# Official Journal C 32/2009

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 32 |
| | |
| English edition | Information and Notices | Volume 527 February 2009 |

ISSN 1725-2423

Official Journal

of the European Union

C 32

English edition

Information and Notices

Volume 527 February 2009

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2009/C 032/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 19, 24.1.2009 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2009/C 032/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 19, 24.1.2009

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2009/C 032/02 | Case C-380/06: Judgment of the Court (First Chamber) of 11 December 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Late payment in commercial transactions — Time-limit — Directive 2000/35/EC — Infringement of Article 3(1), (2) and (4)) | 2 |
| 2009/C 032/03 | Case C-52/07: Judgment of the Court (Fourth Chamber) of 11 December 2008 (reference for a preliminary ruling from the Marknadsdomstolen — Sweden) — Kanal 5 Ltd, TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå (STIM) (Copyright — Copyright management organisation enjoying a de facto monopoly — Collection of royalties relating to the broadcast of musical works — Method of calculating those royalties — Dominant position — Abuse) | 2 |
| 2009/C 032/04 | Case C-174/07: Judgment of the Court (Fifth Chamber) of 11 December 2008 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Article 10 EC — Directive 2006/112/EC — Sixth VAT Directive — Obligations under domestic rules — Monitoring of taxable transactions — Amnesty) | 3 |
| 2009/C 032/05 | Case C-285/07: Judgment of the Court (First Chamber) of 11 December 2008 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — A.T. v Finanzamt Stuttgart-Körperschaften (Directive 90/434/EEC — Cross-border exchange of shares — Fiscal neutrality — Conditions — Articles 43 EC and 56 EC — Legislation of a Member State making the continued use of the book value of the shares transferred in exchange for the new shares received, and therefore the fiscal neutrality of the transfer, conditional on the carryover of that value in the tax balance sheet of the acquiring foreign company — Compatibility) | 3 |
| 2009/C 032/06 | Case C-293/07: Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directives 79/409/EEC and 92/43/EC — Conservation of wild birds — Special protection areas — Insufficient measures of protection) | 4 |
| 2009/C 032/07 | Case C-295/07 P: Judgment of the Court (First Chamber) of 11 December 2008 — Commission of the European Communities v Département du Loiret, Scott SA (Appeal — State aid — Preferential price of a plot of land — Commission decision — Recovery of aid incompatible with the common market — Present-day value of the aid — Compound interest rate — No statement of reasons — Complete annulment — Lawfulness) | 4 |
| 2009/C 032/08 | Case C-297/07: Judgment of the Court (Second Chamber) of 11 December 2008 (reference for a preliminary ruling from the Landgericht Regensburg — Germany) — Criminal proceedings against Klaus Bourquain (Convention implementing the Schengen Agreement — Article 54 — Ne bis in idem principle — Scope — Conviction in absentia in respect of the same acts — Concept of finally disposed of — Procedural rules of national law — Concept of penalty which can no longer be enforced) | 5 |
| 2009/C 032/09 | Case C-334/07 P: Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Freistaat Sachsen (Appeal — State aid — Proposed scheme for aid to small and medium-sized enterprises — Compatibility with the common market — Criteria for assessing State aid — Application ratione temporis — Proposed scheme notified before the entry into force of Regulation (EC) No 70/2001 — Decision subsequent to entry into force thereof — Legitimate expectations — Legal certainty — Complete notifications) | 5 |
| 2009/C 032/10 | Joined Cases C-362/07 and C-363/07: Judgment of the Court (Third Chamber) of 11 December 2008 (reference for a preliminary ruling from the Tribunal d'instance du VIIe arrondissement de Paris — France) — Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV, Utax GmbH (C-362/07), Hewlett Packard International SARL (C-363/07) v Administration des douanes — Direction générale des douanes et droits indirects (Common Customs Tariff — Combined Nomenclature — Tariff classification — Multi-function apparatus — Apparatus combining the functions of laser printer and a digital electronic scanner module, with a copier function — Heading 8471 — Heading 9009) | 6 |
| 2009/C 032/11 | Case C-371/07: Judgment of the Court (Fourth Chamber) of 11 December 2008 (reference for a preliminary ruling from the Vestre Landsret — Denmark) — Danfoss A/S, AstraZeneca A/S v Skatteministeriet (Sixth VAT Directive — Article 6(2) — Supplies of services carried out free of charge by a taxable person for purposes other than those of his business — Right to deduct VAT — Second subparagraph of Article 17(6) — Member States' option to retain exclusions from the right to deduct which were provided for under their national laws when the Sixth Directive came into force) | 7 |
| 2009/C 032/12 | Case C-387/07: Judgment of the Court (Second Chamber) of 11 December 2008 (reference for a preliminary ruling from the Tribunale di Ancona — Italy) — MI.VER Srl, Daniele Antonelli v Provincia di Macerata (Waste — Concept of temporary storage — Directive 75/442/EEC — Decision 2000/532/EC — Possibility of mixing together items of waste covered by different codes — Concept of mixed packaging) | 7 |
| 2009/C 032/13 | Case C-407/07: Judgment of the Court (Third Chamber) of 11 December 2008 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing v Staatssecretaris van Financiën (Sixth VAT Directive — Article 13A(1)(f) — Exemptions — Conditions — Services supplied by independent groups — Services supplied to one or several members of the group) | 8 |
| 2009/C 032/14 | Case C-486/07: Judgment of the Court (Fifth Chamber) of 11 December 2008 (reference for a preliminary ruling from the Corte suprema di cassazione (Italy)) — Agenzia per le Erogazioni in Agricoltura (AGEA) v Consorzio Agrario di Ravenna Soc. Coop. arl (Common organisation of the markets — Cereals — Maize — Determination of price — Reductions applicable) | 9 |
| 2009/C 032/15 | Case C-524/07: Judgment of the Court (Third Chamber) of 11 December 2008 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil its obligations — Articles 28 EC and 30 EC — Registration of old used vehicles previously registered in other Member States — Technical requirements with regard to exhaust emissions and noise pollution — Public health — Protection of the environment) | 9 |
| 2009/C 032/16 | Case C-57/08 P: Judgment of the Court (Fifth Chamber) of 11 December 2008 — Gateway, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Fujitsu Siemens Computers GmbH (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) and (5) — Earlier marks including the word sign GATEWAY — Word sign ACTIVY Media Gateway — Absence of similarity of the signs — Lack of likelihood of confusion — Taking into account of the renown of earlier marks when carrying out a global assessment of opposing signs) | 10 |
| 2009/C 032/17 | Case C-239/08: Judgment of the Court (Fifth Chamber) of 11 December 2008 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Directive 2006/100/EC — Free movement of persons — Amendment of certain directives by reason of the accession of the Republic of Bulgaria and Romania to the European Union — Failure to transcribe within the prescribed period) | 10 |
| 2009/C 032/18 | Case C-330/08: Judgment of the Court (Seventh Chamber) of 11 December 2008 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2004/35/EC — Environmental liability — Prevention and remedying of environmental damage — Failure to transpose within the period prescribed) | 11 |
| 2009/C 032/19 | Case C-445/08: Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 9 October 2008 — Kurt Wierer v Land Baden-Württemberg | 11 |
| 2009/C 032/20 | Case C-455/08: Action brought on 17 October 2008 — Commission of the European Communities v Ireland | 12 |
| 2009/C 032/21 | Case C-474/08: Action brought on 4 November 2008 — Commission of the European Communities v Kingdom of Belgium | 13 |
| 2009/C 032/22 | Case C-475/08: Action brought on 5 November 2008 — Commission of the European Communities v Kingdom of Belgium | 13 |
| 2009/C 032/23 | Case C-480/08: Reference for a preliminary ruling from the Court of Appeal (Civil Division) (England and Wales) made on 7 November 2008 — Maria Teixeira v London Borough of Lambeth, Secretary of State for the Home Department | 14 |
| 2009/C 032/24 | Case C-482/08: Action brought on 10 November 2008 — United Kingdom of Great Britain and Northern Ireland v Council of the European Union | 15 |
| 2009/C 032/25 | Case C-485/08 P: Appeal brought on 11 November 2008 by Claudia Gualtieri against the judgment of the Court of First Instance (Fourth Chamber) of 10 September 2008 in Case T-284/06 Gualtieri v Commission | 15 |
| 2009/C 032/26 | Case C-494/08 P: Appeal brought on 17 November 2008 by Prana Haus GmbH against the judgment of the Court of First Instance (Eighth Chamber) delivered on 17 September 2008 in Case T-226/07 Prana Haus GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 17 |
| 2009/C 032/27 | Case C-495/08: Action brought on 14 November 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland | 17 |
| 2009/C 032/28 | Case C-508/08: Action brought on 20 November 2008 — Commission of the European Communities v Republic of Malta | 18 |
| 2009/C 032/29 | Case C-509/08: Action brought on 21 November 2008 — Commission of the European Communities v Grand Duchy of Luxembourg | 18 |
| 2009/C 032/30 | Case C-511/08: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 25 November 2008 — Verbraucherzentrale Nordrhein-Westfalen e.V. v Handelsgesellschaft Heinrich Heine GmbH | 19 |
| 2009/C 032/31 | Case C-513/08 P: Appeal brought on 26 November 2008 by Luigi Marcuccio against the order of the Court of First Instance (Fourth Chamber) of 9 September 2008 in Case T-143/08 Marcuccio v Commission | 19 |
| 2009/C 032/32 | Case C-514/08: Reference for a preliminary ruling from the Tribunal de première instance de Namur (Belgium) lodged on 26 November 2008 — Atenor Group SA v Belgian State — SPF Finances | 20 |
| 2009/C 032/33 | Case C-516/08: Action brought on 25 November 2008 — Commission of the European Communities v Republic of Poland | 20 |
| 2009/C 032/34 | Case C-518/08: Reference for a preliminary ruling from the Tribunal de grande instance de Paris (France) lodged on 27 November 2008 — Fundació Gala-Salvador Dalí, Visual Entidad de Gestión de Artistas Plásticos v Société des Auteurs dans les arts graphiques et plastiques, Juan-Leonardo Bonet Domenech, Eulalia-María Bas Dalí, María Del Carmen Domenech Biosca, Antonio Domenech Biosca, Ana-María Busquets Bonet, Mónica Busquets Bonet | 20 |
| 2009/C 032/35 | Case C-521/08: Action brought on 27 November 2008 — Commission of the European Communities v Ireland | 21 |
| 2009/C 032/36 | Case C-528/08 P: Appeal brought on 28 November 2008 by Luigi Marcuccio against the order of the Court of First Instance (Fourth Chamber) of 9 September 2008 in Case T-144/08 Marcuccio v Commission | 21 |
| 2009/C 032/37 | Case C-532/08: Action brought on 2 December 2008 — Commission of the European Communities v Ireland | 22 |
| 2009/C 032/38 | Case C-535/08: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 3 December 2008 — Maria Catena Rita Pignatoro v Ufficio Centrale Circoscrizionale c/o Tribunale di Catania and Others | 22 |
| 2009/C 032/39 | Case C-546/08: Action brought on 9 December 2008 — Commission of the European Communities v Kingdom of Sweden | 22 |
| 2009/C 032/40 | Case C-547/08: Action brought on 9 December 2008 — Commission of the European Communities v Kingdom of Sweden | 23 |
| 2009/C 032/41 | Case C-548/08: Action brought on 9 December 2008 — Commission of the European Communities v Kingdom of Sweden | 23 |
| 2009/C 032/42 | Case C-555/08: Action brought on 16 December 2008 — Commission of the European Communities v Kingdom of Sweden | 23 |
| | Court of First Instance |
| 2009/C 032/43 | Case T-57/99: Judgment of the Court of First Instance (Seventh Chamber) of 10 December 2008 — Nardone v Commission (Staff case — Officials — Action for damages — Occupational disease — Exposure to asbestos and other substances) | 24 |
| 2009/C 032/44 | Case T-388/02: Judgment of the Court of First Instance of 10 December 2008 — Kronoply and Kronotex v Commission (State aid — Commission decision not to raise objections — Action for annulment — Time-limit for bringing proceedings — Publication of a summary notice — No significant effect on the competitive position — Inadmissibility — Status as party concerned — Admissibility — Failure to initiate the formal investigation procedure — No serious difficulties) | 24 |
| 2009/C 032/45 | Case T-196/04: Judgment of the Court of First Instance of 17 December 2008 — Ryanair v Commission (State aid — Agreements entered into by the Walloon Region and the Brussels South Charleroi airport with the airline Ryanair — Existence of an economic advantage — Application of the private investor in a market economy test) | 25 |
| 2009/C 032/46 | Case T-462/04: Judgment of the Court of First Instance of 17 December 2008 — HEG and Graphite India v Council (Common commercial policy — Anti-dumping duties — Countervailing duties — Imports of certain graphite electrode systems originating in India — Rights of the defence — Equal treatment — Determination of injury — Causal link) | 25 |
| 2009/C 032/47 | Case T-462/05: Judgment of the Court of First Instance of 10 December 2008 — JTEKT v OHIM (IFS) (Community trade mark — Application for a Community word mark IFS — Absolute grounds for refusal — Not descriptive — Article 7(1)(c) of Regulation (EC) No 40/94) | 26 |
| 2009/C 032/48 | Case T-90/06: Judgment of the Court of First Instance of 11 December 2008 — Tomorrow Focus v OHIM — Information Builders (Tomorrow Focus) (Community trade mark — Opposition proceedings — Application for Community word mark Tomorrow Focus — Earlier Community figurative mark FOCUS — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 26 |
| 2009/C 032/49 | Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06: Judgment of the Court of First Instance of 16 December 2008 — Budějovický Budvar v OHIM — Anheuser-Busch (BUD) (Community trade mark — Opposition proceedings — Applications for Community word and figurative marks BUD — Appellations bud — Relative grounds for refusal — Article 8(4) of Regulation (EC) No 40/94) | 27 |
| 2009/C 032/50 | Case T-228/06: Judgment of the Court of First Instance of 10 December 2008 — Giorgio Beverly Hills v OHIM — WHG (GIORGIO BEVERLY HILLS) (Community trade mark — Opposition proceedings — Application for Community word mark GIORGIO BEVERLY HILLS — Earlier national word mark GIORGIO — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 27 |
| 2009/C 032/51 | Case T-259/06: Judgment of the Court of First Instance of 16 December 2008 — Torres v OHIM — Navisa Industrial Vinícola Española (MANSO DE VELASCO) (Community trade mark — Opposition proceedings — Application for the Community word mark MANSO DE VELASCO — Earlier national word mark VELASCO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 28 |
| 2009/C 032/52 | Case T-339/06: Judgment of the Court of First Instance of 11 December 2008 — Greece v Commission (Agriculture — Common organisation of the market in wine — Aid for the restructuring and conversion of vineyards — Regulation (EC) No 1493/1999 — Fixing of the definitive financial allocations made to Member States — Decision 2006/669/EC — Binding nature of the time-limit in Article 16(1) of Regulation (EC) No 1227/2000 — Principles of cooperation in good faith, good faith and sound administration, proportionality and effectiveness) | 28 |
| 2009/C 032/53 | Case T-365/06: Judgment of the Court of First Instance of 10 December 2008 — Bateaux Mouches v OHIM — Castanet (BATEAUX MOUCHES) (Community trade mark — Invalidity proceedings — Community word mark BATEAUX MOUCHES — Absolute grounds for refusal — Lack of distinctive character — Article 7(1)(b) and Article 51(1) of Regulation (EC) No 40/94 — Lack of distinctive character acquired through use — Article 7(3) and Article 51(2) of Regulation (EC) No 40/94) | 29 |
| 2009/C 032/54 | Case T-412/06: Judgment of the Court of First Instance of 10 December 2008 — Vitro Corporativo v OHIM — VKR Holding (Vitro) (Community trade mark — Opposition proceedings — Application for Community figurative mark Vitro — Earlier Community word mark VITRAL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 29 |
| 2009/C 032/55 | Case T-86/07: Judgment of the Court of First Instance of 16 December 2008 — Deichmann-Schuhe v OHIM — Design for Woman (DEITECH) (Community trade mark — Opposition proceedings — Application for a figurative Community trade mark DEITECH — Earlier national and international figurative trade marks DEI-tex — Relative grounds for refusal — Genuine use of the earlier mark — Article 43(2) and (3) of Regulation (EC) No 40/94) | 30 |
| 2009/C 032/56 | Case T-101/07: Judgment of the Court of First Instance of 10 December 2008 — Dada v OHIM (Community trade mark — Opposition proceedings — Application for a figurative Community trade mark DADA — Earlier national word mark DADA — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Genuine use of the earlier trade mark — Article 43(2) and (3) of Regulation (EC) No 40/94) | 30 |
| 2009/C 032/57 | Case T-136/07: Order of the Court of First Instance of 9 December 2008 — Colgate-Palmolive v OHIM — CMS Hasche Sigle (VISIBLE WHITE) (Community trade mark — Invalidity proceedings — Community word mark VISIBLE WHITE — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94) | 31 |
| 2009/C 032/58 | Case T-290/07: Judgment of the Court of First Instance of 10 December 2008 — MIP Metro v OHIM — Metronia (METRONIA) (Community trade mark — Opposition proceedings — Application for Community figurative trade mark METRONIA — Earlier national figurative trade mark METRO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 31 |
| 2009/C 032/59 | Case T-295/07: Judgment of the Court of First Instance of 10 December 2008 — Vitro Corporativo v OHIM — VKR Holding (Vitro) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Vitro — Earlier Community word mark VITRAL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 32 |
| 2009/C 032/60 | Case T-335/07: Judgment of the Court of First Instance of 16 December 2008 — Mergel and Others v OHIM (Patentconsult) (Community trade mark — Application for the Community word mark Patentconsult — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94) | 32 |
| 2009/C 032/61 | Case T-351/07: Judgment of the Court of First Instance of 17 December 2008 — Somm v OHIM (Community trade mark — Application for Community tri-dimensional mark — Shelter for shade — Absolute grounds for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Lack of distinctive character acquired by use — Article 7(3) of Regulation (EC) No 40/94) | 32 |
| 2009/C 032/62 | Case T-357/07: Judgment of the Court of First Instance of 16 December 2008 — Focus Magazin Verlag v OHIM — Editorial Planeta (FOCUS Radio) (Community trade mark — Opposition proceedings — Application for Community word mark FOCUS Radio — Earlier national word marks FOCUS MILENIUM — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 33 |
| 2009/C 032/63 | Case T-174/08: Judgment of the Court of First Instance of 17 December 2008 — Commission v Cooperação e Desenvolvimento Regional (Arbitration clause — Contract for financial assistance concluded under a specific programme in the field of telematic applications of common interest — Encata Project — Reimbursement of sums advanced — Late-payment interest — Default procedure) | 33 |
| 2009/C 032/64 | Joined Cases T-8/95 and T-9/95: Order of the Court of First Instance of 3 November 2008 — Pelle and Konrad v Council of the European Union and the Commission of the European Communities (Non-contractual liability — Milk — Additional levy — Reference quantity — Regulation (EEC) No 2187/93 — Compensation of producers — Suspension of limitation) | 34 |
| 2009/C 032/65 | Case T-393/06: Order of the Court of First Instance of 26 November 2008 — Makhteshim-Agan Holding and Others v Commission (Action for annulment — Action for failure to act — Directive 91/414/EEC — Plant protection products — Active substance azinphos-methyl — Inclusion in Annex I to Directive 91/414/EEC — Absence of a new Commission proposal after opposition by the Council — Article 5(6) of Decision 1999/468/EEC — Non-actionable measure — Absence of a request to act — Inadmissibility) | 34 |
| 2009/C 032/66 | Case T-188/07: Order of the Court of First Instance of 25 November 2008 — Fastweb v Commission (State aid — Subsidised purchase of digital decoders — Telecommunications — Commission decision declaring the aid to be incompatible with the common market — Decision adopted in the course of the present proceedings by the Member State not to effect recovery of the aid from the company which contested the Commission's decision in annulment proceedings — No longer any interest in bringing proceedings — No need to adjudicate) | 35 |
| 2009/C 032/67 | Case T-13/08: Order of the Court of First Instance of 8 October 2008 — Koinotita Grammatikou v Commission (Action for annulment — Cohesion Funds — Lack of direct concern — Inadmissibility) | 35 |
| 2009/C 032/68 | Case T-392/08 R: Order of the Judge hearing the application for Interim measures of 19 November 2008 — AEPI v Commission (Interim measures — Decision of the Commission ordering cessation of a concerted practice in connection with the collective management of author's rights — Application for stay of execution — Lack of urgency) | 35 |
| 2009/C 032/69 | Case T-410/08 R: Order of the President of the Court of First Instance of 14 November 2008 — GEMA v Commission (Application for interim measures — Commission decision ordering the cessation of a concerted practice in relation to the collective management of copyright — Application for suspension of operation of a measure — No urgency) | 36 |
| 2009/C 032/70 | Case T-425/08 R: Order of the President of the Court of First Instance of 5 December 2008 — KODA v Commission (Applications for interim measures — Commission decision ordering the cessation of a concerted practice in connection with the collective management of copyright — Application for suspension of operation of a measure — No urgency) | 36 |
| 2009/C 032/71 | Case T-433/08 R: Order of the President of the Court of First Instance of 20 November 2008 — SIAE v Commission (Application for interim measures — Commission decision ordering the cessation of a concerted practice in relation to the collective management of copyright — Application for suspension of operation of a measure — No urgency) | 36 |
| 2009/C 032/72 | Case T-471/08: Action brought on 23 October 2008 — Toland v Parliament | 37 |
| 2009/C 032/73 | Case T-474/08: Action brought on 31 October 2008 — Umbach v Commission | 37 |
| 2009/C 032/74 | Case T-482/08: Action brought on 11 November 2008 — Atlas Transport v OHIM — Hartmann (ATLAS TRANSPORT) | 38 |
| 2009/C 032/75 | Case T-484/08: Action brought on 11 November 2008 — Longevity Health Products v OHIM — Merck (Kids Vits) | 38 |
| 2009/C 032/76 | Case T-491/08 P: Appeal brought on 17 November 2008 by Philippe Bui Van against the judgment of the Civil Service Tribunal delivered on 11 September 2008 in Case F-51/07 Bui Van v Commission | 39 |
| 2009/C 032/77 | Case T-492/08: Action brought on 18 November 2008 — Wessang v OHIM — Greinwald (star foods) | 40 |
| 2009/C 032/78 | Case T-494/08: Action brought on 14 November 2008 — Ryanair/Commission | 40 |
| 2009/C 032/79 | Case T-495/08: Action brought on 14 November 2008 — Ryanair/Commission | 41 |
| 2009/C 032/80 | Case T-496/08: Action brought on 14 November 2008 — Ryanair/Commission | 41 |
| 2009/C 032/81 | Case T-497/08: Action brought on 14 November 2008 — Ryanair/Commission | 42 |
| 2009/C 032/82 | Case T-498/08: Action brought on 14 November 2008 — Ryanair/Commission | 42 |
| 2009/C 032/83 | Case T-499/08: Action brought on 14 November 2008 — Ryanair/Commission | 43 |
| 2009/C 032/84 | Case T-500/08: Action brought on 14 November 2008 — Ryanair/Commission | 43 |
| 2009/C 032/85 | Case T-509/08: Action brought on 7 November 2008 — Ryanair/Commission | 44 |
| 2009/C 032/86 | Case T-511/08: Action brought on 27 November 2008 — Unity OSG FZE/Conseil et EUPOL Afghanistan | 44 |
| 2009/C 032/87 | Case T-522/08: Action brought on 28 November 2008 — Agatha Ruiz de la Prada de Sentmenat v OHIM — Mary Quant (AGATHA RUIZ DE LA PRADA) | 45 |
| 2009/C 032/88 | Case T-523/08: Action brought on 1 December 2008 — Agatha Ruiz de la Prada de Sentmenat v OHIM — Mary Quant Cosmetics Japan (AGATHA RUIZ DE LA PRADA) | 46 |
| 2009/C 032/89 | Case T-527/08: Action brought on 4 December 2008 — Commission v TMT Pragma | 46 |
| 2009/C 032/90 | Case T-529/08: Action brought on 2 December 2008 — Diputación Foral de Álava v Commission | 47 |
| 2009/C 032/91 | Case T-530/08: Action brought on 2 December 2008 — Diputación Foral de Guipúzcoa v Commission | 47 |
| 2009/C 032/92 | Case T-531/08: Action brought on 2 December 2008 — Diputación Foral de Vizcaya v Commission | 48 |
| 2009/C 032/93 | Case T-56/08: Order of the Court of First Instance of 10 December 2008 — Stichting IEA Secretariaat Nederland and Others v Commission | 48 |
| 2009/C 032/94 | Case T-66/08: Order of the Court of First Instance of 2 December 2008 — British Sky Broadcasting Group v OHIM — Vortex (SKY) | 48 |
| | European Union Civil Service Tribunal |
| 2009/C 032/95 | Case F-83/06: Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Schell v Commission (Staff case — Officials — Promotion — Priority points — General implementing provisions for Article 45 of the Staff Regulations) | 49 |
| 2009/C 032/96 | Case F-113/06: Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Bouis and Others v Commission (Staff case — Officials — Second round promotion — 2005 promotion procedure — Award of priority points — Transitional provisions — General implementing provisions for Article 45 of the Staff Regulations — Equal treatment — Admissibility) | 49 |
| 2009/C 032/97 | Case F-116/06: Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Buckingham and Others v Commission (Staff cases — Officials — Second round promotion — 2005 promotion procedure — Award of priority points — Transitional provisions — GIP for Article 45 of the Staff Regulations — Equal treatment — Admissibility) | 50 |
| 2009/C 032/98 | Case F-136/06: Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Reali v Commission (Staff case — Contract staff — Recruitment — Classification in grade — Experience — Qualifications — Equivalence) | 50 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2009/C 032/02

