# Official Journal C 186/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.186.eng |
| --- | --- |
| Official Journal
  of the European Union | C 186 |
| | |
| English edition | Information and Notices | Volume 5425 June 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.186.eng

Official Journal

of the European Union

C 186

English edition

Information and Notices

Volume 5425 June 2011

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 186/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 179, 18.6.2011 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2011/C 186/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 179, 18.6.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 186/02 | Case C-249/09: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Tartu ringkonnakohus — Estonia) — Novo Nordisk AS v Ravimiamet (Medicinal products for human use — Directive 2001/83/EC — Advertising — Medical journal — Information not included in the summary of product characteristics) | 2 |
| 2011/C 186/03 | Case C-267/09: Judgment of the Court (Fourth Chamber) of 5 May 2011 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Free movement of capital — Articles 56 EC and 40 of the EEA Agreement — Restrictions — Direct taxation — Non-resident taxpayers — Obligation to appoint a tax representative) | 2 |
| 2011/C 186/04 | Case C-305/09: Judgment of the Court (First Chamber) of 5 May 2011 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — State aid — Tax incentives in favour of companies taking part in trade fairs abroad — Recovery) | 3 |
| 2011/C 186/05 | Case C-316/09: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — MSD Sharp & Dohme GmbH v Merckle GmbH (Medicinal products for human use — Directive 2001/83/EC — Prohibition on the advertising to the general public of medicinal products available only on prescription — Definition of advertising — Information communicated to the competent authority — Information accessible on the internet) | 3 |
| 2011/C 186/06 | Case C-375/09: Judgment of the Court (Grand Chamber) of 3 May 2011 (reference for a preliminary ruling from the Sąd Najwyższy — Republic of Poland) — Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. z o.o., now Netia SA (Competition — Regulation (EC) No 1/2003 — Article 5 — Abuse of a dominant position — Powers of the competition authorities of the Member States to find that there has been no breach of Article 102 TFEU) | 4 |
| 2011/C 186/07 | Case C-384/09: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Tribunal de grande instance de Paris — France) — Prunus SARL, Polonium SA v Directeur des services fiscaux (Direct taxation — Free movement of capital — Article 64 TFEU — Legal persons established in a non-Member State — Ownership of immovable property located in a Member State — Tax on the market value of that property — Refusal of exemption — Assessment with regard to overseas countries and territories — Combating tax evasion — Joint and several liability) | 4 |
| 2011/C 186/08 | Case C-434/09: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Supreme Court of the United Kingdom (United Kingdom)) — Shirley McCarthy v Secretary of State for the Home Department (Freedom of movement for persons — Article 21 TFEU — Directive 2004/38/EC — Beneficiary — Article 3(1) — National who has never made use of his right of free movement and has always resided in the Member State of his nationality — Effect of being a national of another Member State — Purely internal situation) | 5 |
| 2011/C 186/09 | Case C-537/09: Judgment of the Court (Fourth Chamber) of 5 May 2011 (reference for a preliminary ruling from the Upper Tribunal — United Kingdom) — Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael Taylor v Secretary of State for Work and Pensions (Reference for a preliminary ruling — Regulation (EEC) No 1408/71 — Mobility component of Disability Living Allowance — Separate benefit — Special non-contributory benefit — Non-exportability) | 5 |
| 2011/C 186/10 | Case C-137/10: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Conseil d'État — Belgium) — European Communities v Région de Bruxelles-Capitale (Articles 207(2) EC and 282 EC — Representation of the European Communities before the national courts — Powers conferred on the Commission — Delegation of the power of representation to other Community institutions — Conditions) | 6 |
| 2011/C 186/11 | Case C-200/10 P: Judgment of the Court (Eighth Chamber) of 5 May 2011 — Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission (Appeal — Arbitration clause — Contract relating to Community support for a project in the context of the eContent programme — Termination of the contract by the Commission — Reimbursement of eligible costs — Grounds of the judgment of the General Court) | 7 |
| 2011/C 186/12 | Case C-206/10: Judgment of the Court (Fifth Chamber) of 5 May 2011 — European Commission v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Regulation (EEC) No 1408/71 — Article 4(1)(a) — Regulation (EEC) No 1612/68 — Article 7(2) — German Länder benefits for the blind, the deaf and the disabled — Residence qualification) | 7 |
| 2011/C 186/13 | Case C-265/10: Judgment of the Court (Eighth Chamber) of 5 May 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Regulation (EC) No 1907/2006 — Chemicals — Registration, evaluation, authorisation of those substances and restrictions applicable to them — REACH Regulation — Article 126 — System of penalties in the event of infringement of the provisions of the REACH Regulation — Lack of implementation within the period prescribed) | 8 |
| 2011/C 186/14 | Case C-61/11 PPU: Judgment of the Court (First Chamber) of 28 April 2011 (reference for a preliminary ruling from the Corte d’appello di Trento — Italy) — Criminal proceedings against Hassen El Dridi alias Karim Soufi (Area of freedom, security and justice — Directive 2008/115/EC — Return of illegally staying third-country nationals — Articles 15 and 16 — National legislation providing for a prison sentence for illegally staying third-country nationals in the event of refusal to obey an order to leave the territory of a Member State — Compatibility) | 8 |
| 2011/C 186/15 | Case C-258/10: Order of the Court of 4 March 2011 (reference for a preliminary ruling from the Tribunal Dâmbovița — Romania) — Nicușor Grigore v Regia Națională a Pădurilor Romsilva — Direcția Silvică București (First subparagraph of Article 104(3) of the Rules of Procedure — Social policy — Protection of the safety and health of workers — Directive 2003/88/EC — Organisation of working time — Notion of working time — Notion ofmaximum weekly working time — Forest ranger subject, under the terms of his employment contract and the applicable collective agreement, to flexible working time of 8 hours per day and 40 hours per week — National legislation holding him liable for any damage suffered in the section of forest under his control — Classification — Effect of overtime on the remuneration and financial compensation of the person concerned) | 9 |
| 2011/C 186/16 | Case C-273/10: Order of the Court of 18 March 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain)) — David Montoya Medina v Fondo de Garantia Salarial and Universidad de Alicante (Article 104(3) of the Rules of Procedure — Social policy — Directive 1999/70/EC — Clause 4 of the Framework Agreement on fixed-term work — Fixed-term employment contracts in the public sector — Entitlement to triennial seniority bonuses — Principle of non-discrimination) | 10 |
| 2011/C 186/17 | Case C-370/10 P: Order of the Court (Fifth Chamber) of 14 March 2011 — Ravensburger AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Educa Borras SA (Appeal — Community trade mark — Figurative mark EDUCA Memory game — Application for a declaration of invalidity made by the proprietor of the national and international word marks MEMORY — Rejection of the application for a declaration of invalidity by the Board of Appeal — Regulation (EC) No 40/94 — Article 8(1)(b) and (5) — Relative grounds for refusal) | 10 |
| 2011/C 186/18 | Case C-95/11: Action brought on 28 February 2011 — European Commission v Kingdom of Denmark | 11 |
| 2011/C 186/19 | Case C-132/11: Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria) lodged on 18 March 2011 — Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH | 11 |
| 2011/C 186/20 | Case C-138/11: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria), lodged on 21 March 2011 — Compass-Datenbank GmbH v Republik Österreich | 12 |
| 2011/C 186/21 | Case C-153/11: Reference for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 28 March 2011 — OOD Klub v Director of the Varna Office Appeals and the Administration of Enforcement — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite) | 12 |
| 2011/C 186/22 | Case C-164/11: Action brought on 5 April 2011 — European Commission v French Republic | 13 |
| 2011/C 186/23 | Case C-179/11: Reference for a preliminary ruling from the Conseil d’État (France) lodged on 18 April 2011 — CIMADE, Groupe d’information et de soutien des immigrés (GISTI) v Ministre de l’Intérieur, de l’Outre-Mer, des Collectivités Territoriales et de l’Immigration | 13 |
| 2011/C 186/24 | Case C-181/11 P: Appeal brought on 15 April 2011 by Compañía Española de Tabaco en Rama, S.A. (Cetarsa) against the judgment delivered on 3 February 2011 in Case T-33/05, Compañía Española de Tabaco en Rama, S.A. v European Commission | 14 |
| 2011/C 186/25 | Case C-184/11: Action brought on 18 April 2011 — European Commission v Kingdom of Spain | 14 |
| 2011/C 186/26 | Case C-186/11: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 20 April 2011 — Stanleybet International Ltd, William Hill Organisation Ltd and William Hill plc v Ipourgos Ikonomias kai Ikonomikon and Ipourgos Politismou | 15 |
| 2011/C 186/27 | Case C-189/11: Action brought on 20 April 2011 — European Commission v Kingdom of Spain | 16 |
| 2011/C 186/28 | Case C-198/11 P: Appeal brought on 28 April 2011 by Lan Airlines S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 February 2011 in Case T-194/09 Lan Airlines S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A. | 16 |
| 2011/C 186/29 | Case C-408/10: Order of the President of the Court of 1 March 2011 — European Commission v Republic of Estonia | 17 |
| 2011/C 186/30 | Case C-517/10: Order of the President of the Court of 9 March 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Canarias — Spain) — María Luisa Gómez Cueto v Administración del Estado | 17 |
| 2011/C 186/31 | Case C-563/10: Order of the President of the Court of 11 March 2011 (reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen — Germany) — Kashayar Khavand v Bundesrepublik Deutschland | 17 |
| | General Court |
| 2011/C 186/32 | Case T-1/08: Judgment of the General Court of 17 May 2011 — Buczek Autmotive v Commission (State aid — Restructuring of the Polish steel industry — Recovery of public debts — Decision declaring the aid incompatible with the common market and ordering its recovery — Action for annulment — Interest in bringing proceedings — Admissibility — Concept of State aid — Private investor criterion) | 18 |
| 2011/C 186/33 | Case T-145/08: Judgment of the General Court of 16 May 2011 — Atlas Transport v OHIM — Atlas Air (ATLAS) (Community trade mark — Invalidity proceedings — Community trade mark ATLAS — Earlier Benelux trade mark atlasair — Formal requirements — Lodging of a statement setting out the grounds for the action — Suspension of the administrative procedure — Article 59 of Regulation (EC) No 40/94 (now Article 60 of Regulation (EC) No 207/2009) — Rule 20(7) of Regulation (EC) No 2868/95) | 18 |
| 2011/C 186/34 | Joined Cases T-267/08 and T-279/08: Judgment of the General Court of 12 May 2011 — Région Nord-Pas-de-Calais and Communauté d'agglomération du Douasis v Commission (State aid — Construction of railway equipment — Repayable advances — Decision declaring the aid incompatible with the common market and ordering its recovery — Alteration of heads of claim — Rights of defence — Obligation to state reasons — State resources — Whether State held responsible — Criterion of private investor — Undertaking in difficulties) | 19 |
| 2011/C 186/35 | Case T-299/08: Judgment of the General Court of 17 May 2011 — Elf Aquitaine v Commission (Competition — Agreements, decisions and concerted practices — Market in sodium chlorate — Decision finding an infringement of Article 81 EC and Article 53 EEA — Imputability of the infringement — Rights of the defence — Obligation to state reasons — Principle that penalties must fit the offence — Principle that penalties must have a proper legal basis — Presumption of innocence — Principle of sound administration — Principle of legal certainty — Misuse of powers — Fines — Aggravating circumstance — Deterrence — Mitigating circumstance — Cooperation during the administrative procedure — Significant added value) | 19 |
| 2011/C 186/36 | Case T-343/08: Judgment of the General Court of 17 May 2011 — Arkema France v Commission (Competition — Agreements, decisions and concerted practices — Market in sodium chlorate — Decision finding an infringement of Article 81 EC and Article 53 EEA — Action for annulment — Admissibility — Imputability of the infringement — Fines — Aggravating circumstance — Repeat infringement — Mitigating circumstance — Cooperation during the administrative procedure — Significant added value) | 20 |
| 2011/C 186/37 | Case T-203/09: Judgment of the General Court of 5 May 2011 — Olymp Bezner v OHIM — Bellido (Olymp) (Community trade mark — Invalidity proceedings — Community word mark OLYMP — Earlier national figurative mark OLIMPO — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) and Article 52(1)(a) of Regulation (EC) No 40/94 (now Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009)) | 20 |
| 2011/C 186/38 | Case T-204/09: Judgment of the General Court of 5 May 2011 — Olymp Bezner v OHIM — Bellido (OLYMP) (Community trade mark — Opposition proceedings — Application for the Community figurative mark OLYMP — Earlier national figurative mark OLIMPO — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 21 |
| 2011/C 186/39 | Case T-341/09: Judgment of the General Court of 17 May 2011 — Consejo Regulador de la Denominación de Origen Txakoli de Álava and Others v OHIM (TXAKOLI) (Community trade mark — Application for a Community collective verbal mark TXAKOLI — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Article 66(2) of Regulation No 207/2009 — Lack of distinctive character — Article 7(1)(b) of Regulation No 207/2009) | 21 |
| 2011/C 186/40 | Case T-460/09: Judgment of the General Court of 5 May 2011 — CheapFlights International v OHIM — Cheapflights (Cheapflights) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Cheapflights — Earlier national figurative mark CheapFlights — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009) | 22 |
| 2011/C 186/41 | Case T-461/09: Judgment of the General Court of 5 May 2011 — CheapFlights International v OHIM — Cheapflights (Cheapflights with a black aeroplane) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Cheapflights with a black aeroplane — Earlier international figurative mark CheapFlights — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009) | 22 |
| 2011/C 186/42 | Case T-464/09: Judgment of the General Court of 12 May 2011 — Commission v New Acoustic Music and Hildibrandsdottir (Arbitration clause — Contract for financial assistance concluded under the Culture 2000 Framework Programme — Implementation of the action entitled European Music Roadwork — Non-performance of the contract — Repayment of part of the amounts advanced — Partial inadmissibility of the action — Procedure by default — Legal aid) | 23 |
| 2011/C 186/43 | Case T-488/09: Judgment of the General Court of 12 May 2011 — Jager & Polacek v OHIM (REDTUBE) (Community trade mark — Opposition proceedings — Application for the Community word mark REDTUBE — Earlier unregistered national mark Redtube — Failure to pay the opposition fee within the prescribed period — Decision deeming the opposition non-existent — Article 8(3) of Regulation (EC) No 2869/95 — Protection of legitimate expectations — Rule 17 of Regulation (EC) No 2868/95 — Ex parte proceedings — Article 8(2) of Regulation (EC) No 216/96 — Rule 18 of Regulation No 2868/95 — Legal nature of a communication from OHIM informing a party that an opposition has been found to be admissible — Rule of parallelism of procedural requirements and of the actus contrarius — Article 80 of Regulation (EC) No 207/2009) | 23 |
| 2011/C 186/44 | Case T-7/10: Judgment of the General Court of 17 May 2011 — Diagnostiko kai Therapeftiko Kentro Athinon Ygeia v OHIM (υγεία) (Community trade mark — Application for the Community word mark υγεία — Absolute grounds for refusal — No distinctive character and descriptive character — No distinctive character acquired through use — Article 7(1)(b) and (c) and Article 7(3) of Regulation (EC) No 207/2009) | 24 |
| 2011/C 186/45 | Case T-41/10: Judgment of the General Court of 5 May 2011 — SIMS — École de ski internationale v OHIM — SNMSF (esf école du ski français) (Community trade mark — Invalidity proceedings — Community figurative mark esf école du ski français — Absolute grounds for refusal — State emblem — Article 7(1)(h) of Regulation (EC) No 207/2009 — Article 6ter of the Paris Convention — Mark of such a nature as to deceive the public — Article 7(1)(g) of Regulation No 207/2009) | 24 |
| 2011/C 186/46 | Case T-74/10: Judgment of the General Court of 11 May 2011 — Flaco Geräte v OHIM — Delgado Sámchez (FLACO) (Community trade mark — Opposition proceedings — Application for Community word mark FLACO — Earlier national word mark FLACO — Relative ground for refusal — Identical goods — Article 8(1)(a) and (b) of Regulation (EC) No 207/2009 — Request for proof of genuine use of the earlier mark submitted for the first time before the Board of Appeal — Article 42(2) and (3) of Regulation No 207/2009 and Rule 22 of Regulation (EC) No 2868/95) | 25 |
| 2011/C 186/47 | Case T-187/10: Judgment of the General Court of 10 May 2011 — Emram v OHIM — Guccio Gucci (G) (Community trade mark — Opposition proceedings — Application for the Community figurative mark G — Earlier national and Community figurative marks G — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 25 |
| 2011/C 186/48 | Case T-402/09 P: Order of the General Court of 5 May 2011 — Marcuccio v Commission (Appeal — Civil Service — Officials — Rules on insurance against the risk of accident and occupational disease for officials of the European Communities — Procedure for the recognition of the occupational origin of a disease — Appeal in part manifestly inadmissible and in part manifestly unfounded) | 26 |
| 2011/C 186/49 | Case T-195/11 R: Order of the President of the General Court of 11 May 2011 — Cahier and Others v Council of the European Union and European Commission (Interim proceedings — Non-contractual liability — Application for interim measures — Inadmissible in part — Want of urgency) | 26 |
| 2011/C 186/50 | Case T-197/11 P: Appeal brought on 1 April 2011 by the European Commission against the judgment of the Civil Service Tribunal of 20 January 2011 in Case F-121/07 Strack v Commission | 26 |
| 2011/C 186/51 | Case T-203/11: Action brought on 28 March 2011 — Transports Schiocchet — Excursions v Council and Commission | 27 |
| 2011/C 186/52 | Case T-205/11: Action brought on 7 April 2011 — Germany v Commission | 28 |
| 2011/C 186/53 | Case T-209/11: Action brought on 5 April 2011 — MB System v Commission | 28 |
| 2011/C 186/54 | Case T-215/11: Action brought on 12 April 2011 — ADEDI and Others v Council of the European Union | 29 |
| 2011/C 186/55 | Case T-222/11: Action brought on 20 April 2011 — Rautenbach v Council and Commission | 29 |
| 2011/C 186/56 | Case T-235/11: Action brought on 29 April 2011 — Spain v Commission | 30 |
| 2011/C 186/57 | Case T-238/11 P: Appeal brought on 4 May 2011 by Luigi Marcuccio against the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-81/09, Marcuccio v Commission | 31 |
| 2011/C 186/58 | Case T-338/10: Order of the General Court of 13 May 2011 — Commission v Tornasol Films | 32 |
| 2011/C 186/59 | Case T-88/11: Order of the General Court of 4 May 2011 — BIA Separations v Commission | 32 |
| | European Union Civil Service Tribunal |
| 2011/C 186/60 | Case F-17/11: Action brought on 22 April 2011 — ZZ v Commission | 33 |
| 2011/C 186/61 | Case F-27/11: Action brought on 20 April 2011 — ZZ v Commission | 33 |
| 2011/C 186/62 | Case F-31/11: Action brought on 26 March 2011 — ZZ v CEDEFOP | 33 |
| 2011/C 186/63 | Case F-40/11: Action brought on 5 April 2011 — ZZ v Commission | 34 |
| 2011/C 186/64 | Case F-42/11: Action brought on 9 April 2011 — Honnefelder v European Commission | 34 |
| 2011/C 186/65 | Case F-44/11: Action brought on 13 April 2011 — ZZ v Commission | 34 |
| 2011/C 186/66 | Case F-45/11: Action brought on 14 April 2011 — ZZ v EIB | 35 |
| 2011/C 186/67 | Case F-46/11: Action brought on 14 April 2011 — ZZ v Commission | 35 |
| 2011/C 186/68 | Case F-49/11: Action brought on 18 April 2011 — ZZ v Commission | 36 |
| 2011/C 186/69 | Case F-50/11: Action brought on 19 April 2011 — ZZ v Parliament | 36 |
| 2011/C 186/70 | Case F-52/11: Action brought on 24 April 2011 — ZZ v EIB | 37 |
| 2011/C 186/71 | Case F-53/11: Action brought on 2 May 2011 — ZZ v Commission | 37 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 186/02

Case C-249/09: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Tartu ringkonnakohus — Estonia) — Novo Nordisk AS v Ravimiamet (Medicinal products for human use — Directive 2001/83/EC — Advertising — Medical journal — Information not included in the summary of product characteristics)

2

2011/C 186/03

Case C-267/09: Judgment of the Court (Fourth Chamber) of 5 May 2011 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Free movement of capital — Articles 56 EC and 40 of the EEA Agreement — Restrictions — Direct taxation — Non-resident taxpayers — Obligation to appoint a tax representative)

2

2011/C 186/04

Case C-305/09: Judgment of the Court (First Chamber) of 5 May 2011 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — State aid — Tax incentives in favour of companies taking part in trade fairs abroad — Recovery)

3

2011/C 186/05

Case C-316/09: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — MSD Sharp & Dohme GmbH v Merckle GmbH (Medicinal products for human use — Directive 2001/83/EC — Prohibition on the advertising to the general public of medicinal products available only on prescription — Definition of advertising — Information communicated to the competent authority — Information accessible on the internet)

3

2011/C 186/06

Case C-375/09: Judgment of the Court (Grand Chamber) of 3 May 2011 (reference for a preliminary ruling from the Sąd Najwyższy — Republic of Poland) — Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. z o.o., now Netia SA (Competition — Regulation (EC) No 1/2003 — Article 5 — Abuse of a dominant position — Powers of the competition authorities of the Member States to find that there has been no breach of Article 102 TFEU)

4

2011/C 186/07

Case C-384/09: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Tribunal de grande instance de Paris — France) — Prunus SARL, Polonium SA v Directeur des services fiscaux (Direct taxation — Free movement of capital — Article 64 TFEU — Legal persons established in a non-Member State — Ownership of immovable property located in a Member State — Tax on the market value of that property — Refusal of exemption — Assessment with regard to overseas countries and territories — Combating tax evasion — Joint and several liability)

4

2011/C 186/08

Case C-434/09: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Supreme Court of the United Kingdom (United Kingdom)) — Shirley McCarthy v Secretary of State for the Home Department (Freedom of movement for persons — Article 21 TFEU — Directive 2004/38/EC — Beneficiary — Article 3(1) — National who has never made use of his right of free movement and has always resided in the Member State of his nationality — Effect of being a national of another Member State — Purely internal situation)

5

2011/C 186/09

Case C-537/09: Judgment of the Court (Fourth Chamber) of 5 May 2011 (reference for a preliminary ruling from the Upper Tribunal — United Kingdom) — Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael Taylor v Secretary of State for Work and Pensions (Reference for a preliminary ruling — Regulation (EEC) No 1408/71 — Mobility component of Disability Living Allowance — Separate benefit — Special non-contributory benefit — Non-exportability)

