# Official Journal C 86/2013

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2013.086.eng |
| --- | --- |
| Official Journal
  of the European Union | C 86 |
| | |
| English edition | Information and Notices | Volume 5623 March 2013 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2013.086.eng

Official Journal

of the European Union

C 86

English edition

Information and Notices

Volume 5623 March 2013

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2013/C 086/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 79, 16.3.2013 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2013/C 086/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 79, 16.3.2013

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2013/C 086/02 | Case C-12/11: Judgment of the Court (Third Chamber) of 31 January 2013 (request for a preliminary ruling from the Dublin Metropolitan District Court — Ireland) — Denise McDonagh v Ryanair Ltd (Air transport — Regulation (EC) No 261/2004 — Notion of extraordinary circumstances — Obligation to provide assistance to passengers in the event of cancellation of a flight due to extraordinary circumstances — Volcanic eruption leading to the closure of air space — Eruption of the Icelandic volcano Eyjafjallajökull) | 2 |
| 2013/C 086/03 | Case C-26/11: Judgment of the Court (Third Chamber) of 31 January 2013 (request for a preliminary ruling from the Grondwettelijk Hof (Belgium)) — Belgische Petroleum Unie VZW and Others v Belgische Staat (Directive 98/70/EC — Quality of petrol and diesel fuels — Articles 3 to 5 — Environmental specifications for fuels — Directive 98/34/EC — Information procedure in the field of technical standards and regulations and of rules on Information Society services — Articles 1 and 8 — Concept of technical regulation — Obligation to communicate draft technical regulations — National rules requiring petroleum companies placing petrol and/or diesel fuels on the market in the same calendar year also to place on the market a quantity of biofuels) | 2 |
| 2013/C 086/04 | Case C-175/11: Judgment of the Court (Second Chamber) of 31 January 2013 (request for a preliminary ruling from the High Court of Ireland — Ireland) — H.I.D., B.A. v Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General (Request for a preliminary ruling — Common European Asylum System — Application by a national of a third country seeking refugee status — Directive 2005/85/EC — Article 23 — Possibility of prioritising the processing of asylum applications — National procedure applying a prioritised procedure for the examination of applications by persons belonging to a certain category defined on the basis of nationality or country of origin — Right to an effective judicial remedy — Article 39 of Directive 2005/85 — Concept of court or tribunal within the meaning of that article) | 3 |
| 2013/C 086/05 | Case C-301/11: Judgment of the Court (Seventh Chamber) of 31 January 2013 — European Commission v Kingdom of the Netherlands (Tax legislation — Transfer of a residence for tax purposes — Freedom of establishment — Article 49 TFEU — Taxation of unrealised capital gains — Immediate exit tax) | 4 |
| 2013/C 086/06 | Case C-394/11: Judgment of the Court (Fourth Chamber) of 31 January 2013 (request for a preliminary ruling from the Komisia za zashtita ot diskriminatsia — Bulgaria) — Valeri Hariev Belov v CHEZ Elektro Balgaria AD and Others (Request for a preliminary ruling — Article 267 TFEU — Concept of national court — Lack of jurisdiction of the Court) | 4 |
| 2013/C 086/07 | Case C-396/11: Judgment of the Court (Grand Chamber) of 29 January 2013 (request for a preliminary ruling from the Curtea de Apel Constanța — Romania) — Ministerul Public — Parchetul de pe lângă Curtea de Apel Constanța — Execution of European arrest warrants issued against Ciprian Vasile Radu (Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant and surrender procedures between Member States — European arrest warrant issued for the purposes of prosecution — Grounds for refusing execution) | 5 |