Case C-380/06: Judgment of the Court (First Chamber) of 11 December 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Late payment in commercial transactions — Time-limit — Directive 2000/35/EC — Infringement of Article 3(1), (2) and (4))

2

2009/C 032/03

Case C-52/07: Judgment of the Court (Fourth Chamber) of 11 December 2008 (reference for a preliminary ruling from the Marknadsdomstolen — Sweden) — Kanal 5 Ltd, TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå (STIM) (Copyright — Copyright management organisation enjoying a de facto monopoly — Collection of royalties relating to the broadcast of musical works — Method of calculating those royalties — Dominant position — Abuse)

de facto

2

2009/C 032/04

Case C-174/07: Judgment of the Court (Fifth Chamber) of 11 December 2008 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Article 10 EC — Directive 2006/112/EC — Sixth VAT Directive — Obligations under domestic rules — Monitoring of taxable transactions — Amnesty)

3

2009/C 032/05

Case C-285/07: Judgment of the Court (First Chamber) of 11 December 2008 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — A.T. v Finanzamt Stuttgart-Körperschaften (Directive 90/434/EEC — Cross-border exchange of shares — Fiscal neutrality — Conditions — Articles 43 EC and 56 EC — Legislation of a Member State making the continued use of the book value of the shares transferred in exchange for the new shares received, and therefore the fiscal neutrality of the transfer, conditional on the carryover of that value in the tax balance sheet of the acquiring foreign company — Compatibility)

3

2009/C 032/06

Case C-293/07: Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directives 79/409/EEC and 92/43/EC — Conservation of wild birds — Special protection areas — Insufficient measures of protection)

4

2009/C 032/07

Case C-295/07 P: Judgment of the Court (First Chamber) of 11 December 2008 — Commission of the European Communities v Département du Loiret, Scott SA (Appeal — State aid — Preferential price of a plot of land — Commission decision — Recovery of aid incompatible with the common market — Present-day value of the aid — Compound interest rate — No statement of reasons — Complete annulment — Lawfulness)

4

2009/C 032/08

Case C-297/07: Judgment of the Court (Second Chamber) of 11 December 2008 (reference for a preliminary ruling from the Landgericht Regensburg — Germany) — Criminal proceedings against Klaus Bourquain (Convention implementing the Schengen Agreement — Article 54 — Ne bis in idem principle — Scope — Conviction in absentia in respect of the same acts — Concept of finally disposed of — Procedural rules of national law — Concept of penalty which can no longer be enforced)

Ne bis in idem

5

2009/C 032/09

Case C-334/07 P: Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Freistaat Sachsen (Appeal — State aid — Proposed scheme for aid to small and medium-sized enterprises — Compatibility with the common market — Criteria for assessing State aid — Application ratione temporis — Proposed scheme notified before the entry into force of Regulation (EC) No 70/2001 — Decision subsequent to entry into force thereof — Legitimate expectations — Legal certainty — Complete notifications)

ratione temporis

5

2009/C 032/10

Joined Cases C-362/07 and C-363/07: Judgment of the Court (Third Chamber) of 11 December 2008 (reference for a preliminary ruling from the Tribunal d'instance du VIIe arrondissement de Paris — France) — Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV, Utax GmbH (C-362/07), Hewlett Packard International SARL (C-363/07) v Administration des douanes — Direction générale des douanes et droits indirects (Common Customs Tariff — Combined Nomenclature — Tariff classification — Multi-function apparatus — Apparatus combining the functions of laser printer and a digital electronic scanner module, with a copier function — Heading 8471 — Heading 9009)

6

2009/C 032/11

Case C-371/07: Judgment of the Court (Fourth Chamber) of 11 December 2008 (reference for a preliminary ruling from the Vestre Landsret — Denmark) — Danfoss A/S, AstraZeneca A/S v Skatteministeriet (Sixth VAT Directive — Article 6(2) — Supplies of services carried out free of charge by a taxable person for purposes other than those of his business — Right to deduct VAT — Second subparagraph of Article 17(6) — Member States' option to retain exclusions from the right to deduct which were provided for under their national laws when the Sixth Directive came into force)

7

2009/C 032/12

Case C-387/07: Judgment of the Court (Second Chamber) of 11 December 2008 (reference for a preliminary ruling from the Tribunale di Ancona — Italy) — MI.VER Srl, Daniele Antonelli v Provincia di Macerata (Waste — Concept of temporary storage — Directive 75/442/EEC — Decision 2000/532/EC — Possibility of mixing together items of waste covered by different codes — Concept of mixed packaging)

7

2009/C 032/13

Case C-407/07: Judgment of the Court (Third Chamber) of 11 December 2008 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing v Staatssecretaris van Financiën (Sixth VAT Directive — Article 13A(1)(f) — Exemptions — Conditions — Services supplied by independent groups — Services supplied to one or several members of the group)

8

2009/C 032/14

Case C-486/07: Judgment of the Court (Fifth Chamber) of 11 December 2008 (reference for a preliminary ruling from the Corte suprema di cassazione (Italy)) — Agenzia per le Erogazioni in Agricoltura (AGEA) v Consorzio Agrario di Ravenna Soc. Coop. arl (Common organisation of the markets — Cereals — Maize — Determination of price — Reductions applicable)

9

2009/C 032/15

Case C-524/07: Judgment of the Court (Third Chamber) of 11 December 2008 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil its obligations — Articles 28 EC and 30 EC — Registration of old used vehicles previously registered in other Member States — Technical requirements with regard to exhaust emissions and noise pollution — Public health — Protection of the environment)

9

2009/C 032/16

Case C-57/08 P: Judgment of the Court (Fifth Chamber) of 11 December 2008 — Gateway, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Fujitsu Siemens Computers GmbH (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) and (5) — Earlier marks including the word sign GATEWAY — Word sign ACTIVY Media Gateway — Absence of similarity of the signs — Lack of likelihood of confusion — Taking into account of the renown of earlier marks when carrying out a global assessment of opposing signs)

10

2009/C 032/17

Case C-239/08: Judgment of the Court (Fifth Chamber) of 11 December 2008 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Directive 2006/100/EC — Free movement of persons — Amendment of certain directives by reason of the accession of the Republic of Bulgaria and Romania to the European Union — Failure to transcribe within the prescribed period)

10

2009/C 032/18

Case C-330/08: Judgment of the Court (Seventh Chamber) of 11 December 2008 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2004/35/EC — Environmental liability — Prevention and remedying of environmental damage — Failure to transpose within the period prescribed)

11

2009/C 032/19

Case C-445/08: Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 9 October 2008 — Kurt Wierer v Land Baden-Württemberg

11

2009/C 032/20

Case C-455/08: Action brought on 17 October 2008 — Commission of the European Communities v Ireland

12

2009/C 032/21

Case C-474/08: Action brought on 4 November 2008 — Commission of the European Communities v Kingdom of Belgium

13

2009/C 032/22

Case C-475/08: Action brought on 5 November 2008 — Commission of the European Communities v Kingdom of Belgium

13

2009/C 032/23

Case C-480/08: Reference for a preliminary ruling from the Court of Appeal (Civil Division) (England and Wales) made on 7 November 2008 — Maria Teixeira v London Borough of Lambeth, Secretary of State for the Home Department

14

2009/C 032/24

Case C-482/08: Action brought on 10 November 2008 — United Kingdom of Great Britain and Northern Ireland v Council of the European Union

15

2009/C 032/25

Case C-485/08 P: Appeal brought on 11 November 2008 by Claudia Gualtieri against the judgment of the Court of First Instance (Fourth Chamber) of 10 September 2008 in Case T-284/06 Gualtieri v Commission

15

2009/C 032/26

Case C-494/08 P: Appeal brought on 17 November 2008 by Prana Haus GmbH against the judgment of the Court of First Instance (Eighth Chamber) delivered on 17 September 2008 in Case T-226/07 Prana Haus GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

17

2009/C 032/27

Case C-495/08: Action brought on 14 November 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

17

2009/C 032/28

Case C-508/08: Action brought on 20 November 2008 — Commission of the European Communities v Republic of Malta

18

2009/C 032/29

Case C-509/08: Action brought on 21 November 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

18

2009/C 032/30

Case C-511/08: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 25 November 2008 — Verbraucherzentrale Nordrhein-Westfalen e.V. v Handelsgesellschaft Heinrich Heine GmbH

19

2009/C 032/31

Case C-513/08 P: Appeal brought on 26 November 2008 by Luigi Marcuccio against the order of the Court of First Instance (Fourth Chamber) of 9 September 2008 in Case T-143/08 Marcuccio v Commission

19

2009/C 032/32

Case C-514/08: Reference for a preliminary ruling from the Tribunal de première instance de Namur (Belgium) lodged on 26 November 2008 — Atenor Group SA v Belgian State — SPF Finances

20

2009/C 032/33

Case C-516/08: Action brought on 25 November 2008 — Commission of the European Communities v Republic of Poland

20

2009/C 032/34

Case C-518/08: Reference for a preliminary ruling from the Tribunal de grande instance de Paris (France) lodged on 27 November 2008 — Fundació Gala-Salvador Dalí, Visual Entidad de Gestión de Artistas Plásticos v Société des Auteurs dans les arts graphiques et plastiques, Juan-Leonardo Bonet Domenech, Eulalia-María Bas Dalí, María Del Carmen Domenech Biosca, Antonio Domenech Biosca, Ana-María Busquets Bonet, Mónica Busquets Bonet

20

2009/C 032/35

Case C-521/08: Action brought on 27 November 2008 — Commission of the European Communities v Ireland

21

2009/C 032/36

Case C-528/08 P: Appeal brought on 28 November 2008 by Luigi Marcuccio against the order of the Court of First Instance (Fourth Chamber) of 9 September 2008 in Case T-144/08 Marcuccio v Commission

21

2009/C 032/37

Case C-532/08: Action brought on 2 December 2008 — Commission of the European Communities v Ireland

22

2009/C 032/38

Case C-535/08: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 3 December 2008 — Maria Catena Rita Pignatoro v Ufficio Centrale Circoscrizionale c/o Tribunale di Catania and Others

22

2009/C 032/39

Case C-546/08: Action brought on 9 December 2008 — Commission of the European Communities v Kingdom of Sweden

22

2009/C 032/40

Case C-547/08: Action brought on 9 December 2008 — Commission of the European Communities v Kingdom of Sweden

23

2009/C 032/41

Case C-548/08: Action brought on 9 December 2008 — Commission of the European Communities v Kingdom of Sweden

23

2009/C 032/42

Case C-555/08: Action brought on 16 December 2008 — Commission of the European Communities v Kingdom of Sweden

23

Court of First Instance

2009/C 032/43

Case T-57/99: Judgment of the Court of First Instance (Seventh Chamber) of 10 December 2008 — Nardone v Commission (Staff case — Officials — Action for damages — Occupational disease — Exposure to asbestos and other substances)

24

2009/C 032/44

Case T-388/02: Judgment of the Court of First Instance of 10 December 2008 — Kronoply and Kronotex v Commission (State aid — Commission decision not to raise objections — Action for annulment — Time-limit for bringing proceedings — Publication of a summary notice — No significant effect on the competitive position — Inadmissibility — Status as party concerned — Admissibility — Failure to initiate the formal investigation procedure — No serious difficulties)

24

2009/C 032/45

Case T-196/04: Judgment of the Court of First Instance of 17 December 2008 — Ryanair v Commission (State aid — Agreements entered into by the Walloon Region and the Brussels South Charleroi airport with the airline Ryanair — Existence of an economic advantage — Application of the private investor in a market economy test)

25

2009/C 032/46

Case T-462/04: Judgment of the Court of First Instance of 17 December 2008 — HEG and Graphite India v Council (Common commercial policy — Anti-dumping duties — Countervailing duties — Imports of certain graphite electrode systems originating in India — Rights of the defence — Equal treatment — Determination of injury — Causal link)

25

2009/C 032/47

Case T-462/05: Judgment of the Court of First Instance of 10 December 2008 — JTEKT v OHIM (IFS) (Community trade mark — Application for a Community word mark IFS — Absolute grounds for refusal — Not descriptive — Article 7(1)(c) of Regulation (EC) No 40/94)

26

2009/C 032/48

Case T-90/06: Judgment of the Court of First Instance of 11 December 2008 — Tomorrow Focus v OHIM — Information Builders (Tomorrow Focus) (Community trade mark — Opposition proceedings — Application for Community word mark Tomorrow Focus — Earlier Community figurative mark FOCUS — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

26

2009/C 032/49

Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06: Judgment of the Court of First Instance of 16 December 2008 — Budějovický Budvar v OHIM — Anheuser-Busch (BUD) (Community trade mark — Opposition proceedings — Applications for Community word and figurative marks BUD — Appellations bud — Relative grounds for refusal — Article 8(4) of Regulation (EC) No 40/94)

27

2009/C 032/50

Case T-228/06: Judgment of the Court of First Instance of 10 December 2008 — Giorgio Beverly Hills v OHIM — WHG (GIORGIO BEVERLY HILLS) (Community trade mark — Opposition proceedings — Application for Community word mark GIORGIO BEVERLY HILLS — Earlier national word mark GIORGIO — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

27

2009/C 032/51

Case T-259/06: Judgment of the Court of First Instance of 16 December 2008 — Torres v OHIM — Navisa Industrial Vinícola Española (MANSO DE VELASCO) (Community trade mark — Opposition proceedings — Application for the Community word mark MANSO DE VELASCO — Earlier national word mark VELASCO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

28

2009/C 032/52

Case T-339/06: Judgment of the Court of First Instance of 11 December 2008 — Greece v Commission (Agriculture — Common organisation of the market in wine — Aid for the restructuring and conversion of vineyards — Regulation (EC) No 1493/1999 — Fixing of the definitive financial allocations made to Member States — Decision 2006/669/EC — Binding nature of the time-limit in Article 16(1) of Regulation (EC) No 1227/2000 — Principles of cooperation in good faith, good faith and sound administration, proportionality and effectiveness)

28

2009/C 032/53

Case T-365/06: Judgment of the Court of First Instance of 10 December 2008 — Bateaux Mouches v OHIM — Castanet (BATEAUX MOUCHES) (Community trade mark — Invalidity proceedings — Community word mark BATEAUX MOUCHES — Absolute grounds for refusal — Lack of distinctive character — Article 7(1)(b) and Article 51(1) of Regulation (EC) No 40/94 — Lack of distinctive character acquired through use — Article 7(3) and Article 51(2) of Regulation (EC) No 40/94)

29

2009/C 032/54

Case T-412/06: Judgment of the Court of First Instance of 10 December 2008 — Vitro Corporativo v OHIM — VKR Holding (Vitro) (Community trade mark — Opposition proceedings — Application for Community figurative mark Vitro — Earlier Community word mark VITRAL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

29

2009/C 032/55

Case T-86/07: Judgment of the Court of First Instance of 16 December 2008 — Deichmann-Schuhe v OHIM — Design for Woman (DEITECH) (Community trade mark — Opposition proceedings — Application for a figurative Community trade mark DEITECH — Earlier national and international figurative trade marks DEI-tex — Relative grounds for refusal — Genuine use of the earlier mark — Article 43(2) and (3) of Regulation (EC) No 40/94)

30

2009/C 032/56

Case T-101/07: Judgment of the Court of First Instance of 10 December 2008 — Dada v OHIM (Community trade mark — Opposition proceedings — Application for a figurative Community trade mark DADA — Earlier national word mark DADA — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Genuine use of the earlier trade mark — Article 43(2) and (3) of Regulation (EC) No 40/94)

30

2009/C 032/57

Case T-136/07: Order of the Court of First Instance of 9 December 2008 — Colgate-Palmolive v OHIM — CMS Hasche Sigle (VISIBLE WHITE) (Community trade mark — Invalidity proceedings — Community word mark VISIBLE WHITE — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94)

31

2009/C 032/58

Case T-290/07: Judgment of the Court of First Instance of 10 December 2008 — MIP Metro v OHIM — Metronia (METRONIA) (Community trade mark — Opposition proceedings — Application for Community figurative trade mark METRONIA — Earlier national figurative trade mark METRO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

31

2009/C 032/59

Case T-295/07: Judgment of the Court of First Instance of 10 December 2008 — Vitro Corporativo v OHIM — VKR Holding (Vitro) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Vitro — Earlier Community word mark VITRAL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

32

2009/C 032/60

Case T-335/07: Judgment of the Court of First Instance of 16 December 2008 — Mergel and Others v OHIM (Patentconsult) (Community trade mark — Application for the Community word mark Patentconsult — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94)

32

2009/C 032/61

Case T-351/07: Judgment of the Court of First Instance of 17 December 2008 — Somm v OHIM (Community trade mark — Application for Community tri-dimensional mark — Shelter for shade — Absolute grounds for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Lack of distinctive character acquired by use — Article 7(3) of Regulation (EC) No 40/94)

32

2009/C 032/62

Case T-357/07: Judgment of the Court of First Instance of 16 December 2008 — Focus Magazin Verlag v OHIM — Editorial Planeta (FOCUS Radio) (Community trade mark — Opposition proceedings — Application for Community word mark FOCUS Radio — Earlier national word marks FOCUS MILENIUM — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

33

2009/C 032/63

Case T-174/08: Judgment of the Court of First Instance of 17 December 2008 — Commission v Cooperação e Desenvolvimento Regional (Arbitration clause — Contract for financial assistance concluded under a specific programme in the field of telematic applications of common interest — Encata Project — Reimbursement of sums advanced — Late-payment interest — Default procedure)

33

2009/C 032/64

Joined Cases T-8/95 and T-9/95: Order of the Court of First Instance of 3 November 2008 — Pelle and Konrad v Council of the European Union and the Commission of the European Communities (Non-contractual liability — Milk — Additional levy — Reference quantity — Regulation (EEC) No 2187/93 — Compensation of producers — Suspension of limitation)

34

2009/C 032/65

Case T-393/06: Order of the Court of First Instance of 26 November 2008 — Makhteshim-Agan Holding and Others v Commission (Action for annulment — Action for failure to act — Directive 91/414/EEC — Plant protection products — Active substance azinphos-methyl — Inclusion in Annex I to Directive 91/414/EEC — Absence of a new Commission proposal after opposition by the Council — Article 5(6) of Decision 1999/468/EEC — Non-actionable measure — Absence of a request to act — Inadmissibility)

34

2009/C 032/66

Case T-188/07: Order of the Court of First Instance of 25 November 2008 — Fastweb v Commission (State aid — Subsidised purchase of digital decoders — Telecommunications — Commission decision declaring the aid to be incompatible with the common market — Decision adopted in the course of the present proceedings by the Member State not to effect recovery of the aid from the company which contested the Commission's decision in annulment proceedings — No longer any interest in bringing proceedings — No need to adjudicate)

35

2009/C 032/67

Case T-13/08: Order of the Court of First Instance of 8 October 2008 — Koinotita Grammatikou v Commission (Action for annulment — Cohesion Funds — Lack of direct concern — Inadmissibility)

35

2009/C 032/68

Case T-392/08 R: Order of the Judge hearing the application for Interim measures of 19 November 2008 — AEPI v Commission (Interim measures — Decision of the Commission ordering cessation of a concerted practice in connection with the collective management of author's rights — Application for stay of execution — Lack of urgency)

35

2009/C 032/69

Case T-410/08 R: Order of the President of the Court of First Instance of 14 November 2008 — GEMA v Commission (Application for interim measures — Commission decision ordering the cessation of a concerted practice in relation to the collective management of copyright — Application for suspension of operation of a measure — No urgency)

36

2009/C 032/70

Case T-425/08 R: Order of the President of the Court of First Instance of 5 December 2008 — KODA v Commission (Applications for interim measures — Commission decision ordering the cessation of a concerted practice in connection with the collective management of copyright — Application for suspension of operation of a measure — No urgency)

36

2009/C 032/71

Case T-433/08 R: Order of the President of the Court of First Instance of 20 November 2008 — SIAE v Commission (Application for interim measures — Commission decision ordering the cessation of a concerted practice in relation to the collective management of copyright — Application for suspension of operation of a measure — No urgency)

36

2009/C 032/72

Case T-471/08: Action brought on 23 October 2008 — Toland v Parliament

37

2009/C 032/73

Case T-474/08: Action brought on 31 October 2008 — Umbach v Commission

37

2009/C 032/74

Case T-482/08: Action brought on 11 November 2008 — Atlas Transport v OHIM — Hartmann (ATLAS TRANSPORT)

38

2009/C 032/75

Case T-484/08: Action brought on 11 November 2008 — Longevity Health Products v OHIM — Merck (Kids Vits)

38

2009/C 032/76

Case T-491/08 P: Appeal brought on 17 November 2008 by Philippe Bui Van against the judgment of the Civil Service Tribunal delivered on 11 September 2008 in Case F-51/07 Bui Van v Commission

39

2009/C 032/77

Case T-492/08: Action brought on 18 November 2008 — Wessang v OHIM — Greinwald (star foods)

40

2009/C 032/78

Case T-494/08: Action brought on 14 November 2008 — Ryanair/Commission

40

2009/C 032/79

Case T-495/08: Action brought on 14 November 2008 — Ryanair/Commission

41

2009/C 032/80

Case T-496/08: Action brought on 14 November 2008 — Ryanair/Commission

41

2009/C 032/81

Case T-497/08: Action brought on 14 November 2008 — Ryanair/Commission

42

2009/C 032/82

Case T-498/08: Action brought on 14 November 2008 — Ryanair/Commission

42

2009/C 032/83

Case T-499/08: Action brought on 14 November 2008 — Ryanair/Commission

43

2009/C 032/84

Case T-500/08: Action brought on 14 November 2008 — Ryanair/Commission

43

2009/C 032/85

Case T-509/08: Action brought on 7 November 2008 — Ryanair/Commission

44

2009/C 032/86

Case T-511/08: Action brought on 27 November 2008 — Unity OSG FZE/Conseil et EUPOL Afghanistan

44

2009/C 032/87

Case T-522/08: Action brought on 28 November 2008 — Agatha Ruiz de la Prada de Sentmenat v OHIM — Mary Quant (AGATHA RUIZ DE LA PRADA)

45

2009/C 032/88

Case T-523/08: Action brought on 1 December 2008 — Agatha Ruiz de la Prada de Sentmenat v OHIM — Mary Quant Cosmetics Japan (AGATHA RUIZ DE LA PRADA)

46

2009/C 032/89

Case T-527/08: Action brought on 4 December 2008 — Commission v TMT Pragma

46

2009/C 032/90

Case T-529/08: Action brought on 2 December 2008 — Diputación Foral de Álava v Commission

47

2009/C 032/91

Case T-530/08: Action brought on 2 December 2008 — Diputación Foral de Guipúzcoa v Commission

47

2009/C 032/92

Case T-531/08: Action brought on 2 December 2008 — Diputación Foral de Vizcaya v Commission

48

2009/C 032/93

Case T-56/08: Order of the Court of First Instance of 10 December 2008 — Stichting IEA Secretariaat Nederland and Others v Commission

48

2009/C 032/94

Case T-66/08: Order of the Court of First Instance of 2 December 2008 — British Sky Broadcasting Group v OHIM — Vortex (SKY)

48

European Union Civil Service Tribunal

2009/C 032/95

Case F-83/06: Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Schell v Commission (Staff case — Officials — Promotion — Priority points — General implementing provisions for Article 45 of the Staff Regulations)

49

2009/C 032/96

Case F-113/06: Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Bouis and Others v Commission (Staff case — Officials — Second round promotion — 2005 promotion procedure — Award of priority points — Transitional provisions — General implementing provisions for Article 45 of the Staff Regulations — Equal treatment — Admissibility)

49

2009/C 032/97

Case F-116/06: Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Buckingham and Others v Commission (Staff cases — Officials — Second round promotion — 2005 promotion procedure — Award of priority points — Transitional provisions — GIP for Article 45 of the Staff Regulations — Equal treatment — Admissibility)

50

2009/C 032/98

Case F-136/06: Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Reali v Commission (Staff case — Contract staff — Recruitment — Classification in grade — Experience — Qualifications — Equivalence)

50

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 7.2.2009 | EN | Official Journal of the European Union | C 32/1 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/1

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(2009/C 32/01)

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

OJ C 19, 24.1.2009

Past publications

OJ C 6, 10.1.2009

OJ C 327, 20.12.2008

OJ C 313, 6.12.2008

OJ C 301, 22.11.2008

OJ C 285, 8.11.2008

OJ C 272, 25.10.2008

These texts are available on:

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

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 7.2.2009 | EN | Official Journal of the European Union | C 32/2 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/2

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Judgment of the Court (First Chamber) of 11 December 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-380/06) (1)

(Failure of a Member State to fulfil obligations - Late payment in commercial transactions - Time-limit - Directive 2000/35/EC - Infringement of Article 3(1), (2) and (4))

(2009/C 32/02)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: B. Schima and S. Pardo Quintillán, acting as Agents)

Defendant: Kingdom of Spain (represented by: F. Díez Moreno, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 3(1)(2) and (4) of Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ 2000 L 200, p. 35) — Period of 90 days for the payment of certain staple foods

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

2.

Orders the Commission of the European Communities to pay the costs.

