139/2004 and failure to state reasons.
  In this connection, the applicant submits that the Commission failed to take account of the infringement proceedings initiated by the competition authorities against Crédit Agricole and Intesa Sanpaolo, which should therefore have been regarded, for the purpose of determining the effect on the market, as related parties and not competitors. |
| --- | --- |

4.

Fourth ground, alleging infringement of Article 9(2)(a) and (b), subparagraph (b) of the first subparagraph of Article 9(3) and the second subparagraph of Article 9(3) of Regulation (EC) No 139/2004 and failure to state reasons.

In this connection, the applicant submits that the Commission failed to take account of the infringement proceedings initiated by the competition authorities against Crédit Agricole and Intesa Sanpaolo, which should therefore have been regarded, for the purpose of determining the effect on the market, as related parties and not competitors.

| 5. | Fifth ground, alleging infringement of Articles 1 and 9(2) and (3) of Regulation (EC) No139/2004 and the principles of subsidiarity and proportionality.
  The applicant is of the view that the concentration was not of Community interest and that the competition authorities were better placed to make such an assessment. At the very least, the Commission should have referred the part of the operation which affected the provincial markets mentioned in the decision. |
| --- | --- |

5.

Fifth ground, alleging infringement of Articles 1 and 9(2) and (3) of Regulation (EC) No139/2004 and the principles of subsidiarity and proportionality.

The applicant is of the view that the concentration was not of Community interest and that the competition authorities were better placed to make such an assessment. At the very least, the Commission should have referred the part of the operation which affected the provincial markets mentioned in the decision.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/31 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/31

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Action brought on 24 January 2011 — Deutsche Lufthansa and Others v Commission

(Case T-46/11)

2011/C 80/56

Language of the case: English

Parties

Applicants: Deutsche Lufthansa AG (Köln, Germany), Lufthansa Cargo AG (Kelsterbach, Germany) and Swiss International Air Lines AG (Basel, Switzerland) (represented by: S. Völcker, F. Louis, E. Arsenidou and A. Israel, lawyers)

Defendant: European Commission

Form of order sought

| — | annul Articles 1-4 of the contested decision; |
| --- | --- |

—

annul Articles 1-4 of the contested decision;

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

—

order the Commission to bear the costs.

Pleas in law and main arguments

Application for annulment of Commission Decision C(2010) 7694 final of 9 November 2010 in case COMP/39.258 — Airfreight relating to the proceeding under Article 101 TFEU and Article 53 of the EEA Agreement.

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

| 1. | First plea in law alleging that the contested decision infringes Article 11(2) and Article 11(1) of the EC-Swiss Agreement by relying on contacts between competitors which took place in Switzerland. |
| --- | --- |

1.

First plea in law alleging that the contested decision infringes Article 11(2) and Article 11(1) of the EC-Swiss Agreement by relying on contacts between competitors which took place in Switzerland.

| 2. | Second plea in law alleging that the contested decision infringes Article 1(2) of Regulation No 3975/87 (1) by relying on contacts between competitors which took place prior to 1 May 2004 in jurisdictions outside the EEA in order to establish:






  — | an infringement of Article 101 TFUE and Article 53 of the EEA Agreement involving European carriers (including the applicants) prior to 1 May 2004; |
| --- | --- | --- |

2.

Second plea in law alleging that the contested decision infringes Article 1(2) of Regulation No 3975/87 (1) by relying on contacts between competitors which took place prior to 1 May 2004 in jurisdictions outside the EEA in order to establish:

—

an infringement of Article 101 TFUE and Article 53 of the EEA Agreement involving European carriers (including the applicants) prior to 1 May 2004;

| — | the origin of a single and continuous infringement prior to 1 May 2004 so as to be able to find an infringement immediately starting as of that date. |
| --- | --- |

—

the origin of a single and continuous infringement prior to 1 May 2004 so as to be able to find an infringement immediately starting as of that date.

| 3. | Third plea in law alleging that the contested decision infringes Article 101 TFUE, Article 53 of the EEA Agreement and Article 8 of the EC-Swiss Agreement by characterizing contacts between competitors which took place in jurisdictions outside the EEA as constituting part of the same single and continuous infringement with contacts between competitors that took place at headquarter level. |
| --- | --- |

3.