5

2011/C 186/10

Case C-137/10: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Conseil d'État — Belgium) — European Communities v Région de Bruxelles-Capitale (Articles 207(2) EC and 282 EC — Representation of the European Communities before the national courts — Powers conferred on the Commission — Delegation of the power of representation to other Community institutions — Conditions)

6

2011/C 186/11

Case C-200/10 P: Judgment of the Court (Eighth Chamber) of 5 May 2011 — Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission (Appeal — Arbitration clause — Contract relating to Community support for a project in the context of the eContent programme — Termination of the contract by the Commission — Reimbursement of eligible costs — Grounds of the judgment of the General Court)

7

2011/C 186/12

Case C-206/10: Judgment of the Court (Fifth Chamber) of 5 May 2011 — European Commission v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Regulation (EEC) No 1408/71 — Article 4(1)(a) — Regulation (EEC) No 1612/68 — Article 7(2) — German Länder benefits for the blind, the deaf and the disabled — Residence qualification)

7

2011/C 186/13

Case C-265/10: Judgment of the Court (Eighth Chamber) of 5 May 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Regulation (EC) No 1907/2006 — Chemicals — Registration, evaluation, authorisation of those substances and restrictions applicable to them — REACH Regulation — Article 126 — System of penalties in the event of infringement of the provisions of the REACH Regulation — Lack of implementation within the period prescribed)

8

2011/C 186/14

Case C-61/11 PPU: Judgment of the Court (First Chamber) of 28 April 2011 (reference for a preliminary ruling from the Corte d’appello di Trento — Italy) — Criminal proceedings against Hassen El Dridi alias Karim Soufi (Area of freedom, security and justice — Directive 2008/115/EC — Return of illegally staying third-country nationals — Articles 15 and 16 — National legislation providing for a prison sentence for illegally staying third-country nationals in the event of refusal to obey an order to leave the territory of a Member State — Compatibility)

8

2011/C 186/15

Case C-258/10: Order of the Court of 4 March 2011 (reference for a preliminary ruling from the Tribunal Dâmbovița — Romania) — Nicușor Grigore v Regia Națională a Pădurilor Romsilva — Direcția Silvică București (First subparagraph of Article 104(3) of the Rules of Procedure — Social policy — Protection of the safety and health of workers — Directive 2003/88/EC — Organisation of working time — Notion of working time — Notion ofmaximum weekly working time — Forest ranger subject, under the terms of his employment contract and the applicable collective agreement, to flexible working time of 8 hours per day and 40 hours per week — National legislation holding him liable for any damage suffered in the section of forest under his control — Classification — Effect of overtime on the remuneration and financial compensation of the person concerned)

9

2011/C 186/16

Case C-273/10: Order of the Court of 18 March 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain)) — David Montoya Medina v Fondo de Garantia Salarial and Universidad de Alicante (Article 104(3) of the Rules of Procedure — Social policy — Directive 1999/70/EC — Clause 4 of the Framework Agreement on fixed-term work — Fixed-term employment contracts in the public sector — Entitlement to triennial seniority bonuses — Principle of non-discrimination)

10

2011/C 186/17

Case C-370/10 P: Order of the Court (Fifth Chamber) of 14 March 2011 — Ravensburger AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Educa Borras SA (Appeal — Community trade mark — Figurative mark EDUCA Memory game — Application for a declaration of invalidity made by the proprietor of the national and international word marks MEMORY — Rejection of the application for a declaration of invalidity by the Board of Appeal — Regulation (EC) No 40/94 — Article 8(1)(b) and (5) — Relative grounds for refusal)

10

2011/C 186/18

Case C-95/11: Action brought on 28 February 2011 — European Commission v Kingdom of Denmark

11

2011/C 186/19

Case C-132/11: Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria) lodged on 18 March 2011 — Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH

11

2011/C 186/20

Case C-138/11: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria), lodged on 21 March 2011 — Compass-Datenbank GmbH v Republik Österreich

12

2011/C 186/21

Case C-153/11: Reference for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 28 March 2011 — OOD Klub v Director of the Varna Office Appeals and the Administration of Enforcement — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite)

12

2011/C 186/22

Case C-164/11: Action brought on 5 April 2011 — European Commission v French Republic

13

2011/C 186/23

Case C-179/11: Reference for a preliminary ruling from the Conseil d’État (France) lodged on 18 April 2011 — CIMADE, Groupe d’information et de soutien des immigrés (GISTI) v Ministre de l’Intérieur, de l’Outre-Mer, des Collectivités Territoriales et de l’Immigration

13

2011/C 186/24

Case C-181/11 P: Appeal brought on 15 April 2011 by Compañía Española de Tabaco en Rama, S.A. (Cetarsa) against the judgment delivered on 3 February 2011 in Case T-33/05, Compañía Española de Tabaco en Rama, S.A. v European Commission

14

2011/C 186/25

Case C-184/11: Action brought on 18 April 2011 — European Commission v Kingdom of Spain

14

2011/C 186/26

Case C-186/11: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 20 April 2011 — Stanleybet International Ltd, William Hill Organisation Ltd and William Hill plc v Ipourgos Ikonomias kai Ikonomikon and Ipourgos Politismou

15

2011/C 186/27

Case C-189/11: Action brought on 20 April 2011 — European Commission v Kingdom of Spain

16

2011/C 186/28

Case C-198/11 P: Appeal brought on 28 April 2011 by Lan Airlines S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 February 2011 in Case T-194/09 Lan Airlines S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A.

16

2011/C 186/29

Case C-408/10: Order of the President of the Court of 1 March 2011 — European Commission v Republic of Estonia

17

2011/C 186/30

Case C-517/10: Order of the President of the Court of 9 March 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Canarias — Spain) — María Luisa Gómez Cueto v Administración del Estado

17

2011/C 186/31

Case C-563/10: Order of the President of the Court of 11 March 2011 (reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen — Germany) — Kashayar Khavand v Bundesrepublik Deutschland

17

General Court

2011/C 186/32

Case T-1/08: Judgment of the General Court of 17 May 2011 — Buczek Autmotive v Commission (State aid — Restructuring of the Polish steel industry — Recovery of public debts — Decision declaring the aid incompatible with the common market and ordering its recovery — Action for annulment — Interest in bringing proceedings — Admissibility — Concept of State aid — Private investor criterion)

18

2011/C 186/33

Case T-145/08: Judgment of the General Court of 16 May 2011 — Atlas Transport v OHIM — Atlas Air (ATLAS) (Community trade mark — Invalidity proceedings — Community trade mark ATLAS — Earlier Benelux trade mark atlasair — Formal requirements — Lodging of a statement setting out the grounds for the action — Suspension of the administrative procedure — Article 59 of Regulation (EC) No 40/94 (now Article 60 of Regulation (EC) No 207/2009) — Rule 20(7) of Regulation (EC) No 2868/95)

18

2011/C 186/34

Joined Cases T-267/08 and T-279/08: Judgment of the General Court of 12 May 2011 — Région Nord-Pas-de-Calais and Communauté d'agglomération du Douasis v Commission (State aid — Construction of railway equipment — Repayable advances — Decision declaring the aid incompatible with the common market and ordering its recovery — Alteration of heads of claim — Rights of defence — Obligation to state reasons — State resources — Whether State held responsible — Criterion of private investor — Undertaking in difficulties)

19

2011/C 186/35

Case T-299/08: Judgment of the General Court of 17 May 2011 — Elf Aquitaine v Commission (Competition — Agreements, decisions and concerted practices — Market in sodium chlorate — Decision finding an infringement of Article 81 EC and Article 53 EEA — Imputability of the infringement — Rights of the defence — Obligation to state reasons — Principle that penalties must fit the offence — Principle that penalties must have a proper legal basis — Presumption of innocence — Principle of sound administration — Principle of legal certainty — Misuse of powers — Fines — Aggravating circumstance — Deterrence — Mitigating circumstance — Cooperation during the administrative procedure — Significant added value)

19

2011/C 186/36

Case T-343/08: Judgment of the General Court of 17 May 2011 — Arkema France v Commission (Competition — Agreements, decisions and concerted practices — Market in sodium chlorate — Decision finding an infringement of Article 81 EC and Article 53 EEA — Action for annulment — Admissibility — Imputability of the infringement — Fines — Aggravating circumstance — Repeat infringement — Mitigating circumstance — Cooperation during the administrative procedure — Significant added value)

20

2011/C 186/37

Case T-203/09: Judgment of the General Court of 5 May 2011 — Olymp Bezner v OHIM — Bellido (Olymp) (Community trade mark — Invalidity proceedings — Community word mark OLYMP — Earlier national figurative mark OLIMPO — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) and Article 52(1)(a) of Regulation (EC) No 40/94 (now Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009))

20

2011/C 186/38

Case T-204/09: Judgment of the General Court of 5 May 2011 — Olymp Bezner v OHIM — Bellido (OLYMP) (Community trade mark — Opposition proceedings — Application for the Community figurative mark OLYMP — Earlier national figurative mark OLIMPO — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

21

2011/C 186/39

Case T-341/09: Judgment of the General Court of 17 May 2011 — Consejo Regulador de la Denominación de Origen Txakoli de Álava and Others v OHIM (TXAKOLI) (Community trade mark — Application for a Community collective verbal mark TXAKOLI — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Article 66(2) of Regulation No 207/2009 — Lack of distinctive character — Article 7(1)(b) of Regulation No 207/2009)

21

2011/C 186/40

Case T-460/09: Judgment of the General Court of 5 May 2011 — CheapFlights International v OHIM — Cheapflights (Cheapflights) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Cheapflights — Earlier national figurative mark CheapFlights — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

22

2011/C 186/41

Case T-461/09: Judgment of the General Court of 5 May 2011 — CheapFlights International v OHIM — Cheapflights (Cheapflights with a black aeroplane) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Cheapflights with a black aeroplane — Earlier international figurative mark CheapFlights — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

22

2011/C 186/42

Case T-464/09: Judgment of the General Court of 12 May 2011 — Commission v New Acoustic Music and Hildibrandsdottir (Arbitration clause — Contract for financial assistance concluded under the Culture 2000 Framework Programme — Implementation of the action entitled European Music Roadwork — Non-performance of the contract — Repayment of part of the amounts advanced — Partial inadmissibility of the action — Procedure by default — Legal aid)

23

2011/C 186/43

Case T-488/09: Judgment of the General Court of 12 May 2011 — Jager & Polacek v OHIM (REDTUBE) (Community trade mark — Opposition proceedings — Application for the Community word mark REDTUBE — Earlier unregistered national mark Redtube — Failure to pay the opposition fee within the prescribed period — Decision deeming the opposition non-existent — Article 8(3) of Regulation (EC) No 2869/95 — Protection of legitimate expectations — Rule 17 of Regulation (EC) No 2868/95 — Ex parte proceedings — Article 8(2) of Regulation (EC) No 216/96 — Rule 18 of Regulation No 2868/95 — Legal nature of a communication from OHIM informing a party that an opposition has been found to be admissible — Rule of parallelism of procedural requirements and of the actus contrarius — Article 80 of Regulation (EC) No 207/2009)

23

2011/C 186/44

Case T-7/10: Judgment of the General Court of 17 May 2011 — Diagnostiko kai Therapeftiko Kentro Athinon Ygeia v OHIM (υγεία) (Community trade mark — Application for the Community word mark υγεία — Absolute grounds for refusal — No distinctive character and descriptive character — No distinctive character acquired through use — Article 7(1)(b) and (c) and Article 7(3) of Regulation (EC) No 207/2009)

24

2011/C 186/45

Case T-41/10: Judgment of the General Court of 5 May 2011 — SIMS — École de ski internationale v OHIM — SNMSF (esf école du ski français) (Community trade mark — Invalidity proceedings — Community figurative mark esf école du ski français — Absolute grounds for refusal — State emblem — Article 7(1)(h) of Regulation (EC) No 207/2009 — Article 6ter of the Paris Convention — Mark of such a nature as to deceive the public — Article 7(1)(g) of Regulation No 207/2009)

24

2011/C 186/46

Case T-74/10: Judgment of the General Court of 11 May 2011 — Flaco Geräte v OHIM — Delgado Sámchez (FLACO) (Community trade mark — Opposition proceedings — Application for Community word mark FLACO — Earlier national word mark FLACO — Relative ground for refusal — Identical goods — Article 8(1)(a) and (b) of Regulation (EC) No 207/2009 — Request for proof of genuine use of the earlier mark submitted for the first time before the Board of Appeal — Article 42(2) and (3) of Regulation No 207/2009 and Rule 22 of Regulation (EC) No 2868/95)

25

2011/C 186/47

Case T-187/10: Judgment of the General Court of 10 May 2011 — Emram v OHIM — Guccio Gucci (G) (Community trade mark — Opposition proceedings — Application for the Community figurative mark G — Earlier national and Community figurative marks G — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

25

2011/C 186/48

Case T-402/09 P: Order of the General Court of 5 May 2011 — Marcuccio v Commission (Appeal — Civil Service — Officials — Rules on insurance against the risk of accident and occupational disease for officials of the European Communities — Procedure for the recognition of the occupational origin of a disease — Appeal in part manifestly inadmissible and in part manifestly unfounded)

26

2011/C 186/49

Case T-195/11 R: Order of the President of the General Court of 11 May 2011 — Cahier and Others v Council of the European Union and European Commission (Interim proceedings — Non-contractual liability — Application for interim measures — Inadmissible in part — Want of urgency)

26

2011/C 186/50

Case T-197/11 P: Appeal brought on 1 April 2011 by the European Commission against the judgment of the Civil Service Tribunal of 20 January 2011 in Case F-121/07 Strack v Commission

26

2011/C 186/51

Case T-203/11: Action brought on 28 March 2011 — Transports Schiocchet — Excursions v Council and Commission

27

2011/C 186/52

Case T-205/11: Action brought on 7 April 2011 — Germany v Commission

28

2011/C 186/53

Case T-209/11: Action brought on 5 April 2011 — MB System v Commission

28

2011/C 186/54

Case T-215/11: Action brought on 12 April 2011 — ADEDI and Others v Council of the European Union

29

2011/C 186/55

Case T-222/11: Action brought on 20 April 2011 — Rautenbach v Council and Commission

29

2011/C 186/56

Case T-235/11: Action brought on 29 April 2011 — Spain v Commission

30

2011/C 186/57

Case T-238/11 P: Appeal brought on 4 May 2011 by Luigi Marcuccio against the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-81/09, Marcuccio v Commission

31

2011/C 186/58

Case T-338/10: Order of the General Court of 13 May 2011 — Commission v Tornasol Films

32

2011/C 186/59

Case T-88/11: Order of the General Court of 4 May 2011 — BIA Separations v Commission

32

European Union Civil Service Tribunal

2011/C 186/60

Case F-17/11: Action brought on 22 April 2011 — ZZ v Commission

33

2011/C 186/61

Case F-27/11: Action brought on 20 April 2011 — ZZ v Commission

33

2011/C 186/62

Case F-31/11: Action brought on 26 March 2011 — ZZ v CEDEFOP

33

2011/C 186/63

Case F-40/11: Action brought on 5 April 2011 — ZZ v Commission

34

2011/C 186/64

Case F-42/11: Action brought on 9 April 2011 — Honnefelder v European Commission

34

2011/C 186/65

Case F-44/11: Action brought on 13 April 2011 — ZZ v Commission

34

2011/C 186/66

Case F-45/11: Action brought on 14 April 2011 — ZZ v EIB

35

2011/C 186/67

Case F-46/11: Action brought on 14 April 2011 — ZZ v Commission

35

2011/C 186/68

Case F-49/11: Action brought on 18 April 2011 — ZZ v Commission

36

2011/C 186/69

Case F-50/11: Action brought on 19 April 2011 — ZZ v Parliament

36

2011/C 186/70

Case F-52/11: Action brought on 24 April 2011 — ZZ v EIB

37

2011/C 186/71

Case F-53/11: Action brought on 2 May 2011 — ZZ v Commission

37

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 25.6.2011 | EN | Official Journal of the European Union | C 186/1 |
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25.6.2011

EN

Official Journal of the European Union

C 186/1

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2011/C 186/01

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

OJ C 179, 18.6.2011

Past publications

OJ C 173, 11.6.2011

OJ C 160, 28.5.2011

OJ C 152, 21.5.2011

OJ C 145, 14.5.2011

OJ C 139, 7.5.2011

OJ C 130, 30.4.2011

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 25.6.2011 | EN | Official Journal of the European Union | C 186/2 |
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25.6.2011

EN

Official Journal of the European Union

C 186/2

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Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Tartu ringkonnakohus — Estonia) — Novo Nordisk AS v Ravimiamet

(Case C-249/09) (1)

(Medicinal products for human use - Directive 2001/83/EC - Advertising - Medical journal - Information not included in the summary of product characteristics)

2011/C 186/02

Language of the case: Estonian

Referring court

Tartu ringkonnakohus

Parties to the main proceedings

Applicant: Novo Nordisk AS

Defendant: Ravimiamet

Re:

Reference for a preliminary ruling — Tartu Ringkonnakohus — Interpretation of Article 87(2) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67) — Advertisements for medicinal products published in a medical journal and directed to persons qualified to prescribe medicines — Whether information not limited to that contained in the summary of product characteristics may be included in such advertisements

Operative part of the judgment

| 1. | Article 87(2) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004, must be interpreted as extending also to quotations taken from medical journals or other scientific works which are included in advertisements for medicinal products directed at persons qualified to prescribe or supply medicines; |
| --- | --- |

1.

Article 87(2) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004, must be interpreted as extending also to quotations taken from medical journals or other scientific works which are included in advertisements for medicinal products directed at persons qualified to prescribe or supply medicines;

| 2. | Article 87(2) of Directive 2001/83, as amended by Directive 2004/27, must be interpreted as prohibiting the publication in advertising medicinal products directed at persons qualified to prescribe or supply them, of claims which conflict with the summary of product characteristics, but it does not require that all the claims in such advertisements are included in that summary or can be derived from it. Such advertisements may include claims supplementing the information referred to in Article 11 of that directive, provided that those claims:






  — | confirm or clarify — and are compatible with — that information, and do not distort it, and |
| --- | --- | --- |

2.

Article 87(2) of Directive 2001/83, as amended by Directive 2004/27, must be interpreted as prohibiting the publication in advertising medicinal products directed at persons qualified to prescribe or supply them, of claims which conflict with the summary of product characteristics, but it does not require that all the claims in such advertisements are included in that summary or can be derived from it. Such advertisements may include claims supplementing the information referred to in Article 11 of that directive, provided that those claims:

—

confirm or clarify — and are compatible with — that information, and do not distort it, and

| — | are consistent with the requirements of Articles 87(3) and 92(2) and (3) of that directive. |
| --- | --- |

—

are consistent with the requirements of Articles 87(3) and 92(2) and (3) of that directive.

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(1)  OJ C 220, 12.9.2009.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/2 |
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25.6.2011

EN

Official Journal of the European Union

C 186/2

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Judgment of the Court (Fourth Chamber) of 5 May 2011 — European Commission v Portuguese Republic

(Case C-267/09) (1)

(Failure of a Member State to fulfil obligations - Free movement of capital - Articles 56 EC and 40 of the EEA Agreement - Restrictions - Direct taxation - Non-resident taxpayers - Obligation to appoint a tax representative)

2011/C 186/03

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: R. Lyal and G. Braga da Cruz, Agents)

Defendant: Portuguese Republic (represented by: L. Inez Fernandes, Agent)

Intervener in support of the defendant: Kingdom of Spain (represented by: M. Muñoz Pérez, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 18 EC and 56 EC — Obligation on non-resident taxpayers to appoint a tax representative

Operative part of the judgment

The Court:

| 1. | Declares that by adopting and maintaining in force Article 130 of the Personal Income Tax Code (Código do Imposto sobre o Rendimento das Pessoas Singulares), which requires non-residents to appoint a tax representative in Portugal if they are in receipt of income requiring the submission of a tax return, the Portuguese Republic has failed to fulfil its obligations under Article 56 EC; |
| --- | --- |

1.

Declares that by adopting and maintaining in force Article 130 of the Personal Income Tax Code (Código do Imposto sobre o Rendimento das Pessoas Singulares), which requires non-residents to appoint a tax representative in Portugal if they are in receipt of income requiring the submission of a tax return, the Portuguese Republic has failed to fulfil its obligations under Article 56 EC;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Portuguese Republic to pay three-quarters of the costs. Orders the Commission to pay the remaining quarter; |
| --- | --- |

3.

Orders the Portuguese Republic to pay three-quarters of the costs. Orders the Commission to pay the remaining quarter;

| 4. | Orders the Kingdom of Spain to pay its own costs. |
| --- | --- |

4.

Orders the Kingdom of Spain to pay its own costs.

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(1)  OJ C 220, 12.9.2009.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/3 |
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25.6.2011

EN

Official Journal of the European Union

C 186/3

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Judgment of the Court (First Chamber) of 5 May 2011 — European Commission v Italian Republic

(Case C-305/09) (1)

(Failure of a Member State to fulfil obligations - State aid - Tax incentives in favour of companies taking part in trade fairs abroad - Recovery)

2011/C 186/04

Language of the case: Italian

Parties

Applicant: European Commission (represented by: L. Flynn, V. Di Bucci and E. Righini, Agents)

Defendant: Italian Republic (represented by: G. Palmieri, Agent, assisted by D. Del Gaizo and P. Gentili, avvocati dello Stato)

Re:

Failure of a Member State to fulfil obligations — Failure to take, within the prescribed time-limit, the measures necessary to comply with Articles 2, 3 and 4 of Commission Decision 2005/919/EC of 14 December 2004: Direct tax incentives in favour of companies taking part in trade fairs abroad (notified under document No C(2004) 4746) (OJ 2005 L 335, p. 39)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed time-limits, all necessary measures to recover from the beneficiaries all the aid granted under the aid scheme declared unlawful and incompatible with the common market by Commission Decision 2005/919/EC of 14 December 2004 [on direct] tax incentives in favour of companies taking part in trade fairs abroad, the Italian Republic has failed to fulfil its obligations under Article 2 of that decision; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed time-limits, all necessary measures to recover from the beneficiaries all the aid granted under the aid scheme declared unlawful and incompatible with the common market by Commission Decision 2005/919/EC of 14 December 2004 [on direct] tax incentives in favour of companies taking part in trade fairs abroad, the Italian Republic has failed to fulfil its obligations under Article 2 of that decision;

| 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 256, 24.10.2009.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/3 |
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25.6.2011

EN

Official Journal of the European Union

C 186/3

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Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — MSD Sharp & Dohme GmbH v Merckle GmbH

(Case C-316/09) (1)

(Medicinal products for human use - Directive 2001/83/EC - Prohibition on the advertising to the general public of medicinal products available only on prescription - Definition of ‘advertising’ - Information communicated to the competent authority - Information accessible on the internet)

2011/C 186/05

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: MSD Sharp & Dohme GmbH

Defendant: Merckle GmbH

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of the first indent of Article 88(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67) — Prohibition on advertising to the general public of medicinal products which are available on medical prescription only — Concept of ‘advertising’ — Advertising in relation to a medicinal product providing access to information only to persons who undertake an Internet search and which contains only those indications communicated to the competent authority in the context of the marketing authorisation procedure relating to the medicinal product and which is available to patients on purchasing the product

Operative part of the judgment

Article 88(1)(a) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004, must be interpreted as meaning that it does not prohibit the dissemination on a website, by a pharmaceutical undertaking, of information relating to medicinal products available on medical prescription only, where that information is accessible on the website only to someone who seeks to obtain it and that dissemination consists solely in the faithful reproduction of the packaging of the medicinal product, in accordance with Article 62 of Directive 2001/83, as amended by Directive 2004/27, and in the literal and complete reproduction of the package leaflet or the summary of the product’s characteristics, which have been approved by the authorities with competence in relation to medicinal products. On the other hand, the dissemination, on such a website, of information relating to a medicinal product which has been selected or rewritten by the manufacturer, which can be explained only by an advertising purpose, is prohibited. It is for the referring court to determine whether and to what extent the activities at issue in the main proceedings constitute advertising within the meaning of Directive 2001/83, as amended by Directive 2004/27.