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(1)  OJ C 294 of 2.12.2006.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/2 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/2

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Judgment of the Court (Fourth Chamber) of 11 December 2008 (reference for a preliminary ruling from the Marknadsdomstolen — Sweden) — Kanal 5 Ltd, TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå (STIM)

(Case C-52/07) (1)

(Copyright - Copyright management organisation enjoying a de facto monopoly - Collection of royalties relating to the broadcast of musical works - Method of calculating those royalties - Dominant position - Abuse)

(2009/C 32/03)

Language of the case: Swedish

Referring court

Marknadsdomstolen

Parties to the main proceedings

Applicant: Kanal 5 Ltd, TV 4 AB

Defendant: Föreningen Svenska Tonsättares Internationella Musikbyrå (STIM)

Re:

Reference for a preliminary ruling — Interpretation of Article 82 EC — Payments made by commercial television channels to an organisation responsible for the management of the performing rights of musical works — Calculation of payments based on a percentage of the revenue from, inter alia, subscriptions and advertising.

Operative part of the judgment

| 1) | Article 82 EC must be interpreted as meaning that a copyright management organisation with a dominant position on a substantial part of the common market does not abuse that position where, with respect to remuneration paid for the television broadcast of musical works protected by copyright, it applies to commercial television channels a remuneration model according to which the amount of the royalties corresponds partly to the revenue of those channels, provided that that part is proportionate overall to the quantity of musical works protected by copyright actually broadcast or likely to be broadcast, unless another method enables the use of those works and the audience to be identified more precisely without however resulting in a disproportionate increase in the costs incurred for the management of contracts and the supervision of the use of those works. |
| --- | --- |

1)

Article 82 EC must be interpreted as meaning that a copyright management organisation with a dominant position on a substantial part of the common market does not abuse that position where, with respect to remuneration paid for the television broadcast of musical works protected by copyright, it applies to commercial television channels a remuneration model according to which the amount of the royalties corresponds partly to the revenue of those channels, provided that that part is proportionate overall to the quantity of musical works protected by copyright actually broadcast or likely to be broadcast, unless another method enables the use of those works and the audience to be identified more precisely without however resulting in a disproportionate increase in the costs incurred for the management of contracts and the supervision of the use of those works.

| 2) | Article 82 EC must be interpreted as meaning that, by calculating the royalties with respect to remuneration paid for the broadcast of musical works protected by copyright in a different manner according to whether the companies concerned are commercial companies or public service undertakings, a copyright management organisation is likely to exploit in an abusive manner its dominant position within the meaning of that article if it applies with respect to those companies dissimilar conditions to equivalent services and if it places them as a result at a competitive disadvantage, unless such a practice may be objectively justified. |
| --- | --- |

2)

Article 82 EC must be interpreted as meaning that, by calculating the royalties with respect to remuneration paid for the broadcast of musical works protected by copyright in a different manner according to whether the companies concerned are commercial companies or public service undertakings, a copyright management organisation is likely to exploit in an abusive manner its dominant position within the meaning of that article if it applies with respect to those companies dissimilar conditions to equivalent services and if it places them as a result at a competitive disadvantage, unless such a practice may be objectively justified.

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(1)  OJ C 95, 28.4.2007.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/3 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/3

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Judgment of the Court (Fifth Chamber) of 11 December 2008 — Commission of the European Communities v Italian Republic

(Case C-174/07) (1)

(Failure of a Member State to fulfil obligations - Article 10 EC - Directive 2006/112/EC - Sixth VAT Directive - Obligations under domestic rules - Monitoring of taxable transactions - Amnesty)

(2009/C 32/04)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and M. Alfonso, acting as Agents)

Defendant: Italian Republic (represented by: I.M. Braguglia, acting as Agent, and G. De Bellis, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 2 and 22 of Directive 77/388/EEC: Sixth Council Directive 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), replaced, as from 1 January 2007 by Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Obligations under domestic rules — National law which discontinues the monitoring of taxable transactions carried out during a series of tax periods

Operative part of the judgment

The Court:

| 1. | declares that, by extending, by Article 2(44) of Law No 350 of 24 December 2003 relating to the provisions for drawing up the annual and pluriannual budget of the State (Finance Law for 2004) (legge n. 350, disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2004), to 2002 the tax amnesty provided for in Articles 8 and 9 of Law No 289 of 27 December 2002 relating to the provisions for drawing up the annual and pluriannual budget of the State (Finance Law for 2003) (legge n. 289, disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2003), and consequently providing generally and indiscriminately that assessment of taxable transactions effected in the 2002 tax period is to be discontinued, the Italian Republic has failed to fulfil its obligations under Article 2(1)(a), (c) and (d) and Articles 193 to 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, which as from 1 January 2007 replaced Articles 2 and 22 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, and under Article 10 EC; |
| --- | --- |

1.

declares that, by extending, by Article 2(44) of Law No 350 of 24 December 2003 relating to the provisions for drawing up the annual and pluriannual budget of the State (Finance Law for 2004) (legge n. 350, disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2004), to 2002 the tax amnesty provided for in Articles 8 and 9 of Law No 289 of 27 December 2002 relating to the provisions for drawing up the annual and pluriannual budget of the State (Finance Law for 2003) (legge n. 289, disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2003), and consequently providing generally and indiscriminately that assessment of taxable transactions effected in the 2002 tax period is to be discontinued, the Italian Republic has failed to fulfil its obligations under Article 2(1)(a), (c) and (d) and Articles 193 to 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, which as from 1 January 2007 replaced Articles 2 and 22 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, and under Article 10 EC;

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

2.

Orders the Italian Republic to pay the costs.

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(1)  OJ C 140, 23.6.2007.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/3 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/3

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Judgment of the Court (First Chamber) of 11 December 2008 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — A.T. v Finanzamt Stuttgart-Körperschaften

(Case C-285/07) (1)

(Directive 90/434/EEC - Cross-border exchange of shares - Fiscal neutrality - Conditions - Articles 43 EC and 56 EC - Legislation of a Member State making the continued use of the book value of the shares transferred in exchange for the new shares received, and therefore the fiscal neutrality of the transfer, conditional on the carryover of that value in the tax balance sheet of the acquiring foreign company - Compatibility)

(2009/C 32/05)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: A.T.

Defendant: Finanzamt Stuttgart-Körperschaften

Intervening party: Bundesministerium der Finanzen

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 8(1) and (2) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1) and of Articles 43 EC and 56 EC — Shareholder receiving securities representing the capital of the acquiring company in exchange for securities of the acquired company — Taxation of the shareholder of the acquired company — Tax legislation of a Member State making the shareholder's attribution of the book value (Buchwertansatz) to the securities received in exchange conditional upon the acquiring company's own attribution of the book value to the securities exchanged (doppelte Buchwertverknüpfung)

Operative part of the judgment

Article 8(1) and (2) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States precludes legislation of a Member State under which, in consequence of an exchange of shares, the shareholders of the acquired company are taxed on the capital gains arising from the transfer and the capital gain is deemed to correspond to the difference between the initial cost of acquiring the shares transferred and their market value, unless the acquiring company carries over the historical book value of the shares transferred in its own tax balance sheet.

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(1)  OJ C 247, 20.10.2007.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/4 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/4

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Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Hellenic Republic

(Case C-293/07) (1)

(Failure of a Member State to fulfil obligations - Directives 79/409/EEC and 92/43/EC - Conservation of wild birds - Special protection areas - Insufficient measures of protection)

(2009/C 32/06)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Konstantinidis, D. Recchia and M. Patakia, acting as Agents)

Defendant: Hellenic Republic (represented by: E. Skandalou, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), in conjunction with Article 4(4) of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) — Lack of protection for Special Protection Areas (SPAs) — Existence of activities which may damage the integrity of SPAs and have negative consequences for the objectives of conservation of SPAs and of the species for which the areas have been defined

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to take all the measures necessary to establish and apply a coherent, specific and integrated legal regime capable of ensuring viable management and effective protection of areas designated as Special Protection Areas, in the light of the conservation objectives of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2), in conjunction with the first sentence of Article 4(4) of that directive, as amended by Article 6(2) to (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora; |
| --- | --- |

1.

Declares that, by failing to take all the measures necessary to establish and apply a coherent, specific and integrated legal regime capable of ensuring viable management and effective protection of areas designated as Special Protection Areas, in the light of the conservation objectives of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2), in conjunction with the first sentence of Article 4(4) of that directive, as amended by Article 6(2) to (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

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

2.

Dismisses the remainder of the action;

| 3. | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

3.

Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 182, 4.8.2007.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/4 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/4

---

Judgment of the Court (First Chamber) of 11 December 2008 — Commission of the European Communities v Département du Loiret, Scott SA

(Case C-295/07 P) (1)

(Appeal - State aid - Preferential price of a plot of land - Commission decision - Recovery of aid incompatible with the common market - Present-day value of the aid - Compound interest rate - No statement of reasons - Complete annulment - Lawfulness)

(2009/C 32/07)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: J. Flett, acting as Agent)

Other parties to the proceedings: Département du Loiret, Scott SA (represented by: J. Lever QC, J. Gardner and G. Peretz, Barristers, instructed by R. Griffith and M. Papadakis, Solicitors)

Re:

Appeal against the judgment of 29 March 2007 of the Court of First Instance (First Chamber) in Case T-369/00 Département du Loiret v Commission, by which the Court annulled Commission Decision 2002/14/EC of 12 July 2000 on the State aid granted by France to Scott Paper SA/Kimberly-Clark (OJ 2002 L 12, p. 1) in so far as it concerns the aid granted in the form of the preferential price for a property referred to in Article 1 thereof — Method for calculating interest due on sums unlawfully received: simple or compound interest rates? — Reasons for the choice of that method and reversal of the burden of proof — Point in time at which the existence of an unlawful advantage falls to be determined

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 29 March 2007 in Case T-369/00 Département du Loiret v Commission [2007] ECR II-851; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 29 March 2007 in Case T-369/00 Département du Loiret v Commission [2007] ECR II-851;

| 2. | Refers the case back to the Court of First Instance of the European Communities; |
| --- | --- |

2.

Refers the case back to the Court of First Instance of the European Communities;

| 3. | Reserves the costs. |
| --- | --- |

3.

Reserves the costs.

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(1)  OJ C 211, 8.9.2007.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/5 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/5

---

Judgment of the Court (Second Chamber) of 11 December 2008 (reference for a preliminary ruling from the Landgericht Regensburg — Germany) — Criminal proceedings against Klaus Bourquain

(Case C-297/07) (1)

(Convention implementing the Schengen Agreement - Article 54 - ‘Ne bis in idem’ principle - Scope - Conviction in absentia in respect of the same acts - Concept of ‘finally disposed of’ - Procedural rules of national law - Concept of ‘penalty which can no longer be enforced’)

(2009/C 32/08)

Language of the case: German

Referring court

Landgericht Regensburg

Defendant in the criminal proceedings

Klaus Bourquain

Re:

Reference for a preliminary ruling — Landgericht Regensburg — Interpretation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19) — Interpretation of ne bis in idem principle — Conviction in absentia in respect of same acts — No enforcement and conviction subsequently covered by general amnesty

Operative part of the judgment

The Court:

The ne bis in idem principle, enshrined in Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed in Schengen (Luxembourg) on 19 June 1990, is applicable to criminal proceedings instituted in a Contracting State against an accused whose trial for the same acts as those for which he faces prosecution was finally disposed of in another Contracting State, even though, under the law of the State in which he was convicted, the sentence which was imposed on him could never, on account of specific features of procedure such as those referred to in the main proceedings, have been directly enforced.

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(1)  OJ C 211, 8.9.2007.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/5 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/5

---

Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Freistaat Sachsen

(Case C-334/07 P) (1)

(Appeal - State aid - Proposed scheme for aid to small and medium-sized enterprises - Compatibility with the common market - Criteria for assessing State aid - Application ratione temporis - Proposed scheme notified before the entry into force of Regulation (EC) No 70/2001 - Decision subsequent to entry into force thereof - Legitimate expectations - Legal certainty - Complete notifications)

(2009/C 32/09)

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by: K. Gross, acting as Agent)

Other party to the proceedings: Freistaat Sachsen (represented by: Th. Lübbig, Rechtsanwalt)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber, Extended Composition) of 3 May 2007 in Case T-357/02 Freistaat Sachsen v Commission by which the Court annulled in part Commission Decision 2003/226/EC of 24 September 2002 on an aid scheme which the Federal Republic of Germany is planning to implement — ‘Guidelines on assistance for SMEs — Improving business efficiency in Saxony’: Subprogrammes 1 (Coaching), 4 (Participation in fairs), 5 (Cooperation) and 7 (Design promotion) (OJ 2003 L 91, p. 13) — Applicability of Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises for aid projects notified to the Commission before the entry into force of that regulation

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 3 May 2007 in Case T-357/02 Freistaat Sachsen v Commission; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 3 May 2007 in Case T-357/02 Freistaat Sachsen v Commission;

| 2. | Refers the case back to the Court of First Instance of the European Communities; |
| --- | --- |

2.

Refers the case back to the Court of First Instance of the European Communities;

| 3. | Reserves costs. |
| --- | --- |

3.

Reserves costs.

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(1)  OJ C 223, 22.9.2007.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/6 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/6

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Judgment of the Court (Third Chamber) of 11 December 2008 (reference for a preliminary ruling from the Tribunal d'instance du VIIe arrondissement de Paris — France) — Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV, Utax GmbH (C-362/07), Hewlett Packard International SARL (C-363/07) v Administration des douanes — Direction générale des douanes et droits indirects

(Joined Cases C-362/07 and C-363/07) (1)

(Common Customs Tariff - Combined Nomenclature - Tariff classification - Multi-function apparatus - Apparatus combining the functions of laser printer and a digital electronic scanner module, with a copier function - Heading 8471 - Heading 9009)

(2009/C 32/10)

Language of the case: French

Referring court

Tribunal d'instance du VIIe arrondissement de Paris

Parties to the main proceedings

Applicants: Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV, Utax GmbH (C-362/07), Hewlett Packard International SARL (C-363/07)

Defendant: Administration des douanes — Direction générale des douanes et droits indirects

Re:

Reference for a preliminary ruling — Tribunal d'instance du VIIème arrondissement de Paris (France) — Interpretation of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), in the version applicable at the material time, and validity of Regulation (EC) No 400/2006 of 8 March 2006 concerning the classification of certain goods in the Combined Nomenclature (OJ 2006 L 70, p. 9) — Multifunctional apparatus comprising a laser printer module, a scanner module and a computer module — Whether classification should be under tariff heading 8471 60 40 (Automatic data-processing machines) on the basis of General Rule 3(b) for the interpretation of the CN (printing function giving the apparatus its ‘essential character’) or under heading 9009 12 00 (photocopying apparatus) pursuant to Note 5(E) to Chapter 84 of the CN (apparatus autonomously fulfilling a specific function — copying — other than data-processing)

Operative part of the judgment

| 1. | Note 5(E) to Chapter 84 of 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 1719/2005 of 27 October 2005, is to be interpreted as meaning that only machines incorporating an automatic data-processing machine or working in conjunction with such a machine, whose function is not data processing, perform ‘a specific function other than data processing’; |
| --- | --- |

1.

Note 5(E) to Chapter 84 of 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 1719/2005 of 27 October 2005, is to be interpreted as meaning that only machines incorporating an automatic data-processing machine or working in conjunction with such a machine, whose function is not data processing, perform ‘a specific function other than data processing’;

| 2. | If the copying function performed by the machines at issue in the main proceedings is secondary in relation to the printing and electronic scanning functions, they must be considered units of automatic data-processing machines within the meaning of Note 5(B) to Chapter 84 of the combined nomenclature constituting Annex I to Regulation No 2658/87, as amended by Regulation No 1719/2005, which units, by application of Note 5(C) to that chapter, if they are presented in isolation, fall within heading 8471. In such a case, the relevant subheading must be determined in accordance with Note 3 to Section XVI of the said nomenclature. However, if the importance of that copying function is equivalent to that of the other two functions, those machines must be classified, by application of General Rule 3(b) of the General rules for the interpretation of that nomenclature, under the heading corresponding to the module which gives those machines their essential character. If such identification proved impossible, they must be classified under heading 9009 in accordance with General Rule 3(c); |
| --- | --- |

2.

If the copying function performed by the machines at issue in the main proceedings is secondary in relation to the printing and electronic scanning functions, they must be considered units of automatic data-processing machines within the meaning of Note 5(B) to Chapter 84 of the combined nomenclature constituting Annex I to Regulation No 2658/87, as amended by Regulation No 1719/2005, which units, by application of Note 5(C) to that chapter, if they are presented in isolation, fall within heading 8471. In such a case, the relevant subheading must be determined in accordance with Note 3 to Section XVI of the said nomenclature. However, if the importance of that copying function is equivalent to that of the other two functions, those machines must be classified, by application of General Rule 3(b) of the General rules for the interpretation of that nomenclature, under the heading corresponding to the module which gives those machines their essential character. If such identification proved impossible, they must be classified under heading 9009 in accordance with General Rule 3(c);

| 3. | Examination of the fifth questions referred has not raised any factor liable to affect the validity of point 4 of the Annex to Commission Regulation (EC) No 400/2006 of 8 March 2006 concerning the classification of certain goods in the Combined Nomenclature. |
| --- | --- |

3.

Examination of the fifth questions referred has not raised any factor liable to affect the validity of point 4 of the Annex to Commission Regulation (EC) No 400/2006 of 8 March 2006 concerning the classification of certain goods in the Combined Nomenclature.

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(1)  OJ C 269, 10.11.2007.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/7 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/7

---

Judgment of the Court (Fourth Chamber) of 11 December 2008 (reference for a preliminary ruling from the Vestre Landsret — Denmark) — Danfoss A/S, AstraZeneca A/S v Skatteministeriet

(Case C-371/07) (1)

(Sixth VAT Directive - Article 6(2) - Supplies of services carried out free of charge by a taxable person for purposes other than those of his business - Right to deduct VAT - Second subparagraph of Article 17(6) - Member States' option to retain exclusions from the right to deduct which were provided for under their national laws when the Sixth Directive came into force)

(2009/C 32/11)

Language of the case: Danish

Referring court

Vestre Landsret

Parties to the main proceedings

Applicants: Danfoss A/S, AstraZeneca A/S

Defendant: Skatteministeriet

Re:

Reference for a preliminary ruling — Vestre Landsret — Interpretation of Article 6(2) and the second subparagraph of Article 17(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145, p. 1) — Right to deduct tax relating to meals provided free of charge to staff and clients in a company canteen — Possibility for the Member States to maintain their legislation excluding the right to deduct on the date of entry into force of the Directive

Operative part of the judgment

| 1) | The second subparagraph of Article 17(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, must be interpreted as precluding a Member State from applying, after the entry into force of the Sixth Directive, an exclusion from the right to deduct input value added tax on expenditure in respect of meals provided by company canteens free of charge to business contacts and staff in the course of work meetings, where, at the moment when the Sixth Directive entered into force, that exclusion was not actually applied to that expenditure because of an administrative practice of taxing services provided by company canteens at cost price, that is to say, the price of the raw materials plus the cost of wages for preparation and sale of the food and drinks and the administration of the canteens, in return for the right to deduct input value added tax in full; |
| --- | --- |

1)

The second subparagraph of Article 17(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, must be interpreted as precluding a Member State from applying, after the entry into force of the Sixth Directive, an exclusion from the right to deduct input value added tax on expenditure in respect of meals provided by company canteens free of charge to business contacts and staff in the course of work meetings, where, at the moment when the Sixth Directive entered into force, that exclusion was not actually applied to that expenditure because of an administrative practice of taxing services provided by company canteens at cost price, that is to say, the price of the raw materials plus the cost of wages for preparation and sale of the food and drinks and the administration of the canteens, in return for the right to deduct input value added tax in full;

| 2) | Article 6(2) of Sixth Directive 77/388 must be interpreted in such a way that, on the one hand, it does not cover the provision, free of charge, of meals in company canteens to business contacts in the course of meetings held on the company premises where objective evidence indicates — this being a matter for the referring court to determine — that those meals are provided for strictly business-related purposes. On the other hand, Article 6(2) applies in principle to the provision, free of charge, of meals by a company to its staff on its premises, unless — this likewise being a matter for the referring court to determine — the needs of the company, such as the need to ensure that work meetings are run smoothly and without interruptions, require the employer to ensure that meals are provided. |
| --- | --- |

2)

Article 6(2) of Sixth Directive 77/388 must be interpreted in such a way that, on the one hand, it does not cover the provision, free of charge, of meals in company canteens to business contacts in the course of meetings held on the company premises where objective evidence indicates — this being a matter for the referring court to determine — that those meals are provided for strictly business-related purposes. On the other hand, Article 6(2) applies in principle to the provision, free of charge, of meals by a company to its staff on its premises, unless — this likewise being a matter for the referring court to determine — the needs of the company, such as the need to ensure that work meetings are run smoothly and without interruptions, require the employer to ensure that meals are provided.

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(1)  OJ C 247, 20.10.2007.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/7 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/7

---

Judgment of the Court (Second Chamber) of 11 December 2008 (reference for a preliminary ruling from the Tribunale di Ancona — Italy) — MI.VER Srl, Daniele Antonelli v Provincia di Macerata

(Case C-387/07) (1)

(Waste - Concept of ‘temporary storage’ - Directive 75/442/EEC - Decision 2000/532/EC - Possibility of mixing together items of waste covered by different codes - Concept of ‘mixed packaging’)

(2009/C 32/12)

Language of the case: Italian

Referring court

Tribunale di Ancona

Parties to the main proceedings

Applicants: MI.VER Srl, Daniele Antonelli

Defendant: Provincia di Macerata

Re:

Reference for a preliminary ruling — Tribunale di Ancona — Interpretation of Council Directive 75/422/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39) and of Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (OJ 2000 L 226, p. 3) — Notion of temporary deposit — Right of the producer to mix together items of waste covered by different codes in the European Waste Catalogue provided for in Decision 2000/532/EC

Operative part of the judgment

| 1. | Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, and Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste do not preclude a producer of waste mixing together items of waste covered by different codes in the list annexed to Decision 2000/532 during their temporary storage, pending collection, on the site where they are produced. However, the Member States are required to adopt measures requiring producers of waste to sort and store waste separately during its temporary storage, pending collection, on the site where it is produced, using, for that purpose, the codes from that list, if they consider such measures to be necessary to achieve the objectives laid down in the first paragraph of Article 4 of Directive 75/442/EEC, as amended by Regulation No 1882/2003. |
| --- | --- |

1.

Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, and Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste do not preclude a producer of waste mixing together items of waste covered by different codes in the list annexed to Decision 2000/532 during their temporary storage, pending collection, on the site where they are produced. However, the Member States are required to adopt measures requiring producers of waste to sort and store waste separately during its temporary storage, pending collection, on the site where it is produced, using, for that purpose, the codes from that list, if they consider such measures to be necessary to achieve the objectives laid down in the first paragraph of Article 4 of Directive 75/442/EEC, as amended by Regulation No 1882/2003.

| 2. | Since the national rules repeat the list of waste annexed to Decision 2000/532, code 15 01 06 corresponding to ‘mixed packaging’ may be used to cover waste consisting of packaging of various materials grouped together. |
| --- | --- |

2.

Since the national rules repeat the list of waste annexed to Decision 2000/532, code 15 01 06 corresponding to ‘mixed packaging’ may be used to cover waste consisting of packaging of various materials grouped together.

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(1)  OJ C 283, 24.11.2007.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/8 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/8

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Judgment of the Court (Third Chamber) of 11 December 2008 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing v Staatssecretaris van Financiën

(Case C-407/07) (1)

(Sixth VAT Directive - Article 13A(1)(f) - Exemptions - Conditions - Services supplied by independent groups - Services supplied to one or several members of the group)

(2009/C 32/13)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing

Defendant: Staatssecretaris van Financiën

Re:

Preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 13.A(1)(f) 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) — Services supplied by independent associations for the purpose of providing their members with services which are directly necessary for the exercise of an exempted activity

Operative part of the judgment

Article 13A(1)(f) 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, provided the other conditions in that provision are met, services supplied to their members by independent groups are covered by the exemption contained in that provision, even if those services are supplied only to one or several of those members.

---

(1)  OJ C 283, 24.11.2007.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/9 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/9

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Judgment of the Court (Fifth Chamber) of 11 December 2008 (reference for a preliminary ruling from the Corte suprema di cassazione (Italy)) — Agenzia per le Erogazioni in Agricoltura (AGEA) v Consorzio Agrario di Ravenna Soc. Coop. arl

(Case C-486/07) (1)

(Common organisation of the markets - Cereals - Maize - Determination of price - Reductions applicable)

(2009/C 32/14)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicant: Agenzia per le Erogazioni in Agricoltura (AGEA)

Defendant: Consorzio Agrario di Ravenna Soc. Coop. arl

Re:

Reference for a preliminary ruling — Corte suprema di cassazione (Italy) — Interpretation of Articles 4 and 5 of Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals (OJ 1992 L 181, p. 21), Article 4a of Commission Regulation (EEC) No 689/92 of 19 March 1992 fixing the procedure and conditions for the taking-over of cereals by intervention agencies (OJ 1992 L 74, p. 18), and of Article 13 of Commission Regulation (EEC) No 2131/93 of 28 July 1993 laying down the procedure and conditions for the sale of cereals held by intervention agencies (OJ 1993 L 191, p. 76) — Reductions applicable for higher levels of humidity than that of the standard quality — Applicability to sales of maize

Operative part of the judgment

The combined provisions of Article 13(1) of Commission Regulation (EEC) No 2131/93 of 28 July 1993 laying down the procedure and conditions for the sale of cereals held by intervention agencies and Article 4a of Commission Regulation (EEC) No 689/92 of 19 March 1992 fixing the procedure and conditions for the taking-over of cereals by intervention agencies, as amended by Commission Regulation (EEC) No 2486/92 of 27 August 1992, are to be interpreted as meaning that, in the case of a sale by tender of maize held by the international intervention agencies, the price reductions in relation to the moisture content laid down for durum wheat in Table II of Annex II to Regulation No 689/92, as amended by Regulation No 2486/92, do not apply.