| 2013/C 086/08 | Case C-642/11: Judgment of the Court (Third Chamber) of 31 January 2013 (request for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Stroy trans EOOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (Taxation — VAT — Directive 2006/112/EC — Principle of fiscal neutrality — Right of deduction — Refusal — Article 203 — Entry of the VAT on the invoice — Chargeability — Existence of a taxable transaction — Identical determination in respect of the issuer of the invoice and its recipient — Necessity) | 5 |
| 2013/C 086/09 | Case C-643/11: Judgment of the Court (Third Chamber) of 31 January 2013 (Request for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — LVK — 56 EOOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (Taxation — VAT — Directive 2006/112/EC — Principle of fiscal neutrality — Right of deduction — Refusal — Article 203 — Entering of the VAT on the invoice — Chargeability — Existence of a taxable transaction — Identical determination in respect of the issuer of the invoice and its recipient — Necessity) | 6 |
| 2013/C 086/10 | Case C-496/12: Request for a preliminary ruling from the Krajský súd v Prešove (Slovakia) lodged on 6 November 2012 — Spoločenstvo vlastníkov bytov MYJAVA v Podtatranská vodárenská prevádzková spoločnosť, a.s. | 7 |
| 2013/C 086/11 | Case C-595/12: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 19 December 2012 — Loredana Napoli v Ministero della Giustizia — Dipartimento Amministrazione Penitenziaria | 7 |
| 2013/C 086/12 | Case C-597/12 P: Appeal brought on 19 December 2012 by Isdin, SA against the judgment of the General Court (Fourth Chamber) delivered on 9 October 2012 in Case T-366/11: Bial-Portela & Ca, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 8 |
| 2013/C 086/13 | Case C-599/12: Request for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge (Belgium) lodged on 20 December 2012 — JETAIR NV, BTW-eenheid BTWE Travel4you v FOD FINANCIËN | 9 |
| 2013/C 086/14 | Case C-604/12: Reference for a preliminary ruling from Supreme Court (Ireland) made on 27 December 2012 — HN v Minister for Justice, Equality and Law Reform, Ireland and the Attorney General | 9 |
| 2013/C 086/15 | Case C-617/12: Reference for a preliminary ruling from High Court of Justice (Chancery Division) Patents Court (United Kingdom) made on 18 December 2012 — Astrazeneca AB v Comptroller-General of Patents | 10 |
| 2013/C 086/16 | Case C-11/13: Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 10 January 2013 — Bayer CropScience AG | 10 |
| 2013/C 086/17 | Case C-17/13: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 14 January 2013 — Alpina River Cruises GmbH and Nicko Tours GmbH v Ministero delle infrastrutture e dei trasporti — Capitaneria di Porto di Chioggia | 10 |
| 2013/C 086/18 | Case C-19/13: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 15 January 2013 — Ministero dell’Interno v Fastweb S.p.a. | 11 |
| 2013/C 086/19 | Case C-20/13: Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 15 January 2013 — Daniel Unland v Land Berlin | 11 |
| 2013/C 086/20 | Case C-22/13: Request for a preliminary ruling from the Tribunale di Napoli (Italy) lodged on 17 January 2013 — Mascolo v Ministero dell’Istruzione, dell’Università e della Ricerca | 12 |
| 2013/C 086/21 | Case C-35/13: Request for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 24 January 2013 — ASS.I.CA. and Kraft Foods Italia SpA v Associazioni fra produttori per la tutela del Salame Felino and Others | 13 |
| 2013/C 086/22 | Case C-54/13 P: Appeal brought on 31 January 2013 by the Federal Republic of Germany against the judgment of the General Court (Third Chamber) delivered on 21 November 2012 in Case T-270/08 Federal Republic of Germany v European Commission | 14 |
| | General Court |
| 2013/C 086/23 | Case T-269/00: Order of the General Court of 29 January 2013 — Sagar v Commission (Action for annulment — State aid — Reductions in social security contributions for undertakings in Venice and Chioggia — Decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid — Action manifestly lacking any foundation in law) | 15 |
| 2013/C 086/24 | Case T-272/00: Order of the General Court of 29 January 2013 — Barbini and Others v Commission (Action for annulment — State aid — Reductions in social security contributions for undertakings in Venice and Chioggia — Decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law) | 15 |