Third plea in law alleging that the contested decision infringes Article 101 TFUE, Article 53 of the EEA Agreement and Article 8 of the EC-Swiss Agreement by characterizing contacts between competitors which took place in jurisdictions outside the EEA as constituting part of the same single and continuous infringement with contacts between competitors that took place at headquarter level.

| 4. | Fourth plea in law alleging that the contested decision infringes Article 101 TFUE and Article 53 of the EEA Agreement to the extent that it is premised on the notion that contacts between competitors taking place outside the EEA constitute infringements of Article 101 TFUE and of Article 53 of the EEA Agreement on their own, i.e. irrespective of whether they constitute part of the same single and continuous infringement with contacts between competitors that took place at the headquarter level. Agreements or concerted practices with respect to EEA-inbound cargo shipments do not restrict competition within the EEA, nor do they affect trade between Member States. Moreover, government intervention in a number of relevant jurisdictions precludes the application of Article 101 TFUE and Article 53 of the EEA Agreement. |
| --- | --- |

4.

Fourth plea in law alleging that the contested decision infringes Article 101 TFUE and Article 53 of the EEA Agreement to the extent that it is premised on the notion that contacts between competitors taking place outside the EEA constitute infringements of Article 101 TFUE and of Article 53 of the EEA Agreement on their own, i.e. irrespective of whether they constitute part of the same single and continuous infringement with contacts between competitors that took place at the headquarter level. Agreements or concerted practices with respect to EEA-inbound cargo shipments do not restrict competition within the EEA, nor do they affect trade between Member States. Moreover, government intervention in a number of relevant jurisdictions precludes the application of Article 101 TFUE and Article 53 of the EEA Agreement.

---

(1)  Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector, OJ L 374, p. 1

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/32 |
| --- | --- | --- | --- |

12.3.2011

EN

Official Journal of the European Union

C 80/32

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Action brought on 24 January 2011 — British Airways v Commission

(Case T-48/11)

2011/C 80/57

Language of the case: English

Parties

Applicant: British Airways plc (Harmondsworth, United Kingdom) (represented by: K. Lasok, QC, R. O’Donoghue, Barristers, and B. Louveaux, Solicitor)

Defendant: European Commission

Form of order sought

| — | annul the decision in so far as it finds that the applicant was party to an infringement concerning commission on surcharges and/or to remit the matter to the Commission for the reconsideration of its decision on that issue; |
| --- | --- |

—

annul the decision in so far as it finds that the applicant was party to an infringement concerning commission on surcharges and/or to remit the matter to the Commission for the reconsideration of its decision on that issue;

| — | annul the decision in so far as it finds that the start date of the applicant’s infringement was 22 January 2001 and to substitute 1 October 2001 for that date and/or to remit the matter to the Commission for the reconsideration of its decision on that issue; |
| --- | --- |

—

annul the decision in so far as it finds that the start date of the applicant’s infringement was 22 January 2001 and to substitute 1 October 2001 for that date and/or to remit the matter to the Commission for the reconsideration of its decision on that issue;

| — | annul the decision in so far as it finds that matters relating to Hong Kong, Japan, India, Thailand, Singapore, Korea, and Brazil violated Article 101 TFEU, Article 53 EEA, and Article 8 Swiss Agreement and/or to remit the matter to the Commission for the reconsideration of its decision on that issue; |
| --- | --- |