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(1)  OJ C 267, 7.11.2009.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/4 |
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25.6.2011

EN

Official Journal of the European Union

C 186/4

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Judgment of the Court (Grand Chamber) of 3 May 2011 (reference for a preliminary ruling from the Sąd Najwyższy — Republic of Poland) — Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. z o.o., now Netia SA

(Case C-375/09) (1)

(Competition - Regulation (EC) No 1/2003 - Article 5 - Abuse of a dominant position - Powers of the competition authorities of the Member States to find that there has been no breach of Article 102 TFEU)

2011/C 186/06

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: Prezes Urzędu Ochrony Konkurencji i Konsumentów

Defendant: Tele2 Polska sp. z o.o., now Netia SA

Re:

Reference for a preliminary ruling — Sąd Najwyższy — Interpretation of Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 EC (OJ 2003 L 1, p. 1) — Abuse of a dominant position — Whether the competition authorities of the Member States have the power to take a decision stating that Article 82 EC is not applicable to the commercial practices of an undertaking

Operative part of the judgment

| 1. | Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty must be interpreted as precluding a national competition authority, in the case where, in order to apply Article 102 TFEU, it examines whether the conditions for applying that article are satisfied and where, following that examination, it forms the view that there has been no abuse, from being able to take a decision stating that there has been no breach of that article; |
| --- | --- |

1.

Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty must be interpreted as precluding a national competition authority, in the case where, in order to apply Article 102 TFEU, it examines whether the conditions for applying that article are satisfied and where, following that examination, it forms the view that there has been no abuse, from being able to take a decision stating that there has been no breach of that article;

| 2. | The second paragraph of Article 5 of Regulation No 1/2003 is directly applicable and precludes the application of a rule of national law which would require a procedure relating to the application of Article 102 TFEU to be brought to an end by a decision stating that there has been no breach of that article. |
| --- | --- |

2.

The second paragraph of Article 5 of Regulation No 1/2003 is directly applicable and precludes the application of a rule of national law which would require a procedure relating to the application of Article 102 TFEU to be brought to an end by a decision stating that there has been no breach of that article.

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(1)  OJ C 297, 5.12.2009.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/4 |
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25.6.2011

EN

Official Journal of the European Union

C 186/4

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Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Tribunal de grande instance de Paris — France) — Prunus SARL, Polonium SA v Directeur des services fiscaux

(Case C-384/09) (1)

(Direct taxation - Free movement of capital - Article 64 TFEU - Legal persons established in a non-Member State - Ownership of immovable property located in a Member State - Tax on the market value of that property - Refusal of exemption - Assessment with regard to overseas countries and territories - Combating tax evasion - Joint and several liability)

2011/C 186/07

Language of the case: French

Referring court

Tribunal de grande instance de Paris

Parties to the main proceedings

Applicants: Prunus SARL, Polonium SA

Defendant: Directeur des services fiscaux

Re:

Reference for a preliminary ruling — Tribunal de grande instance (Paris) — Interpretation of Article 56 et seq. of the EC Treaty — Tax on the commercial value of immoveable property situated in France — Compatibility with the Treaty of national legislation exempting from that tax legal persons having their effective centre of management in France or another Member State of the European Union, but making that exemption conditional, as regards legal persons having their effective centre of management in the territory of a non-Member State, on the existence of a convention on administrative assistance to combat tax evasion and avoidance concluded between France and that State or of a treaty containing a clause prohibiting discrimination on grounds of nationality — Refusal to exempt in respect of two companies established in the British Virgin Islands — Obligation for the joint and several debtors, legal persons established in France, to pay the tax

Operative part of the judgment

Article 64(1) TFEU must be interpreted as meaning that Article 63 TFEU is without prejudice to the application of national legislation in force on 31 December 1993 which exempts from the tax on the market value of immovable property located in the territory of a Member State of the European Union companies having their registered office in the territory of that State and makes entitlement to that exemption, for a company whose registered office is in an overseas country or territory, conditional either on the existence of a convention on administrative assistance to combat tax evasion and avoidance concluded between that Member State and that territory or on there being a requirement, under a treaty containing a clause prohibiting discrimination on grounds of nationality, that those legal persons are not to be taxed more heavily than companies established in the territory of that Member State.

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(1)  OJ C 312, 19.12.2009.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/5 |
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25.6.2011

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Official Journal of the European Union

C 186/5

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Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Supreme Court of the United Kingdom (United Kingdom)) — Shirley McCarthy v Secretary of State for the Home Department

(Case C-434/09) (1)

(Freedom of movement for persons - Article 21 TFEU - Directive 2004/38/EC - ‘Beneficiary’ - Article 3(1) - National who has never made use of his right of free movement and has always resided in the Member State of his nationality - Effect of being a national of another Member State - Purely internal situation)

2011/C 186/08

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicant: Shirley McCarthy

Defendant: Secretary of State for the Home Department

Re:

Reference for a preliminary ruling — Supreme Court of the United Kingdom — Interpretation of Articles 3 and 16 of Directive 2004/58/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77) — Concepts of ‘beneficiary’ and ‘legal residence’ — British citizen who also has Irish nationality and has always lived in the United Kingdom

Operative part of the judgment

| 1. | Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State. |
| --- | --- |

1.

Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.

| 2. | Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States. |
| --- | --- |

2.

Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.

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(1)  OJ C 11, 16.1.2010.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/5 |
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C 186/5

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Judgment of the Court (Fourth Chamber) of 5 May 2011 (reference for a preliminary ruling from the Upper Tribunal — United Kingdom) — Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael Taylor v Secretary of State for Work and Pensions

(Case C-537/09) (1)

(Reference for a preliminary ruling - Regulation (EEC) No 1408/71 - Mobility component of Disability Living Allowance - Separate benefit - Special non-contributory benefit - Non-exportability)

2011/C 186/09

Language of the case: English

Referring court

Upper Tribunal

Parties to the main proceedings

Applicants: Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael Taylor

Defendant: Secretary of State for Work and Pensions

Re:

Reference for a preliminary ruling — Upper Tribunal — Interpretation of Article 4(1) and (2) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416), in the version in force before 5 May 2005 — Subsistence allowance for disabled persons consisting of a ‘care’ component granted to those needing personal assistance and a ‘mobility’ component intended for those needing help in order to move around (‘Disability living allowance’) — Possibility, for the purposes of applying the regulation, of regarding the mobility component as a separate benefit — Categorisation of that benefit

Operative part of the judgment

| 1. | Article 4(2a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004, and of Regulation No 1408/71, in the latter version, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, must be interpreted as meaning that the mobility component of Disability Living Allowance constitutes a special non-contributory cash benefit within the meaning of that provision, referred to in Annex IIa to those regulations.; |
| --- | --- |

1.

Article 4(2a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004, and of Regulation No 1408/71, in the latter version, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, must be interpreted as meaning that the mobility component of Disability Living Allowance constitutes a special non-contributory cash benefit within the meaning of that provision, referred to in Annex IIa to those regulations.;

| 2. | Consideration of the third question has disclosed nothing capable of affecting the validity of Article 10a of Regulation No 1408/71 in either of the versions applicable in the main proceedings, inasmuch as that article allows the award of the mobility component of Disability Living Allowance to be made subject to conditions as to residence and presence in Great Britain. |
| --- | --- |

2.

Consideration of the third question has disclosed nothing capable of affecting the validity of Article 10a of Regulation No 1408/71 in either of the versions applicable in the main proceedings, inasmuch as that article allows the award of the mobility component of Disability Living Allowance to be made subject to conditions as to residence and presence in Great Britain.

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(1)  OJ C 63, 13.3.2010.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/6 |
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25.6.2011

EN

Official Journal of the European Union

C 186/6

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Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Conseil d'État — Belgium) — European Communities v Région de Bruxelles-Capitale

(Case C-137/10) (1)

(Articles 207(2) EC and 282 EC - Representation of the European Communities before the national courts - Powers conferred on the Commission - Delegation of the power of representation to other Community institutions - Conditions)

2011/C 186/10

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicant: European Communities

Defendant: Région de Bruxelles-Capitale

Re:

Reference for a preliminary ruling — Conseil d’État — Interpretation of Articles 282 EC and the first subparagraph of 207(2) EC — Conditions for the Commission to delegate to another institution the powers to represent the Community in legal proceedings — Validity of the mandate in the absence of an appointment by name of the natural person having authority to represent the institution thus empowered — Jurisdiction of the national court to give judgment on the matter — Doubts relating to the validity of the representation of the Council in legal proceedings by its Deputy Secretary-General, who is responsible for the running of the General Secretariat — Respect of the principle of the organisational autonomy of the institutions

Operative part of the judgment

The mandate by which the European Commission delegated to another Community institution, in a dispute concerning the latter, the power accruing to the Commission under Article 282 EC to represent the European Communities before a national court was validly granted, regardless of whether that mandate specified by name a natural person as having authority to represent the institution thus empowered. In such cases, both the institution thus empowered and the natural person — if one were specified — were entitled to authorise a lawyer to represent the European Communities.

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(1)  OJ C 148, 5.6.2010.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/7 |
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25.6.2011

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Official Journal of the European Union

C 186/7

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Judgment of the Court (Eighth Chamber) of 5 May 2011 — Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission

(Case C-200/10 P) (1)

(Appeal - Arbitration clause - Contract relating to Community support for a project in the context of the ‘eContent’ programme - Termination of the contract by the Commission - Reimbursement of eligible costs - Grounds of the judgment of the General Court)

2011/C 186/11

Language of the case: English

Parties

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

Other party to the proceedings: European Commission (represented by: E. Manhaeve, acting as Agent, and by D. Philippe and M. Gouden, avocats)

Re:

Appeal brought against the judgment of the General Court (Fourth Chamber) of 9 February 2010 in Case T-340/07 Evropaïki Dynamiki v Commission by which the General Court dismissed an action based on an arbitration clause for an order for payment by the Commission of (i) amounts allegedly owing to the appellant and (ii) damages, following termination of a contract in respect of the Community financial support granted to the ‘e-Content Exposure and Business Opportunities’ (‘EEBO’) project (Contract No EDC-53007 EEBO/27873), concluded in the context of the multiannual Community programme to stimulate the development and use of European digital content on the global networks and to promote linguistic diversity in the information society (‘eContent’ programme)

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the General Court of the European Union of 9 February 2010 in Case T-340/07 Evropaïki Dynamiki v Commission in so far as, by that judgment, the General Court failed to rule on the claim of Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE that, notwithstanding the termination of the EDC-53007 EEBO/27873 contract, the Commission should be ordered to pay it the amount of EUR 172 588,62, corresponding to the costs not already reimbursed by the Commission which were incurred by the appellant in connection with that contract; |
| --- | --- |

1.

Sets aside the judgment of the General Court of the European Union of 9 February 2010 in Case T-340/07 Evropaïki Dynamiki v Commission in so far as, by that judgment, the General Court failed to rule on the claim of Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE that, notwithstanding the termination of the EDC-53007 EEBO/27873 contract, the Commission should be ordered to pay it the amount of EUR 172 588,62, corresponding to the costs not already reimbursed by the Commission which were incurred by the appellant in connection with that contract;

| 2. | Refers the case back to the General Court of the European Union for judgment on that claim of Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE; |
| --- | --- |

2.

Refers the case back to the General Court of the European Union for judgment on that claim of Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE;

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

3.

Reserves the costs.

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(1)  OJ C 179, 3.7.2010.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/7 |
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Official Journal of the European Union

C 186/7

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Judgment of the Court (Fifth Chamber) of 5 May 2011 — European Commission v Federal Republic of Germany

(Case C-206/10) (1)

(Failure of a Member State to fulfil obligations - Regulation (EEC) No 1408/71 - Article 4(1)(a) - Regulation (EEC) No 1612/68 - Article 7(2) - German Länder benefits for the blind, the deaf and the disabled - Residence qualification)

2011/C 186/12

Language of the case: German

Parties

Applicant: European Commission (represented by: V. Kreuschitz, acting as Agent)

Defendant: Federal Republic of Germany (represented by: T. Henze and C. Blaschke, acting as Agents)

Intervener in support of the defendant: Kingdom of the Netherlands (represented by M. Noort, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475) and of Article 4(1)(a), in conjunction with Title III, Chapter 1, of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p. 416) — National legislation making the grant of benefits by the Länder to the disabled and the blind conditional upon the recipient being resident in the Land in question — Benefits referred to in Annex II, Section III to Regulation (EEC) No 1408/71 — Concept of ‘special non-contributory benefit’

Operative part of the judgment

The Court:

| 1. | Declares that, by making the grant of benefits for the blind, the deaf and the disabled under Länder legislation conditional, in respect of persons for whom the Federal Republic of Germany is the competent Member State, upon a condition of residence or habitual residence in the Land concerned, the Federal Republic of Germany has failed to fulfil its obligations under Article 4(1)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, in conjunction with Title III, Chapter 1 of that regulation, and under Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community; |
| --- | --- |

1.

Declares that, by making the grant of benefits for the blind, the deaf and the disabled under Länder legislation conditional, in respect of persons for whom the Federal Republic of Germany is the competent Member State, upon a condition of residence or habitual residence in the Land concerned, the Federal Republic of Germany has failed to fulfil its obligations under Article 4(1)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, in conjunction with Title III, Chapter 1 of that regulation, and under Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community;

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

2.

Orders the Federal Republic of Germany to pay the costs;

| 3. | Orders the Kingdom of the Netherlands to bear its own costs. |
| --- | --- |

3.

Orders the Kingdom of the Netherlands to bear its own costs.

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(1)  OJ C 179, 3.7.2010.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/8 |
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Official Journal of the European Union

C 186/8

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Judgment of the Court (Eighth Chamber) of 5 May 2011 — European Commission v Kingdom of Belgium

(Case C-265/10) (1)

(Failure of a Member State to fulfil obligations - Regulation (EC) No 1907/2006 - Chemicals - Registration, evaluation, authorisation of those substances and restrictions applicable to them - REACH Regulation - Article 126 - System of penalties in the event of infringement of the provisions of the REACH Regulation - Lack of implementation within the period prescribed)

2011/C 186/13

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: P. Oliver and M. van Beek, acting as Agents)

Defendant: Kingdom of Belgium (represented by: T. Materne and L. Van den Broeck, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 126 of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p.1) — Penalties applicable for infringement of the REACH Regulation

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to implement the penalties applicable to infringements of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, the Kingdom of Belgium has failed to fulfil its obligations under Article 126 of that regulation; |
| --- | --- |

1.

Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to implement the penalties applicable to infringements of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, the Kingdom of Belgium has failed to fulfil its obligations under Article 126 of that regulation;

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

2.

Orders the Kingdom of Belgium to pay the costs.

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(1)  OJ C 221, 14.8.2010.

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Official Journal of the European Union

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Judgment of the Court (First Chamber) of 28 April 2011 (reference for a preliminary ruling from the Corte d’appello di Trento — Italy) — Criminal proceedings against Hassen El Dridi alias Karim Soufi

(Case C-61/11 PPU) (1)

(Area of freedom, security and justice - Directive 2008/115/EC - Return of illegally staying third-country nationals - Articles 15 and 16 - National legislation providing for a prison sentence for illegally staying third-country nationals in the event of refusal to obey an order to leave the territory of a Member State - Compatibility)

2011/C 186/14

Language of the case: Italian

Referring court

Corte d’appello di Trento

Party in the main proceedings

Hassen El Dridi alias Karim Soufi

Re:

Reference for a preliminary ruling — Corte di Apello di Trento — Interpretation of Articles 15 and 16 of Directive 2008/115/EC of the European Parliament and of the Council 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) — Return of illegally staying third-country nationals — Conditions of detention for the purpose of removal — Direct applicability — National legislation providing for a sentence of up to four years’ imprisonment for a third-country national who, after a removal order has been issued, continues to stay illegally in national territory

Operative part of the judgment

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular Articles 15 and 16 thereof, must be interpreted as precluding a Member State’s legislation, such as that at issue in the main proceedings, which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period.

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(1)  OJ C 113, 9.4.2011.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/9 |
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25.6.2011

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Official Journal of the European Union

C 186/9

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Order of the Court of 4 March 2011 (reference for a preliminary ruling from the Tribunal Dâmbovița — Romania) — Nicușor Grigore v Regia Națională a Pădurilor Romsilva — Direcția Silvică București

(Case C-258/10) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Social policy - Protection of the safety and health of workers - Directive 2003/88/EC - Organisation of working time - Notion of ‘working time’ - ‘Notion ofmaximum weekly working time’ - Forest ranger subject, under the terms of his employment contract and the applicable collective agreement, to flexible working time of 8 hours per day and 40 hours per week - National legislation holding him liable for any damage suffered in the section of forest under his control - Classification - Effect of overtime on the remuneration and financial compensation of the person concerned)

2011/C 186/15

Language of the case: Romanian

Referring court

Tribunal Dâmbovița (Romania)

Parties to the main proceedings

Applicant: Nicușor Grigore

Defendant: Regia Națională a Pădurilor Romsilva — Direcția Silvică București

Re:

Reference for a preliminary ruling — Tribunal Dâmbovița — Interpretation of Articles 2(1) and 6 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) — Notion of ‘working time’ — National legislation holding a forest ranger liable for any damage suffered in the section of forest under his control, despite the terms of his employment contract making him subject to a maximum daily working time of eight hours — Notion of ‘maximum weekly working time’ — Actual weekly working time exceeding the lawful maximum weekly working time — Effect of overtime on the remuneration and financial compensation of the person concerned

Operative part of the order

| 1. | Article 2(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as meaning that a period during which a forest ranger, whose daily working time, as stipulated in his employment contract, is eight hours, is required to carry out wardenship duties in a section of forest, making him liable to disciplinary action, the payment of compensation and civil or criminal sanctions, as the case may be, for any damage ascertained in the area under his control, regardless of the time when the damage occurs, constitutes ‘working time’ within the meaning of that provision only if the nature and extent of the wardenship obligation on that forest ranger and the system of liability applicable to him require his physical presence at the place of work and if, during that period, he must be available to his employer. It is for the national court to undertake the factual and legal checks necessary, in particular as regards the applicable national law, in order to assess whether that is the situation in the matter before it. |
| --- | --- |

1.

Article 2(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as meaning that a period during which a forest ranger, whose daily working time, as stipulated in his employment contract, is eight hours, is required to carry out wardenship duties in a section of forest, making him liable to disciplinary action, the payment of compensation and civil or criminal sanctions, as the case may be, for any damage ascertained in the area under his control, regardless of the time when the damage occurs, constitutes ‘working time’ within the meaning of that provision only if the nature and extent of the wardenship obligation on that forest ranger and the system of liability applicable to him require his physical presence at the place of work and if, during that period, he must be available to his employer. It is for the national court to undertake the factual and legal checks necessary, in particular as regards the applicable national law, in order to assess whether that is the situation in the matter before it.

| 2. | The classification of a period of ‘working time’ within the meaning of Article 2(1) of Directive 2003/88 does not depend on the provision of staff accommodation within the section of forest under the control of the forest ranger concerned provided that that provision does not imply that he is required to be physically present in the place determined by the employer and available there to his employer in order to be able to take appropriate action if necessary. It is for the national court to undertake the checks necessary in order to assess whether that is the situation in the matter before it. |
| --- | --- |

2.

The classification of a period of ‘working time’ within the meaning of Article 2(1) of Directive 2003/88 does not depend on the provision of staff accommodation within the section of forest under the control of the forest ranger concerned provided that that provision does not imply that he is required to be physically present in the place determined by the employer and available there to his employer in order to be able to take appropriate action if necessary. It is for the national court to undertake the checks necessary in order to assess whether that is the situation in the matter before it.

| 3. | Article 6 of Directive 2003/88 must be interpreted as precluding, in principle, a situation in which, although the employment contract of a forest ranger stipulates that the maximum working time is 8 hours per day and 40 hours per week, in reality he carries out, by virtue of legal obligations, wardenship duties in the section of forest under his control, either permanently or so as to exceed the maximum weekly working time laid down in that article. It is for the national court to undertake the checks necessary in order to assess whether that is the situation in the matter before it and, if so, to ascertain whether the conditions laid down in Article 17(1) of Directive 2003/88 or in Article 22(1) thereof relating to the ability to derogate from Article 6 have been complied with in the case in the main proceedings. |
| --- | --- |

3.

Article 6 of Directive 2003/88 must be interpreted as precluding, in principle, a situation in which, although the employment contract of a forest ranger stipulates that the maximum working time is 8 hours per day and 40 hours per week, in reality he carries out, by virtue of legal obligations, wardenship duties in the section of forest under his control, either permanently or so as to exceed the maximum weekly working time laid down in that article. It is for the national court to undertake the checks necessary in order to assess whether that is the situation in the matter before it and, if so, to ascertain whether the conditions laid down in Article 17(1) of Directive 2003/88 or in Article 22(1) thereof relating to the ability to derogate from Article 6 have been complied with in the case in the main proceedings.

| 4. | Directive 2003/88 must be interpreted as meaning that the employer’s obligation to pay salaries and benefits which may be treated as salary in respect of the period during which the forest ranger is required to carry out wardenship duties in the section of forest under his control does not fall within the scope of that directive, but under that of the relevant provisions of the national law. |
| --- | --- |

4.