| 2013/C 086/25 | Case T-273/00: Order of the General Court of 29 January 2013 — Unindustria and Others v Commission (Action for annulment — State aid — Reductions in social security contributions for undertakings in Venice and Chioggia — Decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid — Action manifestly lacking any foundation in law) | 16 |
| 2013/C 086/26 | Case T-368/11 R: Order of the President of the General Court of 1 February 2013 — Travetanche Injection v Commission (Application for interim measures — Dismissal of the main action — No need to adjudicate) | 16 |
| 2013/C 086/27 | Case T-551/11: Order of the General Court of 5 February 2013 — BSI v Council (Action for annulment — Dumping — Extension of anti-dumping duty imposed on the imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia — Independent importer — Article 263, fourth paragraph of TFEU — Lack of individual concern — Legislative measure containing implementing measure — Inadmissible) | 17 |
| 2013/C 086/28 | Case T-347/12 P: Appeal brought on 8 January 2013 by Dana Mocová against the judgment of the Civil Service Tribunal of 13 June 2012 in Case F-41/11 Mocová v Commission | 17 |
| 2013/C 086/29 | Case T-1/13: Action brought on 4 January 2013 — Advance Magazine Publishers/OHIM — Montres Tudor (GLAMOUR) | 18 |
| 2013/C 086/30 | Case T-12/13: Action brought on 4 January 2013 — Sherwin-Williams Sweden/OHIM — Akzo Nobel Coatings International (ARTI) | 18 |
| 2013/C 086/31 | Case T-13/13: Action brought on 3 January 2013 — MasterCard International/OHIM — Nehra (surfpin) | 19 |
| 2013/C 086/32 | Case T-14/13: Action brought on 3 January 2013 — Seal Trademarks/OHIM — Exel Composites (XCEL) | 19 |
| 2013/C 086/33 | Case T-26/13: Action brought on 18 January 2013 — dm-drogerie markt/OHIM — Semtee (CALDEA) | 20 |
| 2013/C 086/34 | Case T-27/13: Action brought on 23 January 2013 — Elan v Commission | 20 |
| 2013/C 086/35 | Case T-31/13 P: Appeal brought on 24 January 2013 by Vincent Bouillez against the judgment of the Civil Service Tribunal of 14 November 2012 in Case F-75/11, Vincent Bouillez v Council | 22 |
| 2013/C 086/36 | Case T-32/13 P: Appeal brought on 24 January 2013 by Mario Paulo da Silva Tenreiro against the judgment of the Civil Service Tribunal of 14 November 2012 in Case F-120/11 da Silva Tenreiro v Commission | 22 |
| 2013/C 086/37 | Case T-33/13: Action brought on 24 January 2013 — Türkiye Garanti Bankasi/OHIM — Card & Finance Consulting (bonus&more) | 23 |
| 2013/C 086/38 | Case T-37/13: Action brought on 22 January 2013 — Exakt Advanced Technologies v OHIM — Exakt Precision Tools (EXAKT) | 23 |
| 2013/C 086/39 | Case T-41/13: Action brought on 29 January 2013 — Roy v Council and Commission | 24 |
| 2013/C 086/40 | Case T-46/13: Action brought on 28 January 2013 — Sabores de Navarra v OHIM — Frutas Solano (KIT, EL SABOR DE NAVARRA) | 24 |
| 2013/C 086/41 | Case T-47/13: Action brought on 30 January 2013 — Goldsteig Käsereien Bayerwald v OHIM — Vieweg (goldstück) | 25 |
| 2013/C 086/42 | Case T-48/13: Action brought on 30 January 2013 — Out of the Blue KG v OHIM — Mombauer (REFLEXX) | 25 |
| 2013/C 086/43 | Case T-50/13: Action brought on 25 January 2013 — Think Schuhwerk v OHIM — Müller (VOODOO) | 26 |
| 2013/C 086/44 | Case T-51/13: Action brought on 30 January 2013 — Evropaïki Dynamiki v EIB | 26 |
| 2013/C 086/45 | Case T-62/13: Action brought on 6 February 2013 — GOLAM v OHIM — Glaxo Group (METABIOMAX) | 27 |
| 2013/C 086/46 | Case T-64/13: Action brought on 4 February 2013 — ANKO v Commission | 27 |
| 2013/C 086/47 | Case T-74/13: Action brought on 7 February 2013 — Al-Tabbaa v Council | 28 |
| 2013/C 086/48 | Case T-80/13: Action brought on 13 February 2013 — Syrian Lebanese Commercial Bank v Council | 28 |
| 2013/C 086/49 | Case T-650/11: Order of the General Court of 29 January 2013 — Dimension Data Belgium v Parliament | 29 |
| | European Union Civil Service Tribunal |
| 2013/C 086/50 | Case F-158/12: Action brought on 24 December 2012 — ZZ v Commission | 30 |
| 2013/C 086/51 | Case F-162/12: Action brought on 28 December 2012 — ZZ v EEA | 30 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2013/C 086/02