—

annul the decision in so far as it finds that matters relating to Hong Kong, Japan, India, Thailand, Singapore, Korea, and Brazil violated Article 101 TFEU, Article 53 EEA, and Article 8 Swiss Agreement and/or to remit the matter to the Commission for the reconsideration of its decision on that issue;

| — | annul or substantially reduce the fine imposed on the applicant pursuant to the decision by reference to each or every one of the points above and/or the General Court’s unlimited jurisdiction; |
| --- | --- |

—

annul or substantially reduce the fine imposed on the applicant pursuant to the decision by reference to each or every one of the points above and/or the General Court’s unlimited jurisdiction;

| — | order the Commission to pay the applicant’s legal and other costs and expenses in relation to this matter. |
| --- | --- |

—

order the Commission to pay the applicant’s legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

The applicant seeks the partial annulment of Commission Decision C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement, and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258—Airfreight) concerning the coordination of various elements of the price to be charged for airfreight services on: (i) routes between airports within the EEA; (ii) routes between airports within the EU and airports outside the EEA; (iii) routes between airports in EEA countries that are not Member States of the EU and third countries; and routes between airports within the EU and Switzerland. The coordination found in the decision relates to fuel surcharge, security surcharge, and the payment of commission on surcharges to freight forwarders.

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

| 1. | First plea in law, alleging a manifest errors of assessment and inadequate grounds inasmuch as the Commission did not provide sufficiently precise evidence that the applicant participated in the coordination of the payment of commission on surcharges whilst ignoring the significant body of evidence that it had in its possession that demonstrated the opposite. |
| --- | --- |

1.

First plea in law, alleging a manifest errors of assessment and inadequate grounds inasmuch as the Commission did not provide sufficiently precise evidence that the applicant participated in the coordination of the payment of commission on surcharges whilst ignoring the significant body of evidence that it had in its possession that demonstrated the opposite.

| 2. | Second plea in law, alleging a manifest error of assessment and breach of the defendant’s duty to prove to the requisite legal standard the starting date of the applicant’s infringement. In this regard the applicant submits that:






  — | the evidence put forward does not satisfy the criteria of precision and consistency in relation to the duration of the infringement; |
| --- | --- | --- |

2.

Second plea in law, alleging a manifest error of assessment and breach of the defendant’s duty to prove to the requisite legal standard the starting date of the applicant’s infringement. In this regard the applicant submits that:

—

the evidence put forward does not satisfy the criteria of precision and consistency in relation to the duration of the infringement;

| — | the Commission’s finding on the starting date is contrary to the principle in dubio pro reo. |
| --- | --- |

—

the Commission’s finding on the starting date is contrary to the principle in dubio pro reo.

| 3. | Third plea in law, alleging the errors in law and of fact and manifest errors of assessment on the ground that the Commission lacked jurisdiction to apply Article 101 TFEU and/or Article 53 EEA in respect of the situation regarding the aviation regulatory legislation and administration regimes in Hong Kong, Japan, India, Thailand, Singapore, Korea, and Brazil, and/or failed to exercise its powers in accordance with the principle of international comity and/or failed to take any or any proper account of the principle of international comity when exercising its powers. |
| --- | --- |

3.

Third plea in law, alleging the errors in law and of fact and manifest errors of assessment on the ground that the Commission lacked jurisdiction to apply Article 101 TFEU and/or Article 53 EEA in respect of the situation regarding the aviation regulatory legislation and administration regimes in Hong Kong, Japan, India, Thailand, Singapore, Korea, and Brazil, and/or failed to exercise its powers in accordance with the principle of international comity and/or failed to take any or any proper account of the principle of international comity when exercising its powers.

| 4. | Fourth plea in law, alleging the infringement of the principle of proportionality, the principle that penalties must fit the offence and the principle of equal treatment, since the fine imposed on the applicant is disproportionate to the gravity of the infringement. In this regard the applicant submits that:






  — | in the case of an object infringement, the Commission is bound to have regard to the “nature” and “capability” in its proper market and economic context assessing and calibrating its gravity; |
| --- | --- | --- |

4.