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(1)  OJ C 22, 26.1.2008.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/9 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/9

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Judgment of the Court (Third Chamber) of 11 December 2008 — Commission of the European Communities v Republic of Austria

(Case C-524/07) (1)

(Failure of a Member State to fulfil its obligations - Articles 28 EC and 30 EC - Registration of old used vehicles previously registered in other Member States - Technical requirements with regard to exhaust emissions and noise pollution - Public health - Protection of the environment)

(2009/C 32/15)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: B. Schima, acting as Agent)

Defendant: Republic of Austria (represented by: E. Riedl and G. Eberhard, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 28 and 30 EC — National rules making the registration of imported used vehicles previously registered in other Member States contingent upon compliance with certain technical requirements, although used vehicles already on the national market and having the same characteristics are not subject to such requirements in cases of re-registration.

Operative part of the judgment

The Court:

| 1. | Declares that by requiring, for the purposes of their first registration in Austria, that motor vehicles previously registered in other Member States, which have not undergone, because of their age, a Community type-approval procedure, comply with limit values in respect of pollutant emissions and noise which are stricter than those they initially had to comply with, in particular, the limits laid down in Council Directive 93/59/EEC of 28 June 1993 amending Directive 70/220/EEC on the approximation of the laws of the Member States relating to measures to be taken against air pollution by emissions from motor vehicles, and Council Directive 92/97/EEC of 10 November 1992 amending Directive 70/157/EEC on the approximation of the laws of the Member States relating to the permissible sound level and the exhaust system of motor vehicles, although vehicles having the same characteristics and which are already authorised to use the roads in Austria are not subject to that requirement in cases of their re-registration in that Member State, the Republic of Austria has failed to fulfil its obligations under Article 28 EC; |
| --- | --- |

1.

Declares that by requiring, for the purposes of their first registration in Austria, that motor vehicles previously registered in other Member States, which have not undergone, because of their age, a Community type-approval procedure, comply with limit values in respect of pollutant emissions and noise which are stricter than those they initially had to comply with, in particular, the limits laid down in Council Directive 93/59/EEC of 28 June 1993 amending Directive 70/220/EEC on the approximation of the laws of the Member States relating to measures to be taken against air pollution by emissions from motor vehicles, and Council Directive 92/97/EEC of 10 November 1992 amending Directive 70/157/EEC on the approximation of the laws of the Member States relating to the permissible sound level and the exhaust system of motor vehicles, although vehicles having the same characteristics and which are already authorised to use the roads in Austria are not subject to that requirement in cases of their re-registration in that Member State, the Republic of Austria has failed to fulfil its obligations under Article 28 EC;

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

2.

Orders the Republic of Austria to pay the costs.

---

(1)  OJ 2008 C 37.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/10 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/10

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Judgment of the Court (Fifth Chamber) of 11 December 2008 — Gateway, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Fujitsu Siemens Computers GmbH

(Case C-57/08 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) and (5) - Earlier marks including the word sign ‘GATEWAY’ - Word sign ‘ACTIVY Media Gateway’ - Absence of similarity of the signs - Lack of likelihood of confusion - Taking into account of the renown of earlier marks when carrying out a global assessment of opposing signs)

(2009/C 32/16)

Language of the case: English

Parties

Appellant: Gateway, Inc. (represented by: C.R. Jones, Solicitor)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent), Fujitsu Siemens Computers GmbH

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 27 November 2007 in Case T-434/05 Gateway, Inc. v OHIM by which the Court of First Instance dismissed an action for annulment brought by the proprietor of the Community and national word and figurative marks containing the word element ‘GATEWAY’ in respect of goods in Classes 9, 16, 35, 36, 37 and 38 against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 14 September 2005 in Case R 1068/2004+1 dismissing the appeal brought by the appellant against the Opposition Division's decision, which rejected the opposition brought by the appellant against the application for registration of the word mark ‘ACTIVY Media Gateway’ in respect of goods in Classes 9, 35, 38 and 42

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Gateway, Inc. to pay the costs. |
| --- | --- |

2.

Orders Gateway, Inc. to pay the costs.

---

(1)  OJ C 171, 5.7.2008.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/10 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/10

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Judgment of the Court (Fifth Chamber) of 11 December 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-239/08) (1)

(Failure of a Member State to fulfil its obligations - Directive 2006/100/EC - Free movement of persons - Amendment of certain directives by reason of the accession of the Republic of Bulgaria and Romania to the European Union - Failure to transcribe within the prescribed period)

(2009/C 32/17)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: C. Huvelin, acting as Agent)

Defendant: Kingdom of Belgium (represented by: D. Haven, Agent)

Re:

Failure of a Member State to fulfil its obligations — Failure to adopt or communicate, within the prescribed time-limit, the measures necessary to comply with Council Directive 2006/100/EC of 20 November 2006 amending certain directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania (OJ 2006 L 363, p. 141).

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed time-limit, all the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC of 20 November 2006 amending certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania, the Kingdom of Belgium has failed to fulfil its obligations under Article 2 of that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed time-limit, all the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC of 20 November 2006 amending certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania, the Kingdom of Belgium has failed to fulfil its obligations under Article 2 of that directive;

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

2.

Orders the Kingdom of Belgium to pay the costs.

---

(1)  OJ C 183, 19.7.2008.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/11 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/11

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Judgment of the Court (Seventh Chamber) of 11 December 2008 — Commission of the European Communities v French Republic

(Case C-330/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/35/EC - Environmental liability - Prevention and remedying of environmental damage - Failure to transpose within the period prescribed)

(2009/C 32/18)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and U. Wölker, acting as Agents)

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

Re:

Failure of a Member State to fulfil obligations — Failure to adopt the provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, the French Republic has failed to fulfil its obligations under Article 19(1) of that directive; |
| --- | --- |

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, the French Republic has failed to fulfil its obligations under Article 19(1) of that directive;

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

2.

Orders the French Republic to pay the costs.

---

(1)  OJ C 272, 25.10.2008.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/11 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/11

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Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 9 October 2008 — Kurt Wierer v Land Baden-Württemberg

(Case C-445/08)

(2009/C 32/19)

Language of the case: German

Referring court

Verwaltungsgerichtshof Baden-Württemberg

Parties to the main proceedings

Applicant: Kurt Wierer

Defendant: Land Baden-Württemberg

Questions referred

| 1. | Is it contrary to the principles developed by the Court of Justice in the judgments of 26 June 2008 (in Joined Cases C-329/06 and C-343/06 Wiedemann and Joined Cases C-334/06 and C-336/06 Zerche) for the national driving licence authorities and the courts of the host Member State, when examining compliance with the residence condition in Article 9 of Directive 91/439/EEC (1) by the issuing Member State at the time of issuing the driving licence, to rely, to the disadvantage of the holder of the driving licence, on statements and information which were provided by the holder in the course of administrative procedures or court proceedings and which he was obliged to provide when complying with an obligation of cooperation under national administrative law in the course of the investigation of facts relevant to the issues of the case? |
| --- | --- |

1.

Is it contrary to the principles developed by the Court of Justice in the judgments of 26 June 2008 (in Joined Cases C-329/06 and C-343/06 Wiedemann and Joined Cases C-334/06 and C-336/06 Zerche) for the national driving licence authorities and the courts of the host Member State, when examining compliance with the residence condition in Article 9 of Directive 91/439/EEC (1) by the issuing Member State at the time of issuing the driving licence, to rely, to the disadvantage of the holder of the driving licence, on statements and information which were provided by the holder in the course of administrative procedures or court proceedings and which he was obliged to provide when complying with an obligation of cooperation under national administrative law in the course of the investigation of facts relevant to the issues of the case?

| 2. | Should that question be answered in the negative:
  Is it contrary to the principles developed by the Court of Justice in the judgments of 26 June 2008 (in Joined Cases C-329/06 and C-343/06 Wiedemann and Joined Cases C-334/06 and C-336/06 Zerche) for the national driving licence authorities and the courts of the host Member State, when examining compliance with the residence condition in Article 9 of Directive 91/439/EEC by the issuing Member State at the time of issuing the driving licence, in a case where firm evidence exists that the condition was not met at the time the driving licence was issued, to conduct further investigations exclusively in the issuing Member State, for example, with registration authorities, landlords, or employers, and to use those facts, provided that they have evidentiary force, alone or together with information from the issuing Member State or the holder of the driving licence himself? |
| --- | --- |

2.

Should that question be answered in the negative:

Is it contrary to the principles developed by the Court of Justice in the judgments of 26 June 2008 (in Joined Cases C-329/06 and C-343/06 Wiedemann and Joined Cases C-334/06 and C-336/06 Zerche) for the national driving licence authorities and the courts of the host Member State, when examining compliance with the residence condition in Article 9 of Directive 91/439/EEC by the issuing Member State at the time of issuing the driving licence, in a case where firm evidence exists that the condition was not met at the time the driving licence was issued, to conduct further investigations exclusively in the issuing Member State, for example, with registration authorities, landlords, or employers, and to use those facts, provided that they have evidentiary force, alone or together with information from the issuing Member State or the holder of the driving licence himself?

---

(1)  OJ L 237, p. 1.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/12 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/12

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Action brought on 17 October 2008 — Commission of the European Communities v Ireland

(Case C-455/08)

(2009/C 32/20)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: G. Zavvos, M. Konstantinidis and D. Kukovec, Agents)

Defendant: Ireland

The applicant claims that the Court should:

| — | declare that, by way of Article 49 of S.I. No. 329 of 2006, the Irish transposition measure for Directive 2004/18/EC (1), and Article 51 of S.I. No 50 of 2007, the Irish transposition measure for Directive 2004/17/EC (2), Ireland has established the rules governing the notification of contracting authorities' and entities' award decisions and their reasoning to tenderers in such a way, which in practice may imply that by the time tenderers are fully informed of the reasons for the rejection of their offer, the standstill period for the conclusion of the contract has already expired; |
| --- | --- |

—

declare that, by way of Article 49 of S.I. No. 329 of 2006, the Irish transposition measure for Directive 2004/18/EC (1), and Article 51 of S.I. No 50 of 2007, the Irish transposition measure for Directive 2004/17/EC (2), Ireland has established the rules governing the notification of contracting authorities' and entities' award decisions and their reasoning to tenderers in such a way, which in practice may imply that by the time tenderers are fully informed of the reasons for the rejection of their offer, the standstill period for the conclusion of the contract has already expired;

| — | thereby, Ireland has failed to fulfil its obligations under Articles 1(1) and 2(1) of Directive 89/665/EEC (3) and Articles 1(1) and 2(1) of Directive 92/13/EEC (4) as interpreted by the European Court of Justice in its judgments handed down in case C-81/98 (5) (the ‘Alcatel judgment’) and in case C-212/02 (6) (‘Commission v Austria’). |
| --- | --- |

—

thereby, Ireland has failed to fulfil its obligations under Articles 1(1) and 2(1) of Directive 89/665/EEC (3) and Articles 1(1) and 2(1) of Directive 92/13/EEC (4) as interpreted by the European Court of Justice in its judgments handed down in case C-81/98 (5) (the ‘Alcatel judgment’) and in case C-212/02 (6) (‘Commission v Austria’).

| — | order Ireland to pay the costs of this action. |
| --- | --- |

—

order Ireland to pay the costs of this action.

Pleas in law and main arguments

Irish S.I. No 329

Article 49 of the Irish S.I. No 329, which is the Irish transposition measure of Directive 2004/18/EC, requires that tenderers be informed of the award decision by the most rapid means of communication as soon as practicable after the contracting authority took the decision. Calculated from the date on which tenderers were informed of the award decision, the standstill period which needs to elapse before the conclusion of the contract must be at least 14 days.

However, under the Irish law, the contracting authority is required to give the reasons for the rejection of a tender only when it receives such a request. The contracting authority must provide the reasons ‘as soon as possible and in any event no later than 15 days’. In the Commission's view, this means that the standstill period may have already lapsed by the time an unsuccessful tenderer is fully informed of the reasons for the rejection of his offer.

In order to comply with the requirements that derive from the case law of the Court of Justice in its Alcatel judgement and in Commission vs Austria it is essential to ensure that the award decision is reasoned in due time to allow it to be the subject of an effective appeal, undertaken within the standstill period. The Commission submits that the Irish rules are not in line with this requirement as they do not guarantee that tenderers are informed of the reasons for the rejection of their offer in due time and well before the expiry of the standstill period. This impedes the tenderers' right to effective legal remedies, as required by Directive 89/665/EEC.

Irish S.I. No 50 of 2007

According to article 51 of S.I. No 50 of 2007, which is the Irish transposition measure of directive 2004/17/EC, when contracting entities notify tenderers of the award decision they must indicate to the unsuccessful tenderers the ‘principal reason, or reasons, why the tender is not the selected tender’. The ‘characteristics and the relative advantages of the selected tender’ shall be communicated by the contracting entity to the unsuccessful tenderers ‘as soon as practicable, and in any case within 15 days’ after receiving a request to do so. The standstill period is 14 days, calculated from the notification of the award decision. In the Commission's view this means that the standstill period might already have lapsed by the time an unsuccessful tenderer is fully informed of the reasons for the rejection of his offer.

The Commission submits that, regarding award procedures covered by directives 2004/17/EC and 92/13/EEC, the Irish legislation establishes the rules for the notification of tenderers in a manner that restricts the unsuccessful tenderers' right to effective legal remedies and is not in conformity with the remedies directives in force, directives 89/665/EEC and 92/13/EEC, as interpreted by the Court of Justice.

---

(1)  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 work contracts, public supply contracts and public service contracts (OJ L 134, p. 114).

(2)  Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ L 134, p. 1).

(3)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, p. 33).

(4)  Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, p. 14).

(5)  C-81/98 — Alcatel Austria AG and others, Siemens AG Österreich, Sag-Schrack Anlagentechnik AK v. Bundesministerium für Wissenschaft und Verkehr — judgment of 28 October 1999.

(6)  C-212/02 — Commission v Republic of Austria — judgment of 24 June 2004.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/13 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/13

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Action brought on 4 November 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-474/08)

(2009/C 32/21)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and B. Schima, Agents)

Defendant: Kingdom of Belgium

Form of order sought

The applicant claims that the Court should:

| — | declare that,
  by failing to provide that cases of refusal of access to the distribution or transmission network can be submitted to the regulatory authority which will rule by binding decision within two months, in accordance with Article 23(5) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (1),
  by removing certain issues which are decisive for the calculation of tariffs from the competence of the regulatory authority as set out in Article 23(2) of Directive 2003/54/EC,
  the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that,

by failing to provide that cases of refusal of access to the distribution or transmission network can be submitted to the regulatory authority which will rule by binding decision within two months, in accordance with Article 23(5) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (1),

by removing certain issues which are decisive for the calculation of tariffs from the competence of the regulatory authority as set out in Article 23(2) of Directive 2003/54/EC,

the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

—

order Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission submits, first, that the transposition into Belgian law of Article 23(5) of Directive 2003/54/EC has not been carried out. The relevant provisions of Belgian law relating to the organisation of the electricity market are in fact so general that they do not enable it to be ascertained with any certainty whether there is an individual right of action against decisions to refuse access to the electricity distribution or transmission network. Those provisions do not set out an exact procedural framework and do not provide for a time-limit as regards the response of the regulatory authority, in this case the Commission nationale de régulation de l'électricité (National Commission for the Regulation of Electricity; CRE).

The applicant secondly alleges that the defendant has infringed Article 23(2) of Directive 2003/54/EC in so far as it confers on the Crown, that is an authority other than the CRE, the power to set specific rules concerning the provision for depreciation and the profit margin relating to investments in the national interest and in European interest. That procedure is not compatible with the aforementioned article, since the regulatory authority does not seem to have any control in either of those situations over the methodology used to calculate or establish the tariffs for transmission and distribution.

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(1)  OJ L 176, p. 37.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/13 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/13

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Action brought on 5 November 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-475/08)

(2009/C 32/22)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and B. Schima, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

| — | declare that,
  by failing to designate the systems operators as required under Article 7 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (1),
  by providing for not only a regulated access but also a negotiated access of third parties to the system contrary to Article 18 of Directive 2003/55/EC, in conjunction with Article 25(2) thereof,
  by failing to transpose Article 22(3)(d) and (e) and (4) of Directive 2003/55/EC,
  the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that,

by failing to designate the systems operators as required under Article 7 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (1),

by providing for not only a regulated access but also a negotiated access of third parties to the system contrary to Article 18 of Directive 2003/55/EC, in conjunction with Article 25(2) thereof,

by failing to transpose Article 22(3)(d) and (e) and (4) of Directive 2003/55/EC,

the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission raises three complaints in support of its action.

First, it alleges that the defendant has not designated the systems operators for the transmission and storage of gas and liquefied natural gas terminals, as provided for in Articles 7 and 11 of Directive 2003/55/EC.

It is then alleged that the defendant creates legal uncertainty with regard to new entrants in so far as it gives the impression that the negotiated access to the system is an alternative to the regulated access. However, it is clear from Articles 18 and 25(2) of Directive 2003/55/EC that regulated access is the only possible means of access for third parties to the system and that the regulatory authority alone is responsible for fixing or approving prior to their entry into force, at least the methodologies used to calculate or establish the tariffs.

Finally, the Commission points out that, by exempting new large natural gas facilities from the application of the directive, the defendant has not correctly transposed Article 22(3)(d) of the directive, with respect to the requirement to publish the decision, and Article 22(3)(e) of the directive, concerning the obligation to consult the other Member States or regulatory authorities concerned by the interconnection of those infrastructures. Furthermore, the defendant has not made provision in its national law for the obligation to notify without delay such an exemption decision to the Commission, together with all the other relevant information with respect to that decision, as is provided for in Article 22(4) of the directive.

---

(1)  OJ 2003 L 176, p. 57.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/14 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/14

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Reference for a preliminary ruling from the Court of Appeal (Civil Division) (England and Wales) made on 7 November 2008 — Maria Teixeira v London Borough of Lambeth, Secretary of State for the Home Department

(Case C-480/08)

(2009/C 32/23)

Language of the case: English

Referring court

Court of Appeal (Civil Division)

Parties to the main proceedings

Applicant: Maria Teixeira

Defendants: London Borough of Lambeth, Secretary of State for the Home Department

Questions referred

In circumstances where (i) an EU citizen came to the United Kingdom (ii) the EU citizen was for certain periods a worker in the United Kingdom (iii) the EU citizen ceased to be a worker but did not depart from the United Kingdom, (iv) the EU citizen has not retained her status as a worker and has no right to reside under Article 7 and has no right of permanent residence under Article 16 of Directive 2004/38 (1) of the Council and the European Parliament (v) the EU citizen's child entered education at a time when the EU citizen was not a worker but the child remained in education in the United Kingdom during periods when the EU citizen was in work in the United Kingdom, (vi) the EU citizen is the primary carer of her child and (vii) the EU citizen and her child are not self-sufficient:

| (1) | does the EU citizen only enjoy a right of residence in the United Kingdom if she satisfies the conditions set out in Directive 2004/38 of the European Parliament and the Council of 29 April 2004?; |
| --- | --- |

(1)

does the EU citizen only enjoy a right of residence in the United Kingdom if she satisfies the conditions set out in Directive 2004/38 of the European Parliament and the Council of 29 April 2004?;

OR

| (2) | (i) | does the EU citizen enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968 (2), as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and |
| --- | --- | --- |

(2)

(i)

does the EU citizen enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968 (2), as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and

| (ii) | if so, must she have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?; |
| --- | --- |

(ii)

if so, must she have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;

| (iii) | if so, must the child have first entered education at a time when the EU citizen was a worker in order to enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, or is it sufficient that the EU citizen has been a worker at some time after the child commenced education?; |
| --- | --- |

(iii)

if so, must the child have first entered education at a time when the EU citizen was a worker in order to enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, or is it sufficient that the EU citizen has been a worker at some time after the child commenced education?;

| (iv) | does any right that the EU citizen has to reside, as the primary carer of a child in education, cease when her child attains the age of eighteen? |
| --- | --- |

(iv)

does any right that the EU citizen has to reside, as the primary carer of a child in education, cease when her child attains the age of eighteen?

| (3) | if the answer to question 1 is yes, is the position different in circumstances such as the present case where the child commenced education prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States but the mother did not become the primary carer and did not claim the right to reside on the basis that she was the primary carer of the child until March 2007, ie after the date by which the Directive was to be implemented? |
| --- | --- |

(3)

if the answer to question 1 is yes, is the position different in circumstances such as the present case where the child commenced education prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States but the mother did not become the primary carer and did not claim the right to reside on the basis that she was the primary carer of the child until March 2007, ie after the date by which the Directive was to be implemented?

---

(1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance) (OJ L 158, p. 77).

(2)  Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ L 257, p. 2).

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/15 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/15

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Action brought on 10 November 2008 — United Kingdom of Great Britain and Northern Ireland v Council of the European Union

(Case C-482/08)

(2009/C 32/24)

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: V. Jackson, Agent, T. Ward, Barrister)

Defendant: Council of the European Union

The applicant claims that the Court should:

| — | annul Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences (1); |
| --- | --- |

—

annul Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences (1);

| — | determine, following the annulment of the VIS Police Access Decision, that its provisions should remain effective, except in so far as they have the effect of excluding the United Kingdom from participating in the application of the VIS Police Access Decision; |
| --- | --- |

—

determine, following the annulment of the VIS Police Access Decision, that its provisions should remain effective, except in so far as they have the effect of excluding the United Kingdom from participating in the application of the VIS Police Access Decision;

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

—

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

Pleas in law and main arguments

The United Kingdom was denied the right to take part in the adoption of the VIS Police Access Decision on the grounds that the Council considered that the measure constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part — namely the common visa policy. As a consequence, the Council considers that the United Kingdom is not bound by the Decision or subject to its application.

The United Kingdom contends that the Council was wrong to conclude that the Decision constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part. The VIS Police Access Decision is not a development of the common visa policy, but rather, a police cooperation measure. Neither the aim nor the content of the VIS Police Access Decision relate to the common visa policy. Rather it is entirely concerned with the sharing of information entered by visa authorities with designated law enforcement authorities and Europol for the purpose of prevention, detection and investigation of terrorist offences and other serious offences. This is reflected in the Council's choice of legal basis, namely Articles 30(1)(b) and 34(2)(c) TEU.

The annulment of the VIS Police Access Decision is accordingly sought on the grounds that the exclusion of the United Kingdom from its adoption entails the infringement of an essential procedural requirement and/or the infringement of the Treaty, within the meaning of Article 35(6) EU.

---

(1)  OJ L 218, p. 129.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/15 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/15

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Appeal brought on 11 November 2008 by Claudia Gualtieri against the judgment of the Court of First Instance (Fourth Chamber) of 10 September 2008 in Case T-284/06 Gualtieri v Commission

(Case C-485/08 P)

(2009/C 32/25)

Language of the case: Italian

Parties

Appellant: Claudia Gualtieri (represented by: P. Gualtieri and M. Gualtieri, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | Dismiss all other claims, defences and pleas in law; |
| --- | --- |

—

Dismiss all other claims, defences and pleas in law;

| — | make the appropriate findings and orders; |
| --- | --- |

—

make the appropriate findings and orders;

| — | uphold the pleas in law concerning the various questions dealt with and grant each of the forms of order relating to them, which are repeated in full, in any event, herein; |
| --- | --- |

—

uphold the pleas in law concerning the various questions dealt with and grant each of the forms of order relating to them, which are repeated in full, in any event, herein;

| — | state the principles of law that the relationship between seconded national experts (‘SNE’) and the Commission of the European Communities is one of employment comparable to that of temporary staff and that the corresponding allowances paid to SNE are in the nature of remuneration; |
| --- | --- |

—

state the principles of law that the relationship between seconded national experts (‘SNE’) and the Commission of the European Communities is one of employment comparable to that of temporary staff and that the corresponding allowances paid to SNE are in the nature of remuneration;

| — | declare that, under Community law, there should be equal pay for equal work and that, in any event, the payment to married persons of any remuneration different from that paid to single or co-habiting persons gives rise to discrimination against members of a family as defined by law; |
| --- | --- |

—

declare that, under Community law, there should be equal pay for equal work and that, in any event, the payment to married persons of any remuneration different from that paid to single or co-habiting persons gives rise to discrimination against members of a family as defined by law;

| — | in the alternative, declare that the allowances under Article 17 of the Decision on SNE are payable in full to the appellant from the date of her separation in fact or from the lodgement of the divorce agreement before the Tribunal de Bruxelles; |
| --- | --- |

—

in the alternative, declare that the allowances under Article 17 of the Decision on SNE are payable in full to the appellant from the date of her separation in fact or from the lodgement of the divorce agreement before the Tribunal de Bruxelles;

| — | consequently set aside, in full or in part, the judgment under appeal delivered by the Court of First Instance of the European Communities on 10 September 2008 and served on the following day, and uphold and grant, in full or in part, the claims and forms of order sought at first instance and on appeal, or refer the case back to the Court of First Instance for it to make all necessary decisions on the merits; |
| --- | --- |

—

consequently set aside, in full or in part, the judgment under appeal delivered by the Court of First Instance of the European Communities on 10 September 2008 and served on the following day, and uphold and grant, in full or in part, the claims and forms of order sought at first instance and on appeal, or refer the case back to the Court of First Instance for it to make all necessary decisions on the merits;

| — | order the Commission of the European Communities to pay all the costs of the proceedings both at first instance and on appeal or, in the alternative, those of the proceedings at first instance. |
| --- | --- |

—

order the Commission of the European Communities to pay all the costs of the proceedings both at first instance and on appeal or, in the alternative, those of the proceedings at first instance.

