# Official Journal C 370/2011

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2011.370.eng |
| --- | --- |
| Official Journal
  of the European Union | C 370 |
| | |
| English edition | Information and Notices | Volume 5417 December 2011 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2011.370.eng

Official Journal

of the European Union

C 370

English edition

Information and Notices

Volume 5417 December 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 370/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 362, 10.12.2011 | 1 |
| | Court of Justice |
| 2011/C 370/02 | Taking of the oath by a new Member of the Court of Justice | 2 |
| 2011/C 370/03 | Election of Presidents of Chambers | 2 |
| 2011/C 370/04 | Assignment of Judges to the Chambers | 2 |
| 2011/C 370/05 | Appointment of the First Advocate General | 3 |
| 2011/C 370/06 | Lists for the purposes of determining the composition of the formations of the Court | 3 |
| 2011/C 370/07 | Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice | 4 |
| | General Court |
| 2011/C 370/08 | Taking of the oath by a new Member of the General Court | 5 |
| 2011/C 370/09 | Election of a President of a Chamber | 5 |
| 2011/C 370/10 | Assignment of Judges to Chambers | 5 |
| | European Union Civil Service Tribunal |
| 2011/C 370/11 | Taking of the oath by new Members of the Civil Service Tribunal | 8 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2011/C 370/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 362, 10.12.2011

Official Journal of the European Union

1

Court of Justice

2011/C 370/02

Taking of the oath by a new Member of the Court of Justice

2

2011/C 370/03

Election of Presidents of Chambers

2

2011/C 370/04

Assignment of Judges to the Chambers

2

2011/C 370/05

Appointment of the First Advocate General

3

2011/C 370/06

Lists for the purposes of determining the composition of the formations of the Court

3

2011/C 370/07

Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice

4

General Court

2011/C 370/08

Taking of the oath by a new Member of the General Court

5

2011/C 370/09

Election of a President of a Chamber

5

2011/C 370/10

Assignment of Judges to Chambers

5

European Union Civil Service Tribunal

2011/C 370/11

Taking of the oath by new Members of the Civil Service Tribunal

8

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 370/12 | Case C-255/09: Judgment of the Court (Third Chamber) of 27 October 2011 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Article 49 EC — Social security — Restriction of the freedom to provide services — Non-hospital medical expenses incurred in another Member State — No reimbursement or reimbursement subject to prior authorisation) | 9 |
| 2011/C 370/13 | Joined Cases C-509/09 and C-161/10: Judgment of the Court (Grand Chamber) of 25 October 2011 (references for preliminary rulings from the Bundesgerichtshof, Tribunal de grande instance de Paris — Germany, France) — eDate Advertising GmbH v X, Olivier Martinez, Robert Martinez v MGN Limited (Regulation (EC) No 44/2001 — Jurisdiction and the enforcement of judgments in civil and commercial matters — Jurisdiction in matters relating to tort, delict or quasi-delict — Directive 2000/31/EC — Publication of information on the internet — Adverse effect on personality rights — Place where the harmful event occurred or may occur — Law applicable to information society services) | 9 |
| 2011/C 370/14 | Case C-511/09 P: Judgment of the Court (Third Chamber) of 27 October 2011 — Dongguan Nanzha Leco Stationery Mfg. Co., Ltd v Council of the European Union, European Commission, IML Industria Meccanica Lombarda Srl (Appeal — Dumping — Imports of lever arch mechanisms originating in China — Regulation (EC) No 1136/2006 — Determination of the dumping margin — Comparison between the normal value and the export price — Regulation (EC) No 384/96 — Article 2(7)(a) and 2(10)) | 10 |
| 2011/C 370/15 | Case C-530/09: Judgment of the Court (First Chamber) of 27 October 2011 (reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Poznaniu (Republic of Poland)) — Inter-Mark Group Sp. z o.o., Sp. komandytowa w. Poznaniu v Minister Finansów (VAT — Directive 2006/112/EC — Articles 52(a) and 56(1)(b) and (g) — Place of taxable transactions — Place of supply for tax purposes — Design, hiring out and assembly of fair stands) | 11 |
| 2011/C 370/16 | Case C-47/10 P: Judgment of the Court (Third Chamber) of 27 October 2011 — Republic of Austria v Scheucher-Fleisch GmbH, Tauernfleisch Vertriebs GesmbH, Wech-Kärntner Truthahnverarbeitung GmbH, Wech-Geflügel GmbH, Johann Zsifkovics, European Commission (Appeal — State aid — Articles 87 EC and 88(2) and (3) EC — Regulation (EC) No 659/1999 — Decision not to raise any objections — Action for annulment — Pleas in law that may be relied upon in an action for annulment — Notion of interested party — Statement of reasons for judgments — Burden of proof — Measures of organisation of procedure before the General Court — Articles 64 and 81 of the Rules of Procedure of the General Court) | 11 |
| 2011/C 370/17 | Case C-93/10: Judgment of the Court (Third Chamber) of 27 October 2011 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Essen-NordOst v GFKL Financial Services AG (Sixth VAT Directive — Articles 2(1) and 4 — Scope — Concepts of supply of services effected for consideration and economic activity — Sale of defaulted debts — Sale price lower than the face value of those debts — Assumption of responsibility by the purchaser for the recovery of those debts and for the risk of defaulting debtors) | 12 |
| 2011/C 370/18 | Case C-109/10 P: Judgment of the Court (Grand Chamber) of 25 October 2011 — Solvay SA v European Commission (Appeal — Competition — Market in soda ash in the Community — Abuse of dominant position — Infringement of the rights of the defence — Access to the file — Hearing of the undertaking) | 12 |
| 2011/C 370/19 | Case C-110/10 P: Judgment of the Court (Grand Chamber) of 25 October 2011 — Solvay SA v European Commission (Appeal — Competition — Market in soda ash in the Community — Concerted practice — Infringement of the rights of the defence — Access to the file — Hearing of the undertaking) | 13 |
| 2011/C 370/20 | Case C-311/10: Judgment of the Court (Sixth Chamber) of 27 October 2011 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Directive 2007/46/EC — Approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles — Failure to transpose within the period prescribed — Incomplete transposition) | 13 |
| 2011/C 370/21 | Case C-362/10: Judgment of the Court (Sixth Chamber) of 27 October 2011 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Directive 2003/98/EC — Re-use of public sector information — Incorrect transposition of or failure to transpose certain articles within the period prescribed) | 14 |
| 2011/C 370/22 | Case C-402/10: Judgment of the Court (Fifth Chamber) of 27 October 2011 (reference for a preliminary ruling from the Conseil d’État (France)) — Société Groupe Limagrain Holding v Établissement national des produits de l’agriculture et de la mer (Agriculture — Regulations (EEC) No 3665/87 and No 565/80 — Export refunds — Refund paid in advance — Placing of goods under the customs warehousing procedure — Absence of stock records — Proof that the goods were exported — Acquisition of all or part of the refund relating to that exportation — Obligation to repay the amount unduly received — Application of a surcharge to the amount to be repaid) | 14 |
| 2011/C 370/23 | Case C-504/10: Judgment of the Court (Seventh Chamber) of 27 October 2011 (reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia)) — Tanoarch s.r.o. v Daňové riaditeľstvo Slovenskej republiky (Taxation — VAT — Right of deduction — Assignment of a share in the rights relating to an invention, held by a number of undertakings, to an undertaking which has the right to use that invention in its entirety — Abusive practice) | 15 |
| 2011/C 370/24 | Case C-559/10: Judgment of the Court (Eighth Chamber) of 27 October 2011 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium)) — Deli Ostrich NV v Belgische Staat (Common Customs Tariff — Combined Nomenclature — Tariff classification — Frozen camel meat not from farm-raised animals — Classification under subheading 02089040 (other game meat) or 02089095 (other)) | 15 |
| 2011/C 370/25 | Case C-601/10: Judgment of the Court (Sixth Chamber) of 27 October 2011 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Directives 92/50/EEC and 2004/18/EC — Public service contracts — Additional land registry and town planning services — Negotiated procedure without prior publication of a contract notice) | 15 |
| 2011/C 370/26 | Case C-472/11: Reference for a preliminary ruling from the Fővárosi Bíróság (Hungary) lodged on 16 September 2011 — Banif Plus Bank Zrt. v Csaba Csipai and Viktória Csipai | 16 |
| 2011/C 370/27 | Case C-490/11: Reference for a preliminary ruling from the Hajdú-Bihar Megyei Bíróság (Hungary) lodged on 26 September 2011 — IBIS S.r.l. v PARTIUM ’70 Műanyagipari Zrt. | 16 |
| 2011/C 370/28 | Case C-500/11: Reference for a preliminary ruling from High Court of Justice Queen's Bench Division (Administrative Court) (United Kingdom) made on 23 September 2011 — Fruition Po Limited v Minister for Sustainable Farming and Food and Animal Health | 17 |
| 2011/C 370/29 | Case C-522/11: Reference for a preliminary ruling from the Giudice di Pace di Lecce (Italy) lodged on 13 October 2011 — Criminal proceedings against Abdoul Khadre Mbaye | 17 |
| 2011/C 370/30 | Case C-528/11: Reference for a preliminary ruling from the Administrativen Sad Sofia (Bulgaria) lodged on 18 October 2011 — Zuheyr Freyeh Halaf v Darzhavna agentsia za bezhantsite pri Ministerski savet | 18 |
| 2011/C 370/31 | Case C-529/11: Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 17 September 2011 — Olaitan Ajoke Alarape, Olukayode Azeez Tijani v Secretary of State for the Home Department | 19 |
| 2011/C 370/32 | Case C-537/11: Reference for a preliminary ruling from the Tribunale di Genova (Italy) lodged on 21 October 2011 — Mattia Manzi, Compagnia Naviera Orchestra v Capitaneria di Porto di Genova | 20 |
| 2011/C 370/33 | Case C-539/11: Reference for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione Siciliana (Italy) lodged on 21 October 2011 — Ottica New Line di Accardi Vincenzo v Comune di Campobello di Mazara | 20 |
| | General Court |
| 2011/C 370/34 | Case T-274/07: Judgment of the General Court of 8 November 2011 — Zhejiang Harmonic Hardware Products v Council (Dumping — Imports of ironing boards originating in the People’s Republic of China and Ukraine — Market economy treatment — Rights of the defence — Offer of price undertakings — Confidential treatment of the complainants’ identity) | 22 |
| 2011/C 370/35 | Case T-37/08: Judgment of the General Court of 8 November 2011 — Walton v Commission (Implementation of the budget — Recovery — Offsetting of amounts receivable — Retroactive effect — Judgment of the General Court ordering the Commission to pay damages and interest — Amount receivable to be certain, of a fixed amount and due) | 22 |
| 2011/C 370/36 | Case T-384/08: Judgment of the General Court of 10 November 2011 — Elliniki Nafpigokataskevastiki and Others v Commission (State aid — Shipbuilding — Aid granted by the Greek authorities in the form of an indemnification guarantee — Decision declaring the aid incompatible with the common market — Concept of State aid — Imputability to the State — State resources — Private investor test) | 22 |
| 2011/C 370/37 | Case T-88/09: Judgment of the General Court of 8 November 2011 — Idromacchine and Others v Commission (Non-contractual liability — State aid — Commission decision to initiate a formal investigation procedure — Information detrimental to a third-party company — Sufficiently serious breach of a rule of law conferring rights on individuals — Obligation of professional secrecy — Non-material damage — Material damage — Causal link — Default and compensatory interest) | 23 |
| 2011/C 370/38 | Case T-22/10: Judgment of the General Court of 10 November 2011 — Esprit International v OHIM — Marc O’Polo International (Representation of a letter on a pocket) (Community trade mark — Opposition proceedings — Application for the Community figurative mark consisting of the representation of a letter on a pocket — Earlier national figurative mark representing a letter — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 23 |
| 2011/C 370/39 | Case T-143/10: Judgment of the General Court of 10 November 2011 — Ben Ri Electrónica v OHMI — Sacopa (LT LIGHT-THECNO) (Community trade mark — Opposition proceedings — Application for Community figurative mark LT LIGHT-THECNO — Earlier Community figurative mark LT — Relative ground for refusal — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009) | 24 |
| 2011/C 370/40 | Case T-313/10: Judgment of the General Court of 10 November 2011 — Three-N-Products Private v OHIM — Shah (AYUURI NATURAL) (Community trade mark — Opposition proceedings — Application for Community word mark AYUURI NATURAL — Earlier Community word and figurative marks AYUR — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009) | 24 |
| 2011/C 370/41 | Case T-335/09: Order of the General Court of 21 October 2011 — Groupement Adriano, Jaime Ribeiro, Conduril v Commission (Action for annulment — MEDA I programme — Specific financing agreement — Mandate given to the European Union to recover debts owed by a third party to the Kingdom of Morocco — Debit note — Reminder letter — Acts inseparable from the contract — Act not amenable to review — Inadmissibility) | 25 |
| 2011/C 370/42 | Case T-497/11: Action brought on 19 September 2011 — Euro-Information v OHIM (EURO AUTOMATIC PAIEMENT) | 25 |
| 2011/C 370/43 | Case T-527/11: Action brought on 7 October 2011 — Luxembourg Patent Co. v OHIM — DETEC (FIREDETEC) | 25 |
| 2011/C 370/44 | Case T-542/11: Action brought on 6 October 2011 — Alouminion v Commission | 26 |
| 2011/C 370/45 | Case T-550/11: Action brought on 19 October 2011 — Assaad v Council | 27 |
| 2011/C 370/46 | Case T-551/11: Action brought on 19 October 2011 — BSI v Council | 28 |
| 2011/C 370/47 | Case T-554/11: Action brought on 18 October 2011 — Evropaïki Dynamiki v Commission | 28 |
| 2011/C 370/48 | Case T-557/11: Action brought on 24 October 2011 — Elsid and Others v Commission | 29 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 370/12

Case C-255/09: Judgment of the Court (Third Chamber) of 27 October 2011 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Article 49 EC — Social security — Restriction of the freedom to provide services — Non-hospital medical expenses incurred in another Member State — No reimbursement or reimbursement subject to prior authorisation)

9

2011/C 370/13

Joined Cases C-509/09 and C-161/10: Judgment of the Court (Grand Chamber) of 25 October 2011 (references for preliminary rulings from the Bundesgerichtshof, Tribunal de grande instance de Paris — Germany, France) — eDate Advertising GmbH v X, Olivier Martinez, Robert Martinez v MGN Limited (Regulation (EC) No 44/2001 — Jurisdiction and the enforcement of judgments in civil and commercial matters — Jurisdiction in matters relating to tort, delict or quasi-delict — Directive 2000/31/EC — Publication of information on the internet — Adverse effect on personality rights — Place where the harmful event occurred or may occur — Law applicable to information society services)

9

2011/C 370/14

Case C-511/09 P: Judgment of the Court (Third Chamber) of 27 October 2011 — Dongguan Nanzha Leco Stationery Mfg. Co., Ltd v Council of the European Union, European Commission, IML Industria Meccanica Lombarda Srl (Appeal — Dumping — Imports of lever arch mechanisms originating in China — Regulation (EC) No 1136/2006 — Determination of the dumping margin — Comparison between the normal value and the export price — Regulation (EC) No 384/96 — Article 2(7)(a) and 2(10))

10

2011/C 370/15

Case C-530/09: Judgment of the Court (First Chamber) of 27 October 2011 (reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Poznaniu (Republic of Poland)) — Inter-Mark Group Sp. z o.o., Sp. komandytowa w. Poznaniu v Minister Finansów (VAT — Directive 2006/112/EC — Articles 52(a) and 56(1)(b) and (g) — Place of taxable transactions — Place of supply for tax purposes — Design, hiring out and assembly of fair stands)

11

2011/C 370/16

Case C-47/10 P: Judgment of the Court (Third Chamber) of 27 October 2011 — Republic of Austria v Scheucher-Fleisch GmbH, Tauernfleisch Vertriebs GesmbH, Wech-Kärntner Truthahnverarbeitung GmbH, Wech-Geflügel GmbH, Johann Zsifkovics, European Commission (Appeal — State aid — Articles 87 EC and 88(2) and (3) EC — Regulation (EC) No 659/1999 — Decision not to raise any objections — Action for annulment — Pleas in law that may be relied upon in an action for annulment — Notion of interested party — Statement of reasons for judgments — Burden of proof — Measures of organisation of procedure before the General Court — Articles 64 and 81 of the Rules of Procedure of the General Court)

11

2011/C 370/17

Case C-93/10: Judgment of the Court (Third Chamber) of 27 October 2011 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Essen-NordOst v GFKL Financial Services AG (Sixth VAT Directive — Articles 2(1) and 4 — Scope — Concepts of supply of services effected for consideration and economic activity — Sale of defaulted debts — Sale price lower than the face value of those debts — Assumption of responsibility by the purchaser for the recovery of those debts and for the risk of defaulting debtors)