Directive 2003/88 must be interpreted as meaning that the employer’s obligation to pay salaries and benefits which may be treated as salary in respect of the period during which the forest ranger is required to carry out wardenship duties in the section of forest under his control does not fall within the scope of that directive, but under that of the relevant provisions of the national law.

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(1)  OJ C 221, 14.8.2010.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/10 |
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25.6.2011

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Official Journal of the European Union

C 186/10

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Order of the Court of 18 March 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain)) — David Montoya Medina v Fondo de Garantia Salarial and Universidad de Alicante

(Case C-273/10) (1)

(Article 104(3) of the Rules of Procedure - Social policy - Directive 1999/70/EC - Clause 4 of the Framework Agreement on fixed-term work - Fixed-term employment contracts in the public sector - Entitlement to triennial seniority bonuses - Principle of non-discrimination)

2011/C 186/16

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Valenciana (Spain)

Parties to the main proceedings

Applicant: David Montoya Medina

Defendants: Fondo de Garantia Salarial and Universidad de Alicante

Re:

Reference for a preliminary ruling — Tribunal Superior de Justicia de la Comunidad Valenciana — Interpretation of Clause 4(4) of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Contracts of employment as a university lecturer and researcher concluded with State universities — Exclusion of certain benefits from fixed-term contracts

Operative part of the order

Clause 4(1) of the Framework Agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding national legislation which, without any objective justification, restricts the right to receive a seniority bonus to university lecturers on permanent contracts, excluding lecturers on fixed-term contracts where, as regards receipt of that bonus, those two categories of workers are in comparable situations.

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(1)  OJ C 221, 14.8.2010.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/10 |
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Order of the Court (Fifth Chamber) of 14 March 2011 — Ravensburger AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Educa Borras SA

(Case C-370/10 P) (1)

(Appeal - Community trade mark - Figurative mark EDUCA Memory game - Application for a declaration of invalidity made by the proprietor of the national and international word marks MEMORY - Rejection of the application for a declaration of invalidity by the Board of Appeal - Regulation (EC) No 40/94 - Article 8(1)(b) and (5) - Relative grounds for refusal)

2011/C 186/17

Language of the case: English

Parties

Appellant: Ravensburger AG (represented by: H. Harte-Bavendamm and M. Goldmann, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, Agent), Educa Borras SA

Re:

Appeal brought against the judgment of the General Court (Eighth Chamber) of 19 May 2010 in Case T-243/08 Ravensburger AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) by which the General Court dismissed an action for annulment brought by the proprietor of the national and international word marks ‘MEMORY’ for goods in Class 28 against Decision R 597/2007-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 8 April 2008 annulling the decision of the Cancellation Decision, which upheld the application for a declaration of invalidity lodged by the applicant against the figurative mark ‘EDUCA Memory Game’ for goods in Class 28

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Ravensburger AG shall pay the costs. |
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2.

Ravensburger AG shall pay the costs.

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(1)  OJ C 260, 25.9.2010.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/11 |
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25.6.2011

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Official Journal of the European Union

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Action brought on 28 February 2011 — European Commission v Kingdom of Denmark

(Case C-95/11)

2011/C 186/18

Language of the case: Danish

Parties

Applicant: European Commission (represented by: R. Lyal, acting as Agent, and H. Peytz, lawyer)

Defendant: Kingdom of Denmark

Form of order sought

| — | Declare that, by allowing for non-taxable persons to be part of a VAT group, the Kingdom of Denmark has failed to fulfil its obligations under Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1) |
| --- | --- |

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Declare that, by allowing for non-taxable persons to be part of a VAT group, the Kingdom of Denmark has failed to fulfil its obligations under Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1)

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

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order the Kingdom of Denmark to pay the costs.

Pleas in law and main arguments

In order to simplify administration and prevent certain forms of abuse, the VAT Directive allows the Member States to regard two or more taxable persons as a single taxable person. The Commission takes the view that the Directive does not allow non-taxable persons to be part of such a VAT group and thereby be covered by the rights and obligations which apply to taxable persons. Therefore, the Danish legislation, which allows non-taxable persons to be part of a VAT group, is not compatible with the Directive.

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

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/11 |
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25.6.2011

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Official Journal of the European Union

C 186/11

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Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria) lodged on 18 March 2011 — Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH

(Case C-132/11)

2011/C 186/19

Language of the case: German

Referring court

Oberlandesgericht Innsbruck

Parties to the main proceedings

Appellant: Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH

Respondent: Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH

Questions referred

| 1. | Does European Union law as currently applicable, in particular in Article 21 of the Charter of Fundamental Rights (in conjunction with Article 6(1) TEU), the general legal principle of European Law (Article 6(3) TEU) relating to the prohibition of age discrimination, and Articles 1, 2 and 6 of Directive 2000/78/EC, (1) preclude a national collective agreement which, in making grade classifications under the collective agreement, and thus determining the level of remuneration, discriminates indirectly against older workers by taking account only of their skills and knowledge which they have acquired as air stewards or stewardesses with one airline but not the substantively identical skills and knowledge which they have acquired with another airline within the same group? Does this also apply to an employment relationship which was entered into before 1 December 2009? |
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1.

Does European Union law as currently applicable, in particular in Article 21 of the Charter of Fundamental Rights (in conjunction with Article 6(1) TEU), the general legal principle of European Law (Article 6(3) TEU) relating to the prohibition of age discrimination, and Articles 1, 2 and 6 of Directive 2000/78/EC, (1) preclude a national collective agreement which, in making grade classifications under the collective agreement, and thus determining the level of remuneration, discriminates indirectly against older workers by taking account only of their skills and knowledge which they have acquired as air stewards or stewardesses with one airline but not the substantively identical skills and knowledge which they have acquired with another airline within the same group? Does this also apply to an employment relationship which was entered into before 1 December 2009?

| 2. | Can a national court treat as void and disapply a clause of an individual employment contract which indirectly infringes Article 21 of the Charter of Fundamental Rights, the general legal principle of European Union law relating to the prohibition of age discrimination, and/or Articles 1, 2 and 6 of Directive 2000/78/EC, by analogy with the case of Rieser
   (2) and with the case-law concerning agreements breaching antitrust rules as in the case of Béguelin
   (3) on grounds of the horizontal direct effect of the fundamental rights of the European Union? |
| --- | --- |

2.

Can a national court treat as void and disapply a clause of an individual employment contract which indirectly infringes Article 21 of the Charter of Fundamental Rights, the general legal principle of European Union law relating to the prohibition of age discrimination, and/or Articles 1, 2 and 6 of Directive 2000/78/EC, by analogy with the case of Rieser
   (2) and with the case-law concerning agreements breaching antitrust rules as in the case of Béguelin
   (3) on grounds of the horizontal direct effect of the fundamental rights of the European Union?

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(1)  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)

(2)  Case C-157/02 ECR [2004] I-1477.

(3)  Case C-22/71 ECR [1971] 949.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/12 |
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Reference for a preliminary ruling from the Oberster Gerichtshof (Austria), lodged on 21 March 2011 — Compass-Datenbank GmbH v Republik Österreich

(Case C-138/11)

2011/C 186/20

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant: Compass-Datenbank GmbH

Respondent: Republik Österreich

Interested parties: Bundeskartellanwalt, Bundeswettbewerbsbehörde

Questions referred

| 1. | Is Article 102 TFEU to be interpreted as meaning that a public authority acts as an undertaking if it stores in a database (business undertakings register) the information reported by undertakings on the basis of statutory reporting obligations and allows inspection and/or printouts to be made in return for payment, but prohibits any more extensive use?
  If the reply to Question 1 is in the negative: |
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1.

Is Article 102 TFEU to be interpreted as meaning that a public authority acts as an undertaking if it stores in a database (business undertakings register) the information reported by undertakings on the basis of statutory reporting obligations and allows inspection and/or printouts to be made in return for payment, but prohibits any more extensive use?

If the reply to Question 1 is in the negative:

| 2. | Does a public authority act as an undertaking in the case where, in reliance on its sui generis right to protection as the producer of a database, it prohibits uses which go beyond that of allowing inspection and the creation of printouts?
  If the reply to Questions 1 or 2 is in the affirmative: |
| --- | --- |

2.

Does a public authority act as an undertaking in the case where, in reliance on its sui generis right to protection as the producer of a database, it prohibits uses which go beyond that of allowing inspection and the creation of printouts?

If the reply to Questions 1 or 2 is in the affirmative:

| 3. | Is Article 102 TFEU to be interpreted as meaning that the principles laid down in the judgments in Joined Cases C-241/91 P and C-242/91 P RTE and ITP [1995] ECR I-743 and in Case C-418/01 IMS Health [2004] ECR I-5039 (‘essential facilities doctrine’) are also to be applied if there is no ‘upstream market’ because the protected data are collected and stored in a database (business undertakings register) in the course of a public-authority activity? |
| --- | --- |

3.

Is Article 102 TFEU to be interpreted as meaning that the principles laid down in the judgments in Joined Cases C-241/91 P and C-242/91 P RTE and ITP [1995] ECR I-743 and in Case C-418/01 IMS Health [2004] ECR I-5039 (‘essential facilities doctrine’) are also to be applied if there is no ‘upstream market’ because the protected data are collected and stored in a database (business undertakings register) in the course of a public-authority activity?

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/12 |
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Reference for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 28 March 2011 — OOD Klub v Director of the Varna Office ‘Appeals and the Administration of Enforcement’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite)

(Case C-153/11)

2011/C 186/21

Language of the case: Bulgarian

Referring court

Administrativen sad Varna

Parties to the main proceedings

Applicant: OOD Klub

Defendant: Director of the Varna Office ‘Appeals and the Administration of Enforcement’ at the Central Office of the National Revenue Agency (Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite)

Questions referred

| 1. | Is Article 168(1)(a) of Council Directive 2006/112/EC of 28 November 2006 (1) on the common system of value added tax to be interpreted as meaning that — once a taxable person has exercised his option and allocated property constituting capital goods to his business assets — it must be presumed (that is to say assumed in the absence of evidence to the contrary), that these goods are used for the purposes of taxable transactions effected by the taxable person? |
| --- | --- |

1.

Is Article 168(1)(a) of Council Directive 2006/112/EC of 28 November 2006 (1) on the common system of value added tax to be interpreted as meaning that — once a taxable person has exercised his option and allocated property constituting capital goods to his business assets — it must be presumed (that is to say assumed in the absence of evidence to the contrary), that these goods are used for the purposes of taxable transactions effected by the taxable person?

| 2. | Is Article 168(1)(a) of Council Directive 2006/112/EC to be interpreted as meaning that the right of deduction on the purchase of an immovable property which is allocated to the business assets of a taxable person arises immediately in the tax period in which the tax became due, regardless of the fact that the property cannot be used in view of the absence of approval for its commissioning as required by law? |
| --- | --- |

2.

Is Article 168(1)(a) of Council Directive 2006/112/EC to be interpreted as meaning that the right of deduction on the purchase of an immovable property which is allocated to the business assets of a taxable person arises immediately in the tax period in which the tax became due, regardless of the fact that the property cannot be used in view of the absence of approval for its commissioning as required by law?

| 3. | Is an administrative practice such as that of the Natsionalna Agentsia po Prihodite, according to which the right of deduction claimed by persons liable for value added tax on capital goods purchased by them is refused on the grounds that those goods are used for the private purposes of the owners of the companies, without value added tax being imposed on this use, consistent with the directive? |
| --- | --- |

3.

Is an administrative practice such as that of the Natsionalna Agentsia po Prihodite, according to which the right of deduction claimed by persons liable for value added tax on capital goods purchased by them is refused on the grounds that those goods are used for the private purposes of the owners of the companies, without value added tax being imposed on this use, consistent with the directive?

| 4. | In circumstances such as those of the main proceedings does the company, namely the applicant, have a right of deduction on the purchase of an immovable property, namely a maisonette in Sofia? |
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4.

In circumstances such as those of the main proceedings does the company, namely the applicant, have a right of deduction on the purchase of an immovable property, namely a maisonette in Sofia?

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(1)  OJ 2006 L 347, p. 1

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/13 |
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Action brought on 5 April 2011 — European Commission v French Republic

(Case C-164/11)

2011/C 186/22

Language of the case: French

Parties

Applicant: European Commission (represented by: W. Mölls, acting as Agent)

Defendant: French Republic

Form of order sought

| — | declare that, by failing to take the necessary measures to adapt its electricity taxation system to the provisions provided for by Directive 2003/96/EC (1), despite the expiry of the transitional period provided for in the second subparagraph of Article 18(10) of that directive, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to take the necessary measures to adapt its electricity taxation system to the provisions provided for by Directive 2003/96/EC (1), despite the expiry of the transitional period provided for in the second subparagraph of Article 18(10) of that directive, the French Republic has failed to fulfil its obligations under that directive;

| — | order the French Republic to pay the costs. |
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—

order the French Republic to pay the costs.

Pleas in law and main arguments

By its application, the Commission submits that, despite the expiry of the transitional period granted to the defendant, namely on 1 January 2009, it has still not adapted all the elements of its electricity taxation system to the provisions of the directive. According to the French authorities, Law No 2010-1488 of 7 December 2010, which was adopted and entered into force after the expiry of the period laid down in the reasoned opinion, transposes the provisions of that directive into domestic law. According to the Commission, the present action must be upheld by reference to the situation under national law which was applicable at the time when the period laid down in the reasoned opinion expired.

The Commission submits that, in any event, France has still not adapted all the elements of its electricity taxation system to comply with the provisions of the directive. The applicant therefore rejects the argument of the national authorities that the directive does not prohibit adjustments to the increase in excise duties according to the geographical areas concerned. On the contrary, the directive sets out the principle of a single tax for all electricity consumption which takes place in the same Member State and exhaustively lists the derogations to that principle in Articles 5, 14, 15 and 17.

Furthermore, the Commission rejects the argument defended by the French authorities that the ‘differentiation in tariffs applied’ does not lead to any risk of evasion, does not imply any additional burden for operators and does not constitute a barrier to the entry on the market of foreign providers.

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(1)  Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/13 |
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Reference for a preliminary ruling from the Conseil d’État (France) lodged on 18 April 2011 — CIMADE, Groupe d’information et de soutien des immigrés (GISTI) v Ministre de l’Intérieur, de l’Outre-Mer, des Collectivités Territoriales et de l’Immigration

(Case C-179/11)

2011/C 186/23

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: CIMADE, Groupe d’information et de soutien des immigrés (GISTI)

Defendant: Ministre de l’Intérieur, de l’Outre-Mer, des Collectivités Territoriales et de l’Immigration

Questions referred

| 1. | Does Council Directive 2003/9/EC of 27 January 2003 (1) guarantee the minimum reception conditions to which it refers to applicants in respect of whom a Member State in receipt of an application for asylum decides, under Council Regulation (EC) No 343/2003 of 18 February 2003, (2) to refer a request to another Member State which it deems to have jurisdiction to examine that asylum application, throughout the duration of the procedure for taking charge of them or for taking them back by that other Member State? |
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1.

Does Council Directive 2003/9/EC of 27 January 2003 (1) guarantee the minimum reception conditions to which it refers to applicants in respect of whom a Member State in receipt of an application for asylum decides, under Council Regulation (EC) No 343/2003 of 18 February 2003, (2) to refer a request to another Member State which it deems to have jurisdiction to examine that asylum application, throughout the duration of the procedure for taking charge of them or for taking them back by that other Member State?

| 2. | If the answer to that question is in the affirmative:






  (a) | Does the obligation, incumbent on the first Member State, to guarantee the minimum reception conditions cease at the moment of the acceptance decision by the State to which the referral was made, upon the actual taking charge or taking back of the asylum seeker, or at some other date? |
| --- | --- | --- |

2.

If the answer to that question is in the affirmative:

(a)

Does the obligation, incumbent on the first Member State, to guarantee the minimum reception conditions cease at the moment of the acceptance decision by the State to which the referral was made, upon the actual taking charge or taking back of the asylum seeker, or at some other date?

| (b) | Which Member State should thus assume the financial burden of providing the minimum reception conditions during that period? |
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(b)

Which Member State should thus assume the financial burden of providing the minimum reception conditions during that period?

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(1)  Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18).

(2)  Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p. 1).

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/14 |
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Official Journal of the European Union

C 186/14

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Appeal brought on 15 April 2011 by Compañía Española de Tabaco en Rama, S.A. (Cetarsa) against the judgment delivered on 3 February 2011 in Case T-33/05, Compañía Española de Tabaco en Rama, S.A. v European Commission

(Case C-181/11 P)

2011/C 186/24

Language of the case: Spanish

Parties

Appellant: Compañía Española de Tabaco en Rama, S.A. (Cetarsa) (represented by: M. Araujo Boyd, J. Buendía Sierra and Á. Givaja Sanz, abogados)

Other party to the proceedings: European Commission

Form of order sought

| — | Set aside the judgment under appeal, |
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—

Set aside the judgment under appeal,

| — | annul Commission Decision C(2004) final of 20 October 2004, relating to a proceeding under Article 81(1) EC (Case COMP/C.38.238/B.2 — Raw Tobacco — Spain), |
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annul Commission Decision C(2004) final of 20 October 2004, relating to a proceeding under Article 81(1) EC (Case COMP/C.38.238/B.2 — Raw Tobacco — Spain),

| — | alternatively, reduce the amount of the fine imposed on it under Article 3 of the contested Decision, setting the new amount of the fine at EUR 1 000 or, alternatively, if the fine imposed should not be the same as for the producers, set the fine at EUR 2 905 200, obtained by applying the attenuating factor of 40 % to the maximum limit of 10 % of the turnover, irrespective of the subsequent reduction applicable to Cetarsa by virtue of its cooperation with the investigation as acknowledged by the General Court, |
| --- | --- |

—

alternatively, reduce the amount of the fine imposed on it under Article 3 of the contested Decision, setting the new amount of the fine at EUR 1 000 or, alternatively, if the fine imposed should not be the same as for the producers, set the fine at EUR 2 905 200, obtained by applying the attenuating factor of 40 % to the maximum limit of 10 % of the turnover, irrespective of the subsequent reduction applicable to Cetarsa by virtue of its cooperation with the investigation as acknowledged by the General Court,

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The appellant claims that in the judgment under appeal the General Court erred in law in relation to the legal impact of the national legal framework on the legality of the conduct of Cetarsa.

The appellant also alleges that the General Court erred in law by distorting elements of the national legislation in force at the time of the infringement that led it, erroneously, to consider that the conduct of the processors was more harmful than that of the producers and that, by their actions, the processors went beyond what was allowed by the national legal framework.

Finally, the appellant claims that, unlike the case of the other companies involved, the reduction granted by virtue of the uncertainty caused by the national legislation has had no impact on the calculation of the fine imposed on Cetarsa.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/14 |
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Official Journal of the European Union

C 186/14

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Action brought on 18 April 2011 — European Commission v Kingdom of Spain

(Case C-184/11)

2011/C 186/25

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: B. Stromsky and C. Urraca Caviedes, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | Declare that the Kingdom of Spain has failed to fulfil its obligations under Commission Decisions 2002/820/EC 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 (OJ 2002 L 296, p. 1); 2002/892/EC of 11 July 2001 on the State aid scheme applied by Spain to certain newly established firms in Álava (OJ 2002 L 314, p. 1); 2003/27/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Vizcaya in the form of a tax credit amounting to 45 % of investments (OJ 2003 L 17, p. 1); 2002/806/EC of 11 July 2001 on the State aid scheme applied by Spain to certain newly established firms in Vizcaya (OJ 2002 L 279, p. 35); 2002/894/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Guipúzcoa in the form of a tax credit amounting to 45 % of investments (OJ 2002 L 314, p. 26); 2002/540/EC of 11 July 2001 on the State aid scheme applied by Spain to certain newly established firms in Guipúzcoa (OJ 2002 L 174, p. 31) (‘the 2001 decisions’) as well as under Article 260 TFEU, by failing to take all the measures necessary to comply with the judgment of the Court of Justice of 14 December 2006 in Commission v Spain (Joined Cases C-485/03 to C-490/03 [2006] ECR I-11887; ‘the 2006 judgment’), relating to Spain’s failure to fulfil its obligations under those decisions. |
| --- | --- |

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Declare that the Kingdom of Spain has failed to fulfil its obligations under Commission Decisions 2002/820/EC 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 (OJ 2002 L 296, p. 1); 2002/892/EC of 11 July 2001 on the State aid scheme applied by Spain to certain newly established firms in Álava (OJ 2002 L 314, p. 1); 2003/27/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Vizcaya in the form of a tax credit amounting to 45 % of investments (OJ 2003 L 17, p. 1); 2002/806/EC of 11 July 2001 on the State aid scheme applied by Spain to certain newly established firms in Vizcaya (OJ 2002 L 279, p. 35); 2002/894/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Guipúzcoa in the form of a tax credit amounting to 45 % of investments (OJ 2002 L 314, p. 26); 2002/540/EC of 11 July 2001 on the State aid scheme applied by Spain to certain newly established firms in Guipúzcoa (OJ 2002 L 174, p. 31) (‘the 2001 decisions’) as well as under Article 260 TFEU, by failing to take all the measures necessary to comply with the judgment of the Court of Justice of 14 December 2006 in Commission v Spain (Joined Cases C-485/03 to C-490/03 [2006] ECR I-11887; ‘the 2006 judgment’), relating to Spain’s failure to fulfil its obligations under those decisions.

| — | Order the Kingdom of Spain to pay to the Commission a penalty payment in the amount of EUR 236 044,80 for every day of delay in complying with the judgment, from the day on which the judgment is delivered in this case until the day on which the 2006 judgment is fully complied with. |
| --- | --- |

—

Order the Kingdom of Spain to pay to the Commission a penalty payment in the amount of EUR 236 044,80 for every day of delay in complying with the judgment, from the day on which the judgment is delivered in this case until the day on which the 2006 judgment is fully complied with.

| — | Order the Kingdom of Spain to pay to the Commission a lump sum, the amount of which is calculated by multiplying a daily amount of EUR 25 817,40 by the number of days on which the infringement continues from the date on which the 2006 judgment was delivered until:






  — | the date on which the Kingdom of Spain recovers the aid declared illegal by the 2001 decisions, if the Court of Justice holds that the recovery has in fact been carried out before judgment in this case is handed down. |
| --- | --- | --- |

—

Order the Kingdom of Spain to pay to the Commission a lump sum, the amount of which is calculated by multiplying a daily amount of EUR 25 817,40 by the number of days on which the infringement continues from the date on which the 2006 judgment was delivered until:

—

the date on which the Kingdom of Spain recovers the aid declared illegal by the 2001 decisions, if the Court of Justice holds that the recovery has in fact been carried out before judgment in this case is handed down.

| — | the date on which the judgment in this case is delivered, if the 2006 judgment has not been fully complied with by that date. |
| --- | --- |

—

the date on which the judgment in this case is delivered, if the 2006 judgment has not been fully complied with by that date.

| — | Order the Kingdom of Spain to pay the costs. |
| --- | --- |

—

Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission considers that the Spanish authorities have not taken all the measures necessary to comply with the 2006 judgment since they have not recovered all the aid declared illegal and incompatible in the 2001 decisions. Firstly, the Spanish authorities considered certain individual aid to be compatible with the internal market without that aid fulfilling the requirements of a national aid scheme approved by the Commission and without, in any case, fulfilling the requirements set out in the Guidelines on national regional aid (OJ 1998 C 74, p. 9). Secondly, the Spanish authorities applied a deduction to certain beneficiaries of up to EUR 100 000 per beneficiary for a period of three years without respecting the rules relating to de minimis aid. Thirdly, in some cases the Spanish authorities retrospectively applied tax deductions provided for in Spanish tax laws although not all the requirements laid down by Spanish legislation for the application of such deductions were fulfilled. Finally, fourthly, not all of the payment orders issued by the Spanish authorities were paid by the beneficiaries of illegal aid. According to the Commission’s calculations, the amounts for which recovery is pending represent approximately 87 % of the total illegal aid to be recovered.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/15 |
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25.6.2011

EN

Official Journal of the European Union

C 186/15

---

Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 20 April 2011 — Stanleybet International Ltd, William Hill Organisation Ltd and William Hill plc v Ipourgos Ikonomias kai Ikonomikon and Ipourgos Politismou

(Case C-186/11)

2011/C 186/26

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicants: Stanleybet International Ltd, William Hill Organisation Ltd and William Hill plc

Respondents: Ipourgos Ikonomias kai Ikonomikon and Ipourgos Politismou

Questions referred

| 1. | Is national legislation which, in order to attain the objective of restricting the supply of games of chance, grants the exclusive right to run, manage, organise and operate games of chance to a single undertaking, which has the form of a public limited company and is listed on the stock exchange, compatible with Articles 43 and 49 of the EC Treaty where, moreover, that undertaking advertises the games of chance which it organises and it expands abroad, players participate freely and the maximum bet and winnings are set per form and not per player? |
| --- | --- |

1.