Case C-12/11: Judgment of the Court (Third Chamber) of 31 January 2013 (request for a preliminary ruling from the Dublin Metropolitan District Court — Ireland) — Denise McDonagh v Ryanair Ltd (Air transport — Regulation (EC) No 261/2004 — Notion of extraordinary circumstances — Obligation to provide assistance to passengers in the event of cancellation of a flight due to extraordinary circumstances — Volcanic eruption leading to the closure of air space — Eruption of the Icelandic volcano Eyjafjallajökull)

2

2013/C 086/03

Case C-26/11: Judgment of the Court (Third Chamber) of 31 January 2013 (request for a preliminary ruling from the Grondwettelijk Hof (Belgium)) — Belgische Petroleum Unie VZW and Others v Belgische Staat (Directive 98/70/EC — Quality of petrol and diesel fuels — Articles 3 to 5 — Environmental specifications for fuels — Directive 98/34/EC — Information procedure in the field of technical standards and regulations and of rules on Information Society services — Articles 1 and 8 — Concept of technical regulation — Obligation to communicate draft technical regulations — National rules requiring petroleum companies placing petrol and/or diesel fuels on the market in the same calendar year also to place on the market a quantity of biofuels)

2

2013/C 086/04

Case C-175/11: Judgment of the Court (Second Chamber) of 31 January 2013 (request for a preliminary ruling from the High Court of Ireland — Ireland) — H.I.D., B.A. v Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General (Request for a preliminary ruling — Common European Asylum System — Application by a national of a third country seeking refugee status — Directive 2005/85/EC — Article 23 — Possibility of prioritising the processing of asylum applications — National procedure applying a prioritised procedure for the examination of applications by persons belonging to a certain category defined on the basis of nationality or country of origin — Right to an effective judicial remedy — Article 39 of Directive 2005/85 — Concept of court or tribunal within the meaning of that article)

3

2013/C 086/05

Case C-301/11: Judgment of the Court (Seventh Chamber) of 31 January 2013 — European Commission v Kingdom of the Netherlands (Tax legislation — Transfer of a residence for tax purposes — Freedom of establishment — Article 49 TFEU — Taxation of unrealised capital gains — Immediate exit tax)

4

2013/C 086/06

Case C-394/11: Judgment of the Court (Fourth Chamber) of 31 January 2013 (request for a preliminary ruling from the Komisia za zashtita ot diskriminatsia — Bulgaria) — Valeri Hariev Belov v CHEZ Elektro Balgaria AD and Others (Request for a preliminary ruling — Article 267 TFEU — Concept of national court — Lack of jurisdiction of the Court)

4

2013/C 086/07

Case C-396/11: Judgment of the Court (Grand Chamber) of 29 January 2013 (request for a preliminary ruling from the Curtea de Apel Constanța — Romania) — Ministerul Public — Parchetul de pe lângă Curtea de Apel Constanța — Execution of European arrest warrants issued against Ciprian Vasile Radu (Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant and surrender procedures between Member States — European arrest warrant issued for the purposes of prosecution — Grounds for refusing execution)