12

2011/C 370/18

Case C-109/10 P: Judgment of the Court (Grand Chamber) of 25 October 2011 — Solvay SA v European Commission (Appeal — Competition — Market in soda ash in the Community — Abuse of dominant position — Infringement of the rights of the defence — Access to the file — Hearing of the undertaking)

12

2011/C 370/19

Case C-110/10 P: Judgment of the Court (Grand Chamber) of 25 October 2011 — Solvay SA v European Commission (Appeal — Competition — Market in soda ash in the Community — Concerted practice — Infringement of the rights of the defence — Access to the file — Hearing of the undertaking)

13

2011/C 370/20

Case C-311/10: Judgment of the Court (Sixth Chamber) of 27 October 2011 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Directive 2007/46/EC — Approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles — Failure to transpose within the period prescribed — Incomplete transposition)

13

2011/C 370/21

Case C-362/10: Judgment of the Court (Sixth Chamber) of 27 October 2011 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Directive 2003/98/EC — Re-use of public sector information — Incorrect transposition of or failure to transpose certain articles within the period prescribed)

14

2011/C 370/22

Case C-402/10: Judgment of the Court (Fifth Chamber) of 27 October 2011 (reference for a preliminary ruling from the Conseil d’État (France)) — Société Groupe Limagrain Holding v Établissement national des produits de l’agriculture et de la mer (Agriculture — Regulations (EEC) No 3665/87 and No 565/80 — Export refunds — Refund paid in advance — Placing of goods under the customs warehousing procedure — Absence of stock records — Proof that the goods were exported — Acquisition of all or part of the refund relating to that exportation — Obligation to repay the amount unduly received — Application of a surcharge to the amount to be repaid)

14

2011/C 370/23

Case C-504/10: Judgment of the Court (Seventh Chamber) of 27 October 2011 (reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia)) — Tanoarch s.r.o. v Daňové riaditeľstvo Slovenskej republiky (Taxation — VAT — Right of deduction — Assignment of a share in the rights relating to an invention, held by a number of undertakings, to an undertaking which has the right to use that invention in its entirety — Abusive practice)

15

2011/C 370/24

Case C-559/10: Judgment of the Court (Eighth Chamber) of 27 October 2011 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium)) — Deli Ostrich NV v Belgische Staat (Common Customs Tariff — Combined Nomenclature — Tariff classification — Frozen camel meat not from farm-raised animals — Classification under subheading 02089040 (other game meat) or 02089095 (other))

15

2011/C 370/25

Case C-601/10: Judgment of the Court (Sixth Chamber) of 27 October 2011 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Directives 92/50/EEC and 2004/18/EC — Public service contracts — Additional land registry and town planning services — Negotiated procedure without prior publication of a contract notice)

15

2011/C 370/26

Case C-472/11: Reference for a preliminary ruling from the Fővárosi Bíróság (Hungary) lodged on 16 September 2011 — Banif Plus Bank Zrt. v Csaba Csipai and Viktória Csipai

16

2011/C 370/27

Case C-490/11: Reference for a preliminary ruling from the Hajdú-Bihar Megyei Bíróság (Hungary) lodged on 26 September 2011 — IBIS S.r.l. v PARTIUM ’70 Műanyagipari Zrt.

16

2011/C 370/28

Case C-500/11: Reference for a preliminary ruling from High Court of Justice Queen's Bench Division (Administrative Court) (United Kingdom) made on 23 September 2011 — Fruition Po Limited v Minister for Sustainable Farming and Food and Animal Health

17

2011/C 370/29

Case C-522/11: Reference for a preliminary ruling from the Giudice di Pace di Lecce (Italy) lodged on 13 October 2011 — Criminal proceedings against Abdoul Khadre Mbaye

17

2011/C 370/30

Case C-528/11: Reference for a preliminary ruling from the Administrativen Sad Sofia (Bulgaria) lodged on 18 October 2011 — Zuheyr Freyeh Halaf v Darzhavna agentsia za bezhantsite pri Ministerski savet

18

2011/C 370/31

Case C-529/11: Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 17 September 2011 — Olaitan Ajoke Alarape, Olukayode Azeez Tijani v Secretary of State for the Home Department

19

2011/C 370/32

Case C-537/11: Reference for a preliminary ruling from the Tribunale di Genova (Italy) lodged on 21 October 2011 — Mattia Manzi, Compagnia Naviera Orchestra v Capitaneria di Porto di Genova

20

2011/C 370/33

Case C-539/11: Reference for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione Siciliana (Italy) lodged on 21 October 2011 — Ottica New Line di Accardi Vincenzo v Comune di Campobello di Mazara

20

General Court

2011/C 370/34

Case T-274/07: Judgment of the General Court of 8 November 2011 — Zhejiang Harmonic Hardware Products v Council (Dumping — Imports of ironing boards originating in the People’s Republic of China and Ukraine — Market economy treatment — Rights of the defence — Offer of price undertakings — Confidential treatment of the complainants’ identity)

22

2011/C 370/35

Case T-37/08: Judgment of the General Court of 8 November 2011 — Walton v Commission (Implementation of the budget — Recovery — Offsetting of amounts receivable — Retroactive effect — Judgment of the General Court ordering the Commission to pay damages and interest — Amount receivable to be certain, of a fixed amount and due)

22

2011/C 370/36

Case T-384/08: Judgment of the General Court of 10 November 2011 — Elliniki Nafpigokataskevastiki and Others v Commission (State aid — Shipbuilding — Aid granted by the Greek authorities in the form of an indemnification guarantee — Decision declaring the aid incompatible with the common market — Concept of State aid — Imputability to the State — State resources — Private investor test)

22

2011/C 370/37

Case T-88/09: Judgment of the General Court of 8 November 2011 — Idromacchine and Others v Commission (Non-contractual liability — State aid — Commission decision to initiate a formal investigation procedure — Information detrimental to a third-party company — Sufficiently serious breach of a rule of law conferring rights on individuals — Obligation of professional secrecy — Non-material damage — Material damage — Causal link — Default and compensatory interest)

23

2011/C 370/38

Case T-22/10: Judgment of the General Court of 10 November 2011 — Esprit International v OHIM — Marc O’Polo International (Representation of a letter on a pocket) (Community trade mark — Opposition proceedings — Application for the Community figurative mark consisting of the representation of a letter on a pocket — Earlier national figurative mark representing a letter — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

23

2011/C 370/39

Case T-143/10: Judgment of the General Court of 10 November 2011 — Ben Ri Electrónica v OHMI — Sacopa (LT LIGHT-THECNO) (Community trade mark — Opposition proceedings — Application for Community figurative mark LT LIGHT-THECNO — Earlier Community figurative mark LT — Relative ground for refusal — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

24

2011/C 370/40

Case T-313/10: Judgment of the General Court of 10 November 2011 — Three-N-Products Private v OHIM — Shah (AYUURI NATURAL) (Community trade mark — Opposition proceedings — Application for Community word mark AYUURI NATURAL — Earlier Community word and figurative marks AYUR — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

24

2011/C 370/41

Case T-335/09: Order of the General Court of 21 October 2011 — Groupement Adriano, Jaime Ribeiro, Conduril v Commission (Action for annulment — MEDA I programme — Specific financing agreement — Mandate given to the European Union to recover debts owed by a third party to the Kingdom of Morocco — Debit note — Reminder letter — Acts inseparable from the contract — Act not amenable to review — Inadmissibility)

25

2011/C 370/42

Case T-497/11: Action brought on 19 September 2011 — Euro-Information v OHIM (EURO AUTOMATIC PAIEMENT)

25

2011/C 370/43

Case T-527/11: Action brought on 7 October 2011 — Luxembourg Patent Co. v OHIM — DETEC (FIREDETEC)

25

2011/C 370/44

Case T-542/11: Action brought on 6 October 2011 — Alouminion v Commission

26

2011/C 370/45

Case T-550/11: Action brought on 19 October 2011 — Assaad v Council

27

2011/C 370/46

Case T-551/11: Action brought on 19 October 2011 — BSI v Council

28

2011/C 370/47

Case T-554/11: Action brought on 18 October 2011 — Evropaïki Dynamiki v Commission

28

2011/C 370/48

Case T-557/11: Action brought on 24 October 2011 — Elsid and Others v Commission

29

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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 17.12.2011 | EN | Official Journal of the European Union | C 370/1 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/1

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2011/C 370/01

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

OJ C 362, 10.12.2011

Past publications

OJ C 355, 3.12.2011

OJ C 347, 26.11.2011

OJ C 340, 19.11.2011

OJ C 331, 12.11.2011

OJ C 319, 29.10.2011

OJ C 311, 22.10.2011

These texts are available on:

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

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Court of Justice

| 17.12.2011 | EN | Official Journal of the European Union | C 370/2 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/2

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Taking of the oath by a new Member of the Court of Justice

2011/C 370/02

Following his appointment as Judge at the Court of Justice for the period from 6 October 2011 to 6 October 2012 by decision of the Representatives of the Governments of the Member States of the European Union of 8 September 2011, (1) Mr Fernlund took the oath before the Court of Justice on 6 October 2011.

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(1)  OJ L 234 of 10.09.2011, p. 42

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/2 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/2

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Election of Presidents of Chambers

2011/C 370/03

At a meeting on 27 September 2011, the Judges of the Court of Justice elected, pursuant to the second subparagraph of Article 10(1) of the Rules of Procedure, Mr Safjan, Mr Lõhmus, Mr Malenovský and Ms Prechal as Presidents of the Fifth, Sixth, Seventh and Eighth Chambers of three Judges respectively, for a period of one year expiring on 6 October 2012.

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/2 |
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17.12.2011

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Official Journal of the European Union

C 370/2

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Assignment of Judges to the Chambers

2011/C 370/04

At its meeting on 11 October 2011, the Court decided to assign Mr Fernlund to the Second and Sixth Chambers.

Following the election of the Presidents of Chambers of three Judges and the assignment of Mr Fernlund to the Second and Sixth Chambers, the Second, Fifth, Sixth, Seventh and Eighth Chambers are, consequently, composed as follows:

Second Chamber

Mr Cunha Rodrigues, President of the Chamber

Mr Rosas, Mr Lõhmus, Mr Ó Caoimh, Mr Arabadjiev and Mr Fernlund, Judges

Fifth Chamber

Mr Safjan, President of the Chamber

Mr Borg Barthet, Mr Ilešič, Mr Levits, Mr Kasel and Ms Berger, Judges

Sixth Chamber

Mr Lõhmus, President of the Chamber

Mr Rosas, Mr Ó Caoimh, Mr Arabadjiev and Mr Fernlund, Judges

Seventh Chamber

Mr Malenovský, President of the Chamber

Ms Silva de Lapuerta, Mr Juhász, Mr Arestis, Mr von Danwitz and Mr Šváby, Judges

Eighth Chamber

Ms Prechal, President of the Chamber

Mr Schiemann, Mr Bay Larsen, Ms Toader and Mr Jarašiūnas, Judges

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/3 |
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Official Journal of the European Union

C 370/3

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Appointment of the First Advocate General

2011/C 370/05

At its meeting on 4 October 2011, the Court of Justice appointed Mr Mazák as First Advocate General for a period of one year expiring 6 October 2012, pursuant to the third subparagraph of Article 10(1) of the Rules of Procedure.

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/3 |
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Official Journal of the European Union

C 370/3

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Lists for the purposes of determining the composition of the formations of the Court

2011/C 370/06

At its meeting on 11 October 2011, the Court drew up the lists referred to in the second subparagraph of Article 11ter(2) of the Rules of Procedure for determining the composition of the Grand Chamber as follows:

Grand Chamber

| | Mr Rosas |
| --- | --- |

Mr Rosas

| | Mr Fernlund |
| --- | --- |

Mr Fernlund

| | Ms Silva de Lapuerta |
| --- | --- |

Ms Silva de Lapuerta

| | Mr Jarašiūnas |
| --- | --- |

Mr Jarašiūnas

| | Sir Konrad Schiemann |
| --- | --- |

Sir Konrad Schiemann

| | Ms Prechal |
| --- | --- |

Ms Prechal

| | Mr Juhász |
| --- | --- |

Mr Juhász

| | Ms Berger |
| --- | --- |

Ms Berger

| | Mr Arestis |
| --- | --- |

Mr Arestis

| | Mr Šváby |
| --- | --- |

Mr Šváby

| | Mr Borg Barthet |
| --- | --- |

Mr Borg Barthet

| | Mr Safjan |
| --- | --- |

Mr Safjan

| | Mr Ilešič |
| --- | --- |

Mr Ilešič

| | Mr Kasel |
| --- | --- |

Mr Kasel

| | Mr Malenovský |
| --- | --- |

Mr Malenovský

| | Ms Toader |
| --- | --- |

Ms Toader

| | Mr Lõhmus |
| --- | --- |

Mr Lõhmus

| | Mr Arabadjiev |
| --- | --- |

Mr Arabadjiev

| | Mr Levits |
| --- | --- |

Mr Levits

| | Mr von Danwitz |
| --- | --- |

Mr von Danwitz

| | Mr Ó Caoimh |
| --- | --- |

Mr Ó Caoimh

| | Mr Bay Larsen |
| --- | --- |

Mr Bay Larsen

At its meeting on 11 October 2011, the Court drew up the lists referred to in the first subparagraph of Article 11c(2) of the Rules of Procedure, to determine the composition of the Second Chamber as follows:

Second Chamber

| | Mr Rosas |
| --- | --- |

Mr Rosas

| | Mr Fernlund |
| --- | --- |

Mr Fernlund

| | Mr Lõhmus |
| --- | --- |

Mr Lõhmus

| | Mr Arabadjiev |
| --- | --- |

Mr Arabadjiev

| | Mr Ó Caoimh |
| --- | --- |

Mr Ó Caoimh

At its meeting on 11 October 2011, the Court drew up the lists referred to in the second subparagraph of Article 11c(2) of the Rules of Procedure for determining the composition of the Chambers of three Judges as follows:

Fifth Chamber

| | Mr Borg Barthet |
| --- | --- |

Mr Borg Barthet

| | Mr Ilešič |
| --- | --- |

Mr Ilešič

| | Mr Levits |
| --- | --- |

Mr Levits

| | Mr Kasel |
| --- | --- |

Mr Kasel

| | Ms Berger |
| --- | --- |

Ms Berger

Sixth Chamber

| | Mr Rosas |
| --- | --- |

Mr Rosas

| | Mr Ó Caoimh |
| --- | --- |

Mr Ó Caoimh

| | Mr Arabadjiev |
| --- | --- |

Mr Arabadjiev

| | Mr Fernlund |
| --- | --- |

Mr Fernlund

Seventh Chamber

| | Ms Silva de Lapuerta |
| --- | --- |

Ms Silva de Lapuerta

| | Mr Juhász |
| --- | --- |

Mr Juhász

| | Mr Arestis |
| --- | --- |

Mr Arestis

| | Mr von Danwitz |
| --- | --- |

Mr von Danwitz

| | Mr Šváby |
| --- | --- |

Mr Šváby

Eighth Chamber

| | Mr Schiemann |
| --- | --- |

Mr Schiemann

| | Mr Bay Larsen |
| --- | --- |

Mr Bay Larsen

| | Ms Toader |
| --- | --- |

Ms Toader

| | Mr Jarašiūnas |
| --- | --- |

Mr Jarašiūnas

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/4 |
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Official Journal of the European Union

C 370/4

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Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice

2011/C 370/07

At its meeting on 27 September 2011, the Court designated the Second Chamber of the Court as the Chamber that is, in accordance with Article 9(1) of the Rules of Procedure, responsible for cases of the kind referred to in Article 104b of those Rules, for a period of one year expiring on 6 October 2012.

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General Court

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Official Journal of the European Union

C 370/5

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Taking of the oath by a new Member of the General Court

2011/C 370/08

Following her appointment as Judge at the General Court for the period from 12 September 2011 to 31 August 2013 by decision of the Representatives of the Governments of the Member States of the European Union of 8 September 2011, (1) Ms Kancheva took the oath before the Court of Justice on 19 September 2011.

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(1)  OJ L 234 of 10.09.2011, p. 43

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/5 |
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Official Journal of the European Union

C 370/5

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Election of a President of a Chamber

2011/C 370/09

On 23 November 2011, following the resignation of President of Chamber Mr Moavero Milanesi and in accordance with Articles 7(3) and 15 of the Rules of Procedure, the General Court elected Mr Kanninen President of the Sixth Chamber, composed of five and three Judges, for the period from 23 November 2011 to 31 August 2013

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/5 |
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Official Journal of the European Union

C 370/5

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Assignment of Judges to Chambers

2011/C 370/10

On 25 November 2011, the Plenary Meeting of the General Court decided, in response to Mr Kanninen’s election as President of the Sixth Chamber, to amend the decisions of the Plenary Meetings of 20 September 2010, (1)26 October 2010, (2)29 November 2010 (3) and 20 September 2011 (4) on the assignment of Judges to Chambers.