Fourth plea in law, alleging the infringement of the principle of proportionality, the principle that penalties must fit the offence and the principle of equal treatment, since the fine imposed on the applicant is disproportionate to the gravity of the infringement. In this regard the applicant submits that:

—

in the case of an object infringement, the Commission is bound to have regard to the “nature” and “capability” in its proper market and economic context assessing and calibrating its gravity;

| — | properly analysed, there were powerful reasons in the present case to regard the applicant’s infringement as less grave that the Commission did in applying its gravity multiplier. |
| --- | --- |

—

properly analysed, there were powerful reasons in the present case to regard the applicant’s infringement as less grave that the Commission did in applying its gravity multiplier.

| 5. | Fifth plea in law, alleging the breaches of the duty to state adequate reasons and the principle of proportionality in increasing the basic amount of the fine by an additional amount of 16 % for deterrence. |
| --- | --- |

5.

Fifth plea in law, alleging the breaches of the duty to state adequate reasons and the principle of proportionality in increasing the basic amount of the fine by an additional amount of 16 % for deterrence.

| 6. | Sixth plea in law, alleging an error in law and of fact and manifest errors of assessment, and infringement of the principles of legitimate expectations and/or equal treatment and the Leniency Notice, insofar as the Commission granted the applicant the lowest level of reduction in fine in respect of leniency despite being the first undertaking to apply for a reduction in fine under the Leniency Notice. |
| --- | --- |

6.

Sixth plea in law, alleging an error in law and of fact and manifest errors of assessment, and infringement of the principles of legitimate expectations and/or equal treatment and the Leniency Notice, insofar as the Commission granted the applicant the lowest level of reduction in fine in respect of leniency despite being the first undertaking to apply for a reduction in fine under the Leniency Notice.

| 7. | Seventh plea in law, alleging a manifest error of assessment and infringement of the principle of equal treatment and the principle of proportionality in not granting the applicant a reduction of the fine by way of mitigation, insofar as the Commission failed to take equal account of the fact that the applicant had limited participation in the infringement and did not participate in all elements of the infringement. |
| --- | --- |

7.

Seventh plea in law, alleging a manifest error of assessment and infringement of the principle of equal treatment and the principle of proportionality in not granting the applicant a reduction of the fine by way of mitigation, insofar as the Commission failed to take equal account of the fact that the applicant had limited participation in the infringement and did not participate in all elements of the infringement.

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/33 |
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12.3.2011

EN

Official Journal of the European Union

C 80/33

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Action brought on 27 January 2011 — Spain v Commission

(Case T-54/11)

2011/C 80/58

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul Commission Decision C(2010) 7700 of 16 November 2010 reducing the financial assistance from the European Regional Development Fund (ERDF) to the Objective 1 integrated operational programme for Andalucía (2000-2006) CCI No 2000.ES.16.1.PO.003, in so far as it imposes a financial correction of 100 % on the ERDF-financed expenditure for contracts No 2075/2003 and No 2120/2005; |
| --- | --- |

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Annul Commission Decision C(2010) 7700 of 16 November 2010 reducing the financial assistance from the European Regional Development Fund (ERDF) to the Objective 1 integrated operational programme for Andalucía (2000-2006) CCI No 2000.ES.16.1.PO.003, in so far as it imposes a financial correction of 100 % on the ERDF-financed expenditure for contracts No 2075/2003 and No 2120/2005;

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

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order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of Article 39(3) of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1), as the Commission failed to take a decision within the period of three months from the date of the hearing or, as the case may be, from the date on which the supplementary information was supplied by the Spanish authorities. |
| --- | --- |

1.