5

2013/C 086/08

Case C-642/11: Judgment of the Court (Third Chamber) of 31 January 2013 (request for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Stroy trans EOOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (Taxation — VAT — Directive 2006/112/EC — Principle of fiscal neutrality — Right of deduction — Refusal — Article 203 — Entry of the VAT on the invoice — Chargeability — Existence of a taxable transaction — Identical determination in respect of the issuer of the invoice and its recipient — Necessity)

5

2013/C 086/09

Case C-643/11: Judgment of the Court (Third Chamber) of 31 January 2013 (Request for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — LVK — 56 EOOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (Taxation — VAT — Directive 2006/112/EC — Principle of fiscal neutrality — Right of deduction — Refusal — Article 203 — Entering of the VAT on the invoice — Chargeability — Existence of a taxable transaction — Identical determination in respect of the issuer of the invoice and its recipient — Necessity)

6

2013/C 086/10

Case C-496/12: Request for a preliminary ruling from the Krajský súd v Prešove (Slovakia) lodged on 6 November 2012 — Spoločenstvo vlastníkov bytov MYJAVA v Podtatranská vodárenská prevádzková spoločnosť, a.s.

7

2013/C 086/11

Case C-595/12: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 19 December 2012 — Loredana Napoli v Ministero della Giustizia — Dipartimento Amministrazione Penitenziaria

7

2013/C 086/12

Case C-597/12 P: Appeal brought on 19 December 2012 by Isdin, SA against the judgment of the General Court (Fourth Chamber) delivered on 9 October 2012 in Case T-366/11: Bial-Portela & Ca, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

a

8

2013/C 086/13

Case C-599/12: Request for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge (Belgium) lodged on 20 December 2012 — JETAIR NV, BTW-eenheid BTWE Travel4you v FOD FINANCIËN

9

2013/C 086/14

Case C-604/12: Reference for a preliminary ruling from Supreme Court (Ireland) made on 27 December 2012 — HN v Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

9

2013/C 086/15

Case C-617/12: Reference for a preliminary ruling from High Court of Justice (Chancery Division) Patents Court (United Kingdom) made on 18 December 2012 — Astrazeneca AB v Comptroller-General of Patents

10

2013/C 086/16

Case C-11/13: Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 10 January 2013 — Bayer CropScience AG

10

2013/C 086/17

Case C-17/13: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 14 January 2013 — Alpina River Cruises GmbH and Nicko Tours GmbH v Ministero delle infrastrutture e dei trasporti — Capitaneria di Porto di Chioggia

10

2013/C 086/18

Case C-19/13: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 15 January 2013 — Ministero dell’Interno v Fastweb S.p.a.

11

2013/C 086/19

Case C-20/13: Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 15 January 2013 — Daniel Unland v Land Berlin

11

2013/C 086/20

Case C-22/13: Request for a preliminary ruling from the Tribunale di Napoli (Italy) lodged on 17 January 2013 — Mascolo v Ministero dell’Istruzione, dell’Università e della Ricerca

12

2013/C 086/21

Case C-35/13: Request for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 24 January 2013 — ASS.I.CA. and Kraft Foods Italia SpA v Associazioni fra produttori per la tutela del Salame Felino and Others

13

2013/C 086/22

Case C-54/13 P: Appeal brought on 31 January 2013 by the Federal Republic of Germany against the judgment of the General Court (Third Chamber) delivered on 21 November 2012 in Case T-270/08 Federal Republic of Germany v European Commission

14

General Court

2013/C 086/23

Case T-269/00: Order of the General Court of 29 January 2013 — Sagar v Commission (Action for annulment — State aid — Reductions in social security contributions for undertakings in Venice and Chioggia — Decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid — Action manifestly lacking any foundation in law)