For the period from 25 November 2011 to the date of entry into office of the Italian Judge, the assignment of Judges to Chambers is as follows:

First Chamber (Extended Composition), sitting with five Judges:

Mr Azizi, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr Gratsias, Judges.

First Chamber, sitting with three Judges:

| | Mr Azizi, President of the Chamber; |
| --- | --- |

Mr Azizi, President of the Chamber;

| | Ms Cremona, Judge; |
| --- | --- |

Ms Cremona, Judge;

| | Mr Frimodt Nielsen, Judge. |
| --- | --- |

Mr Frimodt Nielsen, Judge.

Second Chamber (Extended Composition), sitting with five Judges:

Mr Forwood, President of the Chamber, Mr Dehousse, Ms Wiszniewska-Białecka, Mr Prek, Mr Schwarcz and Ms Kancheva, Judges.

Second Chamber, sitting with three Judges:

| | Mr Forwood, President of the Chamber; |
| --- | --- |

Mr Forwood, President of the Chamber;

| | Mr Dehousse, Judge; |
| --- | --- |

Mr Dehousse, Judge;

| | Mr Schwarcz, Judge. |
| --- | --- |

Mr Schwarcz, Judge.

Third Chamber (Extended Composition), sitting with five Judges:

Mr Czúcz, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr Gratsias, Judges.

Third Chamber, sitting with three Judges:

| | Mr Czúcz, President of the Chamber; |
| --- | --- |

Mr Czúcz, President of the Chamber;

| | Ms Labucka, Judge; |
| --- | --- |

Ms Labucka, Judge;

| | Mr Gratsias, Judge. |
| --- | --- |

Mr Gratsias, Judge.

Fourth Chamber (Extended Composition), sitting with five Judges:

Ms Pelikánová, President of the Chamber, Mr Vadapalas, Ms Jürimäe, Mr O’Higgins and Mr Van der Woude, Judges.

Fourth Chamber, sitting with three Judges:

| | Ms Pelikánová, President of the Chamber; |
| --- | --- |

Ms Pelikánová, President of the Chamber;

| | Ms Jürimäe, Judge; |
| --- | --- |

Ms Jürimäe, Judge;

| | Mr Van der Woude, Judge. |
| --- | --- |

Mr Van der Woude, Judge.

Fifth Chamber (Extended Composition), sitting with five Judges:

Mr Papasavvas, President of the Chamber, Mr Vadapalas, Ms Jürimäe, Mr O’Higgins and Mr Van der Woude, Judges.

Fifth Chamber, sitting with three Judges:

| | Mr Papasavvas, President of the Chamber; |
| --- | --- |

Mr Papasavvas, President of the Chamber;

| | Mr Vadapalas, Judge; |
| --- | --- |

Mr Vadapalas, Judge;

| | Mr O’Higgins, Judge. |
| --- | --- |

Mr O’Higgins, Judge.

Sixth Chamber (Extended Composition), sitting with five Judges:

Mr Kanninen, President of the Chamber, Ms Martins Ribeiro, Mr Wahl, Mr Soldevila Fragoso and Mr Popescu, Judges.

Sixth Chamber, sitting with three Judges:

| | Mr Kanninen, President of the Chamber; |
| --- | --- |

Mr Kanninen, President of the Chamber;

| | Mr Wahl, Judge; |
| --- | --- |

Mr Wahl, Judge;

| | Mr Soldevila Fragoso, Judge. |
| --- | --- |

Mr Soldevila Fragoso, Judge.

Seventh Chamber (Extended Composition), sitting with five Judges:

Mr Dittrich, President of the Chamber, Mr Dehousse, Ms Wiszniewska-Białecka, Mr Prek, Mr Schwarcz and Ms Kancheva, Judges.

Seventh Chamber, sitting with three Judges:

Mr Dittrich, President of the Chamber;

| (a) | Ms Wiszniewska-Białecka and Mr Prek, Judges; |
| --- | --- |

(a)

Ms Wiszniewska-Białecka and Mr Prek, Judges;

| (b) | Ms Wiszniewska-Białecka and Ms Kancheva, Judges; |
| --- | --- |

(b)

Ms Wiszniewska-Białecka and Ms Kancheva, Judges;

| (c) | Mr Prek and Ms Kancheva, Judges. |
| --- | --- |

(c)

Mr Prek and Ms Kancheva, Judges.

Eighth Chamber (Extended Composition), sitting with five Judges:

Mr Truchot, President of the Chamber, Ms Martins Ribeiro, Mr Wahl, Mr Soldevila Fragoso and Mr Popescu, Judges.

Eighth Chamber, sitting with three Judges:

| | Mr Truchot, President of the Chamber; |
| --- | --- |

Mr Truchot, President of the Chamber;

| | Ms Martins Ribeiro, Judge; |
| --- | --- |

Ms Martins Ribeiro, Judge;

| | Mr Popsecu, Judge. |
| --- | --- |

Mr Popsecu, Judge.

For the period from 25 November 2011 until the date of the entry into office of the Italian Judge, in the Seventh Chamber (Extended Composition), the Judges who will sit with the President of the Chamber to form the extended composition shall be the other two Judges of the Seventh Chamber initially hearing the case, the fourth Judge of that Chamber and a Judge from the Second Chamber sitting with three Judges. The latter, who shall not be the President of the Chamber, shall be nominated for one year in accordance with the order laid down in Article 6 of the Rules of Procedure of the General Court.

For the period from 25 November 2011 until the date of entry into office of the Italian Judge, in the Second Chamber (Extended Composition), the Judges who will sit with the President of the Chamber to form the extended composition shall be the other two Judges of the Second Chamber initially hearing the case and two Judges from the Seventh Chamber, sitting with four Judges. The latter two Judges, neither of whom shall be the President of the Chamber, shall be nominated for one year in accordance with the order laid down in Article 6 of the Rules of Procedure of the General Court.

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(1)  OJ 2010 C 288, p. 2.

(2)  OJ 2010 C 317, p. 5.

(3)  OJ 2010 C 346, p. 2.

(4)  OJ 2010 C 305, p. 2.

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European Union Civil Service Tribunal

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Taking of the oath by new Members of the Civil Service Tribunal

2011/C 370/11

Following their appointment as Judges at the Civil Service Tribunal European Union for the period from 1 October 2011 to 30 September 2017 by decision of 18 July 2011, (1) Mr Barents, Mr Bradley and Mr Perillo took the oath before the Court of Justice on 6 October 2011.

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(1)  OJ L 194 of 26.07.2011, p. 31

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 17.12.2011 | EN | Official Journal of the European Union | C 370/9 |
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Judgment of the Court (Third Chamber) of 27 October 2011 — European Commission v Portuguese Republic

(Case C-255/09) (1)

(Failure of a Member State to fulfil obligations - Article 49 EC - Social security - Restriction of the freedom to provide services - Non-hospital medical expenses incurred in another Member State - No reimbursement or reimbursement subject to prior authorisation)

2011/C 370/12

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: E. Traversa and M. França, acting as Agents)

Defendant: Portuguese Republic (represented by: L. Inez Fernandes, M.L. Duarte, A. Veiga Correia and by P. Oliveira, acting as Agents)

Interveners in support of the defendant: Republic of Finland (represented by A. Guimaraes-Purokoski, acting as Agent), Kingdom of Spain (represented by J.M. Rodríguez Cárcamo, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 49 EC — Reimbursement of non-hospital medical expenses incurred abroad — Prior authorisation — Restrictive conditions

Operative part of the judgment

The Court:

| 1. | Declares that the Portuguese Republic has failed to fulfil its obligations under Article 49 EC by making no provision for reimbursement in respect of non-hospital medical care provided in another Member State which does not involve the use of major and costly equipment exhaustively listed in the national legislation, other than in the circumstances specified in Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, or, to the extent that Decree-Law No 177/92 of 13 August 1992 laying down the conditions for reimbursement of medical expenses incurred abroad allows the reimbursement of such expenses, by making reimbursement subject to prior authorisation; |
| --- | --- |

1.

Declares that the Portuguese Republic has failed to fulfil its obligations under Article 49 EC by making no provision for reimbursement in respect of non-hospital medical care provided in another Member State which does not involve the use of major and costly equipment exhaustively listed in the national legislation, other than in the circumstances specified in Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, or, to the extent that Decree-Law No 177/92 of 13 August 1992 laying down the conditions for reimbursement of medical expenses incurred abroad allows the reimbursement of such expenses, by making reimbursement subject to prior authorisation;

| 2. | Orders the Portuguese Republic and the European Commission to bear their own costs; |
| --- | --- |

2.

Orders the Portuguese Republic and the European Commission to bear their own costs;

| 3. | Orders the Kingdom of Spain and the Republic of Finland to bear their own costs. |
| --- | --- |

3.

Orders the Kingdom of Spain and the Republic of Finland to bear their own costs.

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(1)  OJ C 205, 29.8.2009.

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C 370/9

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Judgment of the Court (Grand Chamber) of 25 October 2011 (references for preliminary rulings from the Bundesgerichtshof, Tribunal de grande instance de Paris — Germany, France) — eDate Advertising GmbH v X, Olivier Martinez, Robert Martinez v MGN Limited

(Joined Cases C-509/09 and C-161/10) (1)

(Regulation (EC) No 44/2001 - Jurisdiction and the enforcement of judgments in civil and commercial matters - Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ - Directive 2000/31/EC - Publication of information on the internet - Adverse effect on personality rights - Place where the harmful event occurred or may occur - Law applicable to information society services)

2011/C 370/13

Languages of the cases: German and French

Referring courts

Bundesgerichtshof, Tribunal de grande instance de Paris

Parties to the main proceedings

Applicants: eDate Advertising GmbH, Olivier Martinez, Robert Martinez

Defendants: X, MGN Limited

Re:

(C-509/09)

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) and of Article 3(1) and (2) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1) — Determining which court has jurisdiction and which law applies in the case of an action brought in relation to an infringement of the right to protection of personality which may have been committed by publication of information on the internet — Criteria to be used for determining ‘the place where the harmful event occurred or may occur’

(C-161/10)

Reference for a preliminary ruling — Tribunal de grande instance de Paris — Interpretation of Articles 2 and 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Court with jurisdiction to hear an action for infringement of the right to privacy and the right of personal portrayal following the placing on-line of information and photographs on an internet site disseminated from a server housed in the territory of a Member State other that that in which the applicant is domiciled — Determination of the place where the harmful event occurred — Relevance, in order to determine that place, of the number of connections to the internet page at issue effected from the State in which the applicant is domiciled, the nationality of the applicant and, where appropriate, the language in which the information at issue was disseminated

Operative part of the judgment

| 1. | Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised. |
| --- | --- |

1.

Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

| 2. | Article 3 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), must be interpreted as not requiring transposition in the form of a specific conflict-of-laws rule. Nevertheless, in relation to the coordinated field, Member States must ensure that, subject to the derogations authorised in accordance with the conditions set out in Article 3(4) of Directive 2000/31, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established. |
| --- | --- |

2.

Article 3 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), must be interpreted as not requiring transposition in the form of a specific conflict-of-laws rule. Nevertheless, in relation to the coordinated field, Member States must ensure that, subject to the derogations authorised in accordance with the conditions set out in Article 3(4) of Directive 2000/31, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.

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(1)  OJ C 134, 22.5.2010.

OJ C 148, 5.6.2010.

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/10 |
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Judgment of the Court (Third Chamber) of 27 October 2011 — Dongguan Nanzha Leco Stationery Mfg. Co., Ltd v Council of the European Union, European Commission, IML Industria Meccanica Lombarda Srl

(Case C-511/09 P) (1)

(Appeal - Dumping - Imports of lever arch mechanisms originating in China - Regulation (EC) No 1136/2006 - Determination of the dumping margin - Comparison between the normal value and the export price - Regulation (EC) No 384/96 - Article 2(7)(a) and 2(10))

2011/C 370/14

Language of the case: English

Parties

Appellant: Dongguan Nanzha Leco Stationery Mfg. Co., Ltd (represented by: P. Bentley QC)

Other parties to the proceedings: Council of the European Union (represented by: J.-P. Hix and B. Driessen, acting as Agents, assisted by G. Berrisch, Rechtsanwalt), European Commission (represented by H. van Vliet and C. Clyne, acting as Agents), IML Industria Meccanica Lombarda Srl (R. Bierwagen, Rechtsanwalt)

Re:

Appeal against the judgment of the Court of First Instance (Seventh Chamber) of 23 September 2009 in Case T-296/06 Dongguan Nanzha Leco Stationery Mfg. Co., Ltd v Council, by which it dismissed an application for partial annulment of Council Regulation (EC) No 1136/2006 of 24 July 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of lever arch mechanisms originating in the People’s Republic of China (OJ 2006 L 205, p. 1) — Determination of the dumping margin

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Dongguan Nanzha Leco Stationery Mfg. Co., Ltd to pay, in addition to its own costs, those incurred by the Council of the European Union and by IML Industria Meccanica Lombarda Srl; |
| --- | --- |

2.

Orders Dongguan Nanzha Leco Stationery Mfg. Co., Ltd to pay, in addition to its own costs, those incurred by the Council of the European Union and by IML Industria Meccanica Lombarda Srl;

| 3. | Orders the European Commission to bear its own costs. |
| --- | --- |

3.

Orders the European Commission to bear its own costs.

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(1)  OJ C 37, 13.2.2010.

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C 370/11

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Judgment of the Court (First Chamber) of 27 October 2011 (reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Poznaniu (Republic of Poland)) — Inter-Mark Group Sp. z o.o., Sp. komandytowa w. Poznaniu v Minister Finansów

(Case C-530/09) (1)

(VAT - Directive 2006/112/EC - Articles 52(a) and 56(1)(b) and (g) - Place of taxable transactions - Place of supply for tax purposes - Design, hiring out and assembly of fair stands)

2011/C 370/15

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Poznaniu

Parties to the main proceedings

Applicant: Inter-Mark Group Sp. z o.o., Sp. komandytowa

Defendant: Minister Finansów

Re:

Reference for a preliminary ruling — Wojewódzki Sąd Administracyjny — Interpretation of Articles 52(a) and 56(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Determination of the place of taxation — Classification of a given business activity as a service ancillary to cultural, artistic, sporting, scientific, educational, entertainment or similar activities or as an advertising service — Hiring out of fair stands to exhibitors

Operative part of the judgment

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that a supply of services consisting of the design, temporary provision and, where necessary, the transportation and assembly of a fair or exhibition stand for clients presenting their goods or services at fairs and exhibitions is liable to come within the scope of:

| — | Article 56(1)(b) of that directive, in the case where that stand is designed or used for purposes of advertising; |
| --- | --- |

—

Article 56(1)(b) of that directive, in the case where that stand is designed or used for purposes of advertising;

| — | Article 52(a) of that directive, in the case where that stand is designed and provided for a specific fair or exhibition on a cultural, artistic, sporting, scientific, educational, entertainment or similar theme, or where that stand corresponds to a model in respect of which the organiser of a specific fair or exhibition has prescribed the form, size, material composition or visual appearance; |
| --- | --- |

—

Article 52(a) of that directive, in the case where that stand is designed and provided for a specific fair or exhibition on a cultural, artistic, sporting, scientific, educational, entertainment or similar theme, or where that stand corresponds to a model in respect of which the organiser of a specific fair or exhibition has prescribed the form, size, material composition or visual appearance;

| — | Article 56(1)(g) of that directive, in the case where the temporary provision, for payment, of the constituent material elements of that stand constitutes a determining element of that supply. |
| --- | --- |

—

Article 56(1)(g) of that directive, in the case where the temporary provision, for payment, of the constituent material elements of that stand constitutes a determining element of that supply.

---

(1)  OJ C 63, 13.3.2010.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/11 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/11

---

Judgment of the Court (Third Chamber) of 27 October 2011 — Republic of Austria v Scheucher-Fleisch GmbH, Tauernfleisch Vertriebs GesmbH, Wech-Kärntner Truthahnverarbeitung GmbH, Wech-Geflügel GmbH, Johann Zsifkovics, European Commission

(Case C-47/10 P) (1)

(Appeal - State aid - Articles 87 EC and 88(2) and (3) EC - Regulation (EC) No 659/1999 - Decision not to raise any objections - Action for annulment - Pleas in law that may be relied upon in an action for annulment - Notion of ‘interested party’ - Statement of reasons for judgments - Burden of proof - Measures of organisation of procedure before the General Court - Articles 64 and 81 of the Rules of Procedure of the General Court)

2011/C 370/16

Language of the case: German

Parties

Appellant: Republic of Austria (represented by: E. Riedl, Agent, Núñez Müller, J. Dammann, Rechtsanwälte)

Other parties to the proceedings: Scheucher-Fleisch GmbH, Tauernfleisch Vertriebs GmbH, Wech-Kärntner Truthahnverarbeitung GmbH, Wech-Geflügel GmbH, Johann Zsifkovics (represented by J. Hofer and T. Humer, Rechtsanwälte), European Commission (represented by V. Kreuschitz and A. Stobiecka-Kuik, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Sixth Chamber) of 18 November 2009Scheucher-Fleisch and Others v Commission (T-375/04), in which the Court of First Instance annulled Commission Decision C(2004) 2037 final of 30 June 2004 in relation to State aid NN 34A/00 concerning the quality programmes and quality labels ‘AAMA Biozeichen’ and ‘AMA Gütesiegel’ in Austria (OJ 2005 C 105, p. 30) — Erroneous interpretation of the expression ‘Adirectly and individually concerned’ in the fourth paragraph of Article 263 TFEU — Infringement of Article 108(2) TFEU in that the Court of First Instance held that the Commission was obliged to initiate the procedure laid down by that provision — Infringement of the rules concerning the burden of proof — Insufficient reasons stated for the judgment under appeal — Lack of necessary inquiry measures.