Pleas in law and main arguments

First of all, it is indisputable and clear on the basis of all the provisions governing the legal status of SNE that the link with the administration of origin is suspended throughout the secondment, and that during that period the national expert is fully integrated into the Commission's organisation, for the exclusive benefit of which the expert is required to perform his or her specific duties, with the consequent obvious equiparation (more precisely: identity) of his or her legal position to that of staff (at least temporary staff) who are, in their turn, equiparated to officials as regards conditions of employment and matters of remuneration.

For that reason, and by virtue of the provisions of Article 141(2) EC (under which the concept of ‘pay’ includes any other consideration, whether in cash or in kind, which the worker receives directly or indirectly in respect of his employment, from his employer), which is a rule that takes precedence over Article 17 of the Decision on SNE, and of the Staff Regulations of officials and other servants of the European Union [sic] (third paragraph of Article 62: ‘remuneration shall comprise basic salary, family allowances and other allowances’), the corresponding allowances paid to SNE are in the nature of remuneration, like the equivalent allowances to which officials and other staff are entitled.

The appellant therefore submitted that there was a general principle enshrined, in Community and other law, that there should be equal pay for equal work, which is apparent from the provisions of Article 14 of the ECHR, from Directive 2000/43/EC (1) of 29 June 2000, from Directive 2000/78/EC (2) of 27 November 2000 and from Articles 3(2), 136, 137(1)(i) and 141(1) EC.

On the other hand, the interpretation followed by the Court of First Instance leads to two workers who perform the same work being paid unequally if the spouse of one of them is already resident in Brussels on the date of the act of secondment, causing serious discrimination against members of a family as defined by law, in spite of the strong protection which the family receives in national and international legislation, and the tendency of the laws of the various Member States, of the Staff Regulations (Article 1(1) and (2)(c) of Annex VII) and of the case-law of the European Court of Human Rights to equiparate cohabitation to it.

Moreover, the allowances should have been paid in full, at the very least, from the date of cessation of cohabitation, since there is no indication, in the rules, of the alleged necessity to refer to the starting point of the relationship, without taking account of later changes.

As regards the plea of illegality of Article 20 of the Decision on SNE, the appellant submitted, referring to Article 241 EC, that the grounds of fact and law on which that plea was based were set out in fully detailed and easily comprehensible fashion, so that the respondent had raised no objection, and that the reference to the said Article 241 EC was clearly intended to obtain, in any event, a decision on the disputed issues, even on the contested basis that the action was out of time.

In addition, the appellant withdrew the plea in law concerning breach of the principle of legitimate expectations and applied for variation of the decision on the costs of the proceedings, which, under Articles 87 and 88 of the Rules of Procedure of the Court of First Instance, should have been fully recovered. Finally, she asserted that the fact that the Court of First Instance had considered and decided the dispute on the merits was unequivocal recognition of the action's admissibility, which can no longer be put in issue at this stage.

Having stated the principles of law according to which the relationship between SNE and the Commission is one of employment, comparable to that of temporary staff, and that the allowances paid to SNE are remuneration, the appellant therefore claims that the Court should declare that, under Community law, there should be equal pay for equal work and that, in any event, the payment to married persons of any remuneration different from that paid to single or co-habiting persons leads to discrimination against members of a family as defined by law or, in the alternative, that the allowances under Article 17 of the Decision on SNE are payable in full to the appellant from the date of her separation in fact or from the lodgement of the divorce agreement before the Tribunal de Bruxelles.

---

(1)  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).

(2)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/17 |
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7.2.2009

EN

Official Journal of the European Union

C 32/17

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Appeal brought on 17 November 2008 by Prana Haus GmbH against the judgment of the Court of First Instance (Eighth Chamber) delivered on 17 September 2008 in Case T-226/07 Prana Haus GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-494/08 P)

(2009/C 32/26)

Language of the case: German

Parties

Appellant: Prana Haus GmbH (represented by: N. Hebeis, Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

| — | set aside the judgment of the Court of First Instance of the European Communities (Eighth Chamber) of 17 September 2008 in Case T-226/07 Prana Haus GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs); |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities (Eighth Chamber) of 17 September 2008 in Case T-226/07 Prana Haus GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs);

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

—

order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings.

Pleas in law and main arguments

The subject-matter of the dispute is the question whether the term ‘PRANAHAUS’ may be registered as a trade mark for the goods ‘recorded image and sound recording carriers of all kind; printed matter’ and for ‘retail services ... for essential commodities ...’. The Court of First Instance held that ‘PRANAHAUS’ was an indication directly and specifically describing the goods and services in question.

In its appeal, the appellant claims infringement of the absolute grounds for refusal of protection of a descriptive indication under Article 7(1)(c)of the Community Trade Mark Regulation.

According to the appellant, the Court of First Instance interpreted too broadly the legal term ‘to designate’ in Article 7(1)(c), contrary to the actual wording of the provision and the case-law of the Court of Justice. Furthermore, it erred in the assessment as to whether the designation ‘PRANAHAUS’ showed a sufficiently direct and specific relationship to the goods and services in question that the relevant public could ‘without further thought or analysis’ see in the term a ‘designation’ of the goods and services within the meaning of Article 7(1)(c). In doing so, the Court of First Instance failed to take into account the fact that several complex logical steps are required in order to identify even a hidden meaning in the term ‘PRANAHAUS’. In that context the Court of First Instance also failed to consider facts which would have had a bearing on the resolution of the case and as a result distorted the factual basis. Furthermore, the Court of First Instance failed to provide the required statement of reasons as regards the extent to which the term ‘PRANAHAUS’ could be considered to be descriptive of the specific goods and services. In addition, failing to have regard for the case-law of the Court of Justice, the Court of First Instance assumed that there was a need for the designation ‘PRANAHAUS’ to be kept free for competitors.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/17 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/17

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Action brought on 14 November 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-495/08)

(2009/C 32/27)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: P. Oliver and J.-B. Laignelot, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

| 1. | declare that by
  failing to provide that individual decisions not to carry out an environmental impact assessment pursuant to Article 4(2) of Council Directive 85/337/EEC (1) as amended must be supported by sufficient reasoning, and
  failing to make ROMP applications lodged in Wales prior to 15 November 2000 subject to the requirements of that Directive,
  the United Kingdom has failed to fulfil its obligations under that Directive. |
| --- | --- |

1.

declare that by

failing to provide that individual decisions not to carry out an environmental impact assessment pursuant to Article 4(2) of Council Directive 85/337/EEC (1) as amended must be supported by sufficient reasoning, and

failing to make ROMP applications lodged in Wales prior to 15 November 2000 subject to the requirements of that Directive,

the United Kingdom has failed to fulfil its obligations under that Directive.

| 2. | order the United Kingdom of Great Britain and Northern Ireland to bear the costs of the present proceedings. |
| --- | --- |

2.

order the United Kingdom of Great Britain and Northern Ireland to bear the costs of the present proceedings.

Pleas in law and main arguments

Under the United Kingdom legislation reasons must be given only if an Environmental Impact Assessment (EIA) is found to be necessary: if, for whatever reason, the relevant planning authority or the Secretary of State reaches the conclusion that no EIA is necessary, then nothing in the Regulations requires any reasons to be given in support of that conclusion. The Commission submits that individual decisions taken by Member States not to carry out an EIA pursuant to Article 4(2) to (4) of the directive must be supported by adequate reasoning.

Furthermore, the United Kingdom has not enacted legislation in Wales which would make Review of Mineral Planning (‘ROMP’) applications subject to the requirements of the directive.

---

(1)  Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (OJ L 175, p. 40).

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/18 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/18

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Action brought on 20 November 2008 — Commission of the European Communities v Republic of Malta

(Case C-508/08)

(2009/C 32/28)

Language of the case: Maltese

Parties

Applicant: Commission of the European Communities (represented by: J. Aquilina, K. Simonsson, acting as Agents)

Defendant: Republic of Malta

Form of order sought

| — | declare that, by signing an exclusive public service contract with ‘Gozo Channel Company Ltd’ (GCCL) on 16 April 2004, without having undertaken a prior call for tenders, the Republic of Malta has failed to fulfil its obligations, in particular under Articles 1 and 4 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (1); |
| --- | --- |

—

declare that, by signing an exclusive public service contract with ‘Gozo Channel Company Ltd’ (GCCL) on 16 April 2004, without having undertaken a prior call for tenders, the Republic of Malta has failed to fulfil its obligations, in particular under Articles 1 and 4 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (1);

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

—

order the Republic of Malta to pay the costs.

Pleas in law and main arguments

So as to be able to conclude a public service contract for the provision of cabotage services between Malta and Gozo, the Maltese authorities have to demonstrate that such a contract is necessary so as to impose those public service obligations that it deems necessary to ensure an appropriate service for the abovementioned route, and that the contract is adequate in the light of its aims.

While the Commission readily acknowledges that a satisfactory service is paramount for the Malta-Gozo route, it states on the other hand that the Maltese authorities have in no manner provided this proof; in this sense, they have not even sought to establish if one or more private operators were capable of providing this service on the same conditions on a purely commercial basis. In addition, they have not shown that the exclusivity given to GCCL is an appropriate and adequate means to achieve this end.

In addition, the fact that this contract was concluded without a prior open call for Community tenders, so as to ensure access on a non-discriminatory basis in respect of all Community shipowners, runs counter to the requirements of Regulation No 3577/92.

---

(1)  OJ 1992 L 364, p. 7.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/18 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/18

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Action brought on 21 November 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-509/08)

(2009/C 32/29)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: J. Sénéchal and I. Hadjiyiannis, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

| — | Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/108/EC of the European Parliament and of the Council of 15 December 2004 on the approximation of the laws of the Member States relating to electromagnetic compatibility and repealing Directive 89/336/EEC (1), and in any event, by not communicating them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/108/EC of the European Parliament and of the Council of 15 December 2004 on the approximation of the laws of the Member States relating to electromagnetic compatibility and repealing Directive 89/336/EEC (1), and in any event, by not communicating them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

| — | Order the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

—

Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposing Directive 2004/108/EC expired on 20 January 2007. At the date the present action was brought, the defendant had not yet adopted the necessary implementing measures or, in any event, it had not yet communicated them to the Commission.

---

(1)  OJ 2004 L 390, p. 24.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/19 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/19

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 25 November 2008 — Verbraucherzentrale Nordrhein-Westfalen e.V. v Handelsgesellschaft Heinrich Heine GmbH

(Case C-511/08)

(2009/C 32/30)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Verbraucherzentrale Nordrhein-Westfalen e.V.

Defendant: Handelsgesellschaft Heinrich Heine GmbH

Question referred

Are the provisions of Article 6(1), sentence 2, and Article 6(2) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (1) to be interpreted as precluding national legislation which allows the costs of delivering the goods to be charged to the consumer even where he has withdrawn from the contract?

---

(1)  OJ L 144, p. 19.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/19 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/19

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Appeal brought on 26 November 2008 by Luigi Marcuccio against the order of the Court of First Instance (Fourth Chamber) of 9 September 2008 in Case T-143/08 Marcuccio v Commission

(Case C-513/08 P)

(2009/C 32/31)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (represented by: G. Cipressa, avvocato)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | 1. In any event:






  (1.a) | Annul the order under appeal in its entirety; |
| --- | --- | --- |

—

1. In any event:

(1.a)

Annul the order under appeal in its entirety;

| (1.b) | Declare the original action to be fully admissible; |
| --- | --- |

(1.b)

Declare the original action to be fully admissible;

and in addition

| — | 2/A as a primary remedy: (2/A.1) annul the contested decision; (2/A.2) annul, in so far as necessary, calculation No 58; (2/A.3) annul, to the extent necessary, the decision to reject the complaint in full; (2/A.4) order the defendant to pay to the appellant, on an interim basis, the sum of EUR 324.09 or such higher or lower amount as the Court may deem to be just and equitable; (2A/.5) order the defendant, in so far as necessary, to pay to the appellant, in accordance with the applicable rules, the sum which is due to him but remains unpaid in respect of the cost of his medical examination of 28 September 2005; (2/A.6) order the defendant to pay to the appellant default interest on the amounts referred to at 2/A.4 and 2/A.5, for the period from the date on which they became due until the date of actual payment, to be determined in accordance with the applicable rules: (2/A.7) order the defendant to pay to the appellant all the costs and expenses of the proceedings;
  or |
| --- | --- |

—

2/A as a primary remedy: (2/A.1) annul the contested decision; (2/A.2) annul, in so far as necessary, calculation No 58; (2/A.3) annul, to the extent necessary, the decision to reject the complaint in full; (2/A.4) order the defendant to pay to the appellant, on an interim basis, the sum of EUR 324.09 or such higher or lower amount as the Court may deem to be just and equitable; (2A/.5) order the defendant, in so far as necessary, to pay to the appellant, in accordance with the applicable rules, the sum which is due to him but remains unpaid in respect of the cost of his medical examination of 28 September 2005; (2/A.6) order the defendant to pay to the appellant default interest on the amounts referred to at 2/A.4 and 2/A.5, for the period from the date on which they became due until the date of actual payment, to be determined in accordance with the applicable rules: (2/A.7) order the defendant to pay to the appellant all the costs and expenses of the proceedings;

or

| — | 2/B. in the alternative, to refer the case back to the Court of First Instance for a fresh decision. |
| --- | --- |

—

2/B. in the alternative, to refer the case back to the Court of First Instance for a fresh decision.

Pleas in law and main arguments

| 1. | Distortion and misrepresentation of the facts and the statements of the appellant in his written pleadings, arising also from the material inaccuracy of the findings of the Court of First Instance (in particular, paragraphs 36, 38, 39 and 41 of the order under appeal). |
| --- | --- |

1.

Distortion and misrepresentation of the facts and the statements of the appellant in his written pleadings, arising also from the material inaccuracy of the findings of the Court of First Instance (in particular, paragraphs 36, 38, 39 and 41 of the order under appeal).

| 2. | Misinterpretation and misapplication of the concept of a challengeable act, and, in addition, confusion, irrationality, illogicality, infringement of Article 231 of the EC Treaty and failure to have regard to the case-law relating to the effects of the annulment by the Community judicature of a decision issued by a Community institution, infringement of the principle of res judicata and infringement of the principle of the separation of powers (in particular, paragraphs 39 and 41 of the order under appeal). |
| --- | --- |

2.

Misinterpretation and misapplication of the concept of a challengeable act, and, in addition, confusion, irrationality, illogicality, infringement of Article 231 of the EC Treaty and failure to have regard to the case-law relating to the effects of the annulment by the Community judicature of a decision issued by a Community institution, infringement of the principle of res judicata and infringement of the principle of the separation of powers (in particular, paragraphs 39 and 41 of the order under appeal).

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/20 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/20

---

Reference for a preliminary ruling from the Tribunal de première instance de Namur (Belgium) lodged on 26 November 2008 — Atenor Group SA v Belgian State — SPF Finances

(Case C-514/08)

(2009/C 32/32)

Language of the case: French

Referring court

Tribunal de première instance de Namur

Parties to the main proceedings

Applicant: Atenor Group SA

Defendant: Belgian State — SPF Finances

Question referred

Does the first indent of Article 4 of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (1) preclude national legislation making the deduction of dividends received as definitively taxed income subject to the existence of a taxable profit of the parent company?

---

(1)  OJ 1990 L 225, p. 6.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/20 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/20

---

Action brought on 25 November 2008 — Commission of the European Communities v Republic of Poland

(Case C-516/08)

(2009/C 32/33)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: M. Kaduczak and P. Dejmek, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by not adopting the laws, regulations and administrative provisions necessary to implement Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis (1), and in any event by not informing the Commission of the adoption of those provisions, the Republic of Poland has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to implement Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis (1), and in any event by not informing the Commission of the adoption of those provisions, the Republic of Poland has failed to fulfil its obligations under that directive;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2006/70/EC expired on 15 December 2007.

---

(1)  OJ L 214 of 4.8.2006, p. 29.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/20 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/20

---

Reference for a preliminary ruling from the Tribunal de grande instance de Paris (France) lodged on 27 November 2008 — Fundació Gala-Salvador Dalí, Visual Entidad de Gestión de Artistas Plásticos v Société des Auteurs dans les arts graphiques et plastiques, Juan-Leonardo Bonet Domenech, Eulalia-María Bas Dalí, María Del Carmen Domenech Biosca, Antonio Domenech Biosca, Ana-María Busquets Bonet, Mónica Busquets Bonet

(Case C-518/08)

(2009/C 32/34)

Language of the case: French

Referring court

Tribunal de grande instance de Paris

Parties to the main proceedings

Applicants: Fundació Gala-Salvador Dalí, Visual Entidad de Gestión de Artistas Plásticos

Defendants: Société des Auteurs dans les arts graphiques et plastiques, Juan-Leonardo Bonet Domenech, Eulalia-María Bas Dalí, María del Carmen Domenech Biosca, Antonio Domenech Biosca, Ana-María Busquets Bonet, Mónica Busquets Bonet

Questions referred

| 1. | Can France, subsequent to [Directive 2001/84/EC] of 27 September 2001 (1), retain a resale right allowed only to the heirs to the exclusion of legatees or successors in title? |
| --- | --- |

1.

Can France, subsequent to [Directive 2001/84/EC] of 27 September 2001 (1), retain a resale right allowed only to the heirs to the exclusion of legatees or successors in title?

| 2. | Do the transitional provisions of Article 8(2) and (3) of [Directive 2001/84/EC] of 27 September 2001 allow France to have a derogation? |
| --- | --- |

2.

Do the transitional provisions of Article 8(2) and (3) of [Directive 2001/84/EC] of 27 September 2001 allow France to have a derogation?

---

(1)  Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art (OJ L 272, p. 32).

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/21 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/21

---

Action brought on 27 November 2008 — Commission of the European Communities v Ireland

(Case C-521/08)

(2009/C 32/35)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and A.A. Gilly, Agents)

Defendant: Ireland

The applicant claims that the Court should:

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to fully comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1), or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to fully comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1), or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive;

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

—

order Ireland to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 20 October 2007.

---

(1)  OJ L 255, p. 22.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/21 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/21

---

Appeal brought on 28 November 2008 by Luigi Marcuccio against the order of the Court of First Instance (Fourth Chamber) of 9 September 2008 in Case T-144/08 Marcuccio v Commission

(Case C-528/08 P)

(2009/C 32/36)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (represented by: G. Cipressa, avvocato)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | 1. In any event:






  (1.a) | Annul the order under appeal in its entirety; |
| --- | --- | --- |

—

1. In any event:

(1.a)

Annul the order under appeal in its entirety;

| (1.b) | Declare the original action to be fully admissible; |
| --- | --- |

(1.b)

Declare the original action to be fully admissible;

and in addition:

| — | 2/A as a primary remedy: (2/A.1) annul the contested decision; (2/A.2) annul, in so far as necessary, the statement of reimbursement of 18 July 2005; (2/A.3) annul, to the extent necessary, the decision to reject the complaint in full; (2/A.4) order the defendant to pay to the appellant, by way of reimbursement of the additional sum needed to make up 100 %, with a view to obtaining repayment in full, of the medical expenses at issue, or by way of compensation for the damage arising as a result of the defendant's unlawful conduct, to pay to the appellant the sum of EUR 89,56 or such higher or lower amount as the Court may deem to be just and equitable; (2A/.5) order the defendant to pay to the appellant default interest on the amount referred to at 2/A.4 for the period from the date on which it became due until the date of actual payment, to be determined in accordance with the applicable rules; (2/A.6) order the defendant to pay to the appellant all the costs and expenses of the proceedings;
  or |
| --- | --- |

—

2/A as a primary remedy: (2/A.1) annul the contested decision; (2/A.2) annul, in so far as necessary, the statement of reimbursement of 18 July 2005; (2/A.3) annul, to the extent necessary, the decision to reject the complaint in full; (2/A.4) order the defendant to pay to the appellant, by way of reimbursement of the additional sum needed to make up 100 %, with a view to obtaining repayment in full, of the medical expenses at issue, or by way of compensation for the damage arising as a result of the defendant's unlawful conduct, to pay to the appellant the sum of EUR 89,56 or such higher or lower amount as the Court may deem to be just and equitable; (2A/.5) order the defendant to pay to the appellant default interest on the amount referred to at 2/A.4 for the period from the date on which it became due until the date of actual payment, to be determined in accordance with the applicable rules; (2/A.6) order the defendant to pay to the appellant all the costs and expenses of the proceedings;

or

| — | 2/B. in the alternative, to refer the case back to the Court of First Instance for a fresh decision. |
| --- | --- |

—

2/B. in the alternative, to refer the case back to the Court of First Instance for a fresh decision.

Pleas in law and main arguments

| 1. | Distortion and misrepresentation of the facts and the statements of the appellant in his pleadings, arising also from the material inaccuracy of the findings of the Court of First Instance (in particular, paragraphs 29, 31, 34 and 38 of the order under appeal). |
| --- | --- |

1.

Distortion and misrepresentation of the facts and the statements of the appellant in his pleadings, arising also from the material inaccuracy of the findings of the Court of First Instance (in particular, paragraphs 29, 31, 34 and 38 of the order under appeal).

| 2. | Misinterpretation and misapplication of the concept of a challengeable act, and, in addition, confusion, irrationality, illogicality, infringement of Article 231 of the EC Treaty and failure to have regard to the case-law relating to the effects of the annulment by the Community judicature of a decision issued by a Community institution, infringement of the principle of res judicata and infringement of the principle of the separation of powers (in particular, paragraphs 32 and 34 of the order under appeal). |
| --- | --- |

2.

Misinterpretation and misapplication of the concept of a challengeable act, and, in addition, confusion, irrationality, illogicality, infringement of Article 231 of the EC Treaty and failure to have regard to the case-law relating to the effects of the annulment by the Community judicature of a decision issued by a Community institution, infringement of the principle of res judicata and infringement of the principle of the separation of powers (in particular, paragraphs 32 and 34 of the order under appeal).

| 3. | Misinterpretation and misapplication of Articles 90 and 91 of the Statute and of the concept of decisions issued by a Community institution. |
| --- | --- |

3.

Misinterpretation and misapplication of Articles 90 and 91 of the Statute and of the concept of decisions issued by a Community institution.

| 4. | Infringement of the legally-binding principle of natural justice and errors of procedure so serious as to result in the rights of the appellant being infringed, in particular the rights of the defence and the right to a just and equitable hearing. |
| --- | --- |

4.

Infringement of the legally-binding principle of natural justice and errors of procedure so serious as to result in the rights of the appellant being infringed, in particular the rights of the defence and the right to a just and equitable hearing.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/22 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/22

---

Action brought on 2 December 2008 — Commission of the European Communities v Ireland

(Case C-532/08)

(2009/C 32/37)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek, A.A. Gilly, Agents)

Defendant: Ireland

The applicant claims that the Court should:

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC (1) of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC (1) of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive;

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

—

order Ireland to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 15 December 2007.

---

(1)  OJ L 309, p. 15.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/22 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/22

---

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 3 December 2008 — Maria Catena Rita Pignatoro v Ufficio Centrale Circoscrizionale c/o Tribunale di Catania and Others

(Case C-535/08)

(2009/C 32/38)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Sicilia

Parties to the main proceedings

Applicant: Maria Catena Rita Pignatoro

Defendants: Ufficio Centrale Circoscrizionale c/o Tribunale di Catania and Others

Questions referred

| 1. | Whether or not Article 6 of the EU Treaty, Article 3 of the First Additional Protocol to the ECHR, implemented by Law No 848 of 1955, Article 2 of Protocol No 4 to the ECHR, and Article 25 of the International Covenant for Civil and Political Rights, implemented by Law No 881 of 1977, are to be interpreted as compatible with the regional rules laid down in Articles 1c, 14a(13)(c), 15(3)(d), 16a(7)(a) and 17b(4)(b) and (c) of Regional Law No 29 of 1951, which exclude citizens who were not resident in Sicily at the time at which nominations were put forward from eligibility for election to the Sicilian Regional Assembly. |
| --- | --- |

1.

Whether or not Article 6 of the EU Treaty, Article 3 of the First Additional Protocol to the ECHR, implemented by Law No 848 of 1955, Article 2 of Protocol No 4 to the ECHR, and Article 25 of the International Covenant for Civil and Political Rights, implemented by Law No 881 of 1977, are to be interpreted as compatible with the regional rules laid down in Articles 1c, 14a(13)(c), 15(3)(d), 16a(7)(a) and 17b(4)(b) and (c) of Regional Law No 29 of 1951, which exclude citizens who were not resident in Sicily at the time at which nominations were put forward from eligibility for election to the Sicilian Regional Assembly.

| 2. | Whether Articles 17 EC and 18 EC (formerly Article 8A of the EC Treaty) preclude or are compatible with the regional rules referred to in paragraph 4.1. |
| --- | --- |

2.

Whether Articles 17 EC and 18 EC (formerly Article 8A of the EC Treaty) preclude or are compatible with the regional rules referred to in paragraph 4.1.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/22 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/22

---

Action brought on 9 December 2008 — Commission of the European Communities v Kingdom of Sweden

(Case C-546/08)

(2009/C 32/39)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek and M. Sundén, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 (1) on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing or, in any event, by failing to notify the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 (1) on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing or, in any event, by failing to notify the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The time-limit for implementation of the Directive expired on 15 December 2007.

---

(1)  OJ L 309, p. 15.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/23 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/23

---

Action brought on 9 December 2008 — Commission of the European Communities v Kingdom of Sweden

(Case C-547/08)

(2009/C 32/40)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek and M. Sundén, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/70/EC of 1 August 2006 (1) laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of ‘politically exposed person’ and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis or, in any event, by failing to notify the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/70/EC of 1 August 2006 (1) laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of ‘politically exposed person’ and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis or, in any event, by failing to notify the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The time-limit for implementation of the Directive expired on 15 December 2007.