Is national legislation which, in order to attain the objective of restricting the supply of games of chance, grants the exclusive right to run, manage, organise and operate games of chance to a single undertaking, which has the form of a public limited company and is listed on the stock exchange, compatible with Articles 43 and 49 of the EC Treaty where, moreover, that undertaking advertises the games of chance which it organises and it expands abroad, players participate freely and the maximum bet and winnings are set per form and not per player?

| 2. | If the answer to the first question referred is in the negative, is national legislation which, in seeking exclusively to combat criminality by exercising control over the undertakings that operate in the sector at issue so as to ensure that those activities are carried out solely within controlled systems, grants a single undertaking the exclusive right to run, manage, organise and operate games of chance compatible with Articles 43 and 49 of the EC Treaty even where grant of the right results in parallel in unrestricted expansion of the supply in question? Or is it necessary in every case, in order for that restriction to be considered suitable for achieving the objective of combating criminality, that the expansion of supply be controlled in any event, that is to say, be only as great as is required in order to achieve that objective? If that expansion must in any event be controlled, can expansion be considered controlled from that point of view if the exclusive right in the sector in question is granted to a body with the attributes described in the first question referred? Finally, if grant of the exclusive right in question is considered to result in controlled expansion of the supply of games of chance, does its grant to just a single undertaking go beyond what is necessary, in the sense that the same objective can also be profitably served by granting that right to more than one undertaking? |
| --- | --- |

2.

If the answer to the first question referred is in the negative, is national legislation which, in seeking exclusively to combat criminality by exercising control over the undertakings that operate in the sector at issue so as to ensure that those activities are carried out solely within controlled systems, grants a single undertaking the exclusive right to run, manage, organise and operate games of chance compatible with Articles 43 and 49 of the EC Treaty even where grant of the right results in parallel in unrestricted expansion of the supply in question? Or is it necessary in every case, in order for that restriction to be considered suitable for achieving the objective of combating criminality, that the expansion of supply be controlled in any event, that is to say, be only as great as is required in order to achieve that objective? If that expansion must in any event be controlled, can expansion be considered controlled from that point of view if the exclusive right in the sector in question is granted to a body with the attributes described in the first question referred? Finally, if grant of the exclusive right in question is considered to result in controlled expansion of the supply of games of chance, does its grant to just a single undertaking go beyond what is necessary, in the sense that the same objective can also be profitably served by granting that right to more than one undertaking?

| 3. | If, following the above two questions referred, it were to be held that the grant, by the national provisions relevant in the case in point, of an exclusive right to run, manage, organise and operate games of chance is not compatible with Articles 43 and 49 of the EC Treaty: (a) is it permissible, for the purposes of those provisions of the Treaty, for the national authorities not to examine, during a transitional period necessary in order to enact rules compatible with the EC Treaty, applications to engage in the activities in question submitted by persons lawfully established in other Member States; (b) if the answer is in the affirmative, on the basis of what criteria is the duration of that transitional period determined; (c) if no transitional period is allowed, on the basis of what criteria must the national authorities rule on the applications? |
| --- | --- |

3.

If, following the above two questions referred, it were to be held that the grant, by the national provisions relevant in the case in point, of an exclusive right to run, manage, organise and operate games of chance is not compatible with Articles 43 and 49 of the EC Treaty: (a) is it permissible, for the purposes of those provisions of the Treaty, for the national authorities not to examine, during a transitional period necessary in order to enact rules compatible with the EC Treaty, applications to engage in the activities in question submitted by persons lawfully established in other Member States; (b) if the answer is in the affirmative, on the basis of what criteria is the duration of that transitional period determined; (c) if no transitional period is allowed, on the basis of what criteria must the national authorities rule on the applications?

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/16 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/16

---

Action brought on 20 April 2011 — European Commission v Kingdom of Spain

(Case C-189/11)

2011/C 186/27

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: L. Lozano Palacios and C. Soulay, Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | Declare that






  — | by applying the special scheme for travel agents in cases where travel services have been sold to a person other than the traveller; |
| --- | --- | --- |

—

Declare that

—

by applying the special scheme for travel agents in cases where travel services have been sold to a person other than the traveller;

| — | by excluding from that special scheme sales to the public, by retail agents acting in their own name, of trips organised by wholesale agents; |
| --- | --- |

—

by excluding from that special scheme sales to the public, by retail agents acting in their own name, of trips organised by wholesale agents;

| — | by authorising travel agents, in certain circumstances, to charge in the invoice an overall amount that is not related to the actual VAT charged to the customer, and by authorising the latter, where he is a taxable person, to deduct this overall amount from the VAT payable; and |
| --- | --- |

—

by authorising travel agents, in certain circumstances, to charge in the invoice an overall amount that is not related to the actual VAT charged to the customer, and by authorising the latter, where he is a taxable person, to deduct this overall amount from the VAT payable; and

| — | by authorising travel agencies, insofar as they benefit from the special scheme, to make an overall determination of the basis of assessment of the tax for each tax period; |
| --- | --- |

—

by authorising travel agencies, insofar as they benefit from the special scheme, to make an overall determination of the basis of assessment of the tax for each tax period;

the Kingdom of Spain has failed to fulfil its obligations under Articles 73, 168, 169, 226 and 306 to 310 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax,

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

—

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission considers that the application by the Kingdom of Spain of the special scheme for travel agents, insofar as it is not limited to services provided to travellers, as the directive prescribes, but is extended to operations carried out between travel agents, infringes the provisions of the legislation concerning VAT.

Furthermore, the exclusion from that special scheme of sales to the public, by retail agents acting in their own name, of trips organised by wholesale agents is not compatible with the directive either, as such activities, without any doubt in the opinion of the Commission, fall within the activities covered by the special scheme.

Likewise, the Commission considers that the Spanish rules authorising travel agents, without any basis in that directive, to charge in the invoice an overall VAT amount that is not related to the actual VAT charged to the customer, or that authorise the latter, where he is a taxable person, to deduct this overall amount from the VAT payable, or that allow travel agencies, insofar as they benefit from the special scheme, to make an overall determination of the basis of assessment of the tax for each tax period, infringe the VAT directive.

---

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

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/16 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/16

---

Appeal brought on 28 April 2011 by Lan Airlines S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 February 2011 in Case T-194/09 Lan Airlines S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A.

(Case C-198/11 P)

2011/C 186/28

Language of the case: Spanish

Parties

Appellant: Lan Airlines S.A. (represented by: E. Armijo Chávarri, abogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A.

Form of order sought

| — | Set aside the judgment of the General Court of 8 February 2011 in its entirety. |
| --- | --- |

—

Set aside the judgment of the General Court of 8 February 2011 in its entirety.

| — | Deliver a new judgment on the substance of the case (the opposition brought by LAN Airlines, S.A. against Air Nostrum’s Community trade mark application for the word mark LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM) or refer the case back to the General Court for judgment. |
| --- | --- |

—

Deliver a new judgment on the substance of the case (the opposition brought by LAN Airlines, S.A. against Air Nostrum’s Community trade mark application for the word mark LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM) or refer the case back to the General Court for judgment.

| — | In any event, order OHIM to pay the costs. |
| --- | --- |

—

In any event, order OHIM to pay the costs.

Pleas in law and main arguments

Error in the General Court’s interpretation of Article 8(1)(b) of Regulation No 40/94
   (1)
  (now Regulation No 207/09)
   (2)

The appeal alleges infringement by the judgment under appeal of the case-law that states that the global assessment of the likelihood of confusion must be based, in relation to the visual, aural or conceptual similarity of the signs at issue, on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components when those components by themselves dominate the image of the composite mark.

The appellant submits that the General Court did not take into account the relevant elements of the case (essentially the particular features of the sector, the nature of the Community trade mark application and the criterion of the perception of the relevant consumer) when it evaluated the actual effect of the ‘LAM’ element, incorporated in the contested trade mark application, on the average Spanish consumer’s perception of the mark.

The appellant submits that the correct assessment of the circumstances of the case should have led the General Court to recognise that the contested trade mark application would be perceived, first and foremost, in light of the ‘LAM’ acronym and to compare that trade mark application with the appellant’s marks by reference to that element.

The premiss upon which the appeal is brought is that if the General Court had recognised that point, it would have appreciated that there was a likelihood of confusion between the LÍNEAS AÉREAS DEL MEDITERRÁNEO Community trade mark application and the appellant’s LAN trade marks.

---

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

(2)  Council Regulation of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/17 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/17

---

Order of the President of the Court of 1 March 2011 — European Commission v Republic of Estonia

(Case C-408/10) (1)

2011/C 186/29

Language of the case: Estonian

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

---

(1)  OJ C 274, 9.10.2010.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/17 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/17

---

Order of the President of the Court of 9 March 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Canarias — Spain) — María Luisa Gómez Cueto v Administración del Estado

(Case C-517/10) (1)

2011/C 186/30

Language of the case: Spanish

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

---

(1)  OJ C 30, 29.1.2011.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/17 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/17

---

Order of the President of the Court of 11 March 2011 (reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen — Germany) — Kashayar Khavand v Bundesrepublik Deutschland

(Case C-563/10) (1)

2011/C 186/31

Language of the case: German

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

---

(1)  OJ C 38, 5.2.2011.

---

General Court

| 25.6.2011 | EN | Official Journal of the European Union | C 186/18 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/18

---

Judgment of the General Court of 17 May 2011 — Buczek Autmotive v Commission

(Case T-1/08) (1)

(State aid - Restructuring of the Polish steel industry - Recovery of public debts - Decision declaring the aid incompatible with the common market and ordering its recovery - Action for annulment - Interest in bringing proceedings - Admissibility - Concept of State aid - Private investor criterion)

2011/C 186/32

Language of the case: Polish

Parties

Applicant: Buczek Automotive sp. z o.o. (Sosnowiec, Poland) (represented by: initially T. Gackowski, then D. Szlachetko-Reiter and lastly J. Jurczyk, lawyers)

Defendant: European Commission (represented by: initially K. Gross, M. Kaduczak, A. Stobiecka-Kuik and K. Herrmann, then A. Stobiecka-Kuik, K. Herrmann and T. Maxian Rusche, Agents)

Intervener in support of the applicant: Republic of Poland, (represented by: M. Niechciala, then M. Krasnodębska-Tomkiel and M. Rzotkiewicz, Agents)

Re:

Partial annulment of Commission Decision 2008/344/EC of 23 October 2007 on State Aid C 23/06 (ex NN 35/06) which Poland has implemented for steel producer Technologie Buczek Group (OJ 2008 L 116, p. 26).

Operative part of the judgment

The Court:

| 1. | Annuls Article 1 of Commission Decision 2008/344/EC of 23 October 2007 on State Aid C 23/06 (ex NN 35/06) which Poland has implemented for steel producer Technologie Buczek Group; |
| --- | --- |

1.

Annuls Article 1 of Commission Decision 2008/344/EC of 23 October 2007 on State Aid C 23/06 (ex NN 35/06) which Poland has implemented for steel producer Technologie Buczek Group;

| 2. | Annuls Article 3(1) and (3) and Articles 4 and 5 of Decision 2008/344, in so far as they relate to Buczek Automotive sp. z o.o.; |
| --- | --- |

2.

Annuls Article 3(1) and (3) and Articles 4 and 5 of Decision 2008/344, in so far as they relate to Buczek Automotive sp. z o.o.;

| 3. | Orders the European Commission to bear its own costs and to pay those incurred by Buczek Automotive, including those relating to the interim proceedings; |
| --- | --- |

3.

Orders the European Commission to bear its own costs and to pay those incurred by Buczek Automotive, including those relating to the interim proceedings;

| 4. | Orders the Republic of Poland to bear its own costs. |
| --- | --- |

4.

Orders the Republic of Poland to bear its own costs.

---

(1)  OJ C 64, 8.3.2008.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/18 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/18

---

Judgment of the General Court of 16 May 2011 — Atlas Transport v OHIM — Atlas Air (ATLAS)

(Case T-145/08) (1)

(Community trade mark - Invalidity proceedings - Community trade mark ATLAS - Earlier Benelux trade mark atlasair - Formal requirements - Lodging of a statement setting out the grounds for the action - Suspension of the administrative procedure - Article 59 of Regulation (EC) No 40/94 (now Article 60 of Regulation (EC) No 207/2009) - Rule 20(7) of Regulation (EC) No 2868/95)

2011/C 186/33

Language of the case: 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) (OHIM) (represented by: G. Schneider, Agent)

Other parties to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Atlas Air, Inc. (Wilmington, Delaware, United States); Atlas Air, Inc. (Wilmington, Delaware, United States) (represented by: R. Dissmann, then R. Dissmann and J. Guhn, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 24 January 2008 (Case R 1023/2007-1) relating to nullity proceedings between Atlas Air, Inc. and Atlas Transport GmbH.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Atlas Transport GmbH to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Atlas Air, Inc. |
| --- | --- |

2.

Orders Atlas Transport GmbH to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Atlas Air, Inc.

---

(1)  OJ C 158, 21.6.2008.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/19 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/19

---

Judgment of the General Court of 12 May 2011 — Région Nord-Pas-de-Calais and Communauté d'agglomération du Douasis v Commission

(Joined Cases T-267/08 and T-279/08) (1)

(State aid - Construction of railway equipment - Repayable advances - Decision declaring the aid incompatible with the common market and ordering its recovery - Alteration of heads of claim - Rights of defence - Obligation to state reasons - State resources - Whether State held responsible - Criterion of private investor - Undertaking in difficulties)

2011/C 186/34

Language of the case: French

Parties

Applicants: Région Nord-Pas-de-Calais (represented by M. Cliquennois and F. Cavedon, lawyers) (Case T-267/08) and Communauté d’agglomération du Douasis (represented by M.Y. Benjamin and D. Rombi, lawyers) (Case T-279/08)

Defendant: European Commission (represented by: C. Giolito and B. Stromsky, Agents)

Re:

Originally, application for annulment of Decision C(2008) 1089 final of the Commission of 2 April 2008 concerning State aid C 38/2007 (ex NN 45/2007) implemented by France in favour of Arbel Fauvet Rail SA, and then application for annulment of Decision C(2010) 4112 final of the Commission of 23 June 2010 concerning State aid C 38/2007 implemented by France in favour of Arbel Fauvet Rail.

Operative part of the judgment

The Court:

| 1. | Declares that there is no longer any need to adjudicate on the applications for annulment of Decision C(2008) 1089 final of the Commission of 2 April 2008 concerning State aid C 38/2007 (ex NN 45/2007) implemented by France in favour of Arbel Fauvet Rail SA; |
| --- | --- |

1.

Declares that there is no longer any need to adjudicate on the applications for annulment of Decision C(2008) 1089 final of the Commission of 2 April 2008 concerning State aid C 38/2007 (ex NN 45/2007) implemented by France in favour of Arbel Fauvet Rail SA;

| 2. | Dismisses the actions; |
| --- | --- |

2.

Dismisses the actions;

| 3. | Orders the European Commission to pay the costs, save those incurred by Région Nord-Pas-de-Calais and the Communauté d’agglomération du Douasis after they were sent Decision C(2010) 4112 final of the Commission of 23 June 2010 concerning State aid C 38/2007 (ex NN 45/2007) implemented by France in favour of Arbel Fauvet Rail and withdrawing Decision C(2008) 1089 final. |
| --- | --- |

3.

Orders the European Commission to pay the costs, save those incurred by Région Nord-Pas-de-Calais and the Communauté d’agglomération du Douasis after they were sent Decision C(2010) 4112 final of the Commission of 23 June 2010 concerning State aid C 38/2007 (ex NN 45/2007) implemented by France in favour of Arbel Fauvet Rail and withdrawing Decision C(2008) 1089 final.

---

(1)  OJ C 247, of 27.9.2008.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/19 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/19

---

Judgment of the General Court of 17 May 2011 — Elf Aquitaine v Commission

(Case T-299/08) (1)

(Competition - Agreements, decisions and concerted practices - Market in sodium chlorate - Decision finding an infringement of Article 81 EC and Article 53 EEA - Imputability of the infringement - Rights of the defence - Obligation to state reasons - Principle that penalties must fit the offence - Principle that penalties must have a proper legal basis - Presumption of innocence - Principle of sound administration - Principle of legal certainty - Misuse of powers - Fines - Aggravating circumstance - Deterrence - Mitigating circumstance - Cooperation during the administrative procedure - Significant added value)

2011/C 186/35

Language of the case: French

Parties

Applicant: Elf Aquitaine SA (Courbevoie, France) (represented by: É. Morgan de Rivery and S. Thibault-Liger, lawyers)

Defendant: European Commission (represented by: X. Lewis, É. Gippini Fournier and R. Sauer, Agents)

Re:

Principally, action for annulment of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area (EEA) (Case COMP/38.695 — Sodium Chlorate), in so far as that decision relates to Elf Aquitaine and, in the alternative, action for annulment or reduction of the amounts of the fines imposed on that company in that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Elf Aquitaine SA to pay the costs. |
| --- | --- |

2.

Orders Elf Aquitaine SA to pay the costs.

---

(1)  OJ C 272, 25.10.2008.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/20 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/20

---

Judgment of the General Court of 17 May 2011 — Arkema France v Commission

(Case T-343/08) (1)

(Competition - Agreements, decisions and concerted practices - Market in sodium chlorate - Decision finding an infringement of Article 81 EC and Article 53 EEA - Action for annulment - Admissibility - Imputability of the infringement - Fines - Aggravating circumstance - Repeat infringement - Mitigating circumstance - Cooperation during the administrative procedure - Significant added value)

2011/C 186/36

Language of the case: French

Parties

Applicant: Arkema France (Colombes, France) (represented by: initially A. Winckler, S. Sorinas and H. Kanellopoulos, then S. Sorinas, E. Jégou and M. Sabeva, lawyers)

Defendant: European Commission (represented by: X. Lewis, É. Gippini Fournier and R. Sauer, Agents)

Re:

Principally, action for annulment of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81(1) EC and Article 53(1) EEA (Case COMP/38.695 — Sodium Chlorate), in so far as that decision relates to Arkema France and, in the alternative, action for annulment or reduction of the amounts of the fines imposed on that company in that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Arkema France to pay the costs. |
| --- | --- |

2.

Orders Arkema France to pay the costs.

---

(1)  OJ C 285, 8.11.2008.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/20 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/20

---

Judgment of the General Court of 5 May 2011 — Olymp Bezner v OHIM — Bellido (Olymp)

(Case T-203/09) (1)

(Community trade mark - Invalidity proceedings - Community word mark OLYMP - Earlier national figurative mark OLIMPO - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) and Article 52(1)(a) of Regulation (EC) No 40/94 (now Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009))

2011/C 186/37

Language of the case: English

Parties

Applicant: Olymp Bezner GmbH & Co. KG (Bietigheim-Bissingen, Germany) (represented by: M. Eck and J. Dönch, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Miguel Bellido, SA (Manzanares, Spain)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 11 March 2009 (Case R 531/2008-2) relating to invalidity proceedings between Miguel Bellido SA and Olymp Bezner GmbH & Co. KG.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Olymp Bezner GmbH & Co. KG to pay the costs. |
| --- | --- |

2.

Orders Olymp Bezner GmbH & Co. KG to pay the costs.

---

(1)  OJ C 167, 18.7.2009.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/21 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/21

---

Judgment of the General Court of 5 May 2011 — Olymp Bezner v OHIM — Bellido (OLYMP)

(Case T-204/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark OLYMP - Earlier national figurative mark OLIMPO - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2011/C 186/38

Language of the case: English

Parties

Applicant: Olymp Bezner GmbH & Co. KG (Bietigheim-Bissingen, Germany) (represented by: M. Eck and J. Dönch, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Miguel Bellido, SA (Manzanares, Spain)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 5 March 2009 (Case R 598/2008-2) relating to opposition proceedings between Miguel Bellido SA and Olymp Bezner GmbH & Co. KG

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Olymp Bezner GmbH & Co. KG to pay the costs. |
| --- | --- |

2.

Orders Olymp Bezner GmbH & Co. KG to pay the costs.