Operative part of the judgment

The Court:

| 1. | Dismisses the main appeal and the additional appeal; |
| --- | --- |

1.

Dismisses the main appeal and the additional appeal;

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

2.

Orders the Republic of Austria to pay the costs;

| 3. | Orders the European Commission to bear its own costs. |
| --- | --- |

3.

Orders the European Commission to bear its own costs.

---

(1)  OJ C 80, 27.3.2010.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/12 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/12

---

Judgment of the Court (Third Chamber) of 27 October 2011 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Essen-NordOst v GFKL Financial Services AG

(Case C-93/10) (1)

(Sixth VAT Directive - Articles 2(1) and 4 - Scope - Concepts of ‘supply of services effected for consideration’ and ‘economic activity’ - Sale of defaulted debts - Sale price lower than the face value of those debts - Assumption of responsibility by the purchaser for the recovery of those debts and for the risk of defaulting debtors)

2011/C 370/17

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Finanzamt Essen-NordOst

Respondent: GFKL Financial Services AG

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Articles 2(1), 4, 11A(1)(a) and 13B(d)(2) and (3) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Concepts of supply of services for consideration and economic activity — Factoring — Purchase of risky debts at a price calculated by reference to the probability of debtors’ default — Assumption by the factor of responsibility for recovering the debt and the risk of default

Operative part of the judgment

Articles 2(1) and 4 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 must be interpreted as meaning that an operator who, at his own risk, purchases defaulted debts at a price below their face value does not effect a supply of services for consideration within the meaning of Article 2(1) and does not carry out an economic activity falling within the scope of that directive when the difference between the face value of those debts and their purchase price reflects the actual economic value of the debts at the time of their assignment.

---

(1)  OJ C 134, 22.5.2010.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/12 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/12

---

Judgment of the Court (Grand Chamber) of 25 October 2011 — Solvay SA v European Commission

(Case C-109/10 P) (1)

(Appeal - Competition - Market in soda ash in the Community - Abuse of dominant position - Infringement of the rights of the defence - Access to the file - Hearing of the undertaking)

2011/C 370/18

Language of the case: French

Parties

Appellant: Solvay SA (represented by: P. Foriers, R. Jafferali, F. Louis and A. Vallery, avocats)

Other party to the proceedings: European Commission (represented by: J. Currall and F. Castillo de la Torre, acting as Agents, assisted by N. Coutrelis, avocate)

Re:

Appeal brought against the judgment of the General Court (Sixth Chamber) of 17 December 2009 in Case T-57/01 Solvay v Commission, by which the General Court dismissed the appellants application for the annulment of Commission Decision 2003/6/EC of 13 December 2000 relating to a proceeding pursuant to Article 82 [EC] — Competition — Soda ash market in the Community (excluding the United Kingdom and Ireland) — Abuse of a dominant position — Infringement of the right to be tried within reasonable time — Infringement of procedural rights — Wrong earlier definition of the relevant geographic market — Lack of statement of reasons — Exceptional circumstances showing lack of a dominant position

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the General Court of the European Union of 17 December 2009 in Case T-57/01 Solvay v Commission; |
| --- | --- |

1.

Sets aside the judgment of the General Court of the European Union of 17 December 2009 in Case T-57/01 Solvay v Commission;

| 2. | Annuls Commission Decision 2003/6/EC of 13 December 2000 relating to a proceeding pursuant to Article 82 of the EC Treaty (COMP/33.133-C: Soda-ash — Solvay); |
| --- | --- |

2.

Annuls Commission Decision 2003/6/EC of 13 December 2000 relating to a proceeding pursuant to Article 82 of the EC Treaty (COMP/33.133-C: Soda-ash — Solvay);

| 3. | Orders the European Commission to pay the costs at first instance and on appeal. |
| --- | --- |

3.

Orders the European Commission to pay the costs at first instance and on appeal.

---

(1)  OJ C 161, 19.6.2010.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/13 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/13

---

Judgment of the Court (Grand Chamber) of 25 October 2011 — Solvay SA v European Commission

(Case C-110/10 P) (1)

(Appeal - Competition - Market in soda ash in the Community - Concerted practice - Infringement of the rights of the defence - Access to the file - Hearing of the undertaking)

2011/C 370/19

Language of the case: French

Parties

Appellant: Solvay SA (represented by: P. Foriers, R. Jafferali, F. Louis and A. Vallery, avocats)

Other party to the proceedings: European Commission (represented by: J. Currall and F. Castillo de la Torre, acting as Agents, assisted by N. Coutrelis, avocate)

Re:

Appeal brought against the judgment of the General Court (Sixth Chamber) of 17 December 2009 in Case T-58/01 Solvay v Commission, by which the General Court dismissed the appellants application for the annulment of Commission Decision 2003/5/EC of 13 December 2000 relating to a proceeding pursuant to Article 81 [EC] — Competition — Soda ash market in the Community — Agreement — Infringement of the right to be tried within reasonable time — Infringement of the rights of the defence

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the General Court of the European Union of 17 December 2009 in Case T-58/01 Solvay v Commission; |
| --- | --- |

1.

Sets aside the judgment of the General Court of the European Union of 17 December 2009 in Case T-58/01 Solvay v Commission;

| 2. | Annuls Commission Decision 2003/5/EC of 13 December 2000 relating to a proceeding under Article 81 of the EC Treaty (COMP/33.133-B: Soda-ash — Solvay, CFK); |
| --- | --- |

2.

Annuls Commission Decision 2003/5/EC of 13 December 2000 relating to a proceeding under Article 81 of the EC Treaty (COMP/33.133-B: Soda-ash — Solvay, CFK);

| 3. | Orders the European Commission to pay the costs at first instance and on appeal. |
| --- | --- |

3.

Orders the European Commission to pay the costs at first instance and on appeal.

---

(1)  OJ C 161, 19.6.2010.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/13 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/13

---

Judgment of the Court (Sixth Chamber) of 27 October 2011 — European Commission v Republic of Poland

(Case C-311/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2007/46/EC - Approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles - Failure to transpose within the period prescribed - Incomplete transposition)

2011/C 370/20

Language of the case: Polish

Parties

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

Defendant: Republic of Poland (represented by: M. Szpunar, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to give effect to Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to communicate to the European Commission the laws, regulations and administrative provisions implementing Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, the Republic of Poland has failed to fulfil its obligations sunder Article 48 of that directive; |
| --- | --- |

1.

Declares that, by failing to communicate to the European Commission the laws, regulations and administrative provisions implementing Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, the Republic of Poland has failed to fulfil its obligations sunder Article 48 of that directive;

| 2. | Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to implement Directive 2007/46, the Republic of Poland has failed to fulfil its obligations under Article 48 of that directive; |
| --- | --- |

2.

Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to implement Directive 2007/46, the Republic of Poland has failed to fulfil its obligations under Article 48 of that directive;

| 3. | Orders the Republic of Poland to pay the costs. |
| --- | --- |

3.

Orders the Republic of Poland to pay the costs.

---

(1)  OJ C 246, 11.9.2010.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/14 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/14

---

Judgment of the Court (Sixth Chamber) of 27 October 2011 — European Commission v Republic of Poland

(Case C-362/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/98/EC - Re-use of public sector information - Incorrect transposition of or failure to transpose certain articles within the period prescribed)

2011/C 370/21

Language of the case: Polish

Parties

Applicant: European Commission (represented by: S. La Pergola and K. Herrmann, acting as Agents)

Defendant: Republic of Poland (represented by: M. Szpunar, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the measures necessary to comply with Articles 2, 3, 4, 6, 7, 8, 10 and 11 of Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (OJ 2003 L 345, p. 90)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to transpose into the Polish legal order Articles 2 to 4, 6 to 8, 10 and 11 of Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, the Republic of Poland has failed to fulfil its obligations under those articles; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to transpose into the Polish legal order Articles 2 to 4, 6 to 8, 10 and 11 of Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, the Republic of Poland has failed to fulfil its obligations under those articles;

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

2.

Orders the Republic of Poland to pay the costs.

---

(1)  OJ C 301, 6.11.2010.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/14 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/14

---

Judgment of the Court (Fifth Chamber) of 27 October 2011 (reference for a preliminary ruling from the Conseil d’État (France)) — Société Groupe Limagrain Holding v Établissement national des produits de l’agriculture et de la mer

(Case C-402/10) (1)

(Agriculture - Regulations (EEC) No 3665/87 and No 565/80 - Export refunds - Refund paid in advance - Placing of goods under the customs warehousing procedure - Absence of stock records - Proof that the goods were exported - Acquisition of all or part of the refund relating to that exportation - Obligation to repay the amount unduly received - Application of a surcharge to the amount to be repaid)

2011/C 370/22

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Société Groupe Limagrain Holding

Defendant: Établissement national des produits de l’agriculture et de la mer

Re:

Reference for a preliminary ruling — Conseil d’État (France) — Interpretation of provisions of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1) in conjunction with the provisions of Council Regulation (EEC) No 565/80 of 4 March 1980 on the advance payment of export refunds in respect of agricultural products (OJ 1980 L 62, p. 5) — Placing of goods under the customs warehousing procedure with view to export and advance payment of refunds — Repayment of sums received in advance in absence of stock records — Conditions of repayment

Operative part of the judgment

| 1. | The provisions of European Union law on the advance financing of export refunds must be interpreted as meaning that the maintenance, in accordance with the European Union customs legislation, of stock records in respect of products placed under the customs warehousing procedure constitutes a condition of advance payment of an export refund with regard to those products. However, any remaining doubts as to the accuracy of certain entries or as to discrepancies in those stock records may be resolved by reference to other additional documents, on condition that those documents are deemed by the competent national authorities to be satisfactory. |
| --- | --- |

1.

The provisions of European Union law on the advance financing of export refunds must be interpreted as meaning that the maintenance, in accordance with the European Union customs legislation, of stock records in respect of products placed under the customs warehousing procedure constitutes a condition of advance payment of an export refund with regard to those products. However, any remaining doubts as to the accuracy of certain entries or as to discrepancies in those stock records may be resolved by reference to other additional documents, on condition that those documents are deemed by the competent national authorities to be satisfactory.

| 2. | The provisions of European Union law on the advance financing of export refunds must be interpreted as meaning that:






  — | to the extent to which, and on condition that, there has been a failure to comply with the obligation to maintain, in accordance with the European Union customs legislation, stock records in respect of products placed under the customs warehousing procedure, proof that products similar in quantity and type to those referred to in the advance payment declaration have been exported is not sufficient for the exporter to be regarded as having properly obtained the amount of the export refund relating to those products; |
| --- | --- | --- |

2.

The provisions of European Union law on the advance financing of export refunds must be interpreted as meaning that:

—

to the extent to which, and on condition that, there has been a failure to comply with the obligation to maintain, in accordance with the European Union customs legislation, stock records in respect of products placed under the customs warehousing procedure, proof that products similar in quantity and type to those referred to in the advance payment declaration have been exported is not sufficient for the exporter to be regarded as having properly obtained the amount of the export refund relating to those products;

| — | in the case where, by reason of a failure to comply with the obligation to maintain stock records in respect of products placed in a customs warehouse, the exporter must repay all or part of the sums received as advance payment of an export refund, the surcharge of 20 % provided for in the second subparagraph of Article 33(1) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by, inter alia, Commission Regulation (EEC) No 1708/93 of 30 June 1993, is to be applied to the amount unduly received and to be repaid. |
| --- | --- |

—

in the case where, by reason of a failure to comply with the obligation to maintain stock records in respect of products placed in a customs warehouse, the exporter must repay all or part of the sums received as advance payment of an export refund, the surcharge of 20 % provided for in the second subparagraph of Article 33(1) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by, inter alia, Commission Regulation (EEC) No 1708/93 of 30 June 1993, is to be applied to the amount unduly received and to be repaid.

---

(1)  OJ C 288, 23.10.2010.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/15 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/15

---

Judgment of the Court (Seventh Chamber) of 27 October 2011 (reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia)) — Tanoarch s.r.o. v Daňové riaditeľstvo Slovenskej republiky

(Case C-504/10) (1)

(Taxation - VAT - Right of deduction - Assignment of a share in the rights relating to an invention, held by a number of undertakings, to an undertaking which has the right to use that invention in its entirety - Abusive practice)

2011/C 370/23

Language of the case: Slovak

Referring court

Najvyšší súd Slovenskej republiky

Parties to the main proceedings

Applicant: Tanoarch s.r.o.

Defendant: Daňové riaditeľstvo Slovenskej republiky

Re:

Reference for a preliminary ruling — Najvyšší súd Slovenskej republiky — Interpretation of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), and in particular Article 2(1) thereof — Transfer of some of the rights over an invention, held by various undertakings, to an undertaking already having the right to use the said invention in its entirety — Possible existence of a right to deduct input tax

Operative part of the judgment

| 1. | A taxpayer may, in principle, claim a right of deduction of input VAT paid or payable for the supply of a service, carried out for consideration, where the applicable national law permits the assignment of a share of the co-ownership of an invention which confers rights relating to the invention. |
| --- | --- |

1.

A taxpayer may, in principle, claim a right of deduction of input VAT paid or payable for the supply of a service, carried out for consideration, where the applicable national law permits the assignment of a share of the co-ownership of an invention which confers rights relating to the invention.

| 2. | It is for the referring court to establish, taking into account all the factual circumstances characterising the supply of the service in the case in the main proceedings, whether or not there has been an abuse of rights with regard to the right of deduction of input VAT. |
| --- | --- |

2.

It is for the referring court to establish, taking into account all the factual circumstances characterising the supply of the service in the case in the main proceedings, whether or not there has been an abuse of rights with regard to the right of deduction of input VAT.

---

(1)  OJ C 46, 12.2.2011.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/15 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/15

---

Judgment of the Court (Eighth Chamber) of 27 October 2011 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium)) — Deli Ostrich NV v Belgische Staat

(Case C-559/10) (1)

(Common Customs Tariff - Combined Nomenclature - Tariff classification - Frozen camel meat not from farm-raised animals - Classification under subheading 0208 90 40 (other game meat) or 0208 90 95 (other))

2011/C 370/24

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Antwerpen

Parties to the main proceedings

Applicant: Deli Ostrich NV

Defendant: Belgische Staat

Re:

Reference for a preliminary ruling — Rechtbank van eerste aanleg te Antwerpen — Common Customs Tariff — Tariff headings — Camel meat not from farm-raised animals — Classification under subheading 0208 90 40 (game) or 0208 90 95 (other)?

Operative part of the judgment

The Combined Nomenclature constituting Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1549/2006 of 17 October 2006, must be interpreted as meaning that camel meat must be classified under subheading 0208 90 40 as ‘other game meat’ if the camels from which that meat comes lived in the wild and were hunted.

---

(1)  OJ C 55, 19.2.2011.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/15 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/15

---

Judgment of the Court (Sixth Chamber) of 27 October 2011 — European Commission v Hellenic Republic

(Case C-601/10) (1)

(Failure of a Member State to fulfil obligations - Directives 92/50/EEC and 2004/18/EC - Public service contracts - Additional land registry and town planning services - Negotiated procedure without prior publication of a contract notice)

2011/C 370/25

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Patakia and D. Kukovec, acting as Agents)

Defendant: Hellenic Republic (represented by: S. Chala and D. Tsagkaraki, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 8 and 11(3) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) and of Articles 20 and 31(4) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Award of a contract without prior publication of a contract notice — Contract relating to additional land-registry and town-planning services — Municipalities of Vasilika, Kassandra, Egnatia and Arethousa

Operative part of the judgment

The Court:

| 1. | Declares that, by having awarded, by means of a negotiated procedure without prior publication of a contract notice, public contracts for additional land registry and town planning services which do not appear in the initial contract concluded by the municipalities of Vasilika, Kassandra, Egnatia and Arethousa, the Hellenic Republic has failed to fulfil its obligations under Articles 8 and 11(3) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 97/52/EC of the European Parliament and of the Council of 13 October 1997, and Articles 20 and 31(4) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts; |
| --- | --- |

1.