15

2013/C 086/24

Case T-272/00: Order of the General Court of 29 January 2013 — Barbini and Others v Commission (Action for annulment — State aid — Reductions in social security contributions for undertakings in Venice and Chioggia — Decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

15

2013/C 086/25

Case T-273/00: Order of the General Court of 29 January 2013 — Unindustria and Others v Commission (Action for annulment — State aid — Reductions in social security contributions for undertakings in Venice and Chioggia — Decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid — Action manifestly lacking any foundation in law)

16

2013/C 086/26

Case T-368/11 R: Order of the President of the General Court of 1 February 2013 — Travetanche Injection v Commission (Application for interim measures — Dismissal of the main action — No need to adjudicate)

16

2013/C 086/27

Case T-551/11: Order of the General Court of 5 February 2013 — BSI v Council (Action for annulment — Dumping — Extension of anti-dumping duty imposed on the imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia — Independent importer — Article 263, fourth paragraph of TFEU — Lack of individual concern — Legislative measure containing implementing measure — Inadmissible)

17

2013/C 086/28

Case T-347/12 P: Appeal brought on 8 January 2013 by Dana Mocová against the judgment of the Civil Service Tribunal of 13 June 2012 in Case F-41/11 Mocová v Commission

17

2013/C 086/29

Case T-1/13: Action brought on 4 January 2013 — Advance Magazine Publishers/OHIM — Montres Tudor (GLAMOUR)

18

2013/C 086/30

Case T-12/13: Action brought on 4 January 2013 — Sherwin-Williams Sweden/OHIM — Akzo Nobel Coatings International (ARTI)

18

2013/C 086/31

Case T-13/13: Action brought on 3 January 2013 — MasterCard International/OHIM — Nehra (surfpin)

19

2013/C 086/32

Case T-14/13: Action brought on 3 January 2013 — Seal Trademarks/OHIM — Exel Composites (XCEL)

19

2013/C 086/33

Case T-26/13: Action brought on 18 January 2013 — dm-drogerie markt/OHIM — Semtee (CALDEA)

20

2013/C 086/34

Case T-27/13: Action brought on 23 January 2013 — Elan v Commission

20

2013/C 086/35

Case T-31/13 P: Appeal brought on 24 January 2013 by Vincent Bouillez against the judgment of the Civil Service Tribunal of 14 November 2012 in Case F-75/11, Vincent Bouillez v Council

22

2013/C 086/36

Case T-32/13 P: Appeal brought on 24 January 2013 by Mario Paulo da Silva Tenreiro against the judgment of the Civil Service Tribunal of 14 November 2012 in Case F-120/11 da Silva Tenreiro v Commission

22

2013/C 086/37

Case T-33/13: Action brought on 24 January 2013 — Türkiye Garanti Bankasi/OHIM — Card & Finance Consulting (bonus&more)

23

2013/C 086/38

Case T-37/13: Action brought on 22 January 2013 — Exakt Advanced Technologies v OHIM — Exakt Precision Tools (EXAKT)

23

2013/C 086/39

Case T-41/13: Action brought on 29 January 2013 — Roy v Council and Commission

24

2013/C 086/40

Case T-46/13: Action brought on 28 January 2013 — Sabores de Navarra v OHIM — Frutas Solano (KIT, EL SABOR DE NAVARRA)

24

2013/C 086/41

Case T-47/13: Action brought on 30 January 2013 — Goldsteig Käsereien Bayerwald v OHIM — Vieweg (goldstück)

25

2013/C 086/42

Case T-48/13: Action brought on 30 January 2013 — Out of the Blue KG v OHIM — Mombauer (REFLEXX)

25

2013/C 086/43

Case T-50/13: Action brought on 25 January 2013 — Think Schuhwerk v OHIM — Müller (VOODOO)

26

2013/C 086/44

Case T-51/13: Action brought on 30 January 2013 — Evropaïki Dynamiki v EIB

26

2013/C 086/45

Case T-62/13: Action brought on 6 February 2013 — GOLAM v OHIM — Glaxo Group (METABIOMAX)