---

(1)  OJ C 167, 18.7.2009.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/21 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/21

---

Judgment of the General Court of 17 May 2011 — Consejo Regulador de la Denominación de Origen Txakoli de Álava and Others v OHIM (TXAKOLI)

(Case T-341/09) (1)

(Community trade mark - Application for a Community collective verbal mark TXAKOLI - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Article 66(2) of Regulation No 207/2009 - Lack of distinctive character - Article 7(1)(b) of Regulation No 207/2009)

2011/C 186/39

Language of the case: Spanish

Parties

Applicants: Consejo Regulador de la Denominación de Origen Txakoli de Álava (Amurrio, Spain); Consejo Regulador de la Denominación de Origen Txakoli de Bizkaia (Leioa, Spain); and Consejo Regulador de la Denominación de Origen Txakoli de Getaria (Getaria, Spain) (represented by: J. Grimau Muñoz and J. Villamor Muguerza, lawyers)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 4 June 2009 (Case R 197/2009-2), concerning an application for the registration of the word sign TXAKOLI as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Consejo Regulador de la Denominación de Origen Txakoli de Álava, Consejo Regulador de la Denominación de Origen Txakoli de Bizkaia and Consejo Regulador de la Denominación de Origen Txakoli de Getaria are ordered to pay the costs. |
| --- | --- |

2.

Consejo Regulador de la Denominación de Origen Txakoli de Álava, Consejo Regulador de la Denominación de Origen Txakoli de Bizkaia and Consejo Regulador de la Denominación de Origen Txakoli de Getaria are ordered to pay the costs.

---

(1)  OJ C 256, 24.10.2009.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/22 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/22

---

Judgment of the General Court of 5 May 2011 — CheapFlights International v OHIM — Cheapflights (Cheapflights)

(Case T-460/09) (1)

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

2011/C 186/40

Language of the case: English

Parties

Applicant: CheapFlights International Ltd (Ballybofey, Ireland) (represented by: A. von Mühlendahl and H. Hartwig, 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, intervener before the General Court: Cheapflights Ltd (London, United Kingdom) (represented by: M. Edenborough, QC)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 31 August 2009 (Case R 1356/2007-4), relating to opposition proceedings between CheapFlights International Ltd and Cheapflights Ltd

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 31 August 2009 (Case R 1356/2007-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 31 August 2009 (Case R 1356/2007-4);

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

2.

Dismisses the action as to the remainder;

| 3. | Orders OHIM and Cheapflights Ltd to pay the costs including those incurred by CheapFlights International Ltd in the proceedings before the Board of Appeal. |
| --- | --- |

3.

Orders OHIM and Cheapflights Ltd to pay the costs including those incurred by CheapFlights International Ltd in the proceedings before the Board of Appeal.

---

(1)  OJ C 24, 30.1.2010.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/22 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/22

---

Judgment of the General Court of 5 May 2011 — CheapFlights International v OHIM — Cheapflights (Cheapflights with a black aeroplane)

(Case T-461/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark Cheapflights with a black aeroplane - Earlier international figurative mark CheapFlights - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 186/41

Language of the case: English

Parties

Applicant: CheapFlights International Ltd (Ballybofey, Ireland) (represented by: A. von Mühlendahl and H. Hartwig, 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, intervener before the General Court: Cheapflights Ltd (London, United Kingdom) (represented by: M. Edenborough, QC)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 31 August 2009 (Case R 1607/2007-4), relating to opposition proceedings between CheapFlights International Ltd and Cheapflights Ltd

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 31 August 2009 (Case R 1607/2007-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 31 August 2009 (Case R 1607/2007-4);

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

2.

Dismisses the action as to the remainder;

| 3. | Orders OHIM and Cheapflights Ltd to pay the costs including those incurred by CheapFlights International Ltd in the proceedings before the Board of Appeal. |
| --- | --- |

3.

Orders OHIM and Cheapflights Ltd to pay the costs including those incurred by CheapFlights International Ltd in the proceedings before the Board of Appeal.

---

(1)  OJ C 24, 30.1.2010.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/23 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/23

---

Judgment of the General Court of 12 May 2011 — Commission v New Acoustic Music and Hildibrandsdottir

(Case T-464/09) (1)

(Arbitration clause - Contract for financial assistance concluded under the ‘Culture 2000’ Framework Programme - Implementation of the action entitled ‘European Music Roadwork’ - Non-performance of the contract - Repayment of part of the amounts advanced - Partial inadmissibility of the action - Procedure by default - Legal aid)

2011/C 186/42

Language of the case: English

Parties

Applicant: European Commission (represented by: A.-M. Rouchaud-Joët and N. Bambara, Agents, assisted by C. Erkelens, lawyer)

Defendants: New Acoustic Music Association (Orpington, United Kingdom); and Anna Hildur Hildibrandsdottir (Orpington, United Kingdom)

Re:

Application by the Commission under an arbitration clause within the meaning of Article 238 EC, seeking an order that New Acoustic Music Association and Ms Hildibrandsdottir repay to it part of the amount of the advances paid, together with default interest, in performance of Contract No 2003-1895/001-001, to carry out the action entitled ‘CLT2003/A1/GB-317 — European Music Roadwork’, as part of the ‘Culture 2000’ Framework Programme established by Decision 508/2000/EC of the European Parliament and of the Council of 14 February 2000 (OJ 2000 L 63, p. 1).

Operative part of the judgment

The Court:

| 1. | Declares that the action is inadmissible in so far as it is brought against New Acoustic Music Association; |
| --- | --- |

1.

Declares that the action is inadmissible in so far as it is brought against New Acoustic Music Association;

| 2. | Orders Ms Anna Hildur Hildibrandsdottir, as a member of the New Acoustic Music Association partnership, to repay to the European Commission the amount of EUR 31 136,23, together with interest at the rate of 7,70% per annum as of 14 January 2008 until the debt is fully discharged; |
| --- | --- |

2.

Orders Ms Anna Hildur Hildibrandsdottir, as a member of the New Acoustic Music Association partnership, to repay to the European Commission the amount of EUR 31 136,23, together with interest at the rate of 7,70% per annum as of 14 January 2008 until the debt is fully discharged;

| 3. | Orders Ms Hildibrandsdottir to pay the costs. |
| --- | --- |

3.

Orders Ms Hildibrandsdottir to pay the costs.

| 4. | Ms Hildibrandsdottir’s application for legal aid is rejected. |
| --- | --- |

4.

Ms Hildibrandsdottir’s application for legal aid is rejected.

---

(1)  OJ C 51, 27.2.2010.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/23 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/23

---

Judgment of the General Court of 12 May 2011 — Jager & Polacek v OHIM (REDTUBE)

(Case T-488/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark REDTUBE - Earlier unregistered national mark Redtube - Failure to pay the opposition fee within the prescribed period - Decision deeming the opposition non-existent - Article 8(3) of Regulation (EC) No 2869/95 - Protection of legitimate expectations - Rule 17 of Regulation (EC) No 2868/95 - Ex parte proceedings - Article 8(2) of Regulation (EC) No 216/96 - Rule 18 of Regulation No 2868/95 - Legal nature of a communication from OHIM informing a party that an opposition has been found to be admissible - Rule of parallelism of procedural requirements and of the actus contrarius - Article 80 of Regulation (EC) No 207/2009)

2011/C 186/43

Language of the case: German

Parties

Applicant: Jager & Polacek GmbH (Vienna, Austria) (represented by: A. Renck, V. von Bomhard and T. Dolde, lawyers)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 29 September 2009 (Case R 442/2009-4), concerning opposition proceedings between Jager & Polacek GmbH and RT Mediasolutions s.r.o.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Jager & Polacek GmbH to pay the costs. |
| --- | --- |

2.

Orders Jager & Polacek GmbH to pay the costs.

---

(1)  OJ C 37, 13.2.2010.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/24 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/24

---

Judgment of the General Court of 17 May 2011 — Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygeia’ v OHIM (υγεία)

(Case T-7/10) (1)

(Community trade mark - Application for the Community word mark υγεία - Absolute grounds for refusal - No distinctive character and descriptive character - No distinctive character acquired through use - Article 7(1)(b) and (c) and Article 7(3) of Regulation (EC) No 207/2009)

2011/C 186/44

Language of the case: Greek

Parties

Applicant: Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygeia’ AE (Athens, Greece) (represented by: K. Alexiou and S. Foteas, lawyers)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 4 November 2009 (Case R 190/2009-2), concerning an application for registration of the word sign υγεία as a Community trade mark

Operative part of the judgment

The Court:

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

1.

dismisses the action;

| 2. | orders Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygeia’ AE to pay the costs. |
| --- | --- |

2.

orders Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygeia’ AE to pay the costs.

---

(1)  OJ C 80, 27.3.2010.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/24 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/24

---

Judgment of the General Court of 5 May 2011 — SIMS — École de ski internationale v OHIM — SNMSF (esf école du ski français)

(Case T-41/10) (1)

(Community trade mark - Invalidity proceedings - Community figurative mark esf école du ski français - Absolute grounds for refusal - State emblem - Article 7(1)(h) of Regulation (EC) No 207/2009 - Article 6ter of the Paris Convention - Mark of such a nature as to deceive the public - Article 7(1)(g) of Regulation No 207/2009)

2011/C 186/45

Language of the case: French

Parties

Applicant: Syndicat international des moniteurs de ski — École de ski internationale (SIMS — École de ski internationale) (Albertville, France) (represented by: L. Raison-Rebufat, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially A. Folliard-Monguiral and subsequently by A. Folliard-Monguiral and J. Crespo Carrillo, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Syndicat national des moniteurs du ski français (SNMSF) (Meylan, France) (represented by: J.-P. Stouls, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 11 November 2009 (Case R 235/2009-1), concerning invalidity proceedings between the Syndicat international des moniteurs de ski — École de ski internationale (SIMS — École de ski internationale) and the Syndicat national des moniteurs du ski français (SNMSF)

Operative part of the judgment

The Court:

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

1.

dismisses the action;

| 2. | orders the Syndicat international des moniteurs de ski — École de ski internationale (SIMS — École de ski internationale) to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM); |
| --- | --- |

2.

orders the Syndicat international des moniteurs de ski — École de ski internationale (SIMS — École de ski internationale) to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM);

| 3. | orders the Syndicat national des moniteurs du ski français to bear its own costs. |
| --- | --- |

3.

orders the Syndicat national des moniteurs du ski français to bear its own costs.

---

(1)  OJ C 100, 17.4.2010.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/25 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/25

---

Judgment of the General Court of 11 May 2011 — Flaco Geräte v OHIM — Delgado Sámchez (FLACO)

(Case T-74/10) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark FLACO - Earlier national word mark FLACO - Relative ground for refusal - Identical goods - Article 8(1)(a) and (b) of Regulation (EC) No 207/2009 - Request for proof of genuine use of the earlier mark submitted for the first time before the Board of Appeal - Article 42(2) and (3) of Regulation No 207/2009 and Rule 22 of Regulation (EC) No 2868/95)

2011/C 186/46

Language of the case: English

Parties

Applicant: Flaco Geräte GmbH (Gütersloh, Germany) (represented by: M. Wirtz, 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: Jesús Delgado Sánchez (Socuellamos, Spain)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 23 November 2009 (Case R 86/2009-2) concerning opposition proceedings between Mr Jesús Delgado Sánchez and Flaco Geräte GmbH.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Flaco-Geräte GmbH to pay the costs. |
| --- | --- |

2.

Orders Flaco-Geräte GmbH to pay the costs.

---

(1)  OJ C 100, 17.4.2010.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/25 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/25

---

Judgment of the General Court of 10 May 2011 — Emram v OHIM — Guccio Gucci (G)

(Case T-187/10) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark G - Earlier national and Community figurative marks G - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 186/47

Language of the case: French

Parties

Applicant: Maurice Emram (Marseilles, France) (represented by: M. Benavï, 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 General Court: Guccio Gucci SpA (Florence, Italy) (represented by: F. Jacobacci, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 11 February 2010 (Case R 1281/2008-1), concerning opposition proceedings between Guccio Gucci SpA and Mr Maurice Emram

Operative part of the judgment

The Court:

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

1.

dismisses the action;

| 2. | orders Mr Maurice Emram to pay the costs. |
| --- | --- |

2.

orders Mr Maurice Emram to pay the costs.

---

(1)  OJ C 179, 3.7.2010.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/26 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/26

---

Order of the General Court of 5 May 2011 — Marcuccio v Commission

(Case T-402/09 P) (1)

(Appeal - Civil Service - Officials - Rules on insurance against the risk of accident and occupational disease for officials of the European Communities - Procedure for the recognition of the occupational origin of a disease - Appeal in part manifestly inadmissible and in part manifestly unfounded)

2011/C 186/48

Language of the case: Italian

Parties

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

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

Re:

Appeal against the order of the Civil Service Tribunal (First Chamber) of 20 July 2009 in Case F-86/07 Marcuccio v Commission, not published in the ECR, seeking the annulment of that order.

Operative part of the order

| 1. | The appeal is dismissed in part as manifestly inadmissible and in part as manifestly unfounded. |
| --- | --- |

1.

The appeal is dismissed in part as manifestly inadmissible and in part as manifestly unfounded.

| 2. | Mr Luigi Marcuccio is ordered, in addition to bearing his own costs, to pay the costs incurred by the European Commission in the appeal. |
| --- | --- |

2.

Mr Luigi Marcuccio is ordered, in addition to bearing his own costs, to pay the costs incurred by the European Commission in the appeal.

---

(1)  OJ C 297, 5.12.2009.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/26 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/26

---

Order of the President of the General Court of 11 May 2011 — Cahier and Others v Council of the European Union and European Commission

(Case T-195/11 R)

(Interim proceedings - Non-contractual liability - Application for interim measures - Inadmissible in part - Want of urgency)

2011/C 186/49

Language of the case: French

Parties

Applicant(s): Cahier and Others (Montchaude, France) (represented by: C.-E. Gudin, lawyer)

Defendants: Council of the European Union (represented by E. Sitbon Bercain and P. Mahnič Bruni, Agents) and European Commission (represented by D. Bianchi, B. Schima and M. Vollkommer, Agents)

Re:

Application for interim measures and suspension of operation of Article 28 of Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine (OJ 1999 L 179, p. 1), as maintained in force by Article 128(3) of Council Regulation (EC) No 479/2008 of 29 April 2008 on the common organisation of the market in wine, amending Regulations (EC) No 1493/1999, (EC) No 1782/2003, (EC) No 1290/2005, (EC) No 3/2008 and repealing Regulations (EEC) No 2392/86 and (EC) No 1493/1999.

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.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/26 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/26

---

Appeal brought on 1 April 2011 by the European Commission against the judgment of the Civil Service Tribunal of 20 January 2011 in Case F-121/07 Strack v Commission

(Case T-197/11 P)

2011/C 186/50

Language of the case: German

Parties

Appellant: European Commission (represented by P. Costa de Oliveira and B. Eggers, Agents)

Other party to the proceedings: Guido Strack (Cologne, Germany)

Form of order sought by the appellant

| — | Set aside the judgment of the Civil Service Tribunal in Case F-121/07 Strack v Commission in so far as in that judgment the Civil Service Tribunal rejected the objection of lack of jurisdiction raised by the Commission; |
| --- | --- |

—

Set aside the judgment of the Civil Service Tribunal in Case F-121/07 Strack v Commission in so far as in that judgment the Civil Service Tribunal rejected the objection of lack of jurisdiction raised by the Commission;

| — | Order each party to bear its own costs. |
| --- | --- |

—

Order each party to bear its own costs.

Pleas in law and main arguments

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

Infringement of European Union law, and in particular the division of competences between the General Court and the Civil Service Tribunal as a specialised court as apparent from Article 270 TFEU read in conjunction with Article 91(1) of the Staff Regulations of Officials of the European Union, Article 8(3) of Regulation (EC) No 1049/2001, (1) the first sentence of Article 256(1) TFEU and Article 62a and Article 1 of Annex 1 to the Statute of the Court of Justice of the European Union.

| — | According to those provisions, the Civil Service Tribunal does not enjoy general jurisdiction in respect of all disputes between the European Union and any person to whom the Staff Regulations apply but only in respect of those disputes which concern the legality of an act which adversely affects such person within the meaning of Article 90(2) of the Staff Regulations. |
| --- | --- |

—

According to those provisions, the Civil Service Tribunal does not enjoy general jurisdiction in respect of all disputes between the European Union and any person to whom the Staff Regulations apply but only in respect of those disputes which concern the legality of an act which adversely affects such person within the meaning of Article 90(2) of the Staff Regulations.

| — | Where an official submits an application for access to documents, he is acting as an ordinary citizen for the purposes of Regulation No 1049/2001. A specific system of remedies is available to him under the Regulation in the form of an action for annulment before the General Court. The system of remedies according to the Staff Regulations and the Transparency Regulation are purely and simply incompatible. |
| --- | --- |

—

Where an official submits an application for access to documents, he is acting as an ordinary citizen for the purposes of Regulation No 1049/2001. A specific system of remedies is available to him under the Regulation in the form of an action for annulment before the General Court. The system of remedies according to the Staff Regulations and the Transparency Regulation are purely and simply incompatible.

---

(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).

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/27 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/27

---

Action brought on 28 March 2011 — Transports Schiocchet — Excursions v Council and Commission

(Case T-203/11)

2011/C 186/51

Language of the case: French

Parties

Applicant: Transports Schiocchet — Excursions (Beuvillers, France) (represented by: É. Deshoulières, lawyer)

Defendants: Council of the European Union and European Commission

Form of order sought

| — | Order the Council of the European Union and the European Commission jointly to compensate SARL Tarnsports Schiocchet — Excursions for the loss it has suffered, amounting to EUR 8 372 483; |
| --- | --- |

—

Order the Council of the European Union and the European Commission jointly to compensate SARL Tarnsports Schiocchet — Excursions for the loss it has suffered, amounting to EUR 8 372 483;

| — | Rule that the sums thus awarded are to bear interest at the statutory rate to run from notification of the preliminary claim for compensation to the European Commission; |
| --- | --- |

—

Rule that the sums thus awarded are to bear interest at the statutory rate to run from notification of the preliminary claim for compensation to the European Commission;

| — | Order the Council of the European Union and the European Commission to pay the costs incurred by the applicant, on the basis of Article 87 of the Rules of Procedure of the General Court. |
| --- | --- |

—

Order the Council of the European Union and the European Commission to pay the costs incurred by the applicant, on the basis of Article 87 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the right to be heard by a court and, in particular, of the obligation of the bodies of the European Union to make it possible to obtain an effective remedy in the event of infringement of rights afforded to individuals by European Union law. The applicant points to the lack, firstly, of sanctions on Member States and transporters unwilling to comply with the authorisation procedure instituted by Council Regulation (EEC) No 684/92 and, secondly, of any system of compensation for transporters who do undergo that authorisation procedure. |
| --- | --- |

1.

First plea in law, alleging infringement of the right to be heard by a court and, in particular, of the obligation of the bodies of the European Union to make it possible to obtain an effective remedy in the event of infringement of rights afforded to individuals by European Union law. The applicant points to the lack, firstly, of sanctions on Member States and transporters unwilling to comply with the authorisation procedure instituted by Council Regulation (EEC) No 684/92 and, secondly, of any system of compensation for transporters who do undergo that authorisation procedure.

| 2. | Second plea in law, alleging infringement of Articles 94 TFEU to 96 TFEU in that the Commission was required to ensure proper application of Council Regulation (EEC) No 684/92, (1) efficiently to apprehend operators which had not undergone the authorisation procedure laid down in that regulation and to put an end to the discrimination caused by application of the regulation. The applicant refers to the fact that necessary measures were not taken by the Commission with regard to implementing the regulation in question despite a number of complaints made by the applicant, due to which it is shown that the Commission was aware of the situation. The defendant’s failure to act, when effectively it was aware of the situation adversely affecting the applicant, constitutes a serious and manifest failure to fulfil obligations leading to a sufficiently serious infringement of Articles 94 TFEU to 96 TFEU. |
| --- | --- |

2.

Second plea in law, alleging infringement of Articles 94 TFEU to 96 TFEU in that the Commission was required to ensure proper application of Council Regulation (EEC) No 684/92, (1) efficiently to apprehend operators which had not undergone the authorisation procedure laid down in that regulation and to put an end to the discrimination caused by application of the regulation. The applicant refers to the fact that necessary measures were not taken by the Commission with regard to implementing the regulation in question despite a number of complaints made by the applicant, due to which it is shown that the Commission was aware of the situation. The defendant’s failure to act, when effectively it was aware of the situation adversely affecting the applicant, constitutes a serious and manifest failure to fulfil obligations leading to a sufficiently serious infringement of Articles 94 TFEU to 96 TFEU.

---

(1)  Council Regulation (EEC) No 684/92 of 16 March 1992 on common rules for the international carriage of passengers by coach and bus (OJ 1992 L 74, p. 1).

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/28 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/28

---

Action brought on 7 April 2011 — Germany v Commission

(Case T-205/11)

2011/C 186/52

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: T. Henze and J. Möller, Agents)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Decision K(2011)275 final, issued on 26 January 2011 by the Commission in the procedure ‘State aid C 7/2010 relating to the fiscal carry-forward of losses (“Sanierungsklausel”)’; |
| --- | --- |

—

annul Decision K(2011)275 final, issued on 26 January 2011 by the Commission in the procedure ‘State aid C 7/2010 relating to the fiscal carry-forward of losses (“Sanierungsklausel”)’;

| — | in the alternative: annul in part Decision K(2011)275 final, issued on 26 January 2011 by the Commission in the procedure ‘State aid C 7/2010 relating to the fiscal carry-forward of losses (“Sanierungsklausel”)’ in so far as, by Article 2 thereof, the Commission decided that the individual aid granted is wholly incompatible with the internal market and must be recovered in its entirety in each case where the amount of the individual aid exceeds EUR 500 000; |
| --- | --- |

—

in the alternative: annul in part Decision K(2011)275 final, issued on 26 January 2011 by the Commission in the procedure ‘State aid C 7/2010 relating to the fiscal carry-forward of losses (“Sanierungsklausel”)’ in so far as, by Article 2 thereof, the Commission decided that the individual aid granted is wholly incompatible with the internal market and must be recovered in its entirety in each case where the amount of the individual aid exceeds EUR 500 000;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

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

| — | Pleas in support of the principal form of order sought:






  1. | First plea in law, alleging infringement of Article 107(1) TFEU: no selectivity owing to the fact that the provision enabling the carry forward of fiscal losses (‘the Sanierungsklausel’) does not constitute an exception within the relevant reference system. |
| --- | --- | --- |

—

Pleas in support of the principal form of order sought:

1.