---

(1)  OJ L 214, p. 29.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/23 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/23

---

Action brought on 9 December 2008 — Commission of the European Communities v Kingdom of Sweden

(Case C-548/08)

(2009/C 32/41)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: H. Stølvbæk and U. Jonsson, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 (1) on the recognition of professional qualifications or, in any event, by failing to notify the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 (1) on the recognition of professional qualifications or, in any event, by failing to notify the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The time-limit for implementation of the Directive expired on 20 October 2007.

---

(1)  OJ L 255, p. 22.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/23 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/23

---

Action brought on 16 December 2008 — Commission of the European Communities v Kingdom of Sweden

(Case C-555/08)

(2009/C 32/42)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek and K. Nyberg, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 (1) on cross-border mergers of limited liability companies with regard to financial companies needing support from a public source, in particular banks and insurance companies, the Kingdom of Sweden has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 (1) on cross-border mergers of limited liability companies with regard to financial companies needing support from a public source, in particular banks and insurance companies, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The time-limit for implementation of the Directive expired on 15 December 2007.

---

(1)  OJ L 310, p. 1.

---

Court of First Instance

| 7.2.2009 | EN | Official Journal of the European Union | C 32/24 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/24

---

Judgment of the Court of First Instance (Seventh Chamber) of 10 December 2008 — Nardone v Commission

(Case T-57/99) (1)

(Staff case - Officials - Action for damages - Occupational disease - Exposure to asbestos and other substances)

(2009/C 32/43)

Language of the case: French

Parties

Applicant: Albert Nardone (Piétrain, Belgium) (represented initially by G. Vandersanden and L. Levi, lawyers, then by L. Levi)

Defendant: Commission of the European Communities (represented by: J. Currall, agent, and J. L. Fagnart, lawyer)

Re:

Application for compensation for damage allegedly suffered by the applicant due to the wrongful conduct of the Commission in exposing the applicant to an atmosphere filled with dust and contaminated by asbestos.

Operative part of the judgment

The Court:

| 1. | orders the Commission to pay to Mr Albert Nardone damages of EUR 66 000; |
| --- | --- |

1.

orders the Commission to pay to Mr Albert Nardone damages of EUR 66 000;

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

2.

dismisses the action as to the remainder;

| 3. | orders each party to bear its own costs. |
| --- | --- |

3.

orders each party to bear its own costs.

---

(1)  OJ C 160, 5.6.1999.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/24 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/24

---

Judgment of the Court of First Instance of 10 December 2008 — Kronoply and Kronotex v Commission

(Case T-388/02) (1)

(State aid - Commission decision not to raise objections - Action for annulment - Time-limit for bringing proceedings - Publication of a summary notice - No significant effect on the competitive position - Inadmissibility - Status as party concerned - Admissibility - Failure to initiate the formal investigation procedure - No serious difficulties)

(2009/C 32/44)

Language of the case: German

Parties

Applicants: Kronoply GmbH & Co. KG (Heiligengrabe, Germany); and Kronotex GmbH & Co. KG (Heiligengrabe) (represented initially by: R. Nierer, subsequently by R. Nierer and L. Gordalla, lawyers)

Defendant: Commission of the European Communities (represented by: V. Kreuschitz and M. Niejahr, subsequently by V. Kreuschitz, Agents)

Interveners in support of the defendant: Zellstoff Stendal GmbH (Arneburg, Germany) (represented by: T. Müller-Ibold and K.U. Karl, subsequently by T. Müller-Ibold, lawyers); Federal Republic of Germany (represented by: W.D. Plessing and M. Lumma, Agents); and Land Sachsen-Anhalt (Germany) (represented by: C. von Donat and G. Quardt, lawyers)

Re:

Annulment of the Commission's decision of 19 June 2002 to raise no objections to aid granted by the German authorities to Zellstoff Stendal for the construction of a production plant for pulp.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG to bear their own costs and to pay those incurred by the Commission of the European Communities and by Zellstoff Stendal GmbH and Land Sachsen-Anhalt. |
| --- | --- |

2.

Orders Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG to bear their own costs and to pay those incurred by the Commission of the European Communities and by Zellstoff Stendal GmbH and Land Sachsen-Anhalt.

| 3. | Orders the Federal Republic of Germany to bear its own costs. |
| --- | --- |

3.

Orders the Federal Republic of Germany to bear its own costs.

---

(1)  OJ C 44, 22.2.2003.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/25 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/25

---

Judgment of the Court of First Instance of 17 December 2008 — Ryanair v Commission

(Case T-196/04) (1)

(State aid - Agreements entered into by the Walloon Region and the Brussels South Charleroi airport with the airline Ryanair - Existence of an economic advantage - Application of the private investor in a market economy test)

(2009/C 32/45)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented: initially by D. Gleeson, A. Collins, SC, V. Power and D. McCann, Solicitors, and subsequently by V. Power and D. McCann, J. Swift, QC, J. Holmes, Barrister, and G. Berrisch, lawyer)

Defendant: Commission of the European Communities (represented by: N. Khan, acting as Agent)

Intervener in support of the defendant: Association of European Airlines (AEA) (represented by: S. Völcker, F. Louis and J. Heithecker, lawyers)

Re:

Application for annulment of the Commission Decision of 12 February 2004 concerning advantages granted by the Walloon Region and Brussels South Charleroi Airport to the airline Ryanair in connection with its establishment at Charleroi (OJ 2004 L 137, p. 1).

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision 2004/393/EC of 12 February 2004 concerning advantages granted by the Walloon Region and Brussels South Charleroi Airport to the airline Ryanair in connection with its establishment at Charleroi; |
| --- | --- |

1.

Annuls Commission Decision 2004/393/EC of 12 February 2004 concerning advantages granted by the Walloon Region and Brussels South Charleroi Airport to the airline Ryanair in connection with its establishment at Charleroi;

| 2. | Orders the Commission to bear its own costs and to pay those of Ryanair Ltd; |
| --- | --- |

2.

Orders the Commission to bear its own costs and to pay those of Ryanair Ltd;

| 3. | Orders the Association of European Airlines (AEA) to bear its own costs. |
| --- | --- |

3.

Orders the Association of European Airlines (AEA) to bear its own costs.

---

(1)  OJ C 228, 11.9.2004.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/25 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/25

---

Judgment of the Court of First Instance of 17 December 2008 — HEG and Graphite India v Council

(Case T-462/04) (1)

(Common commercial policy - Anti-dumping duties - Countervailing duties - Imports of certain graphite electrode systems originating in India - Rights of the defence - Equal treatment - Determination of injury - Causal link)

(2009/C 32/46)

Language of the case: English

Parties

Applicants: HEG Ltd (New Delhi, India); and Graphite India Ltd (Kolkata, India) (represented: initially by K. Adamantopoulos, lawyer, and J. Branton, Solicitor, and subsequently by J. Branton)

Defendant: Council of the European Union (represented by: J.-P. Hix, acting as Agent, assisted by G. Berrisch, lawyer)

Intervener in support of the defendant: Commission of the European Communities (represented by: T. Scharf and K. Talabér-Ritz, acting as Agents)

Re:

Application for annulment of Council Regulation (EC) No 1628/2004 of 13 September 2004 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain graphite electrode systems originating in India (OJ 2004 L 295, p. 4) and of Council Regulation (EC) No 1629/2004 of 13 September 2004 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain graphite electrode systems originating in India (OJ 2004 L 295, p. 10).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders HEG Ltd and Graphite India Ltd to bear their own costs and to pay the costs of the Council; |
| --- | --- |

2.

Orders HEG Ltd and Graphite India Ltd to bear their own costs and to pay the costs of the Council;

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

3.

Orders the Commission to bear its own costs.

---

(1)  OJ C 69, 19.3.2005.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/26 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/26

---

Judgment of the Court of First Instance of 10 December 2008 — JTEKT v OHIM (IFS)

(Case T-462/05) (1)

(Community trade mark - Application for a Community word mark IFS - Absolute grounds for refusal - Not descriptive - Article 7(1)(c) of Regulation (EC) No 40/94)

(2009/C 32/47)

Language of the case: English

Parties

Applicant: JTEKT Corp., formerly Toyoda Koki Kabushiki Kaisha (Aichi-ken, Japan) (represented by: initially by J. Wachinger and M. Zöbisch, and subsequently by M. De Zorti, M. Koch and T. Grimm, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 14 September 2005 (Case R 1157/2004-1) concerning an application to register the word mark IFS as a Community trade mark.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 September 2005 (Case R 1157/2004-1); |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 September 2005 (Case R 1157/2004-1);

| 2. | Orders OHIM to bear its own costs and to pay those incurred by JTEKT Corp. |
| --- | --- |

2.

Orders OHIM to bear its own costs and to pay those incurred by JTEKT Corp.

---

(1)  OJ C 74, 25.3.2006.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/26 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/26

---

Judgment of the Court of First Instance of 11 December 2008 — Tomorrow Focus v OHIM — Information Builders (Tomorrow Focus)

(Case T-90/06) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark Tomorrow Focus - Earlier Community figurative mark FOCUS - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 32/48)

Language of the case: German

Parties

Applicant: Tomorrow Focus AG (Munich, Germany) (represented initially by U. Gürtler, then by J. Berlinger)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by G. Schneider, then by G. Schneider and S. Schäffner, agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Information Builders (Netherlands) BV (Amstelveen, Netherlands)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 17 January 2006 (Case R 116/2005-1) relating to opposition proceedings between Information Builders (Netherlands) BV and Tomorrow Focus AG.

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders Tomorrow Focus AG to pay the costs. |
| --- | --- |

2.

orders Tomorrow Focus AG to pay the costs.

---

(1)  OJ C 108, 6.5.2006.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/27 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/27

---

Judgment of the Court of First Instance of 16 December 2008 — Budějovický Budvar v OHIM — Anheuser-Busch (BUD)

(Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06) (1)

(Community trade mark - Opposition proceedings - Applications for Community word and figurative marks BUD - Appellations ‘bud’ - Relative grounds for refusal - Article 8(4) of Regulation (EC) No 40/94)

(2009/C 32/49)

Language of the case: English

Parties

Applicant: Budějovický Budvar, národní podnik (Česke Budějovice, Czech Republic) (represented by: F. Fajgenbaum and C. Petsch, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Anheuser-Busch, Inc. (Saint Louis, Missouri, United States) (represented: initially by V. von Bomhard, A. Renck, B. Goebel and A. Pohlmann, and subsequently by V. von Bomhard, A. Renck and B. Goebel, lawyers)

Re:

Actions brought against decisions of the Second Board of Appeal of OHIM of 14 June 2006 (Case R 234/2005-2), 28 June 2006 (Cases R 241/2005-2 and R 802/2004-2) and 1 September 2006 (Case R 305/2005-2) relating to opposition proceedings between Budějovický Budvar, národní podnik and Anheuser-Busch, Inc.

Operative part of the judgment

The Court:

| 1. | Orders the joinder of Cases T-225/06, T-255/06, T-257/06 and T-309/06 for the purposes of the judgment; |
| --- | --- |

1.

Orders the joinder of Cases T-225/06, T-255/06, T-257/06 and T-309/06 for the purposes of the judgment;

| 2. | Annuls the decisions of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs (OHIM) of 14 June (Case R 234/2005-2), 28 June (Cases R 241/2005-2 and R 802/2004-2) and 1 September 2006 (Case R 305/2005-2) relating to opposition proceedings between Budějovický Budvar, národní podnik and Anheuser-Busch, Inc.; |
| --- | --- |

2.

Annuls the decisions of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs (OHIM) of 14 June (Case R 234/2005-2), 28 June (Cases R 241/2005-2 and R 802/2004-2) and 1 September 2006 (Case R 305/2005-2) relating to opposition proceedings between Budějovický Budvar, národní podnik and Anheuser-Busch, Inc.;

| 3. | Orders OHIM to bear its own costs and to pay two thirds of the costs of Budějovický Budvar, národní podnik; |
| --- | --- |

3.

Orders OHIM to bear its own costs and to pay two thirds of the costs of Budějovický Budvar, národní podnik;

| 4. | Orders Anheuser-Busch to bear its own costs and to pay one third of the costs of Budějovický Budvar, národní podnik. |
| --- | --- |

4.

Orders Anheuser-Busch to bear its own costs and to pay one third of the costs of Budějovický Budvar, národní podnik.

---

(1)  OJ C 261, 28.10.2006.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/27 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/27

---

Judgment of the Court of First Instance of 10 December 2008 — Giorgio Beverly Hills v OHIM — WHG (GIORGIO BEVERLY HILLS)

(Case T-228/06) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark GIORGIO BEVERLY HILLS - Earlier national word mark GIORGIO - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 32/50)

Language of the case: English

Parties

Applicant: Giorgio Beverly Hills, Inc. (Cincinnati, Ohio, United States) (represented by: M. Schaeffer, and subsequently by K. Sandberg, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Laitinen and G. Schneider, Agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: WHG Westdeutsche Handelsgesellschaft mbH (Hagen, Germany) (represented by: H. Prange, lawyer)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 21 June 2006 (Joined Cases R 107/2005-2 and R 187/2005-2), concerning opposition proceedings between WHG Westdeutsche Handelsgesellschaft mbH and Giorgio Beverly Hills, Inc.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 21 June 2006 (Cases R 107/2005-2 and R 187/2005-2) in so far as it dismissed the appeal in Case R 187/2005-2; |
| --- | --- |

1.

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 21 June 2006 (Cases R 107/2005-2 and R 187/2005-2) in so far as it dismissed the appeal in Case R 187/2005-2;

| 2. | Orders OHIM to bear its own costs and to pay those incurred by Giorgio Beverly Hills, Inc. during the proceedings before the Court of First Instance; |
| --- | --- |

2.

Orders OHIM to bear its own costs and to pay those incurred by Giorgio Beverly Hills, Inc. during the proceedings before the Court of First Instance;

| 3. | Orders WHG Westdeutsche Handelsgesellschaft mbH to bear its own costs and to pay those incurred by Giorgio Beverly Hills for the purposes of the proceedings before the Board of Appeal of OHIM. |
| --- | --- |

3.

Orders WHG Westdeutsche Handelsgesellschaft mbH to bear its own costs and to pay those incurred by Giorgio Beverly Hills for the purposes of the proceedings before the Board of Appeal of OHIM.

---

(1)  OJ C 249, 14.10.2006.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/28 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/28

---

Judgment of the Court of First Instance of 16 December 2008 — Torres v OHIM — Navisa Industrial Vinícola Española (MANSO DE VELASCO)

(Case T-259/06) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark MANSO DE VELASCO - Earlier national word mark VELASCO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 32/51)

Language of the case: Spanish

Parties

Applicant: Miguel Torres, SA (Vilafranca del Penedés, Spain) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Navisa Industrial Vinícola Española, SA (Montilla, Spain)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 29 June 2006 (Case R 865/2005-1) relating to opposition proceedings between Navisa Industrial Vinícola Española, SA and Miguel Torres, SA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Miguel Torres SA to pay the costs. |
| --- | --- |

2.

Orders Miguel Torres SA to pay the costs.

---

(1)  OJ C 29, 2.12.2006.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/28 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/28

---

Judgment of the Court of First Instance of 11 December 2008 — Greece v Commission

(Case T-339/06) (1)

(Agriculture - Common organisation of the market in wine - Aid for the restructuring and conversion of vineyards - Regulation (EC) No 1493/1999 - Fixing of the definitive financial allocations made to Member States - Decision 2006/669/EC - Binding nature of the time-limit in Article 16(1) of Regulation (EC) No 1227/2000 - Principles of cooperation in good faith, good faith and sound administration, proportionality and effectiveness)

(2009/C 32/52)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: I. Chalkias and S. Papaioannou, acting as Agents)

Defendant: Commission of the European Communities (represented by: H. Tserepa-Lacombe, M. Konstantinidis and F. Jimeno Fernández, acting as Agents)

Re:

Application for annulment of Commission Decision 2006/669/EC of 4 October 2006 fixing, for the 2006 financial year and in respect of a certain number of hectares, the definitive financial allocations to Member States for the restructuring and conversion of vineyards under Council Regulation (EC) No 1493/1999 (OJ 2006 L 275, p. 62)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 326, 30.12.2006.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/29 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/29

---

Judgment of the Court of First Instance of 10 December 2008 — Bateaux Mouches v OHIM — Castanet (BATEAUX MOUCHES)

(Case T-365/06) (1)

(Community trade mark - Invalidity proceedings - Community word mark BATEAUX MOUCHES - Absolute grounds for refusal - Lack of distinctive character - Article 7(1)(b) and Article 51(1) of Regulation (EC) No 40/94 - Lack of distinctive character acquired through use - Article 7(3) and Article 51(2) of Regulation (EC) No 40/94)

(2009/C 32/53)

Language of the case: French

Parties

Applicant: Compagnie des bateaux mouches SA (Paris, France) (represented by: D. de Leusse, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Jean-Noël Castanet (Munich, Germany) (represented by: J. Sulzer, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 7 September 2006 (Case R 1172/2005-1) relating to invalidity proceedings between Jean-Noël Castanet and the Compagnie des bateaux mouches SA.

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders the Compagnie des bateaux mouches SA to pay the costs. |
| --- | --- |

2.

orders the Compagnie des bateaux mouches SA to pay the costs.

---

(1)  OJ C 42, 24.2.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/29 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/29

---

Judgment of the Court of First Instance of 10 December 2008 — Vitro Corporativo v OHIM — VKR Holding (Vitro)

(Case T-412/06) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark Vitro - Earlier Community word mark VITRAL - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 32/54)

Language of the case: Spanish

Parties

Applicant: Vitro Corporativo, SA de CV (Garza García, Nuevo Léon, Mexico) (represented by: J. Botella Reyna, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: VKR Holding A/S (Søborg, Denmark)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 13 October 2006 (Case R 1364/2005-2) concerning opposition proceedings between VKR Holding A/S and Vitro Corporativo, SA de CV.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Vitro Corporativo, SA de CV to pay the costs. |
| --- | --- |

2.

Orders Vitro Corporativo, SA de CV to pay the costs.

---

(1)  OJ C 42, 24.2.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/30 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/30

---

Judgment of the Court of First Instance of 16 December 2008 — Deichmann-Schuhe v OHIM — Design for Woman (DEITECH)

(Case T-86/07) (1)

(Community trade mark - Opposition proceedings - Application for a figurative Community trade mark DEITECH - Earlier national and international figurative trade marks DEI-tex - Relative grounds for refusal - Genuine use of the earlier mark - Article 43(2) and (3) of Regulation (EC) No 40/94)

(2009/C 32/55)

Language in which the application was lodged: German

Parties

Applicant: Heinrich Deichmann-Schuhe GmbH & Co. KG (Essen, Germany) (initially represented by O. Rauscher, lawyer, then by O. Rauscher and A. Schulz, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Design for Woman SA (Bogotá, Colombia)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 22 January 2007 (case number R 791/2006-2) relating to opposition proceedings between Heinrich Deichmann-Schuhe GmbH & Co. KG and Design for Woman SA.

Operative part of the judgment

The Court:

| 1. | Partially annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 January 2007 (case number R 791/2006-2) in so far as it finds that genuine use of the earlier marks has not been proven in respect of ‘shoes’ in Class 25 covered by the application for a Community trade mark; |
| --- | --- |

1.

Partially annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 January 2007 (case number R 791/2006-2) in so far as it finds that genuine use of the earlier marks has not been proven in respect of ‘shoes’ in Class 25 covered by the application for a Community trade mark;

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

2.

Dismisses the remainder of the action;

| 3. | Orders OHIM to pay the costs. |
| --- | --- |

3.

Orders OHIM to pay the costs.

---

(1)  OJ C 117, 26.5.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/30 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/30

---

Judgment of the Court of First Instance of 10 December 2008 — Dada v OHIM

(Case T-101/07) (1)

(Community trade mark - Opposition proceedings - Application for a figurative Community trade mark DADA - Earlier national word mark DADA - Relative grounds for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Genuine use of the earlier trade mark - Article 43(2) and (3) of Regulation (EC) No 40/94)

(2009/C 32/56)

Language of the case: Italian

Parties

Applicant: Dada SpA (Florence, Italy) (represented by: D. Caneva and G. Locurto, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Dada Srl (Udine, Italy) (represented by: M. Cartella and M. Fazzini, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 12 January 2007 (Case R 1342/2005-1) relating to opposition proceedings between Dada Srl and Dada SpA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Dada SpA to pay the costs. |
| --- | --- |

2.

Orders Dada SpA to pay the costs.

---

(1)  OJ C 129, 9.6.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/31 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/31

---

Order of the Court of First Instance of 9 December 2008 — Colgate-Palmolive v OHIM — CMS Hasche Sigle (VISIBLE WHITE)

(Case T-136/07) (1)

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

(2009/C 32/57)

Language of the case: English

Parties

Applicant: Colgate-Palmolive Co. (New York, New York, United States) (represented by: M. Zintler, H. Harmeling and K.-U. Plath, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: CMS Hasche Sigle (Cologne, Germany)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 February 2007 (Case R 165/2005-4) relating to invalidity proceedings between CMS Hasche Sigle and Colgate-Palmolive Co.

Operative part of the order

The Court:

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

1.

Dismisses the action;

| 2. | Orders Colgate-Palmolive Co. to pay the costs. |
| --- | --- |

2.

Orders Colgate-Palmolive Co. to pay the costs.

---

(1)  OJ C 140, 23.6.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/31 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/31

---

Judgment of the Court of First Instance of 10 December 2008 — MIP Metro v OHIM — Metronia (METRONIA)

(Case T-290/07) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative trade mark METRONIA - Earlier national figurative trade mark METRO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 32/58)

Language of the case: English

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J.-C. Plate, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Metronia, SA (Madrid, Spain) (represented by: J. Riera Blanco, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 29 May 2007 (Case R 1315/2006-2), relating to opposition proceedings between MIP Metro Group Intellectual Property GmbH & Co. KG and Metronia, SA.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 29 May 2007 (Case R 1315/2006-2); |
| --- | --- |

1.

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 29 May 2007 (Case R 1315/2006-2);

| 2. | Orders OHIM to bear its own costs and to pay the costs incurred by MIP Metro Group Intellectual Property GmbH & Co. KG; |
| --- | --- |

2.

Orders OHIM to bear its own costs and to pay the costs incurred by MIP Metro Group Intellectual Property GmbH & Co. KG;

| 3. | Orders Metronia SA to bear its own costs. |
| --- | --- |

3.

Orders Metronia SA to bear its own costs.

---

(1)  OJ C 235, 6.10.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/32 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/32

---

Judgment of the Court of First Instance of 10 December 2008 — Vitro Corporativo v OHIM — VKR Holding (Vitro)

(Case T-295/07) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark Vitro - Earlier Community word mark VITRAL - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 32/59)

Language of the case: Spanish

Parties

Applicant: Vitro Corporativo, SA de CV (Garza García, Nuevo Léon, Mexico) (represented by: J. Botella Reyna, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: VKR Holding A/S (Søborg, Denmark)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 31 May 2007 (Case R 1640/2006-2), relating to opposition proceedings between VKR Holding A/S and Vitro Corporativo, SA de CV

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders Vitro Corporativo, SA de CV to pay the costs. |
| --- | --- |

2.

orders Vitro Corporativo, SA de CV to pay the costs.

---

(1)  OJ C 235, 6.10.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/32 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/32

---

Judgment of the Court of First Instance of 16 December 2008 — Mergel and Others v OHIM (Patentconsult)

(Case T-335/07) (1)

(Community trade mark - Application for the Community word mark Patentconsult - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94)

(2009/C 32/60)

Language of the case: German

Parties

Applicants: Volker Mergel (Wiesbaden, Germany); Klaus Kampfenkel (Hofheim, Germany); Burkart Bill (Darmstadt, Germany); and Andreas Herden (Wiesbaden) (represented by: G. Friderichs, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 25 June 2007 (Case R 299/2007-4) concerning the registration of the word sign Patentconsult as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mr Volker Mergel, Mr Klaus Kampfenkel, Mr Burkart Bill and Mr Andreas Herden to pay the costs. |
| --- | --- |

2.

Orders Mr Volker Mergel, Mr Klaus Kampfenkel, Mr Burkart Bill and Mr Andreas Herden to pay the costs.

---

(1)  OJ C 269, 10.11.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/32 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/32

---

Judgment of the Court of First Instance of 17 December 2008 — Somm v OHIM

(Case T-351/07) (1)

(Community trade mark - Application for Community tri-dimensional mark - Shelter for shade - Absolute grounds for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 - Lack of distinctive character acquired by use - Article 7(3) of Regulation (EC) No 40/94)

(2009/C 32/61)

Language of the case: Italian

Parties

Applicant: Somm Srl (San Mauro Torinese, Italy) (represented by: M. Ferro, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto and P. Bullock, acting as Agents)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 1653/2006-1) concerning an application for registration of a tri-dimensional sign representing a shelter for shade as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Somm Srl to pay the costs. |
| --- | --- |

2.

Orders Somm Srl to pay the costs.

---

(1)  OJ C 283, 24.11.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/33 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/33

---

Judgment of the Court of First Instance of 16 December 2008 — Focus Magazin Verlag v OHIM — Editorial Planeta (FOCUS Radio)

(Case T-357/07) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark FOCUS Radio - Earlier national word marks FOCUS MILENIUM - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 32/62)

Language of the case: English

Parties

Applicant: Focus Magazin Verlag GmbH (Munich, Germany) (represented by: B. Müller, R. Schweizer and T. Schwarz, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Editorial Planeta, SA (Barcelona, Spain)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 30 July 2007 (Case R 269/2005-4) relating to opposition proceedings between Editorial Planeta, SA, and Focus Magazin Verlag GmbH.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Focus Magazin Verlag GmbH to pay the costs. |
| --- | --- |

2.