27

2013/C 086/46

Case T-64/13: Action brought on 4 February 2013 — ANKO v Commission

27

2013/C 086/47

Case T-74/13: Action brought on 7 February 2013 — Al-Tabbaa v Council

28

2013/C 086/48

Case T-80/13: Action brought on 13 February 2013 — Syrian Lebanese Commercial Bank v Council

28

2013/C 086/49

Case T-650/11: Order of the General Court of 29 January 2013 — Dimension Data Belgium v Parliament

29

European Union Civil Service Tribunal

2013/C 086/50

Case F-158/12: Action brought on 24 December 2012 — ZZ v Commission

30

2013/C 086/51

Case F-162/12: Action brought on 28 December 2012 — ZZ v EEA

30

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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 23.3.2013 | EN | Official Journal of the European Union | C 86/1 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/1

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2013/C 86/01

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

OJ C 79, 16.3.2013

Past publications

OJ C 71, 9.3.2013

OJ C 63, 2.3.2013

OJ C 55, 23.2.2013

OJ C 46, 16.2.2013

OJ C 38, 9.2.2013

OJ C 32, 2.2.2013

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 23.3.2013 | EN | Official Journal of the European Union | C 86/2 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/2

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Judgment of the Court (Third Chamber) of 31 January 2013 (request for a preliminary ruling from the Dublin Metropolitan District Court — Ireland) — Denise McDonagh v Ryanair Ltd

(Case C-12/11) (1)

(Air transport - Regulation (EC) No 261/2004 - Notion of ‘extraordinary circumstances’ - Obligation to provide assistance to passengers in the event of cancellation of a flight due to ‘extraordinary circumstances’ - Volcanic eruption leading to the closure of air space - Eruption of the Icelandic volcano Eyjafjallajökull)

2013/C 86/02

Language of the case: English

Referring court

Dublin Metropolitan District Court

Parties to the main proceedings

Plaintiff: Denise McDonagh

Defendant: Ryanair Ltd

Re:

Request for a preliminary ruling — Dublin Metropolitan District Court — Interpretation and validity of Articles 5 and 9 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) — Notion of ‘extraordinary circumstances’ for the purposes of the regulation — Scope — Flight cancellation owing to the closure of European air space following the eruption of the Icelandic volcano Eyjafjallajökull

Operative part of the judgment

| 1. | Article 5 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that circumstances such as the closure of part of European airspace as a result of the eruption of the Eyjafjallajökull volcano constitute ‘extraordinary circumstances’ within the meaning of that regulation which do not release air carriers from their obligation laid down in Articles 5(1)(b) and 9 of Regulation No 261/2004. |
| --- | --- |

1.

Article 5 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that circumstances such as the closure of part of European airspace as a result of the eruption of the Eyjafjallajökull volcano constitute ‘extraordinary circumstances’ within the meaning of that regulation which do not release air carriers from their obligation laid down in Articles 5(1)(b) and 9 of Regulation No 261/2004.

| 2. | Articles 5(1)(b) and 9 of Regulation No 261/2004 must be interpreted as meaning that, in the event of cancellation of a flight due to ‘extraordinary circumstances’ of a duration such as that in the main proceedings, the obligation to provide care to air passengers laid down in those provisions must be complied with, and the validity of those provisions is not affected.
  However, an air passenger may only obtain, by way of compensation for the failure of the air carrier to comply with its obligation referred to in Articles 5(1)(b) and 9 of Regulation No 261/2004 to provide care, reimbursement of the amounts which, in the light of the specific circumstances of each case, proved necessary, appropriate and reasonable to make up for the shortcomings of the air carrier in the provision of care to that passenger, a matter which is for the national court to assess. |
| --- | --- |

2.