First plea in law, alleging infringement of Article 39(3) of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1), as the Commission failed to take a decision within the period of three months from the date of the hearing or, as the case may be, from the date on which the supplementary information was supplied by the Spanish authorities.

| 2. | Second plea in law, alleging infringement, by reason of incorrect application, of Article 39(3)(b) of Regulation No 1260/1999, since the Commission applies a financial correction to contracts No 2075/2003 and No 2120/2005 on the ground of alleged irregularities in the procedure followed in awarding those contracts, whereas the use of the negotiated procedure without prior publication of a tender notice was perfectly justified by the provisions of Article 6(3)(b) and (c) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1). |
| --- | --- |

2.

Second plea in law, alleging infringement, by reason of incorrect application, of Article 39(3)(b) of Regulation No 1260/1999, since the Commission applies a financial correction to contracts No 2075/2003 and No 2120/2005 on the ground of alleged irregularities in the procedure followed in awarding those contracts, whereas the use of the negotiated procedure without prior publication of a tender notice was perfectly justified by the provisions of Article 6(3)(b) and (c) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1).

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/33 |
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12.3.2011

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Official Journal of the European Union

C 80/33

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Action brought on 27 January 2011 — Castelnou Energía v Commission

(Case T-57/11)

2011/C 80/59

Language of the case: Spanish

Parties

Applicant: Castelnou Energía, S.L. (Madrid, Spain) (represented by: E. Garayar, lawyer)

Defendant: European Commission

Form of order sought

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

—

declare the application for annulment admissible;

| — | pursuant to Article 263 of the Treaty on the Functioning of the European Union, annul the Decision; |
| --- | --- |

—

pursuant to Article 263 of the Treaty on the Functioning of the European Union, annul the Decision;

| — | order the European Commission to pay the costs incurred by Castelnou Energía S.L. in these proceedings |
| --- | --- |

—

order the European Commission to pay the costs incurred by Castelnou Energía S.L. in these proceedings

Pleas in law and main arguments

In support of its application, the applicant puts forward eight pleas in law.

| — | The first plea alleges infringement of Article 108(2) TFEU and Article 4(4) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1), since the Decision was adopted without the formal investigation procedure previously having been opened, despite the fact that there were serious doubts as to the compatibility of the Decision. |
| --- | --- |

—

The first plea alleges infringement of Article 108(2) TFEU and Article 4(4) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1), since the Decision was adopted without the formal investigation procedure previously having been opened, despite the fact that there were serious doubts as to the compatibility of the Decision.

| — | The second plea alleges infringement of Article 106(2) TFEU, of Article 107 TFEU in conjunction with Article 108(2) TFEU and Article 4(4) of Regulation No 659/1999, since the Commission’s analysis of the measure was incomplete in that it failed to assess the compatibility of the measure at issue as a whole — the measure comprising three different elements (i.e. financial compensation for electricity producers, the preferential dispatch mechanism and the obligation to purchase domestic coal). |
| --- | --- |

—

The second plea alleges infringement of Article 106(2) TFEU, of Article 107 TFEU in conjunction with Article 108(2) TFEU and Article 4(4) of Regulation No 659/1999, since the Commission’s analysis of the measure was incomplete in that it failed to assess the compatibility of the measure at issue as a whole — the measure comprising three different elements (i.e. financial compensation for electricity producers, the preferential dispatch mechanism and the obligation to purchase domestic coal).

| — | The third plea alleges infringement of the obligation to state reasons laid down in Article 296 TFEU, since the Commission failed to explain the reasons which led it not to assess the compatibility of all the components of the measure. |
| --- | --- |

—

The third plea alleges infringement of the obligation to state reasons laid down in Article 296 TFEU, since the Commission failed to explain the reasons which led it not to assess the compatibility of all the components of the measure.

| — | The fourth plea alleges infringement of the general principles of the right to a fair hearing and of sound administration which must govern the administrative procedure, given that Castelnou was not afforded an opportunity to put forward its arguments in the framework of the formal investigation procedure which should have been initiated by the Commission. |
| --- | --- |

—

The fourth plea alleges infringement of the general principles of the right to a fair hearing and of sound administration which must govern the administrative procedure, given that Castelnou was not afforded an opportunity to put forward its arguments in the framework of the formal investigation procedure which should have been initiated by the Commission.