Orders Focus Magazin Verlag GmbH to pay the costs.

---

(1)  OJ C 269, 10.11.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/33 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/33

---

Judgment of the Court of First Instance of 17 December 2008 — Commission v Cooperação e Desenvolvimento Regional

(Case T-174/08) (1)

(Arbitration clause - Contract for financial assistance concluded under a specific programme in the field of telematic applications of common interest - Encata Project - Reimbursement of sums advanced - Late-payment interest - Default procedure)

(2009/C 32/63)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: M. Afonso, acting as Agent)

Defendant: Cooperação e Desenvolvimento Regional, SA (Setúbal, Portugal)

Re:

Action under Article 238 EC seeking an order that the defendant reimburse part of the amount advanced by the European Community, together with late-payment interest, under contract SU 1001 (SU) Encata.

Operative part of the judgment

The Court:

| 1. | Orders Cooperação e Desenvolvimento Regional, SA to reimburse to the Commission of the European Communities the sum of EUR 63 349,27, together with late-payment interest:






  — | at the rate of 6.29 % per annum from 31 January 2001 to the date of the present judgment; |
| --- | --- | --- |

1.

Orders Cooperação e Desenvolvimento Regional, SA to reimburse to the Commission of the European Communities the sum of EUR 63 349,27, together with late-payment interest:

—

at the rate of 6.29 % per annum from 31 January 2001 to the date of the present judgment;

| — | at the annual rate applied under Irish law, that is to say, currently Article 26 of the Debtors (Ireland) Act 1840, as amended, up to the rate of 6.29 % per annum from the date of the present judgment to full clearance of the debt; |
| --- | --- |

—

at the annual rate applied under Irish law, that is to say, currently Article 26 of the Debtors (Ireland) Act 1840, as amended, up to the rate of 6.29 % per annum from the date of the present judgment to full clearance of the debt;

| 2. | Orders Cooperação e Desenvolvimento Regional to pay the costs. |
| --- | --- |

2.

Orders Cooperação e Desenvolvimento Regional to pay the costs.

---

(1)  OJ C 183, 19.7.2008.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/34 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/34

---

Order of the Court of First Instance of 3 November 2008 — Pelle and Konrad v Council of the European Union and the Commission of the European Communities

(Joined Cases T-8/95 and T-9/95) (1)

(Non-contractual liability - Milk - Additional levy - Reference quantity - Regulation (EEC) No 2187/93 - Compensation of producers - Suspension of limitation)

(2009/C 32/64)

Language of the case: German

Parties

Applicants: Wilhelm Pelle (Kluse-Ahlen, Germany) and Ernst-Reinhard Konrad (Löllbach, Germany) (represented by: B. Meisterernst, M. Düsing, D. Manstetten, F. Schulze and W. Haneklaus, lawyers)

Defendants: Council of the European Union (represented initially by A. Brautigam and A.-M. Colaert, and subsequently by A.-M.Colaert, agents) and the Commission of the European Communities (represented by B. Booß and M. Niejahr, agents, and subsequently by T. van Rijn and M. Niejahr, assisted initially by H.-J. Rabe, G. Berrisch and M. Núñez-Müller, lawyers)

Re:

Applications for compensation under Article 178 of the EC Treaty (now Article 235 EC) and under the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) for damage allegedly suffered by the applicants as a result of the application of Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Council Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13), as supplemented by Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation No 804/68 (OJ 1984 L 132, p. 11).

Operative part of the order

| 1. | There is no need to adjudicate on the present action. |
| --- | --- |

1.

There is no need to adjudicate on the present action.

| 2. | Each party bears its own costs. |
| --- | --- |

2.

Each party bears its own costs.

---

(1)  OJ C 74, 25.3.1995.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/34 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/34

---

Order of the Court of First Instance of 26 November 2008 — Makhteshim-Agan Holding and Others v Commission

(Case T-393/06) (1)

(Action for annulment - Action for failure to act - Directive 91/414/EEC - Plant protection products - Active substance azinphos-methyl - Inclusion in Annex I to Directive 91/414/EEC - Absence of a new Commission proposal after opposition by the Council - Article 5(6) of Decision 1999/468/EEC - Non-actionable measure - Absence of a request to act - Inadmissibility)

(2009/C 32/65)

Language of the case: English

Parties

Applicants: Makhteshim-Agan Holding BV (Amsterdam, Netherlands); Makhteshim-Agan Italia Srl (Bergamo, Italy); and Magan Italia Srl (Bergamo) (represented by: K. Van Maldegem and C. Mereu, lawyers)

Defendant: Commission of the European Communities (represented by: L. Parpala and B. Doherty, Agents)

Party intervening in support of the applicants: European Crop Protection Association (ECPA) (Brussels, Belgium)(represented by: D. Waelbroeck and N. Rampal, lawyers)

Re:

Application for annulment of the Commission decision, alleged to be contained in a letter of 12 October 2006, not to submit a proposal with a view to inclusion of the active substance azinphos-methyl in Annex I to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1), or, in the alternative, application for a declaration that the Commission has failed to act in unlawfully failing to submit such a proposal.

Operative part of the order

The Court hereby orders:

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

1.

The action is dismissed as inadmissible.

| 2. | Makhteshim-Agan Holding BV, Makhteshim-Agan Italia Srl and Magan Italia Srl shall bear their own costs and pay those incurred by the Commission. |
| --- | --- |

2.

Makhteshim-Agan Holding BV, Makhteshim-Agan Italia Srl and Magan Italia Srl shall bear their own costs and pay those incurred by the Commission.

| 3. | The European Crop Protection Association shall bear its own costs. |
| --- | --- |

3.

The European Crop Protection Association shall bear its own costs.

---

(1)  OJ C 20, 27.1.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/35 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/35

---

Order of the Court of First Instance of 25 November 2008 — Fastweb v Commission

(Case T-188/07) (1)

(State aid - Subsidised purchase of digital decoders - Telecommunications - Commission decision declaring the aid to be incompatible with the common market - Decision adopted in the course of the present proceedings by the Member State not to effect recovery of the aid from the company which contested the Commission's decision in annulment proceedings - No longer any interest in bringing proceedings - No need to adjudicate)

(2009/C 32/66)

Language of the case: Italian

Parties

Applicant: Fastweb SpA (Milan, Italy) (represented by: M. Merola and T. Ubaldi, lawyers)

Defendant: Commission of the European Communities (represented by: B. Martenczuk, G. Conte and E. Righini, Agents)

Interveners in support of the defendant: Sky Italia Srl (Rome, Italy) (represented by: F. González Díaz and D. Gerard, lawyers); and Centro Europa 7 Srl (Rome) (represented by: R. Mastroianni, F. Ferraro and M. Condinanzi, lawyers)

Re:

Application for annulment of Commission Decision 2007/374/EC of 24 January 2007 on State aid C 52/2005 (ex NN 88/2005, ex CP 101/2004) implemented by the Italian Republic for the subsidised purchase of digital decoders (OJ 2007 L 147, p. 1).

Operative part of the order

| 1. | There is no longer any need to adjudicate on the present action. |
| --- | --- |

1.

There is no longer any need to adjudicate on the present action.

| 2. | Each party shall bear its own costs. |
| --- | --- |

2.

Each party shall bear its own costs.

---

(1)  OJ C 170 of 21.7.2007.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/35 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/35

---

Order of the Court of First Instance of 8 October 2008 — Koinotita Grammatikou v Commission

(Case T-13/08) (1)

(Action for annulment - Cohesion Funds - Lack of direct concern - Inadmissibility)

(2009/C 32/67)

Language of the case: Greek

Parties

Applicant: Koinotita Grammatikou (Greece) (represented by: M Chaïntarlis and A. Papakonstantinou, lawyers)

Defendant: Commission of the European Communities (represented by: D. Triantafyllou and L. Flynn, Agents)

Re:

Annulment of Commission Decision C(2004) 5509 of 21 December 2004 relating to the grant of assistance from the Cohesion Fund for the project ‘Construction of a Landfill Site at the Integrated Waste Management Facility of North-East Attica at the location “Mavro Vouno Grammatikou”’.

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | Koinotita Grammatikou is ordered to pay the costs. |
| --- | --- |

2.

Koinotita Grammatikou is ordered to pay the costs.

---

(1)  OJ C 79, 29.3.2008.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/35 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/35

---

Order of the Judge hearing the application for Interim measures of 19 November 2008 — AEPI v Commission

(Case T-392/08 R)

(Interim measures - Decision of the Commission ordering cessation of a concerted practice in connection with the collective management of author's rights - Application for stay of execution - Lack of urgency)

(2009/C 32/68)

Language of the case: Greek

Parties

Applicant: AEPI Elliniki Etaireia pros Prostasian tis Pnevmatikis Idioktisias AE (Athens, Greece) (represented by: P. Xanthopoulos and T. Asprogerakas Grivas, lawyers)

Defendant: Commission of the European Communities (represented by: T. Christoforou and F. Castillo de la Torre, acting as Agents)

Re:

Application for a stay of execution of Article 3 of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC).

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

Costs are reserved.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/36 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/36

---

Order of the President of the Court of First Instance of 14 November 2008 — GEMA v Commission

(Case T-410/08 R)

(Application for interim measures - Commission decision ordering the cessation of a concerted practice in relation to the collective management of copyright - Application for suspension of operation of a measure - No urgency)

(2009/C 32/69)

Language of the case: German

Parties

Applicant: Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA) (Berlin, Germany) (represented by: R. Bechtold and I. Brinker, lawyers, assisted by Professor J. Schwarze)

Defendant: Commission of the European Communities (represented by: F. Castillo de la Torre, O. Weber and A. Antoniadis, Agents)

Re:

Application for suspension of operation of the combined provisions of Articles 3 and 4(2) and (3) of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC) in so far as they concern the applicant.

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

Costs are reserved.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/36 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/36

---

Order of the President of the Court of First Instance of 5 December 2008 — KODA v Commission

(Case T-425/08 R)

(Applications for interim measures - Commission decision ordering the cessation of a concerted practice in connection with the collective management of copyright - Application for suspension of operation of a measure - No urgency)

(2009/C 32/70)

Language of the case: Danish

Parties

Applicant: KODA (Copenhagen, Denmark) (represented by: K. Dyekjær and J. Borum, lawyers)

Defendant: Commission of the European Communities (represented by: F. Castillo de la Torre and N. Rasmussen, Agents)

Re:

Application for suspension of operation of Article 4(2) and (3) of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding pursuant to Article 81 EC and Article 53 EEA (Case COMP/C2/38.698 — CISAC).

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

The costs are reserved.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/36 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/36

---

Order of the President of the Court of First Instance of 20 November 2008 — SIAE v Commission

(Case T-433/08 R)

(Application for interim measures - Commission decision ordering the cessation of a concerted practice in relation to the collective management of copyright - Application for suspension of operation of a measure - No urgency)

(2009/C 32/71)

Language of the case: Italian

Parties

Applicant: Società Italiana degli Autori ed Editori (SIAE) (Rome, Italy) (represented by: M. Siragusa, M. Mandel, L. Vullo and S. Valentino, lawyers)

Defendant: Commission of the European Communities (represented by: V. Di Bucci and F. Castillo de la Torre, Agents)

Re:

Application for suspension of operation of Article 4(2) of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC).

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

Costs are reserved.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/37 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/37

---

Action brought on 23 October 2008 — Toland v Parliament

(Case T-471/08)

(2009/C 32/72)

Language of the case: English

Parties

Applicant: Ciarán Toland (Dublin, Ireland) (represented by: A. Burke, Solicitor, E. Regan, SC)

Defendant: European Parliament

Form of order sought

| — | Annul decision A(2008) 10636 of Vice-President Dianna Wallis MEP of the Bureau of the European Parliament of 11 August 2008 addressed to Ciaran Toland insofar as it refused the applicant access to Internal Audit Report No 06/02 concluded on 9 January 2008 of the Internal Audit Service of the European Parliament entitled ‘Audit of the Parliamentary Assistance Allowance’; |
| --- | --- |

—

Annul decision A(2008) 10636 of Vice-President Dianna Wallis MEP of the Bureau of the European Parliament of 11 August 2008 addressed to Ciaran Toland insofar as it refused the applicant access to Internal Audit Report No 06/02 concluded on 9 January 2008 of the Internal Audit Service of the European Parliament entitled ‘Audit of the Parliamentary Assistance Allowance’;

| — | Order the European Parliament to grant the applicant access to Internal Audit Report No 06/02 concluded on 9 January 2008 of the Internal Audit Service of the European Parliament entitled ‘Audit of the Parliamentary Assistance Allowance’; |
| --- | --- |

—

Order the European Parliament to grant the applicant access to Internal Audit Report No 06/02 concluded on 9 January 2008 of the Internal Audit Service of the European Parliament entitled ‘Audit of the Parliamentary Assistance Allowance’;

| — | Order the European Parliament to pay the applicant's costs of these proceedings. |
| --- | --- |

—

Order the European Parliament to pay the applicant's costs of these proceedings.

Pleas in law and main arguments

On 11 June 2008, the applicant applied to the European Parliament for access to the 2006 Annual Report of the European Parliament Internal Audit Service, including the 16 Audit reports referred to in paragraph 24 of the European Parliament Resolution of 22 April 2008. By letter of 23 June 2008, the applicant was granted partial access to one of the reports, the Internal Audit Report 07/01, and made a confirmatory application on the basis of Article 7(2) of Regulation (EC) No 1049/2001 (1) for full access to the 16 Audit Reports. By letter of 11 August 2008, which came to the knowledge of the applicant on 20 August 2008, the Vice-President of The European Parliament replied to the application granting access to 13 of the requested Internal Audit Reports, partial access to 2 of the other reports, while refusing access to one of them.

On the basis of its application made pursuant to Article 230 EC and in accordance to Regulation (EC) No 1049/2001, the applicant seeks partial annulment of Decision A(2008) 10636 of 11 August 2008, insofar as it rejected the applicant's request to obtain access to Report No 06/02 of the Internal Audit Service entitled ‘Audit of the Parliamentary Assistance Allowance’.

The applicant submits that the contested decision is vitiated by manifest errors of law and of fact, is disproportionate and fails to state reasons, in that:

| (a) | it advanced no grounds sustainable in law for refusal of access; |
| --- | --- |

(a)

it advanced no grounds sustainable in law for refusal of access;

| (b) | it abrogated to itself a discretion which it doesn't have in failing to have regard to the provisions of the legislation; |
| --- | --- |

(b)

it abrogated to itself a discretion which it doesn't have in failing to have regard to the provisions of the legislation;

| (c) | insofar as it advanced no legitimate grounds for refusal of access under Article 4(2) third indent or Article 4(3) of Regulation (EC) No 1049/2001; |
| --- | --- |

(c)

insofar as it advanced no legitimate grounds for refusal of access under Article 4(2) third indent or Article 4(3) of Regulation (EC) No 1049/2001;

| (d) | it failed to consider whether there was an overriding public interest which might outweigh the grounds for refusal; |
| --- | --- |

(d)

it failed to consider whether there was an overriding public interest which might outweigh the grounds for refusal;

| (e) | the Vice-President failed to find that the interests of democracy, openness and transparency are overriding public interests which outweigh the grounds for refusal; |
| --- | --- |

(e)

the Vice-President failed to find that the interests of democracy, openness and transparency are overriding public interests which outweigh the grounds for refusal;

| (f) | it acknowledged that Internal Audit Report made recommendations for implementation of action plans within the regulatory and legislative process or failed to find that the interests of democracy, openness an transparency in the regulatory and legislative process are matters of citizen participation which constitute overriding public interest in disclosure. |
| --- | --- |

(f)

it acknowledged that Internal Audit Report made recommendations for implementation of action plans within the regulatory and legislative process or failed to find that the interests of democracy, openness an transparency in the regulatory and legislative process are matters of citizen participation which constitute overriding public interest in disclosure.

---

(1)  Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/37 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/37

---

Action brought on 31 October 2008 — Umbach v Commission

(Case T-474/08)

(2009/C 32/73)

Language of the case: German

Parties

Applicant: Dieter C. Umbach (represented by: M. Stephani, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of the defendant's decision (reference: SG.E.3/MV/psi D(2008) 6991) of 2 September 2008. |
| --- | --- |

—

Annulment of the defendant's decision (reference: SG.E.3/MV/psi D(2008) 6991) of 2 September 2008.

Pleas in law and main arguments

The applicant has brought an action against the Commission decision by which that institution refused full and unrestricted access to documents connected with a TACIS programme and a TACIS contract to which the applicant was a party. The applicant claims that access to the documents in question is essential for his defence in the action filed by the Commission against him, following termination of the TACIS contract, for reimbursement of the monies paid in advance.

In support of his action the applicant claims, first, that general principles of Community law have been infringed, in particular the right to sound administration and the right to due process, because he, as a concerned party, must be given the possibility to obtain full and unfettered access to documents necessary for his defence and subsequent vindication of his own claims against the Commission.

The applicant also claims, secondly, that a right to full and unfettered access to the files arises from Regulation (EC) No 1049/2001 (1), inasmuch as the Commission erred, in particular, in the exercise of its discretionary powers under Articles 4 and 9 of that regulation.

---

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

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/38 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/38

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Action brought on 11 November 2008 — Atlas Transport v OHIM — Hartmann (ATLAS TRANSPORT)

(Case T-482/08)

(2009/C 32/74)

Language in which the application was lodged: German

Parties

Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (represented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Alfred Hartmann (Leer, Germany)

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 9 September 2008 (Case R 1858/2007-4); and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 September 2008 (Case R 1858/2007-4); and

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘Atlas Transport’ for transport operations (transport of goods) in Class 39 (Community trade mark No 545 681).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: A. Hartmann.

Decision of the Cancellation Division: Dismissal of the application.

Decision of the Board of Appeal: Granting of the application for a declaration that the registration has lapsed.

Pleas in law: Breach of Article 15 and Rules 22 and 40 of Regulation (EC) No 2868/95 (1), in so far as an incorrect standard was applied to the proof of use preserving the rights held and as evidence submitted was incorrectly assessed; breach of the procedural requirements of the right to a hearing in accordance with [Rule] 73(2) of Regulation (EC) No 2868/95 and of the duty to give reasons under [Rule] 73(1) of Regulation (EC) No 2868/95; incorrect assessment.

---

(1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/38 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/38

---

Action brought on 11 November 2008 — Longevity Health Products v OHIM — Merck (Kids Vits)

(Case T-484/08)

(2009/C 32/75)

Language in which the application was lodged: German

Parties

Applicant: Longevity Health Products, Inc. (Nassau, Bahamas) (represented by: J. Korab, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Merck KGaA (Darmstadt, Germany)

Form of order sought

| — | Declare the action brought by Longevity Health Products, Inc. admissible; |
| --- | --- |

—

Declare the action brought by Longevity Health Products, Inc. admissible;

| — | annul the decision of the Fourth Board of Appeal of 28 August 2008 and dismiss the nullity proceedings of Merck KGaA against registration of Community trade mark 003 979 143; and |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of 28 August 2008 and dismiss the nullity proceedings of Merck KGaA against registration of Community trade mark 003 979 143; and

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

—

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘Kids Vits’ for goods and services in Classes 3, 5 and 35 (Community trade mark No 3 979 143).

Proprietor of the mark or sign cited in the opposition proceedings: Merck KGaA.

Mark or sign cited in opposition: Word mark ‘VIDS4KIDS’ for goods in Class 5 (mark No 3 128 196).

Decision of the Opposition Division: Upholding of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since there is no likelihood of confusion between the opposing marks.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/39 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/39

---

Appeal brought on 17 November 2008 by Philippe Bui Van against the judgment of the Civil Service Tribunal delivered on 11 September 2008 in Case F-51/07 Bui Van v Commission

(Case T-491/08 P)

(2009/C 32/76)

Language of the case: French

Parties

Appellant: Philippe Bui Van (Hettange-Grande, France) (represented by P. Nelissen Grade, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

| — | Declare the appeal admissible and well-founded; |
| --- | --- |

—

Declare the appeal admissible and well-founded;

| — | Set aside the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 11 September 2008 in Case F-51/07; |
| --- | --- |

—

Set aside the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 11 September 2008 in Case F-51/07;

| — | Annul the decision of the Appointing Authority of 5 March 2007 not to accept the appellant's complaint; |
| --- | --- |

—

Annul the decision of the Appointing Authority of 5 March 2007 not to accept the appellant's complaint;

| — | Annul the decision of the Director General of the JRC of 4 October 2006, in so far as it reclassifies the appellant in Grade AST 3, Step 2, whereas he was initially classified in Grade AST 4, Step 2; |
| --- | --- |

—

Annul the decision of the Director General of the JRC of 4 October 2006, in so far as it reclassifies the appellant in Grade AST 3, Step 2, whereas he was initially classified in Grade AST 4, Step 2;

| — | Confirm the decision of 28 June 2006 which appoints the appellant in Grade AST 4, Step 2; |
| --- | --- |

—

Confirm the decision of 28 June 2006 which appoints the appellant in Grade AST 4, Step 2;

| — | State to the Appointing Authority the consequences of the annulment of the contested decisions and, in particular, classification in Grade AST 4, Step 2, and the retroactive effect of appointment in Grade AST 4, Step 2, from the date the post was first taken up; |
| --- | --- |

—

State to the Appointing Authority the consequences of the annulment of the contested decisions and, in particular, classification in Grade AST 4, Step 2, and the retroactive effect of appointment in Grade AST 4, Step 2, from the date the post was first taken up;

| — | Order the respondent to bear the costs. |
| --- | --- |

—

Order the respondent to bear the costs.

Pleas in law and main arguments

By the present appeal, the appellant seeks to have set aside the judgment of the Civil Service Tribunal (CST) of 11 September 2008 in Case F-51/07 Bui Van v Commission, by which the CST ordered the respondent to pay the appellant the sum of EUR 1 500 by way of damages and dismissed, as to the remainder, the action for annulment of the decision reclassifying the appellant in Grade AST 3, whereas he had initially been classified in Grade AST 4.

In support of his appeal, the appellant puts forward three pleas in law.

First, the judgment under appeal ought to be set aside in so far as it considers, while acknowledging that the Commission infringed the appellant's rights of defence, that the fact that the appellant was not heard did not affect the validity of the Commission's contested decision.

Second, in connection with the appellant's plea at first instance alleging that there had been a manifest error of assessment and breach of the principles of legal certainty and protection of legitimate expectations, the CST was wrong to uphold the administrative decision of 4 October 2006, downgrading the appellant from Grade AST 4 to Grade AST 3, by holding, wrongly, that the appellant did not have reason to have legitimate expectations in the act appointing him in Grade AST 4, on the ground that the appellant should have known, because of a footnote in the competition notice, that his appointment in Grade AST 4 was unlawful and that the new Staff Regulations of Officials of the European Communities — which, according to the competition notice, were the ones to apply — could be pleaded against him. The appellant submits that that footnote could not alter the provisions of the Staff Regulations in force at the time of the competition notice.

Third, the CST was wrong to dismiss the plea that there was an infringement of the principle of equal treatment even though the Appointing Authority, while it downgraded the appellant to Grade AST 3, responded positively to the complaints brought by three other officials who were essentially in the same situation as the appellant.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/40 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/40

---

Action brought on 18 November 2008 — Wessang v OHIM — Greinwald (star foods)

(Case T-492/08)

(2009/C 32/77)

Language in which the application was lodged: French

Parties

Applicant: Nicolas Wessang (Zimmerbach, France) (represented by: A. Grolée, lawyer)

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

Other party to the proceedings before the Board of Appeal: Greinwald GmbH (Kempten, Germany)

Form of order sought

| — | Annul the decision of the Board of Appeal of OHIM of 17 September 2008; |
| --- | --- |

—

Annul the decision of the Board of Appeal of OHIM of 17 September 2008;

| — | Uphold the opposition filed by Mr Nicolas WESSANG of 26 September 2005 against the application for registration of the mark STAR FOODS + device No 004105615; |
| --- | --- |

—

Uphold the opposition filed by Mr Nicolas WESSANG of 26 September 2005 against the application for registration of the mark STAR FOODS + device No 004105615;

| — | Reject that application for registration No 004105615 in its entirety; |
| --- | --- |

—

Reject that application for registration No 004105615 in its entirety;

| — | Order the company Greinwald GmbH to pay the whole of the costs incurred by Mr Nicolas WESSANG in the opposition proceedings, the appeal proceedings and the present proceedings. |
| --- | --- |

—

Order the company Greinwald GmbH to pay the whole of the costs incurred by Mr Nicolas WESSANG in the opposition proceedings, the appeal proceedings and the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Greinwald GmbH

Community trade mark concerned: Figurative mark ‘star foods’ for goods in Classes 29, 30 and 32 — application No 4 105 615

Proprietor of the mark or sign cited in the opposition proceedings: Nicolas Wessang

Mark or sign cited in opposition: Community figurative and word marks ‘STAR SNACKS’ for goods in Classes 29, 30 and 31

Decision of the Opposition Division: The opposition is upheld

Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and rejection of the opposition

Pleas in law: According to the applicant, there is a likelihood of confusion between the two marks at issue, to the extent that they are extremely similar both visually and phonetically or conceptually and refer to similar or even identical goods.