Declares that, by having awarded, by means of a negotiated procedure without prior publication of a contract notice, public contracts for additional land registry and town planning services which do not appear in the initial contract concluded by the municipalities of Vasilika, Kassandra, Egnatia and Arethousa, the Hellenic Republic has failed to fulfil its obligations under Articles 8 and 11(3) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 97/52/EC of the European Parliament and of the Council of 13 October 1997, and Articles 20 and 31(4) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts;

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 63, 26.2.2011.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/16 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/16

---

Reference for a preliminary ruling from the Fővárosi Bíróság (Hungary) lodged on 16 September 2011 — Banif Plus Bank Zrt. v Csaba Csipai and Viktória Csipai

(Case C-472/11)

2011/C 370/26

Language of the case: Hungarian

Referring court

Fővárosi Bíróság

Parties to the main proceedings

Applicant: Banif Plus Bank Zrt.

Defendant: Csaba Csipai, Viktória Csipai

Questions referred

| 1. | Are the procedures of a national court consistent with Article 7(1) of Directive 93/13/EEC (1) if, where a contract term is held to be unfair, and the parties did not submit a claim to that effect, the court informs them that it holds sentence 4 of clause 29 of the standard contract terms of the loan agreement between the parties to the proceedings to be invalid? That invalidity arises from breach of the legislation, namely Paragraph 1(1)(c) and (2)(j) of Government Decree 18/1999 on Unfair Contract Terms. |
| --- | --- |

1.

Are the procedures of a national court consistent with Article 7(1) of Directive 93/13/EEC (1) if, where a contract term is held to be unfair, and the parties did not submit a claim to that effect, the court informs them that it holds sentence 4 of clause 29 of the standard contract terms of the loan agreement between the parties to the proceedings to be invalid? That invalidity arises from breach of the legislation, namely Paragraph 1(1)(c) and (2)(j) of Government Decree 18/1999 on Unfair Contract Terms.

| 2. | In the circumstances of the first question, is it permissible for the court to direct the parties to the proceedings to make a statement in relation to the contract term in question, so that the legal implications of any unfairness may be established and so that the aims expressed in Article 6(1) of Directive 93/13/EEC may be achieved? |
| --- | --- |

2.

In the circumstances of the first question, is it permissible for the court to direct the parties to the proceedings to make a statement in relation to the contract term in question, so that the legal implications of any unfairness may be established and so that the aims expressed in Article 6(1) of Directive 93/13/EEC may be achieved?

| 3. | In the circumstances described above, is it permissible for the court, when examining an unfair contract term, to examine all the terms of the contract, or may it examine only the terms on which the party concluding the contract with the consumer bases his claim? |
| --- | --- |

3.

In the circumstances described above, is it permissible for the court, when examining an unfair contract term, to examine all the terms of the contract, or may it examine only the terms on which the party concluding the contract with the consumer bases his claim?

---

(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/16 |
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17.12.2011

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Official Journal of the European Union

C 370/16

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Reference for a preliminary ruling from the Hajdú-Bihar Megyei Bíróság (Hungary) lodged on 26 September 2011 — IBIS S.r.l. v PARTIUM ’70 Műanyagipari Zrt.

(Case C-490/11)

2011/C 370/27

Language of the case: Hungarian

Referring court

Hajdú-Bihar Megyei Bíróság

Parties to the main proceedings

Applicant: IBIS S.r.l.

Defendant: PARTIUM ’70 Műanyagipari Zrt.

Questions referred

| 1. | Are the provisions of Article 45(1) and (2) of Council Regulation 44/2001/EC (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that a court in the Member State in which recognition is sought may, in the appeal procedure under Article 45, refuse an application for a declaration of enforceability of a foreign judgment if the certificate referred to in Article 54 of that Regulation was issued without the conditions contained in Article 66(2)(a) or (b) thereof having been met? |
| --- | --- |

1.

Are the provisions of Article 45(1) and (2) of Council Regulation 44/2001/EC (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that a court in the Member State in which recognition is sought may, in the appeal procedure under Article 45, refuse an application for a declaration of enforceability of a foreign judgment if the certificate referred to in Article 54 of that Regulation was issued without the conditions contained in Article 66(2)(a) or (b) thereof having been met?

| 2. | If so, how is Article 35(3) of that Regulation to be interpreted in relation to the application of Article 66 thereof? |
| --- | --- |

2.

If so, how is Article 35(3) of that Regulation to be interpreted in relation to the application of Article 66 thereof?

| 3. | Does Article 1(2)(d) of the Regulation [permit] the possibility of refusal of an application for a declaration of enforceability on the basis of the certificate issued by the court of origin, if it is apparent from the judgment in respect of which the certificate was issued that there is an arbitration clause? |
| --- | --- |

3.

Does Article 1(2)(d) of the Regulation [permit] the possibility of refusal of an application for a declaration of enforceability on the basis of the certificate issued by the court of origin, if it is apparent from the judgment in respect of which the certificate was issued that there is an arbitration clause?

---

(1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/17 |
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17.12.2011

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Official Journal of the European Union

C 370/17

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Reference for a preliminary ruling from High Court of Justice Queen's Bench Division (Administrative Court) (United Kingdom) made on 23 September 2011 — Fruition Po Limited v Minister for Sustainable Farming and Food and Animal Health

(Case C-500/11)

2011/C 370/28

Language of the case: English

Referring court

High Court of Justice Queen's Bench Division (Administrative Court)

Parties to the main proceedings

Applicant: Fruition Po Limited

Defendant: Minister for Sustainable Farming and Food and Animal Health

Questions referred

| 1. | In circumstances where






  (a) | a Member State was considering recognition of a body as a producer organisation under Article 11 of Council Regulation 2200/96 (1); |
| --- | --- | --- |

1.

In circumstances where

(a)

a Member State was considering recognition of a body as a producer organisation under Article 11 of Council Regulation 2200/96 (1);

| (b) | the body had aims and rules of association complying with the requirements of Article 11; |
| --- | --- |

(b)

the body had aims and rules of association complying with the requirements of Article 11;

| (c) | producer members of the body received all the services required to be provided to them by a producer organisation under Article 11; and |
| --- | --- |

(c)

producer members of the body received all the services required to be provided to them by a producer organisation under Article 11; and

| (d) | the body had engaged contractors to provide a substantial proportion of such services |
| --- | --- |

(d)

the body had engaged contractors to provide a substantial proportion of such services

was Article 11 to be interpreted, consistently with the principle of legal certainty, as requiring the body to have a degree of control over the contractors?

| 2. | If the answer to question 1 is ‘yes’, what degree of control was Article 11 to be interpreted as requiring? |
| --- | --- |

2.

If the answer to question 1 is ‘yes’, what degree of control was Article 11 to be interpreted as requiring?

| 3. | In particular, did the body have the degree of control, if any, required by Article 11 in circumstances






  (a) | where the contractors were:






  1. | a company 93 % of the shares in which were held by members of the body; and |
| --- | --- | --- | --- |

3.

In particular, did the body have the degree of control, if any, required by Article 11 in circumstances

(a)

where the contractors were:

1.

a company 93 % of the shares in which were held by members of the body; and

| 2. | a company 50 % of the shares in which were held by the first company and whose constitution provided that decisions taken by the company should be taken on the basis of unanimity; |
| --- | --- |

2.

a company 50 % of the shares in which were held by the first company and whose constitution provided that decisions taken by the company should be taken on the basis of unanimity;

| (b) | neither company was subject to a contractual obligation to comply with the body's instructions to them in relation to the activities in question; but |
| --- | --- |

(b)

neither company was subject to a contractual obligation to comply with the body's instructions to them in relation to the activities in question; but

| (c) | as a consequence of the shareholding structure described above, the body and the contractors operated on the basis of consensus? |
| --- | --- |

(c)

as a consequence of the shareholding structure described above, the body and the contractors operated on the basis of consensus?

| 4. | Is it relevant to the determination of the above questions that:






  (a) | Article 6(2) of Commission Regulation 1432/03 (2), laying down detailed rules for the application of Council Regulation 2200/96 regarding the conditions for recognition of producer organisations, expressly provided at the relevant time that ‘Member States shall determine the conditions’ on which producer organisations could entrust to third parties the performance of its tasks; |
| --- | --- | --- |

4.

Is it relevant to the determination of the above questions that:

(a)

Article 6(2) of Commission Regulation 1432/03 (2), laying down detailed rules for the application of Council Regulation 2200/96 regarding the conditions for recognition of producer organisations, expressly provided at the relevant time that ‘Member States shall determine the conditions’ on which producer organisations could entrust to third parties the performance of its tasks;

| (b) | the Member State referred to in question 1 had at the relevant time failed to determine such conditions? |
| --- | --- |

(b)

the Member State referred to in question 1 had at the relevant time failed to determine such conditions?

---

(1)  Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organization of the market in fruit and vegetables

OJ L 297, p. 1

(2)  Commission Regulation (EC) No 1432/2003 of 11 August 2003 laying down detailed rules for the application of Council Regulation (EC) No 2200/96 regarding the conditions for recognition of producer organisations and preliminary recognition of producer groups

OJ L 203, p. 18

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/17 |
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17.12.2011

EN

Official Journal of the European Union

C 370/17

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Reference for a preliminary ruling from the Giudice di Pace di Lecce (Italy) lodged on 13 October 2011 — Criminal proceedings against Abdoul Khadre Mbaye

(Case C-522/11)

2011/C 370/29

Language of the case: Italian

Referring court

Giudice di Pace di Lecce

Party to the main proceedings

Abdoul Khadre Mbaye

Questions referred

| 1. | Does Article 2(2)(b) of Directive 2008/115/EC (1) preclude the possible application of that directive even when the national legislation (Article 10a of Legislative Decree 286/98) penalises an illegal entry or stay by expulsion as an alternative to criminal law sanctions? |
| --- | --- |

1.

Does Article 2(2)(b) of Directive 2008/115/EC (1) preclude the possible application of that directive even when the national legislation (Article 10a of Legislative Decree 286/98) penalises an illegal entry or stay by expulsion as an alternative to criminal law sanctions?

| 2. | Does the Community directive on the return of third-country nationals preclude criminal sanctions where a foreign national is merely unlawfully present on national territory, regardless of whether the administrative return procedure provided for by the national legislation and by the directive itself has been completed? |
| --- | --- |

2.

Does the Community directive on the return of third-country nationals preclude criminal sanctions where a foreign national is merely unlawfully present on national territory, regardless of whether the administrative return procedure provided for by the national legislation and by the directive itself has been completed?

---

(1)  OJ 2008 L 348, p. 98.

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/18 |
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17.12.2011

EN

Official Journal of the European Union

C 370/18

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Reference for a preliminary ruling from the Administrativen Sad Sofia (Bulgaria) lodged on 18 October 2011 — Zuheyr Freyeh Halaf v Darzhavna agentsia za bezhantsite pri Ministerski savet

(Case C-528/11)

2011/C 370/30

Language of the case: Bulgarian

Referring court

Administrativen Sad Sofia

Parties to the main proceedings

Applicant: Zuheyr Freyeh Halaf

Defendant: Darzhavna agentsia za bezhantsite pri Ministerski savet

Questions referred

| 1. | Is Article 3(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national to be interpreted as meaning that it permits a Member State to assume responsibility for examining an asylum application where no personal circumstances exist in relation to the asylum seeker which establish the applicability of the humanitarian clause in Article 15 of that regulation and where at least one of the following situations exists in relation to the Member State responsible pursuant to Article 3(1) of the regulation:






  (a) | Facts and conclusions therefrom are set out in documents of the Office of the United Nations High Commissioner for Refugees (UNHCR) to the effect that the legally responsible Member State is in breach of provisions of European Union law on asylum which relate to the reception conditions for asylum seekers, access to the procedure, or the quality of the procedure for examining asylum applications; |
| --- | --- | --- |

1.

Is Article 3(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national to be interpreted as meaning that it permits a Member State to assume responsibility for examining an asylum application where no personal circumstances exist in relation to the asylum seeker which establish the applicability of the humanitarian clause in Article 15 of that regulation and where at least one of the following situations exists in relation to the Member State responsible pursuant to Article 3(1) of the regulation:

(a)

Facts and conclusions therefrom are set out in documents of the Office of the United Nations High Commissioner for Refugees (UNHCR) to the effect that the legally responsible Member State is in breach of provisions of European Union law on asylum which relate to the reception conditions for asylum seekers, access to the procedure, or the quality of the procedure for examining asylum applications;

| (b) | The legally responsible Member State has not responded to a request to take back the applicant pursuant to Article 20(1) of Regulation No 343/2003, given that that regulation does not contain any provisions concerning compliance with the principle of solidarity pursuant to Article 80 TFEU? |
| --- | --- |

(b)

The legally responsible Member State has not responded to a request to take back the applicant pursuant to Article 20(1) of Regulation No 343/2003, given that that regulation does not contain any provisions concerning compliance with the principle of solidarity pursuant to Article 80 TFEU?

| 2. | For the purposes of applying Article 3(2) of Regulation No 343/2003 is it possible for a national court of a Member State, before which the claim that that regulation is applicable is based on claims of an infringement of European Union law on asylum by the Member State responsible (under Article 3(1) of that regulation), to examine the infringement of that law and the consequent effects on the rights of the asylum seeker which are guaranteed to him by European Union law in the event of his transfer to the Member State responsible, where the Court of Justice of the European Union has not declared that that Member State has infringed the relevant provisions of European Union law, according to the procedure provided for by that law?
  In the event that the above question is answered in the affirmative, the following questions on establishing the criteria for an infringement of European Union law might also be answered: | Are only substantial infringements of European Union law to be taken into account and which criteria must the national court consider in establishing such infringements in order to apply the provision of Regulation No 343/2003 of which an interpretation is sought? |
| --- | --- | --- |

2.

For the purposes of applying Article 3(2) of Regulation No 343/2003 is it possible for a national court of a Member State, before which the claim that that regulation is applicable is based on claims of an infringement of European Union law on asylum by the Member State responsible (under Article 3(1) of that regulation), to examine the infringement of that law and the consequent effects on the rights of the asylum seeker which are guaranteed to him by European Union law in the event of his transfer to the Member State responsible, where the Court of Justice of the European Union has not declared that that Member State has infringed the relevant provisions of European Union law, according to the procedure provided for by that law?

In the event that the above question is answered in the affirmative, the following questions on establishing the criteria for an infringement of European Union law might also be answered:

Are only substantial infringements of European Union law to be taken into account and which criteria must the national court consider in establishing such infringements in order to apply the provision of Regulation No 343/2003 of which an interpretation is sought?

| | Where an infringement of European Union law on asylum results in the infringement of a right of any kind guaranteed to the asylum seeker by European Union law, should it only on that basis be assessed as substantial or must there also be a restriction on the infringement of the right to asylum within the meaning of Article 18 of the Charter of Fundamental Rights of the European Union? |
| --- | --- |

Where an infringement of European Union law on asylum results in the infringement of a right of any kind guaranteed to the asylum seeker by European Union law, should it only on that basis be assessed as substantial or must there also be a restriction on the infringement of the right to asylum within the meaning of Article 18 of the Charter of Fundamental Rights of the European Union?

| | Where, according to the general criteria and standards of European Union law, there is no legal basis for accepting the asylum application of the person concerned, should then only the infringement of reception conditions for asylum seekers in the legally responsible Member State responsible be examined? |
| --- | --- |

Where, according to the general criteria and standards of European Union law, there is no legal basis for accepting the asylum application of the person concerned, should then only the infringement of reception conditions for asylum seekers in the legally responsible Member State responsible be examined?

| 3. | What is the content of the right to asylum under Article 18 of the Charter of Fundamental Rights of the European Union in conjunction with Article 53 of that Charter and in conjunction with the definition in Article 2(c) and recital 12 of Regulation No 343/2003? |
| --- | --- |

3.

What is the content of the right to asylum under Article 18 of the Charter of Fundamental Rights of the European Union in conjunction with Article 53 of that Charter and in conjunction with the definition in Article 2(c) and recital 12 of Regulation No 343/2003?

| 4. | Is Article 3(2) of Regulation No 343/2003 to be interpreted as meaning that it permits a national court of a Member State to find that the presumption that the Member State responsible pursuant to Article 3(1) of the regulation respects the principle of non refoulement and is a safe country within the meaning of recital 2 of the preamble to that regulation is rebutted, without any declaration to that effect by the Court of Justice of the European Union, where the following factors are to be taken into account:






  — | the recognised supervisory responsibilities of the Office of the United Nations High Commissioner for Refugees (UNHCR), which stem from the obligations under Article 78(1) TFEU to comply with instruments under international law on asylum and expressly under Article 21 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and |
| --- | --- | --- |

4.