| — | The fifth plea alleges infringement of Article 106(2) TFEU, of the Community framework for state aid in the form of public service compensation (OJ 2005 C 297, p. 4) and of Article 11(4) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37), given that (i) the measure is not justified on the grounds of any risk to the electricity supply, which would determine — as the Commission claims is the case — that there is a need for a service of general economic interest and (ii) even if there were a risk to the electricity supply (which there is not), the measure is in any event disproportionate to the objective of safeguarding the security of the electricity supply and is, therefore, unlawful. |
| --- | --- |

—

The fifth plea alleges infringement of Article 106(2) TFEU, of the Community framework for state aid in the form of public service compensation (OJ 2005 C 297, p. 4) and of Article 11(4) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37), given that (i) the measure is not justified on the grounds of any risk to the electricity supply, which would determine — as the Commission claims is the case — that there is a need for a service of general economic interest and (ii) even if there were a risk to the electricity supply (which there is not), the measure is in any event disproportionate to the objective of safeguarding the security of the electricity supply and is, therefore, unlawful.

| — | The sixth plea alleges misuse of powers by the Commission, since, despite the existence of objective, relevant and coherent evidence showing that the measure is not intended to safeguard security of the electricity supply but rather to support the mining industry, the Commission based its decision finding the measure to be compatible on a reason which it knew not to be genuine, thereby adopting the decision for reasons other than those stated. |
| --- | --- |

—

The sixth plea alleges misuse of powers by the Commission, since, despite the existence of objective, relevant and coherent evidence showing that the measure is not intended to safeguard security of the electricity supply but rather to support the mining industry, the Commission based its decision finding the measure to be compatible on a reason which it knew not to be genuine, thereby adopting the decision for reasons other than those stated.

| — | The seventh plea alleges illegality of the Decision, given that its adoption entails an infringement on the part of the Commission of the provisions of the TFEU which safeguard the free movement of goods (Articles 28 TFEU and 34 TFEU) and the freedom of establishment (Article 49 TFEU). |
| --- | --- |

—

The seventh plea alleges illegality of the Decision, given that its adoption entails an infringement on the part of the Commission of the provisions of the TFEU which safeguard the free movement of goods (Articles 28 TFEU and 34 TFEU) and the freedom of establishment (Article 49 TFEU).

| — | The eighth plea alleges an error of law on the part of the Commission, as the measure infringes certain provision of secondary European Union law, namely: Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61 (OJ 2003 L 275, p. 32), as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 (OJ 2009 L 140, p. 63); Directive 2005/89/EC of the European Parliament and of the Council of 18 January 2006 concerning measures to safeguard security of electricity supply and infrastructure investment (OJ 2006 L 33, p. 22); and Council Regulation (EC) No 1407/2002 of 23 July 2002 on State aid to the coal industry (OJ 2002 L 205, p. 1). |
| --- | --- |

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The eighth plea alleges an error of law on the part of the Commission, as the measure infringes certain provision of secondary European Union law, namely: Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61 (OJ 2003 L 275, p. 32), as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 (OJ 2009 L 140, p. 63); Directive 2005/89/EC of the European Parliament and of the Council of 18 January 2006 concerning measures to safeguard security of electricity supply and infrastructure investment (OJ 2006 L 33, p. 22); and Council Regulation (EC) No 1407/2002 of 23 July 2002 on State aid to the coal industry (OJ 2002 L 205, p. 1).

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| 12.3.2011 | EN | Official Journal of the European Union | C 80/34 |
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12.3.2011

EN

Official Journal of the European Union

C 80/34

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Order of the General Court of 25 January 2011 — Basell Polyolefine v Commission

(Case T-399/07) (1)

2011/C 80/60

Language of the case: German

The President of the First Chamber (extended composition) has ordered that the case be removed from the register.

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(1)  OJ C 315, 22.12.2007.

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