First plea in law, alleging infringement of Article 107(1) TFEU: no selectivity owing to the fact that the provision enabling the carry forward of fiscal losses (‘the Sanierungsklausel’) does not constitute an exception within the relevant reference system.

The German Government submits that the Sanierungsklausel laid down in Paragraph 8c(1a) of the German Law on corporation tax (Körperschaftssteuergesetz, ‘the KStG’), under which it is possible to carry fiscal losses forward in the case of undertakings which have been taken over with a view to their ‘turn-around’, is not selective. According to the German Government, this arrangement does not constitute a State aid scheme for the purposes of Article 107(1) TFEU, since the above provision does not introduce any exception to the relevant reference system.

| 2. | Second plea in law, alleging infringement of Article 107(1) TFEU: manifest error of assessment relating to the general character of the measure. |
| --- | --- |

2.

Second plea in law, alleging infringement of Article 107(1) TFEU: manifest error of assessment relating to the general character of the measure.

The German Government submits that the Commission made a manifest error of assessment with regard to the question whether the Sanierungsklausel laid down in Paragraph 8c(1a) of the KStG is a general measure, in so far as the Commission adopted an inappropriate approach to the analysis of that question and did not consider, in the context of an overall economic assessment, whether the Sanierungsklausel was based on ‘horizontal’ data which were equally valid for all undertakings; according to the German Government, the Sanierungsklausel is thus of benefit across the board to every undertaking on German territory and, in consequence, can be categorised as a general measure.

| 3. | Third plea in law, alleging infringement of Article 107(1) TFEU: no selectivity owing to the fact that the Commission did not take into consideration the fact that the legislation at issue is justified by the nature and the internal structure of the German fiscal system. |
| --- | --- |

3.

Third plea in law, alleging infringement of Article 107(1) TFEU: no selectivity owing to the fact that the Commission did not take into consideration the fact that the legislation at issue is justified by the nature and the internal structure of the German fiscal system.

According to the German Government, the Sanierungsklausel laid down in Paragraph 8c(1a) of the KStG is not selective and, in consequence, does not amount to a State aid scheme for the purposes of Article 107(1) TFEU, since it is justified by the nature and the internal structure of the German fiscal system.

| — | Plea in support of the alternative form of order sought:






  — | Infringement of Article 107(3) TFEU, read in conjunction with the temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis. |
| --- | --- | --- |

—

Plea in support of the alternative form of order sought:

—

Infringement of Article 107(3) TFEU, read in conjunction with the temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis.

| — | The Commission misapplied Article 107(3) TFEU, read in conjunction with the Commission Communication on the ‘Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis’, in so far as it treated the amount of EUR 500 000 referred to in Article 2 of the decision as an exemption ceiling, so that aid paid in excess of that amount triggers an obligation to repay all the aid in full, rather than as a threshold marking the limits of an approved aid amount, so that only the aid paid in excess of that amount falls to be repaid. |
| --- | --- |

—

The Commission misapplied Article 107(3) TFEU, read in conjunction with the Commission Communication on the ‘Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis’, in so far as it treated the amount of EUR 500 000 referred to in Article 2 of the decision as an exemption ceiling, so that aid paid in excess of that amount triggers an obligation to repay all the aid in full, rather than as a threshold marking the limits of an approved aid amount, so that only the aid paid in excess of that amount falls to be repaid.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/28 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/28

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Action brought on 5 April 2011 — MB System v Commission

(Case T-209/11)

2011/C 186/53

Language of the case: German

Parties

Applicant: MB System GmbH & Co. KG (Nordhausen, Germany) (represented by: G. Brüggen, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision K(2010) 8289 final of 14 December 2010 on State aid No C 38/2005 (ex NN 52/2004) granted by Germany to the Biria Group; |
| --- | --- |

—

annul Commission Decision K(2010) 8289 final of 14 December 2010 on State aid No C 38/2005 (ex NN 52/2004) granted by Germany to the Biria Group;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law: wrong assessment of the facts through the classification of the undertaking as an undertaking in difficulty; |
| --- | --- |

1.

First plea in law: wrong assessment of the facts through the classification of the undertaking as an undertaking in difficulty;

| 2. | Second plea in law: failure to apply the 1999 Guidelines for State aid for rescue and restructuring in the classification of the undertaking as an undertaking in difficulty and examination of the value of the ‘binding comfort letter’; |
| --- | --- |

2.

Second plea in law: failure to apply the 1999 Guidelines for State aid for rescue and restructuring in the classification of the undertaking as an undertaking in difficulty and examination of the value of the ‘binding comfort letter’;

| 3. | Third plea in law: insufficient grounds for diverging from the 1999 Guidelines for State aid for rescue and restructuring in the classification as an undertaking in difficulty and examination of the value of the ‘binding comfort letter’; |
| --- | --- |

3.

Third plea in law: insufficient grounds for diverging from the 1999 Guidelines for State aid for rescue and restructuring in the classification as an undertaking in difficulty and examination of the value of the ‘binding comfort letter’;

| 4. | Fourth plea in law: error of assessment in the calculation of the amount of State aid to be recovered as a result of failure to assess the ‘binding comfort letter’ in the calculation of the amount of State aid to be recovered. |
| --- | --- |

4.

Fourth plea in law: error of assessment in the calculation of the amount of State aid to be recovered as a result of failure to assess the ‘binding comfort letter’ in the calculation of the amount of State aid to be recovered.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/29 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/29

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Action brought on 12 April 2011 — ADEDI and Others v Council of the European Union

(Case T-215/11)

2011/C 186/54

Language of the case: Greek

Parties

Applicant: Supreme Administration of Public Servants’ Unions (ADEDI) (Athens, Greece) S. Papaspiros (Athens, Greece) and I. Iliopoulos (Athens, Greece) (represented by: M. Tsipra, lawyer))

Defendant: Council of the European Union

Form of order sought

The applicants claim that the General Court should:

| — | annul the Council Decision of 20 December 2010 amending Decision 2010/320/EU addressed to Greece with a view to reinforcing and deepening fiscal surveillance and giving notice to Greece to take measures for the deficit reduction judged necessary to remedy the situation of excessive deficit, published in the Official Journal of the European Union on 29 January 2011 (OJ 2011 L 26, p. 15) under No 2011/57/EU; |
| --- | --- |

—

annul the Council Decision of 20 December 2010 amending Decision 2010/320/EU addressed to Greece with a view to reinforcing and deepening fiscal surveillance and giving notice to Greece to take measures for the deficit reduction judged necessary to remedy the situation of excessive deficit, published in the Official Journal of the European Union on 29 January 2011 (OJ 2011 L 26, p. 15) under No 2011/57/EU;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

By this action the applicants seek the annulment of the decision of the Council of the European Union of 20 December 2010 amending Decision 2010/320/EU addressed to Greece with a view to reinforcing and deepening fiscal surveillance and giving notice to Greece to take measures for the deficit reduction judged necessary to remedy the situation of excessive deficit, published in the Official Journal of the European Union on 29 January 2011 (OJ 2011 L 26, p. 15) under No 2011/57/EU.

The applicants advance the following grounds in support of their pleas.

First, the applicants submit that the powers of the European Commission and the Council conferred by the Treaties were exceeded in the adoption of the contested decision. More specifically, Articles 4 and 5 of the Treaties introduce the principles of subsidiarity and proportionality. In addition, under Article 5(2) of the Treaties it is expressly provided that any competence not conferred by the Member States on the European Union remains with the Member States. Pursuant to Article 126 et seq. of the Treaties, the measures which may be decided upon by the Council under the excessive deficit procedure and included in its decisions cannot be prescribed specifically, explicitly and without room for deviation, since that competence is not conferred upon the Council by the Treaties.

Second, the applicants maintain that the legal basis relied upon for the adoption of the contested decision is Articles 126(9) and 136 of the Treaty. However, the contested measure was adopted in a manner that exceeded the powers of the European Commission and the Council conferred by those articles, simply as a measure implementing a bilateral agreement between the 15 Member States of the Euro zone, which decided to grant the bilateral loans, and Greece. Such a competence for adoption of a measure on the part of the Council is neither recognised nor prescribed by the Treaties.

Third, the applicants maintain that, in introducing reductions to family allowances and means-testing of them, the contested decision affects acquired property rights of the applicants and was accordingly adopted in breach of Article 1 of the First Protocol to the European Convention for the Protection of Human Rights

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/29 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/29

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Action brought on 20 April 2011 — Rautenbach v Council and Commission

(Case T-222/11)

2011/C 186/55

Language of the case: English

Parties

Applicant: Muller Conrad Rautenbach (Harare, Zimbabwe) (represented by: S. Smith QC, M. Lester, Barristers, and W. Osmond, Solicitor)

Defendants: Council of the European Union and European Commission

Form of order sought

| — | Annul Council Decision 2011/101/CFSP of 15 February 2011 concerning restrictive measures directed against Zimbabwe (OJ 2011 L 42, p. 6) and Commission Regulation (EU) No 174/2011 of 23 February 2011 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2011 L 49, p. 23), insofar as they apply to the applicant; and |
| --- | --- |

—

Annul Council Decision 2011/101/CFSP of 15 February 2011 concerning restrictive measures directed against Zimbabwe (OJ 2011 L 42, p. 6) and Commission Regulation (EU) No 174/2011 of 23 February 2011 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2011 L 49, p. 23), insofar as they apply to the applicant; and

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

—

Order the defendants to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that neither Commission Regulation (EU) No 174/2011 nor Council Decision 2011/101/CFSP has a valid legal basis since the institutions concerned acted beyond the ambit of their powers. |
| --- | --- |

1.

First plea in law, alleging that neither Commission Regulation (EU) No 174/2011 nor Council Decision 2011/101/CFSP has a valid legal basis since the institutions concerned acted beyond the ambit of their powers.

| 2. | Second plea in law, alleging that the defendants do not have the power to impose these restrictive measures on the applicant; alternatively, his inclusion is based on a manifest error of assessment, as the defendants erred in concluding that the restrictive measures were justified as regards the applicant. |
| --- | --- |

2.

Second plea in law, alleging that the defendants do not have the power to impose these restrictive measures on the applicant; alternatively, his inclusion is based on a manifest error of assessment, as the defendants erred in concluding that the restrictive measures were justified as regards the applicant.

| 3. | Third plea in law, alleging that the contested measures violate the applicant’s rights of defence and right to effective judicial review. |
| --- | --- |

3.

Third plea in law, alleging that the contested measures violate the applicant’s rights of defence and right to effective judicial review.

| 4. | Fourth plea in law, alleging that the defendants have breached their duty to give reasons, as the statement of reasons given does not comply with such obligation incumbent upon EU institutions. |
| --- | --- |

4.

Fourth plea in law, alleging that the defendants have breached their duty to give reasons, as the statement of reasons given does not comply with such obligation incumbent upon EU institutions.

| 5. | Fifth plea in law, alleging that the contested measures impose an unjustified and disproportionate restriction on the applicant’s fundamental rights, specifically on his property rights, freedom to conduct his business and the right to respect for his reputation and family life. |
| --- | --- |

5.

Fifth plea in law, alleging that the contested measures impose an unjustified and disproportionate restriction on the applicant’s fundamental rights, specifically on his property rights, freedom to conduct his business and the right to respect for his reputation and family life.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/30 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/30

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Action brought on 29 April 2011 — Spain v Commission

(Case T-235/11)

2011/C 186/56

Language of the case: Spanish

Parties

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

Defendant: European Commission

Form of order sought

The applicant requests the Court to:

| — | annul Commission Decision C(2011) 1023 final, of 18 February 2011, reducing assistance from the Cohesion Fund for the following project phases:






  — | ‘Supply and assembly of track materials for the Madrid-Zaragoza-Barcelona-French border High-Speed Line. Madrid-Lleida section’ (CCI No 1999.ES.16.C.PT.001) |
| --- | --- | --- |

—

annul Commission Decision C(2011) 1023 final, of 18 February 2011, reducing assistance from the Cohesion Fund for the following project phases:

—

‘Supply and assembly of track materials for the Madrid-Zaragoza-Barcelona-French border High-Speed Line. Madrid-Lleida section’ (CCI No 1999.ES.16.C.PT.001)

| — | ‘Madrid-Barcelona High-Speed Rail line. Lleida-Martorell section (Platform, 1st phase)’ (CCI No 2000.ES.16.C.PT.001) |
| --- | --- |

—

‘Madrid-Barcelona High-Speed Rail line. Lleida-Martorell section (Platform, 1st phase)’ (CCI No 2000.ES.16.C.PT.001)

| — | ‘Madrid-Zaragoza-Barcelona-French border High-Speed Line. Approaches to Zaragoza’ (CCI No 2000.ES.16.C.PT.003) |
| --- | --- |

—

‘Madrid-Zaragoza-Barcelona-French border High-Speed Line. Approaches to Zaragoza’ (CCI No 2000.ES.16.C.PT.003)

| — | ‘Madrid-Zaragoza-Barcelona-French border High-Speed Line. Lleida-Martorell section. X-A sub-section (Olérdola — Avinypnet del Penedés)’ (CCI No 2001.ES.16.C.PT.007), and |
| --- | --- |

—

‘Madrid-Zaragoza-Barcelona-French border High-Speed Line. Lleida-Martorell section. X-A sub-section (Olérdola — Avinypnet del Penedés)’ (CCI No 2001.ES.16.C.PT.007), and

| — | ‘New High-Speed rail access to Levante. La Gineta–Albacete sub-section (Platform)’ (CCI No 2004.ES.16.C.PT.014). |
| --- | --- |

—

‘New High-Speed rail access to Levante. La Gineta–Albacete sub-section (Platform)’ (CCI No 2004.ES.16.C.PT.014).

| — | in the alternative, partially annul the decision, in respect of the corrections applied to the amendments expressly noted in the application, reducing the amount of the correction to EUR 27 047 647,00. |
| --- | --- |

—

in the alternative, partially annul the decision, in respect of the corrections applied to the amendments expressly noted in the application, reducing the amount of the correction to EUR 27 047 647,00.

| — | in any event, order the Commission to pay the costs. |
| --- | --- |

—

in any event, order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging an infringement of Article H(2) of Annex II to Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ 1994 L 130, p.1), as the Commission did not observe the period of three months, from the time of the hearing, for adopting the Decision. |
| --- | --- |

1.

First plea in law, alleging an infringement of Article H(2) of Annex II to Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ 1994 L 130, p.1), as the Commission did not observe the period of three months, from the time of the hearing, for adopting the Decision.

| 2. | Second plea in law alleging, in the case of supply contracts, an infringement, on account of incorrect application, of Article 20(2)(e) of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector (OJ 1993 L 199, p. 84) and, in the case of contracts for works and contracts for services the subject of correction, an infringement, on account of incorrect application, of Article 20(2)(f) of that Directive, since the contracting of additional services is a conceptually distinct matter from the amendment of a contract at the performance phase provided for by Spanish legislation in relation to public contracts and consequently such amendment does not fall within the scope of Directive 93/38. |
| --- | --- |

2.

Second plea in law alleging, in the case of supply contracts, an infringement, on account of incorrect application, of Article 20(2)(e) of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector (OJ 1993 L 199, p. 84) and, in the case of contracts for works and contracts for services the subject of correction, an infringement, on account of incorrect application, of Article 20(2)(f) of that Directive, since the contracting of additional services is a conceptually distinct matter from the amendment of a contract at the performance phase provided for by Spanish legislation in relation to public contracts and consequently such amendment does not fall within the scope of Directive 93/38.

| 3. | Third plea in law (in the alternative to the foregoing pleas and exclusively in the case of contracts for works and services the subject of correction), alleging an infringement of Article 20(2)(f) of Directive 93/38, on the ground that all the requirements were met for the Spanish authorities to use the unpublicised negotiated procedure to award contracts for the additional works carried out in the five phases of the project affected by the correction. |
| --- | --- |

3.

Third plea in law (in the alternative to the foregoing pleas and exclusively in the case of contracts for works and services the subject of correction), alleging an infringement of Article 20(2)(f) of Directive 93/38, on the ground that all the requirements were met for the Spanish authorities to use the unpublicised negotiated procedure to award contracts for the additional works carried out in the five phases of the project affected by the correction.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/31 |
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25.6.2011

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Official Journal of the European Union

C 186/31

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Appeal brought on 4 May 2011 by Luigi Marcuccio against the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-81/09, Marcuccio v Commission

(Case T-238/11 P)

2011/C 186/57

Language of the case: Italian

Parties

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

Other party to the proceedings: European Commission

Form of order sought by the appellant

| — | Set aside the judgment under appeal, in so far as the court at first instance: (a) rejected the action brought before it by the appellant; (b) ordered the appellant to bear three quarters of the costs incurred by him in the proceedings at first instance; and |
| --- | --- |

—

Set aside the judgment under appeal, in so far as the court at first instance: (a) rejected the action brought before it by the appellant; (b) ordered the appellant to bear three quarters of the costs incurred by him in the proceedings at first instance; and

| (B.1.1.) | grant all the appellant’s claims in the proceedings at first instance, except for those relating to the payment of costs; |
| --- | --- |

(B.1.1.)

grant all the appellant’s claims in the proceedings at first instance, except for those relating to the payment of costs;

| (B.2.2.) | order the Commission to pay to the appellant three quarters of the costs incurred by him, which the appellant was ordered to bear in the proceedings at first instance; |
| --- | --- |

(B.2.2.)

order the Commission to pay to the appellant three quarters of the costs incurred by him, which the appellant was ordered to bear in the proceedings at first instance;

or, in the alternative
  :

| (B.2) | refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision on each of the claims referred to at (B.1.1.) and (B.2.2.). |
| --- | --- |

(B.2)

refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision on each of the claims referred to at (B.1.1.) and (B.2.2.).

Pleas in law and main arguments

The present appeal is brought against the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-81/09. That judgment dismissed an action for, first, annulment of the decision of the Commission of the European Communities rejecting in part the appellant's request for payment of default interest on arrears of the invalidity allowance paid to him by that institution and, second, an order that the Commission pay to him a sum corresponding to the difference between the total amount of default interest calculated in accordance with rules which, in his view, should have been applied and that actually paid.

| 1. | First plea in law, alleging total failure to state the reasons for the decision referred to in paragraph 32 of the judgment under appeal, and infringement of the obligation to state reasons incumbent upon every institution of the European Union (paragraphs 41 to 47 of the judgment under appeal). |
| --- | --- |

1.

First plea in law, alleging total failure to state the reasons for the decision referred to in paragraph 32 of the judgment under appeal, and infringement of the obligation to state reasons incumbent upon every institution of the European Union (paragraphs 41 to 47 of the judgment under appeal).

| 2. | Second plea in law, alleging incorrect and unreasonable interpretation and application of the content of the communication of 8 March 2003, referred to at paragraph 53 of the judgment under appeal. |
| --- | --- |

2.

Second plea in law, alleging incorrect and unreasonable interpretation and application of the content of the communication of 8 March 2003, referred to at paragraph 53 of the judgment under appeal.

| 3. | Third plea in law, alleging incorrect and unreasonable interpretation and application of the notion that a rule may be applied by analogy and of the related rules of law and case-law (paragraphs 57 and 58 of the judgment under appeal). |
| --- | --- |

3.

Third plea in law, alleging incorrect and unreasonable interpretation and application of the notion that a rule may be applied by analogy and of the related rules of law and case-law (paragraphs 57 and 58 of the judgment under appeal).

| 4. | Fourth plea in law, alleging infringement of the legal principle patere legem quam ipse fecisti, the effect of which is to vitiate irredeemably the judgment under appeal, and total failure to state reasons in rejecting the argument concerning infringement of the principle patere legem quam ipse fecisti (in particular, paragraph 59 of the judgment under appeal). |
| --- | --- |

4.

Fourth plea in law, alleging infringement of the legal principle patere legem quam ipse fecisti, the effect of which is to vitiate irredeemably the judgment under appeal, and total failure to state reasons in rejecting the argument concerning infringement of the principle patere legem quam ipse fecisti (in particular, paragraph 59 of the judgment under appeal).

| 5. | Fifth plea in law, alleging that the rejection (paragraphs 69 and 70 of the judgment under appeal) of the ‘order for costs’ sought was unlawful, if only on account of the failure to rule on a claim made by the appellant for compensatory interest. |
| --- | --- |

5.

Fifth plea in law, alleging that the rejection (paragraphs 69 and 70 of the judgment under appeal) of the ‘order for costs’ sought was unlawful, if only on account of the failure to rule on a claim made by the appellant for compensatory interest.

| 6. | Sixth plea in law, alleging that the rejection (paragraphs 73 and 76 of the judgment under appeal) of the claim for compensation for damage was unlawful. |
| --- | --- |

6.

Sixth plea in law, alleging that the rejection (paragraphs 73 and 76 of the judgment under appeal) of the claim for compensation for damage was unlawful.

| 7. | Seventh plea in law, alleging that the order requiring the appellant to bear three quarters of the cost of the proceedings was unlawful. |
| --- | --- |

7.

Seventh plea in law, alleging that the order requiring the appellant to bear three quarters of the cost of the proceedings was unlawful.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/32 |
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25.6.2011

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Official Journal of the European Union

C 186/32

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Order of the General Court of 13 May 2011 — Commission v Tornasol Films

(Case T-338/10) (1)

2011/C 186/58

Language of the case: Spanish

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

---

(1)  OJ C 288, 23.10.2010.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/32 |
| --- | --- | --- | --- |

25.6.2011

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Official Journal of the European Union

C 186/32

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Order of the General Court of 4 May 2011 — BIA Separations v Commission

(Case T-88/11) (1)

2011/C 186/59

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 103, 2.4.2011.

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European Union Civil Service Tribunal

| 25.6.2011 | EN | Official Journal of the European Union | C 186/33 |
| --- | --- | --- | --- |

25.6.2011

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Official Journal of the European Union

C 186/33

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Action brought on 22 April 2011 — ZZ v Commission

(Case F-17/11)

2011/C 186/60

Language of the case: French

Parties

Applicant: ZZ (represented by: A. Blot, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Application for annulment of decision of the defendant not to renew the applicant’s contract as a member of the contract staff.