Is Article 3(2) of Regulation No 343/2003 to be interpreted as meaning that it permits a national court of a Member State to find that the presumption that the Member State responsible pursuant to Article 3(1) of the regulation respects the principle of non refoulement and is a safe country within the meaning of recital 2 of the preamble to that regulation is rebutted, without any declaration to that effect by the Court of Justice of the European Union, where the following factors are to be taken into account:

—

the recognised supervisory responsibilities of the Office of the United Nations High Commissioner for Refugees (UNHCR), which stem from the obligations under Article 78(1) TFEU to comply with instruments under international law on asylum and expressly under Article 21 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and

| — | the facts and conclusions therefrom in documents of the Office of the UNHCR to the effect that the Member State responsible pursuant to Article 3(1) of Regulation No 343/2003 is in breach of provisions of European Union law on asylum? |
| --- | --- |

—

the facts and conclusions therefrom in documents of the Office of the UNHCR to the effect that the Member State responsible pursuant to Article 3(1) of Regulation No 343/2003 is in breach of provisions of European Union law on asylum?

| 5. | Is Article 3(2) of Regulation No 343/2003, in relation to the obligation under Article 78(1) TFEU to comply with instruments under international law on asylum, to be interpreted as meaning that in the procedure for determining the Member State responsible pursuant to Regulation No 343/2003, the Member States are obliged to request the Office of the UNHCR to present its views, where facts and conclusions therefrom are set out in documents of that Office to the effect that the Member State responsible pursuant to Article 3(1) of Regulation No 343/2003 is in breach of provisions of European Union law on asylum?
  If this question is answered in the affirmative, the following question might also be answered:
  If such a request is not made to the Office of the UNHCR to present its views, does this constitute a substantial infringement of the procedure for determining the Member State responsible pursuant to Article 3 of Regulation No 343/2003 and an infringement of the right to good administration and the right to an effective legal remedy pursuant to Articles 41 and 47 of the Charter of Fundamental Rights of the European Union, specifically also in the light of Article 21 of Directive 2005/85, which provides that that Office has the right to present its views when individual applications for asylum are examined? |
| --- | --- |

5.

Is Article 3(2) of Regulation No 343/2003, in relation to the obligation under Article 78(1) TFEU to comply with instruments under international law on asylum, to be interpreted as meaning that in the procedure for determining the Member State responsible pursuant to Regulation No 343/2003, the Member States are obliged to request the Office of the UNHCR to present its views, where facts and conclusions therefrom are set out in documents of that Office to the effect that the Member State responsible pursuant to Article 3(1) of Regulation No 343/2003 is in breach of provisions of European Union law on asylum?

If this question is answered in the affirmative, the following question might also be answered:

If such a request is not made to the Office of the UNHCR to present its views, does this constitute a substantial infringement of the procedure for determining the Member State responsible pursuant to Article 3 of Regulation No 343/2003 and an infringement of the right to good administration and the right to an effective legal remedy pursuant to Articles 41 and 47 of the Charter of Fundamental Rights of the European Union, specifically also in the light of Article 21 of Directive 2005/85, which provides that that Office has the right to present its views when individual applications for asylum are examined?

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/19 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/19

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Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 17 September 2011 — Olaitan Ajoke Alarape, Olukayode Azeez Tijani v Secretary of State for the Home Department

(Case C-529/11)

2011/C 370/31

Language of the case: English

Referring court

Upper Tribunal (Immigration and Asylum Chamber) London

Parties to the main proceedings

Applicants: Olaitan Ajoke Alarape, Olukayode Azeez Tijani

Defendant: Secretary of State for the Home Department

Questions referred

| 1. | For a parent to qualify as a ‘primary carer’ so as to derive a right of residence from a child, over 21 exercising a right of access to education under Article 12 Regulation No 1612/68 [see now Article 10 Regulation (EU) No 492/2011 (1)], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent's household; and (iii) receiving emotional support from that parent? |
| --- | --- |

1.

For a parent to qualify as a ‘primary carer’ so as to derive a right of residence from a child, over 21 exercising a right of access to education under Article 12 Regulation No 1612/68 [see now Article 10 Regulation (EU) No 492/2011 (1)], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent's household; and (iii) receiving emotional support from that parent?

| 2. | If in order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain? |
| --- | --- |

2.

If in order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

| 3. | In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)? |
| --- | --- |

3.

In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

| 4. | In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child? |
| --- | --- |

4.

In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

| 5. | Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring aright of permanent residence under Chapter IV of Directive 2004/38/EC (2) (the Citizens Directive) on ‘Right of Permanent Residence’) and being issued with a residence card under Article 19 of the same Directive? |
| --- | --- |

5.

Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring aright of permanent residence under Chapter IV of Directive 2004/38/EC (2) (the Citizens Directive) on ‘Right of Permanent Residence’) and being issued with a residence card under Article 19 of the same Directive?

---

(1)  Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union

OJ L 141, p. 1

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

OJ L 158, p. 77

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/20 |
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17.12.2011

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Official Journal of the European Union

C 370/20

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Reference for a preliminary ruling from the Tribunale di Genova (Italy) lodged on 21 October 2011 — Mattia Manzi, Compagnia Naviera Orchestra v Capitaneria di Porto di Genova

(Case C-537/11)

2011/C 370/32

Language of the case: Italian

Referring court

Tribunale di Genova

Parties to the main proceedings

Applicants: Mattia Manzi, Compagnia Naviera Orchestra

Defendant: Capitaneria di Porto di Genova

Questions referred

| 1. | Is Article 4a of Directive 1999/32/EC, (1) as amended by Directive 2005/33/EC, (2) which was adopted in the light of the entry into force of Annex VI to the MARPOL Convention, to be interpreted, in accordance with the international principle of good faith and the principle of cooperation in good faith as between the Community and its Member States, as meaning that the limit, fixed by that provision, of 1.5 % m/m of sulphur in marine fuels does not apply to ships flying the flag of a non-European Union State which is party to the MARPOL Convention 73/78, where such ships are in the port of a Member State which is itself a party to Annex VI to the MARPOL Convention 73/78? |
| --- | --- |

1.

Is Article 4a of Directive 1999/32/EC, (1) as amended by Directive 2005/33/EC, (2) which was adopted in the light of the entry into force of Annex VI to the MARPOL Convention, to be interpreted, in accordance with the international principle of good faith and the principle of cooperation in good faith as between the Community and its Member States, as meaning that the limit, fixed by that provision, of 1.5 % m/m of sulphur in marine fuels does not apply to ships flying the flag of a non-European Union State which is party to the MARPOL Convention 73/78, where such ships are in the port of a Member State which is itself a party to Annex VI to the MARPOL Convention 73/78?

| 2. | If Article 4a of Directive 1999/32/EC, as amended by Directive 2005/33/EC, is not to be interpreted as having the meaning proposed in Question 1, is that provision — in so far as it limits to 1.5 % m/m the sulphur content of fuel for use by passenger ships operating regular services to or from a Community port, including ships flying the flag of a non-European Union State which is party to Annex VI to the MARPOL Convention, pursuant to which, outside SEC areas, the 4,5 % m/m sulphur content limit applies — invalid on the basis that it is contrary to the general principle of international law pacta sunt servanda and to the principle of cooperation in good faith as between the Community and its Member States, in that it requires Member States which have agreed to and ratified Annex VI to act in breach of the obligations entered into towards the other States which are party to Annex VI to the MARPOL Convention 73/78? |
| --- | --- |

2.

If Article 4a of Directive 1999/32/EC, as amended by Directive 2005/33/EC, is not to be interpreted as having the meaning proposed in Question 1, is that provision — in so far as it limits to 1.5 % m/m the sulphur content of fuel for use by passenger ships operating regular services to or from a Community port, including ships flying the flag of a non-European Union State which is party to Annex VI to the MARPOL Convention, pursuant to which, outside SEC areas, the 4,5 % m/m sulphur content limit applies — invalid on the basis that it is contrary to the general principle of international law pacta sunt servanda and to the principle of cooperation in good faith as between the Community and its Member States, in that it requires Member States which have agreed to and ratified Annex VI to act in breach of the obligations entered into towards the other States which are party to Annex VI to the MARPOL Convention 73/78?

| 3. | Is the term ‘regular services’ in Article 2(3g) of Directive 1999/32/EC, as amended by Directive 2005/33/EC, to be interpreted as meaning that cruise ships also count as ships operating ‘regular services’? |
| --- | --- |

3.

Is the term ‘regular services’ in Article 2(3g) of Directive 1999/32/EC, as amended by Directive 2005/33/EC, to be interpreted as meaning that cruise ships also count as ships operating ‘regular services’?

---

(1)  OJ 1999 L 121, p. 13.

(2)  OJ 2005 L 191, p. 59.

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/20 |
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17.12.2011

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C 370/20

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Reference for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione Siciliana (Italy) lodged on 21 October 2011 — Ottica New Line di Accardi Vincenzo v Comune di Campobello di Mazara

(Case C-539/11)

2011/C 370/33

Language of the case: Italian

Referring court

Consiglio di Giustizia Amministrativa per la Regione Siciliana

Parties to the main proceedings

Applicant: Ottica New Line di Accardi Vincenzo

Defendant: Comune di Campobello di Mazara

Intervening party: Fotottica Media Vision di Luppino Natale Fabrizio e.c. s.n.c.

Questions referred

| 1. | Must European Union law on the freedom of establishment and the freedom to provide services be interpreted as meaning that a provision of national law (in the present case, Article 1 of Law No 12/2004 of the Autonomous Region of Sicily) under which the establishment of opticians’ practices in the territory of a Member State (in the present case, in a part of that territory) is subject to restrictions based on population density and the distance between practices — restrictions which, in theory, constitute an infringement of those fundamental freedoms — reflects an overriding reason relating to the public interest, linked to the need to protect human health? |
| --- | --- |

1.

Must European Union law on the freedom of establishment and the freedom to provide services be interpreted as meaning that a provision of national law (in the present case, Article 1 of Law No 12/2004 of the Autonomous Region of Sicily) under which the establishment of opticians’ practices in the territory of a Member State (in the present case, in a part of that territory) is subject to restrictions based on population density and the distance between practices — restrictions which, in theory, constitute an infringement of those fundamental freedoms — reflects an overriding reason relating to the public interest, linked to the need to protect human health?

| 2. | If the answer to Question 1 is in the affirmative, then, under European Union law, must the restrictions based on population density (one practice for every 8 000 residents) and on distance (300 metres between one practice and the next), laid down by Law No 12/2004 of the Autonomous Region of Sicily for the establishment of opticians’ practices in the regional territory, be regarded as appropriate for the purposes of attaining the objective reflecting the abovementioned overriding reason relating to the public interest? |
| --- | --- |

2.

If the answer to Question 1 is in the affirmative, then, under European Union law, must the restrictions based on population density (one practice for every 8 000 residents) and on distance (300 metres between one practice and the next), laid down by Law No 12/2004 of the Autonomous Region of Sicily for the establishment of opticians’ practices in the regional territory, be regarded as appropriate for the purposes of attaining the objective reflecting the abovementioned overriding reason relating to the public interest?

| 3. | If the answer to Question 1 is in the affirmative, then, under European Union law, are the restrictions based on population density (one practice for every 8 000 residents) and on distance (300 metres between one practice and the next), laid down by Law No 12/2004 of the Autonomous Region of Sicily for the establishment of opticians’ practices in the regional territory, proportionate — that is to say, not excessive — for the purposes of attaining the objective reflecting the abovementioned overriding reason relating to the public interest? |
| --- | --- |

3.

If the answer to Question 1 is in the affirmative, then, under European Union law, are the restrictions based on population density (one practice for every 8 000 residents) and on distance (300 metres between one practice and the next), laid down by Law No 12/2004 of the Autonomous Region of Sicily for the establishment of opticians’ practices in the regional territory, proportionate — that is to say, not excessive — for the purposes of attaining the objective reflecting the abovementioned overriding reason relating to the public interest?

---

General Court

| 17.12.2011 | EN | Official Journal of the European Union | C 370/22 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/22

---

Judgment of the General Court of 8 November 2011 — Zhejiang Harmonic Hardware Products v Council

(Case T-274/07) (1)

(Dumping - Imports of ironing boards originating in the People’s Republic of China and Ukraine - Market economy treatment - Rights of the defence - Offer of price undertakings - Confidential treatment of the complainants’ identity)

2011/C 370/34

Language of the case: English

Parties

Applicant: Zhejiang Harmonic Hardware Products Co. Ltd (Quzhou, Zhejiang, China) (represented by: R. MacLean, Solicitor, and Y. Melin, lawyer)

Defendant: Council of the European Union (represented by: J.-P. Hix and B. Driessen, acting as Agents, B. O’Connor, Solicitor, and E. McGovern, Barrister)

Interveners in support of the defendant: European Commission (represented by H. van Vliet and K. Talabér-Ritz, acting as Agents); Vale Mill (Rochdale) Ltd (Rochdale, United Kingdom), Pirola SpA (Mapello, Italy) and Colombo New Scal SpA (Rovagnate, Italy) (represented by G. Berrisch and G. Wolf, lawyers)

Re:

Action for annulment of Council Regulation (EC) No 452/2007 of 23 April 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People’s Republic of China and Ukraine (OJ 2007 L 109, p. 12), in so far as it imposes an anti-dumping duty on imports of ironing boards manufactured by the applicant.

Operative part of the judgment

The Court:

| 1. | Annuls Articles 1 and 2 of Council Regulation (EC) No 452/2007 of 23 April 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People’s Republic of China and Ukraine, in so far as they impose a definitive anti-dumping duty and collect definitively the provisional duty on ironing boards manufactured by Zhejiang Harmonic Hardware Products Co. Ltd; |
| --- | --- |

1.

Annuls Articles 1 and 2 of Council Regulation (EC) No 452/2007 of 23 April 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People’s Republic of China and Ukraine, in so far as they impose a definitive anti-dumping duty and collect definitively the provisional duty on ironing boards manufactured by Zhejiang Harmonic Hardware Products Co. Ltd;

| 2. | Orders the Council of the European Union to bear its own costs and to pay those incurred by Zhejiang Harmonic Hardware Products; |
| --- | --- |

2.

Orders the Council of the European Union to bear its own costs and to pay those incurred by Zhejiang Harmonic Hardware Products;

| 3. | Orders the European Commission, Vale Mill (Rochdale) Ltd, Pirola SpA and Colombo New Scale SpA to bear their own costs. |
| --- | --- |

3.

Orders the European Commission, Vale Mill (Rochdale) Ltd, Pirola SpA and Colombo New Scale SpA to bear their own costs.

---

(1)  OJ C 223, 22.9.2007.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/22 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/22

---

Judgment of the General Court of 8 November 2011 — Walton v Commission

(Case T-37/08) (1)

(Implementation of the budget - Recovery - Offsetting of amounts receivable - Retroactive effect - Judgment of the General Court ordering the Commission to pay damages and interest - Amount receivable to be certain, of a fixed amount and due)

2011/C 370/35

Language of the case: English

Parties

Applicant: Robert Walton (Oxford, United Kingdom) (represented by: D. Beard, Barrister)

Defendant: European Commission (represented by: J. Currall, acting as Agent)

Re:

Action for annulment of the Commission Decision of 16 November 2007 to recover by offsetting the sum of EUR 36 551,58 due to it by the applicant.

Operative part of the judgment

The Court:

| 1. | Annuls the Commission decision of 16 November 2007 to the extent that it includes interest incurred after 12 July 2007 in the amounts offset; |
| --- | --- |

1.

Annuls the Commission decision of 16 November 2007 to the extent that it includes interest incurred after 12 July 2007 in the amounts offset;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 92, 12.4.2008.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/22 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/22

---

Judgment of the General Court of 10 November 2011 — Elliniki Nafpigokataskevastiki and Others v Commission

(Case T-384/08) (1)

(State aid - Shipbuilding - Aid granted by the Greek authorities in the form of an indemnification guarantee - Decision declaring the aid incompatible with the common market - Concept of State aid - Imputability to the State - State resources - Private investor test)

2011/C 370/36

Language of the case: English

Parties

Applicants: Elliniki Nafpigokataskevastiki AE Chartofylakeiou (Chaidari, Greece); Howaldtswerke-Deutsche Werft GmbH (Kiel, Germany); and ThyssenKrupp Marine Systems AG (Hamburg, Germany) (represented by: U. Soltész and C. von Köckritz, lawyers)

Defendant: European Commission (represented by: L. Flynn, M. Konstantinidis and C. Urraca Caviedes, Agents)

Intervener in support of the defendant: Trapeza Peiraios AE (Athens, Greece) (represented by S. Pappas, I. Ktenidis and C. Apalagaki, lawyers)

Re:

Application for annulment of Article 16 of Commission Decision 2009/610/EC of 2 July 2008 on the measures C 16/04 (ex NN 29/04, CP 71/02 and CP 133/05) implemented by Greece in favour of Hellenic Shipyards SA (OJ 2009 L 225, p. 104).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Elliniki Nafpigokataskevastiki AE Chartofylakeiou, Howaldtswerke-Deutsche Werft GmbH and ThyssenKrupp Marine Systems AG to bear their own costs and to pay those incurred by the European Commission and by Trapeza Peiraios AE. |
| --- | --- |

2.