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/40 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/40

---

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-494/08)

(2009/C 32/78)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void and that the Commission's decision of 9 October 2008 refusing access to the same documents is non-existent; |
| --- | --- |

—

declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void and that the Commission's decision of 9 October 2008 refusing access to the same documents is non-existent;

| — | alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 9 October 2008 refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void; |
| --- | --- |

—

alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 9 October 2008 refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

| — | order the Commission to pay the costs incurred by the applicant in the proceedings; and |
| --- | --- |

—

order the Commission to pay the costs incurred by the applicant in the proceedings; and

| — | take such further action as the Court may deem appropriate. |
| --- | --- |

—

take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Aarhus airport. The said decision was followed by the express decision of 9 October 2008. The annulment of the express decision is alternatively sought by the applicant in the present case.

In support of its application the applicant puts forward two pleas in law.

First, the applicant submits that the Commission's refusal infringes Article 4 of Regulation No 1049/2001. First of all, it states that the Commission performed an overall examination instead of carrying out an individual examination of the documents referred to in the request for access. In particular, the applicant claims that the Commission has not assessed to the requisite legal standard the existence of the specific, actual and foreseeable risk of harming the protected interests set out in Article 4(2) and (3) of the Regulation. Moreover, the applicant argues that the Commission failed to assess to the requisite legal standard that partial disclosure of the documents would have harmed the protection of legal advice, the purpose of investigations or the Commission's decision-making process and thus infringed Article 4(6) of the Regulation and it has failed to apply properly the principle of proportionality. Finally, the applicant contends that the Commission failed to assess the public interest considerations regarding the right of defence and transparency and openness relied on by the applicant.

Second, the applicant submits that the Commission's implied refusal of access and its decision of 9 October 2008 infringe the duty to state reasons pursuant to Article 253 EC and Article 8 of Regulation No 1049/2001.

---

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

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/41 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/41

---

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-495/08)

(2009/C 32/79)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void and that the Commission's decision of 8 October 2008 refusing access to the same documents is non-existent; |
| --- | --- |

—

declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void and that the Commission's decision of 8 October 2008 refusing access to the same documents is non-existent;

| — | alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 8 October 2008 refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void; |
| --- | --- |

—

alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 8 October 2008 refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

| — | order the Commission to pay the costs incurred by the applicant in the proceedings; and |
| --- | --- |

—

order the Commission to pay the costs incurred by the applicant in the proceedings; and

| — | take such further action as the Court may deem appropriate. |
| --- | --- |

—

take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Alghero airport. The said decision was followed by the express decision of 8 October 2008. The annulment of the express decision is alternatively sought by the applicant in the present case.

The pleas in law and main arguments relied on by the applicant are identical to those relied on in Case T-494/08 Ryanair v Commission.

---

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

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/41 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/41

---

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-496/08)

(2009/C 32/80)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void; |
| --- | --- |

—

declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

| — | order the Commission to pay the costs incurred by the applicant in the proceedings; and |
| --- | --- |

—

order the Commission to pay the costs incurred by the applicant in the proceedings; and

| — | take such further action as the Court may deem appropriate. |
| --- | --- |

—

take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Berlin-Schönefeld airport.

The pleas in law and main arguments relied on by the applicant are similar to those relied on in Case T-494/08 Ryanair v Commission.

---

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

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/42 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/42

---

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-497/08)

(2009/C 32/81)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void; |
| --- | --- |

—

declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

| — | order the Commission to pay the costs incurred by the applicant in the proceedings; and |
| --- | --- |

—

order the Commission to pay the costs incurred by the applicant in the proceedings; and

| — | take such further action as the Court may deem appropriate. |
| --- | --- |

—

take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Frankfurt Hahn airport.

The pleas in law and main arguments relied on by the applicant are similar to those relied on in Case T-494/08 Ryanair v Commission.

---

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

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/42 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/42

---

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-498/08)

(2009/C 32/82)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void; |
| --- | --- |

—

declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

| — | order the Commission to pay the costs incurred by the applicant in the proceedings; and |
| --- | --- |

—

order the Commission to pay the costs incurred by the applicant in the proceedings; and

| — | take such further action as the Court may deem appropriate. |
| --- | --- |

—

take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Lübeck Blankensee airport.

The pleas in law and main arguments relied on by the applicant are similar to those relied on in Case T-494/08 Ryanair v Commission.

---

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

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/43 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/43

---

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-499/08)

(2009/C 32/83)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void and that the Commission's decision of 23 October 2008 refusing access to the same documents is non-existent; |
| --- | --- |

—

declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void and that the Commission's decision of 23 October 2008 refusing access to the same documents is non-existent;

| — | alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 23 October 2008 refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void; |
| --- | --- |

—

alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 23 October 2008 refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

| — | order the Commission to pay the costs incurred by the applicant in the proceedings; and |
| --- | --- |

—

order the Commission to pay the costs incurred by the applicant in the proceedings; and

| — | take such further action as the Court may deem appropriate. |
| --- | --- |

—

take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Pau airport. The said decision was followed by the express decision of 23 October 2008. The annulment of the express decision is alternatively sought by the applicant in the present case.

The pleas in law and main arguments relied on by the applicant are identical to those relied on in Case T-494/08 Ryanair v Commission.

---

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

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/43 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/43

---

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-500/08)

(2009/C 32/84)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void and that the Commission's decision of 31 October 2008 refusing access to the same documents is non-existent; |
| --- | --- |

—

declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void and that the Commission's decision of 31 October 2008 refusing access to the same documents is non-existent;

| — | alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 31 October 2008 refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void; |
| --- | --- |

—

alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 31 October 2008 refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

| — | order the Commission to pay the costs incurred by the applicant in the proceedings; and |
| --- | --- |

—

order the Commission to pay the costs incurred by the applicant in the proceedings; and

| — | take such further action as the Court may deem appropriate. |
| --- | --- |

—

take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Tampere-Pirkkala airport. The said decision was followed by the express decision of 31 October 2008. The annulment of the express decision is alternatively sought by the applicant in the present case.

The pleas in law and main arguments relied on by the applicant are identical to those relied on in Case T-494/08 Ryanair v Commission.

---

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

---

| 7.2.2009 | EN | Official Journal of the European Union | C 32/44 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/44

---

Action brought on 7 November 2008 — Ryanair/Commission

(Case T-509/08)

(2009/C 32/85)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 20 June 2008 is void and that the Commission's decision of 26 September 2008 refusing access to the same documents is non-existent; |
| --- | --- |

—

declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 20 June 2008 is void and that the Commission's decision of 26 September 2008 refusing access to the same documents is non-existent;

| — | alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 26 September 2008 refusing access to the documents for which access was requested by the applicant in an application dated 20 June 2008 is void; |
| --- | --- |

—

alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 26 September 2008 refusing access to the documents for which access was requested by the applicant in an application dated 20 June 2008 is void;

| — | order the Commission to pay the costs incurred by the applicant in the proceedings; and |
| --- | --- |

—

order the Commission to pay the costs incurred by the applicant in the proceedings; and

| — | take such further action as the Court may deem appropriate. |
| --- | --- |

—

take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Bratislava airport. The said decision was followed by the express decision of 26 September 2008. The annulment of the express decision is alternatively sought by the applicant in the present case.

The pleas in law and main arguments relied on by the applicant are identical to those relied on in Case T-494/08 Ryanair v Commission.

---

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

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/44 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/44

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Action brought on 27 November 2008 — Unity OSG FZE/Conseil et EUPOL Afghanistan

(Case T-511/08)

(2009/C 32/86)

Language of the case: English

Parties

Applicant: Unity OSG FZE (Dubai, United Arab Emirates) (represented by: C. Bryant and J. McEwen, lawyers)

Defendants: Council of the European Union and European Union Police Mission in Afghanistan (‘EUPOL Afghanistan’)

Form of order sought

| — | Annul the decision of the European Union Police Mission in Afghanistan (‘EUPOL Afghanistan’) (i) to reject the applicant's tender in relation to the contract for provision of guarding and close protection services in Afghanistan, (ii) to award the contract to another tenderer as communicated to the applicant by letter of 23 November 2008; |
| --- | --- |

—

Annul the decision of the European Union Police Mission in Afghanistan (‘EUPOL Afghanistan’) (i) to reject the applicant's tender in relation to the contract for provision of guarding and close protection services in Afghanistan, (ii) to award the contract to another tenderer as communicated to the applicant by letter of 23 November 2008;

| — | order the defendant to bear the applicant's costs pursuant to Article 87 of the Rules of Procedure of the Court of First Instance. |
| --- | --- |

—

order the defendant to bear the applicant's costs pursuant to Article 87 of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

On 19 December 2007, the applicant entered into a contract with the European Union Police Mission in Afghanistan (1) (‘EUPOL Afghanistan’) for the provision of security services. In September 2008, EUPOL Afghanistan issued a public procurement notice concerning the provision of guarding and close protection services which was published (2) on the European Commission's website in relation to the ‘EuropeAid’ programme and in accordance to the provisions of Title V of Part One of the Financial Regulation 1605/2002 (3) (‘the Financial Regulation’) and the detailed rules for the implementation of the Financial Regulation contained in Commission Regulation 2342/2002 (4).

The applicant seeks the annulment of the decision of EUPOL Afghanistan of 23 November 2008, by which the applicant was informed that its tender had not been successful and that the contract would be awarded to Armor Group, on the basis of the following grounds:

First, the applicant claims that the defendant infringed the principles of equal treatment and non-discrimination provided for in Article 89(1) of the Financial Regulation.

Second, the applicant submits that the conditions applicable to contacts between the contracting authority and tenderers during the procurement process as set out in Article 99 of the Financial Regulation and in Articles 120(2)(d) and 148 of the Implementing Rules have been infringed.

Third, the applicant contends that the requirement to advertise a contract opportunity first in the Official Journal of the European Union, before being advertised elsewhere, as set out in Article 121 of the Implementing Rules, was infringed. According to the applicant, this requirement was infringed since the contract was advertised on the EuropAid website first, rather than in the Official Journal.

Fourth, the applicant submits that the requirement to respect the minimum time-limits under the accelerated restricted procedure laid down in Article 142(1) of the Financial Regulation has been infringed.

Fifth, the applicant claims that the defendant failed to respect the requirement set out in Article 158(a) of the Implementing Rules, for a standstill period between the decision on contract award and signature of the contract. In addition, the applicant puts forward that the defendant failed to provide an adequate statement of reasons, in accordance with Article 253 EC.

---

(1)  Established on 30 May 2007, pursuant to Council Joint Action 2007/369/CFSP (OJ 2007 L 139, p. 33).

(2)  The notice was published in the supplement to the Official Journal of 7 October 2008, 2008/S 194-255613.

(3)  OJ 2002 L 248, p. 1.

(4)  OJ 2002 L 357, p. 1.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/45 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/45

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Action brought on 28 November 2008 — Agatha Ruiz de la Prada de Sentmenat v OHIM — Mary Quant (AGATHA RUIZ DE LA PRADA)

(Case T-522/08)

(2009/C 32/87)

Language in which the application was lodged: Spanish

Parties

Applicant: Agatha Ruiz de la Prada de Sentmenat (Madrid, Spain) (represented by: R. Bercovitz Álvarez, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Mary Quant Ltd (Birmingham, United Kingdom)

Form of order sought

| — | Paragraphs 1 and 3 of the contested decision be annulled and replaced with a different decision in which registration of Community trade mark No 3.291.234 is granted in respect of all the goods requested in Class 3 of the Classification (including ‘soaps; perfumery, essential oils, cosmetics, hair lotions’), and MARY QUANT Cosmetics Japan Ltd. be ordered to pay the costs of the opposition proceedings, and |
| --- | --- |

—

Paragraphs 1 and 3 of the contested decision be annulled and replaced with a different decision in which registration of Community trade mark No 3.291.234 is granted in respect of all the goods requested in Class 3 of the Classification (including ‘soaps; perfumery, essential oils, cosmetics, hair lotions’), and MARY QUANT Cosmetics Japan Ltd. be ordered to pay the costs of the opposition proceedings, and

| — | the defendant, and any intervening or other party, be ordered to pay the costs of the present proceedings. |
| --- | --- |

—

the defendant, and any intervening or other party, be ordered to pay the costs of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Agatha Ruiz de la Prada de Sentmenat.

Community trade mark concerned: Figurative mark representing a pink flower with a yellow centre on a light green background with the wording AGATHA RUIZ DE LA PRADA (application No 3.291.234) for goods in Classes 3, 4, 5, 8, 9, 11, 12, 14, 16, 18, 19, 20, 21, 24, 25, 27 and 28.

Proprietor of the mark or sign cited in the opposition proceedings: MARY QUANT Cosmetics Japan Ltd.

Mark or sign cited in opposition: Figurative mark representing a black flower with a black centre surrounded by a white outline: British trade marks for goods in Classes 9, 14, 16, 18, 20, 21, 24, 25 and 26 and Community trade mark for goods in Classes 9, 14, 16, 18, 20, 24, 25 and 26.

Decision of the Opposition Division: The opposition was rejected.

Decision of the Board of Appeal: The appeal was upheld in part.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/46 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/46

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Action brought on 1 December 2008 — Agatha Ruiz de la Prada de Sentmenat v OHIM — Mary Quant Cosmetics Japan (AGATHA RUIZ DE LA PRADA)

(Case T-523/08)

(2009/C 32/88)

Language in which the application was lodged: Spanish

Parties

Applicant: Agatha Ruiz de la Prada de Sentmenat (Madrid, Spain) (represented by: R. Bercovitz Álvarez, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Mary Quant Cosmetics Japan Ltd (Tokyo, Japan)

Form of order sought

| — | Paragraphs 1 and 3 of the contested decision be annulled and replaced with a different decision in which registration of Community trade mark No 3.291.234 is granted in respect of all the goods requested in Class 3 of the Classification (including ‘soaps; perfumery, essential oils, cosmetics, hair lotions’) and MARY QUANT Cosmetics Japan Ltd. be ordered to pay the costs of the opposition proceedings, and |
| --- | --- |

—

Paragraphs 1 and 3 of the contested decision be annulled and replaced with a different decision in which registration of Community trade mark No 3.291.234 is granted in respect of all the goods requested in Class 3 of the Classification (including ‘soaps; perfumery, essential oils, cosmetics, hair lotions’) and MARY QUANT Cosmetics Japan Ltd. be ordered to pay the costs of the opposition proceedings, and

| — | the defendant, and any intervening or other party, be ordered to pay the costs of the present proceedings. |
| --- | --- |

—

the defendant, and any intervening or other party, be ordered to pay the costs of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Agatha Ruiz de la Prada de Sentmenat

Community trade mark concerned: Figurative mark representing a pink flower with a yellow centre on a light green background with the wording AGATHA RUIZ DE LA PRADA (application No 3.291.234) for goods in, inter alia, Classes 3, 5, 14 and 21.

Proprietor of the mark or sign cited in the opposition proceedings: MARY QUANT Cosmetics Japan Ltd.

Mark or sign cited in opposition: Figurative mark representing a black flower with a black centre surrounded by a white outline: British trade marks for goods in Classes 3 and 5, and a Community trade mark for goods in Classes 3 and 21.

Decision of the Opposition Division: The opposition was rejected.

Decision of the Board of Appeal: The appeal was upheld in part.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/46 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/46

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Action brought on 4 December 2008 — Commission v TMT Pragma

(Case T-527/08)

(2009/C 32/89)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: M. Moretto, lawyer, and A.M Rouchaud-Joët and F. Mirza, Agents)

Defendant: TMT Pragma (Rome, Italy)

Form of order sought

| — | Order the defendant to pay to the Commission the principal sum of EUR 30 700,23, together with default interest at the statutory legal rate in Spain from 29 August 2004 until payment in full of the amount due; |
| --- | --- |

—

Order the defendant to pay to the Commission the principal sum of EUR 30 700,23, together with default interest at the statutory legal rate in Spain from 29 August 2004 until payment in full of the amount due;

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The subject-matter of the present action is a request that the defendant be ordered to repay a sum amounting to EUR 30 700,23 together with default interest. That sum represents a part of the contribution paid by the applicant in execution of contract No UR-96-SC.1105, entered into under the auspices of the Fourth Framework Programme for Research and Technological Development. The contract, which was concluded with other European research centres, provided for the development of a programme entitled ‘Integrated urban transport projects and market-orientated urban transport systems/on-demand urban transport systems — INTRAMUROS’.

In support of its claims, the applicant argues that it became apparent from the audit carried out in June 2000 that certain personnel expenses, the travel and accommodation expenses and the expenses in respect of consumables and information technology were not justified and therefore could not be charged to the project.

By debit note of 14 July 2004, the Commission notified the defendant that it sought reimbursement of the amount in question, together, if appropriate, with default interest in the event of non-payment.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/47 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/47

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Action brought on 2 December 2008 — Diputación Foral de Álava v Commission

(Case T-529/08)

(2009/C 32/90)

Language of the case: Spanish

Parties

Applicant: Territorio Histórico de Álava — Diputación Foral de Álava (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Declaration that the letter from the Directorate General of Competition of the European Commission D/53778 [COMP/H4/NM/ed D(2008) 247], of 2 October 2008, is null and void, in so far as it requires the interest referred to in Decisions 2002/820/EC and 2002/892/EC, of 11 July 2001 (infringement file 2007/2215), to be recovered on a compound basis; and |
| --- | --- |

—

Declaration that the letter from the Directorate General of Competition of the European Commission D/53778 [COMP/H4/NM/ed D(2008) 247], of 2 October 2008, is null and void, in so far as it requires the interest referred to in Decisions 2002/820/EC and 2002/892/EC, of 11 July 2001 (infringement file 2007/2215), to be recovered on a compound basis; and

| — | An order that the Commission should pay the costs. |
| --- | --- |

—

An order that the Commission should pay the costs.

Pleas in law and main arguments

The purpose of the present action is to challenge the decision in which the defendant takes the view that, in implementing the decisions of 11 July 2001, on the State aid scheme implemented by Spain for firms in Álava in the form of a tax credit amounting to 45 % of investments (Decision 2002/820/EC) and on the State aid scheme applied by Spain to certain newly established firms in Álava (Decision 2002/892/EC) (1), the rate of interest to be applied in the recovery is a compound rate of interest.

In the applicant's view, that decision constitutes a clear de facto modification of the decisions of 11 July 2001, which, in turn, represents a manifest abuse of power and an infringement of the principle of sound administration. In that connection, it should be pointed out that the application of a compound rate of interest was introduced into Community law for the first time by Article 11(2) of Commission Regulation (EC) No 794/2004 of 21 April 2004, laying down detailed rules for the application of Council Regulation (EC) No 659/1999 of 22 March 1999, laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 140, p. 1). However, that provision is not applicable ratione temporis to the Decisions of 11 July 2001.

Similarly, the change to the actual contents of those decisions made by the Commission, in terms of the rate of interest applicable, is an infringement of the principle of equal treatment, since both the authorities charged with implementing the Decisions of 17 July 2001 and the companies affected have been placed in a different position from that of the competent authorities in the Member States (and companies) affected by decisions for the recovery of aid contemporaneous with or prior to July 2001 which have not been required to pay compound interest in the aid recovery process.

Finally, the applicant submits that, by requiring compound interest, the Commission is imposing a penalty not provided for in Community law.

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(1)  Both decisions were challenged before the Court of First Instance (Cases T-227/01 Diputación Foral de Álava and Gobierno Vasco v Commission, and T-230/01 Diputación Foral de Álava and Gobierno Vasco v Commission, still sub judice).

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/47 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/47

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Action brought on 2 December 2008 — Diputación Foral de Guipúzcoa v Commission

(Case T-530/08)

(2009/C 32/91)

Language of the case: Spanish

Parties

Applicant: Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Declaration that the letter from the Directorate General of Competition of the European Commission D/53778 [COMP/H4/NM/ed D(2008) 247], of 2 October 2008, is null and void, in so far as it requires the interest referred to in Decisions 2002/894/EC and 2002/540/EC, of 11 July 2001 (infringement file 2007/2215), to be recovered on a compound basis; and |
| --- | --- |

—

Declaration that the letter from the Directorate General of Competition of the European Commission D/53778 [COMP/H4/NM/ed D(2008) 247], of 2 October 2008, is null and void, in so far as it requires the interest referred to in Decisions 2002/894/EC and 2002/540/EC, of 11 July 2001 (infringement file 2007/2215), to be recovered on a compound basis; and

| — | An order that the Commission should pay the costs. |
| --- | --- |

—

An order that the Commission should pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are those put forward in Case T-529/08 Diputación Foral de Álava v Commission.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/48 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/48

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Action brought on 2 December 2008 — Diputación Foral de Vizcaya v Commission

(Case T-531/08)

(2009/C 32/92)

Language of the case: Spanish

Parties

Applicant: Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Declaration that the letter from the Directorate General of Competition of the European Commission D/53778 [COMP/H4/NM/ed D(2008) 247], of 2 October 2008, is null and void, in so far as it requires the interest referred to in Decisions 2003/27/EC and 2002/806/EC, of 11 July 2001 (infringement file 2007/2215), to be recovered on a compound basis; and |
| --- | --- |

—

Declaration that the letter from the Directorate General of Competition of the European Commission D/53778 [COMP/H4/NM/ed D(2008) 247], of 2 October 2008, is null and void, in so far as it requires the interest referred to in Decisions 2003/27/EC and 2002/806/EC, of 11 July 2001 (infringement file 2007/2215), to be recovered on a compound basis; and

| — | An order that the Commission should pay the costs. |
| --- | --- |

—

An order that the Commission should pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are those put forward in Case T-529/08 Diputación Foral de Álava v Commission.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/48 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/48

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Order of the Court of First Instance of 10 December 2008 — Stichting IEA Secretariaat Nederland and Others v Commission

(Case T-56/08) (1)

(2009/C 32/93)

Language of the case: English

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

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(1)  OJ C 107, 26.4.2008.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/48 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/48

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Order of the Court of First Instance of 2 December 2008 — British Sky Broadcasting Group v OHIM — Vortex (SKY)

(Case T-66/08) (1)

(2009/C 32/94)

Language of the case: English

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

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(1)  OJ C 116, 9.5.2008.

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European Union Civil Service Tribunal

| 7.2.2009 | EN | Official Journal of the European Union | C 32/49 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/49

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Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Schell v Commission

(Case F-83/06) (1)

(Staff case - Officials - Promotion - Priority points - General implementing provisions for Article 45 of the Staff Regulations)

(2009/C 32/95)

Language of the case: French

Parties

Applicant: Arno Schell (Brussels, Belgium) (represented by: F. Frabetti, lawyer)

Defendant: Commission of the European Communities (represented by: G. Berscheid and M. Velardo, Agents)

Re:

Staff case — Annulment, primarily, of the lists of officials promoted in the 2004 and 2005 promotion years, in so far as those lists do not contain the applicant's name and, in the alternative, of the allocation of promotion points in those years in so far as the applicant is concerned

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

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

2.

Orders each party to bear its own costs.

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(1)  OJ C 237, 30.9.2006, p. 18.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/49 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/49

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Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Bouis and Others v Commission

(Case F-113/06) (1)

(Staff case - Officials - ‘Second round’ promotion - 2005 promotion procedure - Award of priority points - Transitional provisions - General implementing provisions for Article 45 of the Staff Regulations - Equal treatment - Admissibility)

(2009/C 32/96)

Language of the case: French

Parties

Applicants: Didier Bouis (Overijse, Belgium) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: Commission of the European Communities (represented by: V. Joris and D. Martin, Agents)

Re:

Staff case — First, annulment of the decision of the Commission not to include the applicants either on the merit list or on the list of those promoted to grade A*13 in the 2005 promotion procedure; second, annulment of the decisions to award the applicants transitional priority points inasmuch as these points are limited to one point per year of seniority in grade; third, annulment of the decisions not to award any other priority points to the applicants.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

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

2.

Orders each party to bear its own costs.

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(1)  OJ C 281, 18.11.2006, p. 49.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/50 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/50

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Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Buckingham and Others v Commission

(Case F-116/06) (1)

(Staff cases - Officials - ‘Second round’ promotion - 2005 promotion procedure - Award of priority points - Transitional provisions - GIP for Article 45 of the Staff Regulations - Equal treatment - Admissibility)

(2009/C 32/97)

Language of the case: French

Parties

Applicant: Anne Buckingham (Brussels, Belgium) and Others (represented by: N. Lhoest, lawyer)

Defendant: Commission of the European Communities (represented by: C. Berardis-Kayser and Katarzyna Herrmann, acting as Agents)

Re:

Staff case — Annulment of the Commission decision of 23 November 2005, published in Administrative Notices No 85-2005, in that it did not allocate to the applicants, officials in grade A*12, any priority points in recognition of the work carried out in the interests of the institution during the 2004 reporting period

Operative part of the judgment

The Tribunal:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

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

2.

orders each party to bear its own costs.

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(1)  OJ C 294, 2.12.2006, p. 66.

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| 7.2.2009 | EN | Official Journal of the European Union | C 32/50 |
| --- | --- | --- | --- |

7.2.2009

EN

Official Journal of the European Union

C 32/50

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Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Reali v Commission

(Case F-136/06) (1)

(Staff case - Contract staff - Recruitment - Classification in grade - Experience - Qualifications - Equivalence)

(2009/C 32/98)

Language of the case: English

Parties

Applicant: Enzo Reali (Florence, Italy) (represented by: S.A. Pappas, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and M. Velardo, Agents)

Re:

Staff case — Annulment of the Appointing Authority's decision of 30 August 2006 rejecting the complaint lodged by the applicant, a member of the contract staff, requesting to be reclassified from Grade 14 to Grade 16 in Function Group IV, on account of the value to be attributed to his ‘Laurea in Scienze agrarie’ diploma in the calculation of his professional experience.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

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

2.

Orders each party to bear its own costs.

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(1)  OJ C 20, 27.1.2007, p. 38.

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