Form of order sought

| — | annulment, primarily, of the decision not to renew the contract as a member of the contract staff, implied by the memorandum of 28 April 2010 and, where necessary, of the decision of ARCC rejecting the claim; |
| --- | --- |

—

annulment, primarily, of the decision not to renew the contract as a member of the contract staff, implied by the memorandum of 28 April 2010 and, where necessary, of the decision of ARCC rejecting the claim;

| — | as a result, reinstate the applicant to his post; |
| --- | --- |

—

as a result, reinstate the applicant to his post;

| — | order the defendant to pay, as reparation for material loss, a sum provisionally fixed at 27 000 Euros, to be increased by the statutory rate of interest applicable at the date of the judgement; |
| --- | --- |

—

order the defendant to pay, as reparation for material loss, a sum provisionally fixed at 27 000 Euros, to be increased by the statutory rate of interest applicable at the date of the judgement;

| — | order the defendant to pay, as reparation for non-material loss, a sum fixed provisionally and ex aequo et bono at 15 000 Euros (fifteen thousand euros), to be increased by the statutory rate of interest applicable at the date of the judgement; |
| --- | --- |

—

order the defendant to pay, as reparation for non-material loss, a sum fixed provisionally and ex aequo et bono at 15 000 Euros (fifteen thousand euros), to be increased by the statutory rate of interest applicable at the date of the judgement;

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

—

order the European Commission to pay the costs.

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| 25.6.2011 | EN | Official Journal of the European Union | C 186/33 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/33

---

Action brought on 20 April 2011 — ZZ v Commission

(Case F-27/11)

2011/C 186/61

Language of the case: French

Parties

Applicant: ZZ (represented by: L. Levi, M. Vandenbussche and C. Bernard-Glanz, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decisions of the defendant refusing to authorise medical benefits requested by the applicant for his son, his wife and himself.

Form of order sought

| — | Annul the contested decisions and, as necessary, the decision of the AECE rejecting the complaint; |
| --- | --- |

—

Annul the contested decisions and, as necessary, the decision of the AECE rejecting the complaint;

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

—

Order the Commission to pay the costs.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/33 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/33

---

Action brought on 26 March 2011 — ZZ v CEDEFOP

(Case F-31/11)

2011/C 186/62

Language of the case: French

Parties

Applicant: ZZ (represented by: M.-A. Lucas, lawyer)

Defendant: European Centre for the Development of Vocational Training (CEDEFOP)

Subject-matter and description of the proceedings

Application for annulment of the decision of the Director of CEDEFOP to terminate the employment of the applicant and for reparation of material and non-material loss sustained.

Form of order sought

| — | annul the decision of 14 April 2010 of the Director of CEDEFOP terminating the employment of the applicant; |
| --- | --- |

—

annul the decision of 14 April 2010 of the Director of CEDEFOP terminating the employment of the applicant;

| — | order CEDEFOP to pay him, by way of compensation for his material loss in the absence of reinstatement or until any such reinstatement, the difference between firstly, the remuneration and pension that he would have received if he had remained in service after the 15 November 2010 and, secondly, the possible remuneration or unemployment benefit and pension which he would receive after that date; |
| --- | --- |

—

order CEDEFOP to pay him, by way of compensation for his material loss in the absence of reinstatement or until any such reinstatement, the difference between firstly, the remuneration and pension that he would have received if he had remained in service after the 15 November 2010 and, secondly, the possible remuneration or unemployment benefit and pension which he would receive after that date;

| — | order CEDEFOP to pay the applicant compensation for his non-material loss, provisionally assessed at 35 000 Euros; |
| --- | --- |

—

order CEDEFOP to pay the applicant compensation for his non-material loss, provisionally assessed at 35 000 Euros;

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

—

order CEDEFOP to pay the costs.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/34 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/34

---

Action brought on 5 April 2011 — ZZ v Commission

(Case F-40/11)

2011/C 186/63

Language of the case: Italian

Parties

Applicant: ZZ (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision setting out the benefits to which the applicant is entitled as a result of his permanent partial invalidity.

Form of order sought

| — | Quatenus opus est, annul — in so far as it provided that the applicant was to be paid, as indeed he was paid, the sum of EUR 10 682,29 — the draft decision of 2 June 2010 of the Commission concerning the guarantees afforded to the applicant under Article 73 of the Staff Regulations in relation to an accident which he sustained on 17 June 2005; |
| --- | --- |

—

Quatenus opus est, annul — in so far as it provided that the applicant was to be paid, as indeed he was paid, the sum of EUR 10 682,29 — the draft decision of 2 June 2010 of the Commission concerning the guarantees afforded to the applicant under Article 73 of the Staff Regulations in relation to an accident which he sustained on 17 June 2005;

| — | annul — in so far as it provided that the applicant was to be paid, as indeed he was paid, the sum of EUR 10 682,29 — the decision into which the draft decision of 2 June 2010 was converted upon expiry of the period laid down by law for the notification of the draft decision to the applicant without the applicant having had the opportunity to consult the Medical Committee; |
| --- | --- |

—

annul — in so far as it provided that the applicant was to be paid, as indeed he was paid, the sum of EUR 10 682,29 — the decision into which the draft decision of 2 June 2010 was converted upon expiry of the period laid down by law for the notification of the draft decision to the applicant without the applicant having had the opportunity to consult the Medical Committee;

| — | in so far as necessary, annul the measure rejecting the complaint of 26 August 2010; |
| --- | --- |

—

in so far as necessary, annul the measure rejecting the complaint of 26 August 2010;

| — | order the European Commission to pay without delay to the applicant the difference between what should have been awarded to him under Article 73 of the Staff Regulations in relation to the accident in question, and the sum of EUR 10 682,29 already awarded to him, together with interest on that difference at the rate of 10 % per year, with annual capitalisation, starting from 24 August 2010; |
| --- | --- |

—

order the European Commission to pay without delay to the applicant the difference between what should have been awarded to him under Article 73 of the Staff Regulations in relation to the accident in question, and the sum of EUR 10 682,29 already awarded to him, together with interest on that difference at the rate of 10 % per year, with annual capitalisation, starting from 24 August 2010;

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

—

order the Commission to pay the costs.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/34 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/34

---

Action brought on 9 April 2011 — Honnefelder v European Commission

(Case F-42/11)

2011/C 186/64

Language of the case: German

Parties

Applicant(s): Stephanie Honnefelder (Brussels, Belgium) (represented by: C. Bode, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annul the decision of the Commission not to include the applicant in the reserve list for selection procedure EPSO/AD/26/05

Form of order sought

| — | Annul the decision of the defendant of 11 February 2011; |
| --- | --- |

—

Annul the decision of the defendant of 11 February 2011;

| — | Order the European Commission to pay the costs; |
| --- | --- |

—

Order the European Commission to pay the costs;

| — | As an interim measure, judgment in default. |
| --- | --- |

—

As an interim measure, judgment in default.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/34 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/34

---

Action brought on 13 April 2011 — ZZ v Commission

(Case F-44/11)

2011/C 186/65

Language of the case: Italian

Parties

Applicant: ZZ (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Application for an order that the Commission pay the applicant a sum by way of compensation for the damage which the applicant claims to have suffered because of the Commission's Medical Officer’s request to the applicant’s doctor to provide certain information.

Form of order sought

| — | Declare that there is no legal basis for or, in the alternative, annul the decision, in whatever form, rejecting the request in the applicant’s memorandum of 6 March 2010; |
| --- | --- |

—

Declare that there is no legal basis for or, in the alternative, annul the decision, in whatever form, rejecting the request in the applicant’s memorandum of 6 March 2010;

| — | in so far as is necessary, declare that there is no legal basis for or, in the alternative, annul the measure, in whatever form, in which the Commission rejected the complaint of 3 September 2010; |
| --- | --- |

—

in so far as is necessary, declare that there is no legal basis for or, in the alternative, annul the measure, in whatever form, in which the Commission rejected the complaint of 3 September 2010;

| — | in so far as is necessary, declare that Dr M., while an official of the European Commission: (a) asked Dr. U. to inform her whether the applicant ‘is currently receiving psychopharmacological treatment (neuroleptics, antidepressants) and if so what kind, or what other type of therapy he is receiving’; (b) informed Dr. U. that ‘in accordance with the provisions of the Staff Regulations, applicable to all officials of the European Commission, Mr [ZZ] has been officially resident in Brussels from 1 April 2002 and no longer in Angola, as decided by [his] superiors. and officially notified to his patient’; |
| --- | --- |

—

in so far as is necessary, declare that Dr M., while an official of the European Commission: (a) asked Dr. U. to inform her whether the applicant ‘is currently receiving psychopharmacological treatment (neuroleptics, antidepressants) and if so what kind, or what other type of therapy he is receiving’; (b) informed Dr. U. that ‘in accordance with the provisions of the Staff Regulations, applicable to all officials of the European Commission, Mr [ZZ] has been officially resident in Brussels from 1 April 2002 and no longer in Angola, as decided by [his] superiors. and officially notified to his patient’;

| — | in so far as is necessary, find that each of the acts giving rise to the damage in question is unlawful, in particular as regards the cumulative effect of those acts; |
| --- | --- |

—

in so far as is necessary, find that each of the acts giving rise to the damage in question is unlawful, in particular as regards the cumulative effect of those acts;

| — | in so far as is necessary, declare that each of the acts giving rise to the damage in question is unlawful, in particular as regards the cumulative effect of those acts; |
| --- | --- |

—

in so far as is necessary, declare that each of the acts giving rise to the damage in question is unlawful, in particular as regards the cumulative effect of those acts;

| — | order the Commission to pay without delay to the applicant the sum of EUR 10 000, together with the interest on that sum, at the rate of 10 % per year, with annual capitalisation, starting from 5 July 2010, or such sum, including all additional amounts, as the Tribunal may consider fair and just in order to compensate the applicant for the damage in question; |
| --- | --- |

—

order the Commission to pay without delay to the applicant the sum of EUR 10 000, together with the interest on that sum, at the rate of 10 % per year, with annual capitalisation, starting from 5 July 2010, or such sum, including all additional amounts, as the Tribunal may consider fair and just in order to compensate the applicant for the damage in question;

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

—

order the Commission to pay the costs.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/35 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/35

---

Action brought on 14 April 2011 — ZZ v EIB

(Case F-45/11)

2011/C 186/66

Language of the case: Italian

Parties

Applicant: ZZ (represented by: L. Isola, lawyer)

Defendant: European Investment Bank

Subject-matter and description of the proceedings

Annulment of the applicant’s staff report for the year 2009, in so far as it does not award him the mark A or B+ and in so far as it does not propose that he be promoted to Function D.

Form of order sought

| — | Annul the measure, a copy of which was sent on 24 September 2010, in so far as the Appeals Committee, pursuant to Article 22 of the Staff Regulations and to its letter of 18 March 2010, rejected the applicant’s appeal against the staff report for 2009 on 22 September 2010; |
| --- | --- |

—

Annul the measure, a copy of which was sent on 24 September 2010, in so far as the Appeals Committee, pursuant to Article 22 of the Staff Regulations and to its letter of 18 March 2010, rejected the applicant’s appeal against the staff report for 2009 on 22 September 2010;

| — | annul the staff report for 2009, in so far as it relates to assessment, does not give the applicant the overall mark A or B+ and in so far as it does not propose that he be promoted to Function D; |
| --- | --- |

—

annul the staff report for 2009, in so far as it relates to assessment, does not give the applicant the overall mark A or B+ and in so far as it does not propose that he be promoted to Function D;

| — | annul all related, consequent and prior measures, including both the guidelines laid down by the HR Directorate for summarising the appraisal by using one of the first letters of the alphabet and the promotions decided upon on 25 March 2010, given that, in the light of the view expressed by the applicant’s superiors that is challenged in the present action, the EIB failed to take him into consideration for the purpose of the heading ‘Promotions from Function E to D’; |
| --- | --- |

—

annul all related, consequent and prior measures, including both the guidelines laid down by the HR Directorate for summarising the appraisal by using one of the first letters of the alphabet and the promotions decided upon on 25 March 2010, given that, in the light of the view expressed by the applicant’s superiors that is challenged in the present action, the EIB failed to take him into consideration for the purpose of the heading ‘Promotions from Function E to D’;

| — | annul the letters of 17 and 30 November 2010, in which the President of the EIB, in the course of the conciliation procedure under Article 41 of the Staff Regulations, refused to allow the applicant to represent himself, and the letter of 20 January 2011, in which the HR Director-General refused to reimburse the costs incurred by the professional who represented him; |
| --- | --- |

—

annul the letters of 17 and 30 November 2010, in which the President of the EIB, in the course of the conciliation procedure under Article 41 of the Staff Regulations, refused to allow the applicant to represent himself, and the letter of 20 January 2011, in which the HR Director-General refused to reimburse the costs incurred by the professional who represented him;

| — | order the EIB to pay compensation for material and non-material damage, to reimburse the lawyer’s fee paid to Gabriele Isola, and to pay the costs of the proceedings together with interest and monetary revaluation of the sums awarded. |
| --- | --- |

—

order the EIB to pay compensation for material and non-material damage, to reimburse the lawyer’s fee paid to Gabriele Isola, and to pay the costs of the proceedings together with interest and monetary revaluation of the sums awarded.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/35 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/35

---

Action brought on 14 April 2011 — ZZ v Commission

(Case F-46/11)

2011/C 186/67

Language of the case: French

Parties

Applicant: ZZ (Brussels, Belgium) (represented by: E. Boigelot and S. Woog, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision to close the file on the applicant’s request for assistance.

Form of order sought

| — | Annul the decision of the Secretary-General of the Commission of 7 June 2010 closing the file on the applicant’s request for assistance of 5 December 2007; |
| --- | --- |

—

Annul the decision of the Secretary-General of the Commission of 7 June 2010 closing the file on the applicant’s request for assistance of 5 December 2007;

| — | Order the Commission to pay compensation of EUR 10 000, subject to increase in the course of proceedings, for the non-material damage suffered by the applicant, and to reimburse the costs incurred in the pre-litigation procedure; |
| --- | --- |

—

Order the Commission to pay compensation of EUR 10 000, subject to increase in the course of proceedings, for the non-material damage suffered by the applicant, and to reimburse the costs incurred in the pre-litigation procedure;

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

—

Order the Commission to pay the costs.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/36 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/36

---

Action brought on 18 April 2011 — ZZ v Commission

(Case F-49/11)

2011/C 186/68

Language of the case: English

Parties

Applicant: ZZ (represented by: B. Rohde-Liebenau, advocate)

Defendant: European Commission

Subject-matter and description of the proceedings

The annulment of the decision of the European Commission refusing the applicant's request to take out certain documents from his medical file and a claim for damages.

Form of order sought

The applicant claims that the Civil Service Tribunal should:

| — | Annul the decision of 17 January 2011 by the AIPN (No R/588jlO); |
| --- | --- |

—

Annul the decision of 17 January 2011 by the AIPN (No R/588jlO);

| — | order the Commission to make a payment to the applicant as reimbursement for medical costs in the amount of 363,23 EUR; |
| --- | --- |

—

order the Commission to make a payment to the applicant as reimbursement for medical costs in the amount of 363,23 EUR;

| — | order the Commission to provide access to the complete personal file including all medical files to the applicant's named doctor,






  — | or alternatively by sending it to the legal representative of the applicant in this procedure; |
| --- | --- | --- |

—

order the Commission to provide access to the complete personal file including all medical files to the applicant's named doctor,

—

or alternatively by sending it to the legal representative of the applicant in this procedure;

| — | or alternatively, by providing access to a copy of the entire file; |
| --- | --- |

—

or alternatively, by providing access to a copy of the entire file;

| — | or alternatively, by providing electronic access to the entire file; |
| --- | --- |

—

or alternatively, by providing electronic access to the entire file;

| — | order the Commission to declare that no parallel or additional personal or medical files exist;






  — | or alternatively, order the Commission to delete any such additional files and any copies thereof, |
| --- | --- | --- |

—

order the Commission to declare that no parallel or additional personal or medical files exist;

—

or alternatively, order the Commission to delete any such additional files and any copies thereof,

| — | or alternatively, order the Commission to insert their full content in the regular personal file (or its medical file); |
| --- | --- |

—

or alternatively, order the Commission to insert their full content in the regular personal file (or its medical file);

| — | order the Commission to pay a compensation for the damage suffered on account of the infringement of his fundamental rights undermining his honour and reputation in an amount deemed appropriate ex aequo et bono by the Tribunal and according to its precedents, but not less than one yearly net income of the applicant at the time of his regular service for the defendant immediately preceding the incident of 2000; |
| --- | --- |

—

order the Commission to pay a compensation for the damage suffered on account of the infringement of his fundamental rights undermining his honour and reputation in an amount deemed appropriate ex aequo et bono by the Tribunal and according to its precedents, but not less than one yearly net income of the applicant at the time of his regular service for the defendant immediately preceding the incident of 2000;

| — | order the Commission to make a payment to the applicant of a lump sum of 717 863,04 EUR equal to eight times his annual basic salary calculated on the basis of the amounts of salary received during the twelve months before the accident in accordance with Article 73(2b) of the Staff Regulations;






  — | or alternatively a fraction thereof, as deemed appropriate by the Tribunal ex aequo et bono; |
| --- | --- | --- |

—

order the Commission to make a payment to the applicant of a lump sum of 717 863,04 EUR equal to eight times his annual basic salary calculated on the basis of the amounts of salary received during the twelve months before the accident in accordance with Article 73(2b) of the Staff Regulations;

—

or alternatively a fraction thereof, as deemed appropriate by the Tribunal ex aequo et bono;

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

—

order the Commission to pay the costs.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/36 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/36

---

Action brought on 19 April 2011 — ZZ v Parliament

(Case F-50/11)

2011/C 186/69

Language of the case: French

Parties

Applicant: ZZ (Luxembourg, Luxembourg) (represented by: P. Nelissen Grade and G. Leblanc, lawyers)

Defendant: European Parliament

Subject-matter and description of the proceedings

Application for annulment of the decision of the appointing authority to grant the applicant only one merit point in the context of the reporting exercise for 2009.

Form of order sought

| — | annul the decision of the appointing authority of 20 January 2011 rejecting the applicant’s complaint; |
| --- | --- |

—

annul the decision of the appointing authority of 20 January 2011 rejecting the applicant’s complaint;

| — | annul the decision of the appointing authority of 11 May 2010, communicated to the applicant on 27 May 2010, to award only one merit point to the applicant for the reporting exercise for 2009; |
| --- | --- |

—

annul the decision of the appointing authority of 11 May 2010, communicated to the applicant on 27 May 2010, to award only one merit point to the applicant for the reporting exercise for 2009;

| — | inform the appointing authority of the effects entailed by the annulment of the contested decision; |
| --- | --- |

—

inform the appointing authority of the effects entailed by the annulment of the contested decision;

| — | grant the applicant 2 000 Euros as compensation for non-material loss suffered; |
| --- | --- |

—

grant the applicant 2 000 Euros as compensation for non-material loss suffered;

| — | order the European Parliament to pay the costs. |
| --- | --- |

—

order the European Parliament to pay the costs.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/37 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/37

---

Action brought on 24 April 2011 — ZZ v EIB

(Case F-52/11)

2011/C 186/70

Language of the case: Italian

Parties

Applicant: ZZ (Strassen, Luxembourg) (represented by: L. Isola, lawyer)

Defendant: European Investment Bank

Subject-matter and description of the proceedings

First, annulment of a letter in which the President of the EIB stated that, following the decision of the Committee of Inquiry to reject the complaint alleging mobbing made by the applicant, no action was necessary, and annulment of other decisions relating to the inquiry into mobbing. Second, a declaration that the applicant is a victim of mobbing

Form of order sought

| — | Annul the letter of 1 September 2010, in so far as the President of the EIB, in addition to not adopting any provision on the mobbing to which the applicant has been subjected for years, claimed that he could review the substance of the reasoning of the Committee of Inquiry; |
| --- | --- |

—

Annul the letter of 1 September 2010, in so far as the President of the EIB, in addition to not adopting any provision on the mobbing to which the applicant has been subjected for years, claimed that he could review the substance of the reasoning of the Committee of Inquiry;

| — | annul the report and the conclusions adopted on 30 June 2010 by the Committee of Inquiry, in so far as it did not undertake any investigation into the conduct of the Appeals Committee and its members, in so far as it defined mobbing and, finally, in so far as it dismissed the appeal, limited its activity to investigating the conduct of only a few people and arbitrarily ruled out investigation of some the circumstances surrounding the complaint; |
| --- | --- |

—

annul the report and the conclusions adopted on 30 June 2010 by the Committee of Inquiry, in so far as it did not undertake any investigation into the conduct of the Appeals Committee and its members, in so far as it defined mobbing and, finally, in so far as it dismissed the appeal, limited its activity to investigating the conduct of only a few people and arbitrarily ruled out investigation of some the circumstances surrounding the complaint;

| — | annul the letters of 17 November 2010 and 30 November 2010 in which, in connection with the procedure under Article 41 of the Staff Regulations, the President of the EIB did not allow the applicant to represent himself, while the Bank was then represented by one of its own employees; |
| --- | --- |

—

annul the letters of 17 November 2010 and 30 November 2010 in which, in connection with the procedure under Article 41 of the Staff Regulations, the President of the EIB did not allow the applicant to represent himself, while the Bank was then represented by one of its own employees;

| — | annul the message of 14 April 2011 in which the HR Director refused to pay any compensation; |
| --- | --- |

—

annul the message of 14 April 2011 in which the HR Director refused to pay any compensation;

| — | annul all related, consequent and prior measures, including those used by the Committee for mobbing; |
| --- | --- |

—

annul all related, consequent and prior measures, including those used by the Committee for mobbing;

| — | declare that the applicant was the victim of mobbing; |
| --- | --- |

—

declare that the applicant was the victim of mobbing;

| — | order the EIB to desist from the mobbing of which the applicant was a victim and to pay compensation for the consequent personal, material and non-material damage, and to pay the costs of the proceedings together with interest and monetary revaluation of the sums awarded. |
| --- | --- |

—

order the EIB to desist from the mobbing of which the applicant was a victim and to pay compensation for the consequent personal, material and non-material damage, and to pay the costs of the proceedings together with interest and monetary revaluation of the sums awarded.

---

| 25.6.2011 | EN | Official Journal of the European Union | C 186/37 |
| --- | --- | --- | --- |

25.6.2011

EN

Official Journal of the European Union

C 186/37

---

Action brought on 2 May 2011 — ZZ v Commission

(Case F-53/11)

2011/C 186/71

Language of the case: French

Parties

Applicant: ZZ (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal and D. Abreu Caldas, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision not to list the applicant as a successful candidate in competition EPSO/AD/168/09-PL.

Form of order sought

| — | Annul the decision of the selection board in competition EPSO/AD/168/09-PL not to list the applicant as a successful candidate in that competition; |
| --- | --- |

—

Annul the decision of the selection board in competition EPSO/AD/168/09-PL not to list the applicant as a successful candidate in that competition;

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

—

Order the Commission to pay the costs.

---