Orders Elliniki Nafpigokataskevastiki AE Chartofylakeiou, Howaldtswerke-Deutsche Werft GmbH and ThyssenKrupp Marine Systems AG to bear their own costs and to pay those incurred by the European Commission and by Trapeza Peiraios AE.

---

(1)  OJ C 301, 22.11.2008.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/23 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/23

---

Judgment of the General Court of 8 November 2011 — Idromacchine and Others v Commission

(Case T-88/09) (1)

(Non-contractual liability - State aid - Commission decision to initiate a formal investigation procedure - Information detrimental to a third-party company - Sufficiently serious breach of a rule of law conferring rights on individuals - Obligation of professional secrecy - Non-material damage - Material damage - Causal link - Default and compensatory interest)

2011/C 370/37

Language of the case: Italian

Parties

Applicants: Idromacchine Srl (Porto Marghera, Italy); Alessandro Capuzzo (Mirano, Italy); and Roberto Capuzzo (Mogliano Veneto, Italy) (represented by: W. Viscardini and G. Donà, lawyers)

Defendant: European Commission (represented by: D. Grespan and E. Righini, acting as Agents, assisted by F. Ruggeri Laderchi, lawyer)

Re:

Action for damages for the loss allegedly suffered on account of the publication in the Official Journal of the European Union of false information adversely affecting inter alia the image and reputation of Idromacchine in Commission Decision C(2002) 5426 final of 30 December 2004‘State aid — Italy — State aid N 586/2003, N 587/2003, N 589/2003 and C 48/2004 (ex N 595/2003) — Extension of the 3-year delivery limit for a chemical tanker — Invitation to submit comments pursuant to Article 88(2) [EC]’

Operative part of the judgment

The Court:

| 1. | Orders the European Commission to pay Idromacchine Srl damages of EUR 20 000 in respect of the non-material damage it has suffered; |
| --- | --- |

1.

Orders the European Commission to pay Idromacchine Srl damages of EUR 20 000 in respect of the non-material damage it has suffered;

| 2. | Orders that the damages to be paid to Idromacchine be paid with compensatory interest, as from 18 February 2005 to the delivery of the present judgment, at the rate set by the European Central Bank (ECB) for main refinancing operations, increased by two percentage points; |
| --- | --- |

2.

Orders that the damages to be paid to Idromacchine be paid with compensatory interest, as from 18 February 2005 to the delivery of the present judgment, at the rate set by the European Central Bank (ECB) for main refinancing operations, increased by two percentage points;

| 3. | Orders that the damages to be paid to Idromacchine be paid with default interest, as from the delivery of the present judgment to complete payment of those damages, at the rate set by the European Central Bank (ECB) for main refinancing operations, increased by two percentage points; |
| --- | --- |

3.

Orders that the damages to be paid to Idromacchine be paid with default interest, as from the delivery of the present judgment to complete payment of those damages, at the rate set by the European Central Bank (ECB) for main refinancing operations, increased by two percentage points;

| 4. | Dismisses the action as to the remainder; |
| --- | --- |

4.

Dismisses the action as to the remainder;

| 5. | Orders the Commission to bear its own costs and two thirds of the costs incurred by Idromacchine, Mr Alessandro Capuzzo and Mr Roberto Capuzzo, who are to bear a third of their own costs. |
| --- | --- |

5.

Orders the Commission to bear its own costs and two thirds of the costs incurred by Idromacchine, Mr Alessandro Capuzzo and Mr Roberto Capuzzo, who are to bear a third of their own costs.

---

(1)  OJ C 102, 1.5.2009.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/23 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/23

---

Judgment of the General Court of 10 November 2011 — Esprit International v OHIM — Marc O’Polo International (Representation of a letter on a pocket)

(Case T-22/10) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark consisting of the representation of a letter on a pocket - Earlier national figurative mark representing a letter - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 370/38

Language of the case: German

Parties

Applicant: Esprit International LP (New York, New York, United States) (represented by: M. Treis and E.-M. Strobel, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially, S. Schäffner, and subsequently, G. Schneider, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Marc O’Polo International GmbH (Stephanskirchen, Germany) (represented by: A. Gaul, V. Spitz, T. Golda and S. Kirschstein-Freund, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 19 November 2009 (Case R 1666/2008-4), relating to opposition proceedings between Marc O’Polo International GmbH and Esprit International LP.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Esprit International LP to pay the costs. |
| --- | --- |

2.

Orders Esprit International LP to pay the costs.

---

(1)  OJ C 100, 17.4.2010.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/24 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/24

---

Judgment of the General Court of 10 November 2011 — Ben Ri Electrónica v OHMI — Sacopa (LT LIGHT-THECNO)

(Case T-143/10) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark LT LIGHT-THECNO - Earlier Community figurative mark LT - Relative ground for refusal - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 370/39

Language of the case: Spanish

Parties

Applicant: Ben Ri Electrónica, SA (Madrid, Spain) (represented by: A.I. Alejos Cutuli, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Sacopa, SAU (Sant Jaume de Llierca, Spain)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 3 February 2010 (Case R 1625/2008-4), relating to opposition proceedings between Ben Ri Electrónica, SA and Sacopa, SA.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 February 2010 (Case R 1625/2008-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 February 2010 (Case R 1625/2008-4);

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

2.

Dismisses the action as to the remainder;

| 3. | Orders OHIM to bear its own costs and to pay those incurred by Ben-Ri Electrónica, SA. |
| --- | --- |

3.

Orders OHIM to bear its own costs and to pay those incurred by Ben-Ri Electrónica, SA.

---

(1)  OJ C 134, 22.5.2010.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/24 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/24

---

Judgment of the General Court of 10 November 2011 — Three-N-Products Private v OHIM — Shah (AYUURI NATURAL)

(Case T-313/10) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark AYUURI NATURAL - Earlier Community word and figurative marks AYUR - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 370/40

Language of the case: English

Parties

Applicant: Three-N-Products Private Ltd (New Delhi, India) (represented by: C. Jäger, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, Agent)

Other parties to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Sheilesh Shah (Wembley, United Kingdom); and Akhil Shah (Wembley) (represented by: M. Chapple, Barrister)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 1 June 2010 (case R 1005/2009-4), relating to opposition proceedings between (i) Three-N-Products Private Ltd and (ii) S. Shah, A. Shah and Mr M. Shah.

Operative part of the order

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for the Harmonisation of the Internal Market (Trade Marks and Designs) of 1 June 2010 (case R 1005/2009-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for the Harmonisation of the Internal Market (Trade Marks and Designs) of 1 June 2010 (case R 1005/2009-4);

| 2. | Orders OHIM to pay its own costs and those of Three-N-Products Private Ltd; |
| --- | --- |

2.

Orders OHIM to pay its own costs and those of Three-N-Products Private Ltd;

| 3. | Orders Sheleish Shah and Akhil Shah to bear their own costs and the costs necessarily incurred by Three-N-Products Private Ltd for the purposes of the proceedings before the Fourth Board of Appeal. |
| --- | --- |

3.

Orders Sheleish Shah and Akhil Shah to bear their own costs and the costs necessarily incurred by Three-N-Products Private Ltd for the purposes of the proceedings before the Fourth Board of Appeal.

---

(1)  OJ C 260, 25.9.2010.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/25 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/25

---

Order of the General Court of 21 October 2011 — Groupement Adriano, Jaime Ribeiro, Conduril v Commission

(Case T-335/09) (1)

(Action for annulment - MEDA I programme - Specific financing agreement - Mandate given to the European Union to recover debts owed by a third party to the Kingdom of Morocco - Debit note - Reminder letter - Acts inseparable from the contract - Act not amenable to review - Inadmissibility)

2011/C 370/41

Language of the case: Portuguese

Parties

Applicants: Groupement Adriano, Jaime Ribeiro, Conduril — Construção, ACE (Porto, Portugal) (represented by: A. Pinto Cardoso and L. Fuzeta da Ponte, lawyers)

Defendant: European Commission (represented by: A.-M. Rouchaud-Joët and S. Delaude, Agents, and R. Faria da Cunha, lawyer)

Re:

Action for annulment of, first, debit note No 3230905272 issued by the Commission on 12 June 2009 and, second, of the letter of 3 August 2009 by which the Commission ordered payment of the sum claimed by means of the debit note and related default interest.

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | The European Commission is ordered to bear its own costs and to pay the costs incurred by Groupement Adriano, Jaime Ribeiro, Conduril — Construção, ACE. |
| --- | --- |

2.

The European Commission is ordered to bear its own costs and to pay the costs incurred by Groupement Adriano, Jaime Ribeiro, Conduril — Construção, ACE.

---

(1)  OJ C 267, 7.11.2009.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/25 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/25

---

Action brought on 19 September 2011 — Euro-Information v OHIM (EURO AUTOMATIC PAIEMENT)

(Case T-497/11)

2011/C 370/42

Language of the case: French

Parties

Applicant: Euro-Information — Européenne de traitement de l’information (Strasbourg, France) (represented by: A. Grolée, lawyer)

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

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 7 July 2011 in Case R 370/2011-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 July 2011 in Case R 370/2011-2;

| — | Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs incurred by the applicant in the proceedings before OHIM and in the present case |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs incurred by the applicant in the proceedings before OHIM and in the present case

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘EURO AUTOMATIC PAIEMENT’ for goods and services in Classes 9, 35, 36, 37, 38, 42 and 45

Decision of the Examiner: rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(c) of Regulation No 207/2009 in so far as the mark submitted for registration is not descriptive.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/25 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/25

---

Action brought on 7 October 2011 — Luxembourg Patent Co. v OHIM — DETEC (FIREDETEC)

(Case T-527/11)

2011/C 370/43

Language in which the application was lodged: English

Parties

Applicant: Luxembourg Patent Co. SA (Lintgen, Luxembourg) (represented by: K. Manhaeve, lawyer)

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

Other party to the proceedings before the Board of Appeal: Sistemas de Seguridad, Detección y Extinción de Incendios, SL (DETEC) (Madrid, Spain)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 July 2011 in case R 736/2010-4 insofar as it has declared the opponent’s opposition successful against the applicant’s trademark application for ‘fire-extinguishing apparatus; fire-extinguishing apparatus for automatic and independent detection and extinguishing of fires’ in class 9 and ‘development of fire extinguishers and fire extinguishing apparatus’ in class 42; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 July 2011 in case R 736/2010-4 insofar as it has declared the opponent’s opposition successful against the applicant’s trademark application for ‘fire-extinguishing apparatus; fire-extinguishing apparatus for automatic and independent detection and extinguishing of fires’ in class 9 and ‘development of fire extinguishers and fire extinguishing apparatus’ in class 42; and

| — | Order the defendant and — if applicable — the other party to the proceedings before the Board of Appeal to jointly and severally pay all the costs. |
| --- | --- |

—

Order the defendant and — if applicable — the other party to the proceedings before the Board of Appeal to jointly and severally pay all the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘FIREDETEC’ for goods in classes 1, 9, 17 and 42 — Community trade mark application No 4904389

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

Mark or sign cited in opposition: Spanish trade mark registration No 1759982 of the figurative mark ‘DETEC’, for goods in class 9; Spanish trade mark registration No 1759983 of the figurative mark ‘DETEC’, for services in class 37; Community trade mark registration No 3813219 of the figurative mark ‘DETEC Sistemas de Seguridad, Detección y Extinción de Incendios, SL’, for goods and services in classes 9, 37 and 45

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed the existence of likelihood of confusion between the applied mark and the opposed mark.

---

| 17.12.2011 | EN | Official Journal of the European Union | C 370/26 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/26

---

Action brought on 6 October 2011 — Alouminion v Commission

(Case T-542/11)

2011/C 370/44

Language of the case: Greek

Parties

Applicant: Alouminion A.E. (Marousi, Greece) (represented by: G. Dellis and N. Korogiannakis, lawyers)

Defendant: European Commission

Form of order sought

| — | annul Commission Decision C(2011) 4916 final of 13 July 2011 relating to State aid C 2/2010 (ex NN 62/2009) implemented by Greece in favour of Alouminion tis Ellados A.E.; |
| --- | --- |

—

annul Commission Decision C(2011) 4916 final of 13 July 2011 relating to State aid C 2/2010 (ex NN 62/2009) implemented by Greece in favour of Alouminion tis Ellados A.E.;

| — | order the Commission to pay the applicant’s costs. |
| --- | --- |

—

order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

By this action, the applicant seeks, pursuant to the fourth paragraph of Article 263 of the Treaty on the Functioning of the European Union (‘TFEU’), the annulment, with the consequences laid down by the first paragraph of Article 266 TFEU, of Decision C(2011) 4916 final of the European Commission of 13 July 2011 under number C 2/2010 (ex NN 62/2009) concerning the grant of State aid to the company Alouminion tis Ellados.

In support of its claims, the applicant puts forward the following grounds for annulment:

| — | Infringement of Article 1 of Regulation No 659/1999, and infringement of the rules concerning the allocation of competence between the Commission and the national courts and the right to judicial protection. The Commission clearly erred in its assessment of the facts, took account of factors that were clearly erroneous and made clear errors of law in classifying the supposed aid as ‘new’. The measure at issue was adopted under precisely the same regime as the supposed existing aid and the reasoning given for the Commission’s view is defective; |
| --- | --- |

—

Infringement of Article 1 of Regulation No 659/1999, and infringement of the rules concerning the allocation of competence between the Commission and the national courts and the right to judicial protection. The Commission clearly erred in its assessment of the facts, took account of factors that were clearly erroneous and made clear errors of law in classifying the supposed aid as ‘new’. The measure at issue was adopted under precisely the same regime as the supposed existing aid and the reasoning given for the Commission’s view is defective;

| — | Infringement of Article 107(1) TFEU inasmuch as the Commission erred in finding there to be an advantage, did not apply the private investor test and did not examine whether there are objective commercial grounds justifying the contractual tariff of 1960; |
| --- | --- |

—

Infringement of Article 107(1) TFEU inasmuch as the Commission erred in finding there to be an advantage, did not apply the private investor test and did not examine whether there are objective commercial grounds justifying the contractual tariff of 1960;

| — | Infringement of Article 107(1) TFEU inasmuch as the Commission erred in finding that the aid is selective, notwithstanding the obligation of the DEI (Dimosia Epikhirisi Ilektrismou (Public Power Corporation)) to set in a similar manner the tariffs of similar categories of undertakings and in a different manner those of different categories to the extent that they are different; |
| --- | --- |

—

Infringement of Article 107(1) TFEU inasmuch as the Commission erred in finding that the aid is selective, notwithstanding the obligation of the DEI (Dimosia Epikhirisi Ilektrismou (Public Power Corporation)) to set in a similar manner the tariffs of similar categories of undertakings and in a different manner those of different categories to the extent that they are different;

| — | Infringement of Article 107(1) TFEU inasmuch as the Commission erred in finding that trade between Member States is distorted and affected, although the applicant does not obtain any advantage compared with the other aluminium undertakings because of the uniformity of aluminium’s characteristics and because of the exchange-set price; |
| --- | --- |

—

Infringement of Article 107(1) TFEU inasmuch as the Commission erred in finding that trade between Member States is distorted and affected, although the applicant does not obtain any advantage compared with the other aluminium undertakings because of the uniformity of aluminium’s characteristics and because of the exchange-set price;

| — | Incorrect methodology in calculating the amount of the supposed advantage; |
| --- | --- |

—

Incorrect methodology in calculating the amount of the supposed advantage;

| — | Infringement of the duty to state reasons; |
| --- | --- |

—

Infringement of the duty to state reasons;

| — | Infringement of the principle of the protection of legitimate expectations on account of the Commission’s previous position that the DEI’s contractual tariff with the applicant did not constitute unlawful State aid, and of the applicant’s rights of defence. |
| --- | --- |

—

Infringement of the principle of the protection of legitimate expectations on account of the Commission’s previous position that the DEI’s contractual tariff with the applicant did not constitute unlawful State aid, and of the applicant’s rights of defence.

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/27 |
| --- | --- | --- | --- |

17.12.2011

EN

Official Journal of the European Union

C 370/27

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Action brought on 19 October 2011 — Assaad v Council

(Case T-550/11)

2011/C 370/45

Language of the case: English

Parties

Applicant: Nizar Assaad (Damascus, Syria) (represented by: G. Martin, Solicitor, M. Lester and A. Sutton, Barristers)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council implementing Regulation (EU) No 843/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 218, p. 1) and Council Implementing Decision 2011/515/CFSP of 23 August 2011 implementing Decision 2011/273/CFSP concerning restrictive measures against Syria, insofar as the name of the applicant has been added to the Annex to the Council Decision 2011/273/CFSP of 9 May 2011 (1) and to Annex II to Council Regulation (EU) No 442/2011 of 9 May 2011 (2); |
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Annul Council implementing Regulation (EU) No 843/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 218, p. 1) and Council Implementing Decision 2011/515/CFSP of 23 August 2011 implementing Decision 2011/273/CFSP concerning restrictive measures against Syria, insofar as the name of the applicant has been added to the Annex to the Council Decision 2011/273/CFSP of 9 May 2011 (1) and to Annex II to Council Regulation (EU) No 442/2011 of 9 May 2011 (2);

| — | In the alternative, and without prejudice to the previous head of claim, the deletion of the words ‘finances Shabiha in the region of Latika’ inserted in the Annex to Council Implementing Regulation (EU) No 843/2011 and to Council Implementing Decision 2011/515/CFSP; and |
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In the alternative, and without prejudice to the previous head of claim, the deletion of the words ‘finances Shabiha in the region of Latika’ inserted in the Annex to Council Implementing Regulation (EU) No 843/2011 and to Council Implementing Decision 2011/515/CFSP; and

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

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the defendant violated the applicant’s basic fundamental human rights of defence and the right to effective judicial protection, as:






  — | The applicant was not informed in advance of his inclusion in the contested measures, and was not even informed when the contested measures were promulgated; |
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1.

First plea in law, alleging that the defendant violated the applicant’s basic fundamental human rights of defence and the right to effective judicial protection, as:

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The applicant was not informed in advance of his inclusion in the contested measures, and was not even informed when the contested measures were promulgated;

| — | The applicant had no notice of the allegations against him or of his proposed inclusion in these measures, and had no right to be heard in a process in which allegations against him could be properly put, responded to and rigorously tested; and |
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The applicant had no notice of the allegations against him or of his proposed inclusion in these measures, and had no right to be heard in a process in which allegations against him could be properly put, responded to and rigorously tested; and

| — | The contested measures provide no procedure for communicating to the applicant the evidence on which the decision to freeze the assets was based, or for enabling him to comment meaningfully on that evidence before a tribunal or court able to assess and test his comments and evidence against him. |
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The contested measures provide no procedure for communicating to the applicant the evidence on which the decision to freeze the assets was based, or for enabling him to comment meaningfully on that evidence before a tribunal or court able to assess and test his comments and evidence against him.

| 2. | Second plea in law, alleging that the defendant has failed to give the applicant sufficient reasons for his inclusion, as:






  — | The applicant was given no reasons in advance of publication of the contested measures; |
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2.

Second plea in law, alleging that the defendant has failed to give the applicant sufficient reasons for his inclusion, as:

—

The applicant was given no reasons in advance of publication of the contested measures;

| — | The ‘grounds for listing’ do not provide the applicant with sufficient information to make it possible for him to know why the defendant considers that the applicant should be included; and |
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The ‘grounds for listing’ do not provide the applicant with sufficient information to make it possible for him to know why the defendant considers that the applicant should be included; and

| — | There is no indication at all of the respect in which the applicant is said to be responsible for the repression of civilians in Syria. |
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There is no indication at all of the respect in which the applicant is said to be responsible for the repression of civilians in Syria.

| 3. | Third plea in law, alleging that the defendant infringed, without justification and proportion, the applicant’s fundamental rights, in particular his right to property, to conduct his business, to reputation, and to private and family life, as:






  — | The contested measures have a marked and long-lasting impact on his fundamental rights; and |
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3.

Third plea in law, alleging that the defendant infringed, without justification and proportion, the applicant’s fundamental rights, in particular his right to property, to conduct his business, to reputation, and to private and family life, as:

—

The contested measures have a marked and long-lasting impact on his fundamental rights; and

| — | The contested measures are unjustified in their application to the applicant, and the defendant failed to demonstrate that a total asset freeze and travel ban is the least onerous means of ensuring any legitimate objective, nor that the harm to the applicant and his family is justified and proportionate. |
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The contested measures are unjustified in their application to the applicant, and the defendant failed to demonstrate that a total asset freeze and travel ban is the least onerous means of ensuring any legitimate objective, nor that the harm to the applicant and his family is justified and proportionate.

| 4. | Fourth plea in law, alleging that the defendant committed a manifest error of assessment in deciding to apply these restrictive measures to the applicant, as:






  — | No evaluation has apparently been carried out by the defendant as regard the applicant as to whether he can actually be said to be ‘responsible’ for the violent repression against the civilian population in Syria; |
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4.

Fourth plea in law, alleging that the defendant committed a manifest error of assessment in deciding to apply these restrictive measures to the applicant, as:

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No evaluation has apparently been carried out by the defendant as regard the applicant as to whether he can actually be said to be ‘responsible’ for the violent repression against the civilian population in Syria;

| — | In the alternative, if any such assessment has been carried out, in so far as the applicant is able to comment on it at all, the defendant erred in concluding that there was justification for including the applicant in the restrictive measures. |
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In the alternative, if any such assessment has been carried out, in so far as the applicant is able to comment on it at all, the defendant erred in concluding that there was justification for including the applicant in the restrictive measures.

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(1)  Council Decision 2011/273/CFSP of 9 May 2011 concerning restrictive measures against Syria (OJ 2011 L 121, p. 11)

(2)  Council Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 121, p. 1).

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/28 |
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17.12.2011

EN

Official Journal of the European Union

C 370/28

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Action brought on 19 October 2011 — BSI v Council

(Case T-551/11)

2011/C 370/46

Language of the case: Italian

Parties

Applicant: Brugola Service International Srl (BSI) (Cassano Magnago, Italy) (represented by: S. Baratti and M. Farneti, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Implementing Regulation (EU) No 723/2011 of 18 July 2011 extending the definitive anti-dumping duty imposed by Regulation (EC) No 91/2009 on imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not (OJ 2011 L 194, p. 6); |
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Annul Council Implementing Regulation (EU) No 723/2011 of 18 July 2011 extending the definitive anti-dumping duty imposed by Regulation (EC) No 91/2009 on imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not (OJ 2011 L 194, p. 6);

| — | Declare inapplicable, under Article 277 TFEU, Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51); |
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Declare inapplicable, under Article 277 TFEU, Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51);

| — | Declare inapplicable, under Article 277 TFEU, Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People's Republic of China (OJ 2009 L 29, p. 1); |
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Declare inapplicable, under Article 277 TFEU, Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People's Republic of China (OJ 2009 L 29, p. 1);

| — | Order the Council to pay the costs. |
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Order the Council to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant argues that Implementing Regulation (EU) No 723/2011 should be annulled under Article 263 TFEU, since legally and logically it is based on Regulation (EC) No 1225/2009 and Regulation (EC) No 91/2009, whose inapplicability the applicant invokes under Article 277 TFEU on the basis of the following pleas in law:

| 1. | First plea in law, concerning the illegality of Regulation (EC) No 1225/2009 and, as a consequence, of Regulation (EC) No 91/2009 on account of unlawfulness in the form of an infringement of Articles 6(10) and 9(2) of the WTO Anti-Dumping Agreement in so far as a duty is imposed on a national scale for suppliers located in non-market-economy countries which cannot show that the requirements of Article 9(5) of Regulation (EC) No 1225/2009 are met. |
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1.

First plea in law, concerning the illegality of Regulation (EC) No 1225/2009 and, as a consequence, of Regulation (EC) No 91/2009 on account of unlawfulness in the form of an infringement of Articles 6(10) and 9(2) of the WTO Anti-Dumping Agreement in so far as a duty is imposed on a national scale for suppliers located in non-market-economy countries which cannot show that the requirements of Article 9(5) of Regulation (EC) No 1225/2009 are met.

| 2. | Second plea in law, concerning the illegality of Regulation (EC) No 91/2009 on the grounds of an inadequate statement of reasons and a manifest error of assessment, since the Commission incorrectly made the grant of individual treatment conditional upon the Chinese producers showing that the requirements laid down in Article 9(5) of Regulation (EC) No 1225/2009 were met, in breach of Articles 6(10) and 9(2) of the WTO Anti-Dumping Agreement. |
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2.

Second plea in law, concerning the illegality of Regulation (EC) No 91/2009 on the grounds of an inadequate statement of reasons and a manifest error of assessment, since the Commission incorrectly made the grant of individual treatment conditional upon the Chinese producers showing that the requirements laid down in Article 9(5) of Regulation (EC) No 1225/2009 were met, in breach of Articles 6(10) and 9(2) of the WTO Anti-Dumping Agreement.

| 3. | Third plea in law, alleging that the interpretation given, in Regulation (EC) No 91/2009, to the concept of ‘major proportion’ of Community industry, referred to in Article 4(1) of Regulation (EC) No 1225/2009, was unlawful in that it infringed Articles 4(1) and 3(1) of the WTO Anti-Dumping Agreement and in that it entailed a manifest error of assessment. |
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3.

Third plea in law, alleging that the interpretation given, in Regulation (EC) No 91/2009, to the concept of ‘major proportion’ of Community industry, referred to in Article 4(1) of Regulation (EC) No 1225/2009, was unlawful in that it infringed Articles 4(1) and 3(1) of the WTO Anti-Dumping Agreement and in that it entailed a manifest error of assessment.

| 4. | Fourth plea in law, concerning the illegality of Regulation (EC) No 91/2009 on account of unlawfulness in the form of an infringement of Articles 2(4) and 6(2) and (4) of the WTO Anti-Dumping Agreement and of Articles 2(10), 6(8) and 20(2) and (4) of Regulation (EC) No 1225/2009, as well as on account of a manifest error of assessment, since the Commission determined the dumping margin on the basis of an inappropriate comparison between the normal value and the export price and failed to communicate, in sufficient time, to the producers of the People’s Republic of China the information necessary to ensure that they could exercise their rights of defence. |
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4.

Fourth plea in law, concerning the illegality of Regulation (EC) No 91/2009 on account of unlawfulness in the form of an infringement of Articles 2(4) and 6(2) and (4) of the WTO Anti-Dumping Agreement and of Articles 2(10), 6(8) and 20(2) and (4) of Regulation (EC) No 1225/2009, as well as on account of a manifest error of assessment, since the Commission determined the dumping margin on the basis of an inappropriate comparison between the normal value and the export price and failed to communicate, in sufficient time, to the producers of the People’s Republic of China the information necessary to ensure that they could exercise their rights of defence.

| 5. | Furthermore, the applicant also claims that Implementing Regulation (EU) No 723/2011 is unlawful in that, independently, it is vitiated by a lack of proper inquiry and by an inadequate statement of reasons, since the Commission failed to provide information about the average export prices, products and product categories on the basis of which normal value was determined and the dumping margin thus calculated. |
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5.

Furthermore, the applicant also claims that Implementing Regulation (EU) No 723/2011 is unlawful in that, independently, it is vitiated by a lack of proper inquiry and by an inadequate statement of reasons, since the Commission failed to provide information about the average export prices, products and product categories on the basis of which normal value was determined and the dumping margin thus calculated.

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/28 |
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17.12.2011

EN

Official Journal of the European Union

C 370/28

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Action brought on 18 October 2011 — Evropaïki Dynamiki v Commission

(Case T-554/11)

2011/C 370/47

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul the Decision of the European Commission to refuse to execute the payments due to the applicant and instead to recover the amount already paid in the framework of the implementation of contract EuropeAid/124378/D/SER/TN (No 2007/145-464), communicated to the applicant by letter dated 8 August 2011 (Ref.: C&F/2011/D/001101) and the attached debit note; |
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Annul the Decision of the European Commission to refuse to execute the payments due to the applicant and instead to recover the amount already paid in the framework of the implementation of contract EuropeAid/124378/D/SER/TN (No 2007/145-464), communicated to the applicant by letter dated 8 August 2011 (Ref.: C&F/2011/D/001101) and the attached debit note;

| — | Annul all the relevant subsequent decisions of the defendant; and |
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Annul all the relevant subsequent decisions of the defendant; and

| — | Order the defendant to pay the applicant’s legal and other costs and expenses incurred in connection with this application. |
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Order the defendant to pay the applicant’s legal and other costs and expenses incurred in connection with this application.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the defendant committed a manifest error of assessment when deciding that the applicant should reimburse a certain amount instead of being paid the amount due for work executed, approved and validated. |
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1.

First plea in law, alleging that the defendant committed a manifest error of assessment when deciding that the applicant should reimburse a certain amount instead of being paid the amount due for work executed, approved and validated.

| 2. | Second plea in law, alleging that the defendant misinterpreted the legal basis and its right to recover the requested amount, thereby infringing Article 79 of the Implementing Rules of the Financial Regulation (1) by failure to consider the confirmation on the time-sheets of the applicant’s experts and the volume of effort provided by them and validated adequately, even more so since no comments on the completed work were made in tempore non suspecto. |
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2.

Second plea in law, alleging that the defendant misinterpreted the legal basis and its right to recover the requested amount, thereby infringing Article 79 of the Implementing Rules of the Financial Regulation (1) by failure to consider the confirmation on the time-sheets of the applicant’s experts and the volume of effort provided by them and validated adequately, even more so since no comments on the completed work were made in tempore non suspecto.

| 3. | Third plea in law, alleging that the defendant infringed the principle of good administration, good faith and the principle of protection of legitimate expectations, as:






  — | It refused to pay amounts due for validated and accepted work; |
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3.

Third plea in law, alleging that the defendant infringed the principle of good administration, good faith and the principle of protection of legitimate expectations, as:

—

It refused to pay amounts due for validated and accepted work;

| — | It failed to inform the applicant in due time on any doubts with regard to its obligation to pay the applicant the amounts verified by the auditor; and |
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It failed to inform the applicant in due time on any doubts with regard to its obligation to pay the applicant the amounts verified by the auditor; and

| — | It encouraged the applicant to continue its work for 12 months and to provide services, under the assumption that it would be paid for such work. |
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It encouraged the applicant to continue its work for 12 months and to provide services, under the assumption that it would be paid for such work.

| 4. | Fourth plea in law, alleging that the defendant infringed the obligation to state reasons, as well as the applicant’s rights of defence, as it refused the payment of due amounts and, instead, ordered the recovery of a certain amount from the applicant, without providing any analysis or justification of its decision on the respective amount. |
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4.

Fourth plea in law, alleging that the defendant infringed the obligation to state reasons, as well as the applicant’s rights of defence, as it refused the payment of due amounts and, instead, ordered the recovery of a certain amount from the applicant, without providing any analysis or justification of its decision on the respective amount.

| 5. | Fifth plea in law, alleging that the execution of the contested decision constituted a misuse of powers. |
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5.

Fifth plea in law, alleging that the execution of the contested decision constituted a misuse of powers.

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(1)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1)

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| 17.12.2011 | EN | Official Journal of the European Union | C 370/29 |
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17.12.2011

EN

Official Journal of the European Union

C 370/29

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Action brought on 24 October 2011 — Elsid and Others v Commission

(Case T-557/11)

2011/C 370/48

Language of the case: English

Parties

Applicants: Elsid SA (Titu, Romania), ESD-SIC BV (Delfzijl, Netherlands), ESK-SIC GmbH (Frechen, Germany) and Navarro SIC, SA (Madrid, Spain) (represented by: B. Evtimov, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul Commission Decision C(2011) 5934 final of 24 August 2011 rejecting the request for initiation of an expiry review of the anti-dumping measures on imports of silicon carbide originating in the People’s Republic of China; and |
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Annul Commission Decision C(2011) 5934 final of 24 August 2011 rejecting the request for initiation of an expiry review of the anti-dumping measures on imports of silicon carbide originating in the People’s Republic of China; and

| — | Order the Commission to pay the costs of and occasioned by these proceedings. |
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Order the Commission to pay the costs of and occasioned by these proceedings.

Pleas in law and main arguments

In support of the action, the applicants, stressing incorrect application of Article 11(2) of the basic Regulation (1), rely on two pleas in law.

| 1. | First plea in law, alleging






  — | a breach of the principle of proportionality under Article 5(4) TEU. In parallel, or in the alterative, that the Commission made manifest errors of assessment in applying a higher standard of evidence than that sufficient to accept a request for an expiry review. |
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1.

First plea in law, alleging

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a breach of the principle of proportionality under Article 5(4) TEU. In parallel, or in the alterative, that the Commission made manifest errors of assessment in applying a higher standard of evidence than that sufficient to accept a request for an expiry review.

| 2. | Second plea in law, alleging






  — | a breach of the principle of good administration and of Article 41 of the Charter of Fundamental Rights of the European Union. In parallel, or in the alternative, that the Commission made manifest errors of assessment in finding that Chinese exports to the US were not comparable to the products of the Union industry in the EU and concluding erroneously that the lower Chinese export price to the US than the Union industry’s prices in the EU was therefore unlikely to result in a recurrence of dumping and injury. |
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2.

Second plea in law, alleging

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a breach of the principle of good administration and of Article 41 of the Charter of Fundamental Rights of the European Union. In parallel, or in the alternative, that the Commission made manifest errors of assessment in finding that Chinese exports to the US were not comparable to the products of the Union industry in the EU and concluding erroneously that the lower Chinese export price to the US than the Union industry’s prices in the EU was therefore unlikely to result in a recurrence of dumping and injury.

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(1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community OJ L343, 22.12.2009, p. 51

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