Articles 5(1)(b) and 9 of Regulation No 261/2004 must be interpreted as meaning that, in the event of cancellation of a flight due to ‘extraordinary circumstances’ of a duration such as that in the main proceedings, the obligation to provide care to air passengers laid down in those provisions must be complied with, and the validity of those provisions is not affected.

However, an air passenger may only obtain, by way of compensation for the failure of the air carrier to comply with its obligation referred to in Articles 5(1)(b) and 9 of Regulation No 261/2004 to provide care, reimbursement of the amounts which, in the light of the specific circumstances of each case, proved necessary, appropriate and reasonable to make up for the shortcomings of the air carrier in the provision of care to that passenger, a matter which is for the national court to assess.

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(1)  OJ C 80, 12.3.2011.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/2 |
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23.3.2013

EN

Official Journal of the European Union

C 86/2

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Judgment of the Court (Third Chamber) of 31 January 2013 (request for a preliminary ruling from the Grondwettelijk Hof (Belgium)) — Belgische Petroleum Unie VZW and Others v Belgische Staat

(Case C-26/11) (1)

(Directive 98/70/EC - Quality of petrol and diesel fuels - Articles 3 to 5 - Environmental specifications for fuels - Directive 98/34/EC - Information procedure in the field of technical standards and regulations and of rules on Information Society services - Articles 1 and 8 - Concept of ‘technical regulation’ - Obligation to communicate draft technical regulations - National rules requiring petroleum companies placing petrol and/or diesel fuels on the market in the same calendar year also to place on the market a quantity of biofuels)

2013/C 86/03

Language of the case: Dutch

Referring court

Grondwettelijk Hof

Parties to the main proceedings

Applicants: Belgische Petroleum Unie VZW, Continental Tanking Company NV, Belgische Olie Maatschappij NV, Octa NV, Van Der Sluijs Group Belgium NV, Belgomazout Liège NV, Martens Energie NV, Transcor Oil Services NV, Mabanaft BV, Belgomine NV, Van Raak Distributie NV, Bouts NV, Gabriels & Co NV, Joassin René NV, Orion Trading Group NV, Petrus NV, Argosoil Belgium NV

Defendants: Belgische Staat,

Intervening parties: Belgian Bioethanol Association VZW, Belgian Biodiesel Board VZW

Re:

Request for a preliminary ruling — Grondwettelijk Hof — Interpretation of Article 4(3) TEU, Articles 26(2), 28, 34, 35 and 36 TFEU, Articles 3, 4 and 5 of Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EC (OJ 1998 L 350, p. 58) and Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37) — National rules requiring petroleum companies releasing petrol and diesel products for consumption also to make available for consumption in the same year a quantity of bio-ethanol, pure or in the form of bio-ETBE, and fatty acid methyl esters (FAME)

Operative part of the judgment

| 1. | Articles 3 to 5 of Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EEC, as amended by Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which, in accordance with the objective of promoting the use of biofuels in transport, set for each Member State by Directives 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport, 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, and 2009/30, requires petroleum companies placing petrol and/or diesel fuels on the market also to place on the market, in the same calendar year, a quantity of biofuels by blending them with those products, where this quantity is calculated as a percentage of the total amount of those products which they market annually, and where those percentages comply with the maximum limits set by Directive 98/70, as amended by Directive 2009/30. |
| --- | --- |

1.

Articles 3 to 5 of Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EEC, as amended by Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which, in accordance with the objective of promoting the use of biofuels in transport, set for each Member State by Directives 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport, 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, and 2009/30, requires petroleum companies placing petrol and/or diesel fuels on the market also to place on the market, in the same calendar year, a quantity of biofuels by blending them with those products, where this quantity is calculated as a percentage of the total amount of those products which they market annually, and where those percentages comply with the maximum limits set by Directive 98/70, as amended by Directive 2009/30.

| 2. | Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, read in conjunction with Article 10(1), final indent, of that directive, must be interpreted as not requiring notification of draft national legislation which obliges petroleum companies placing petrol and/or diesel fuels on the market also to place on the market, in the same calendar year, certain percentages of biofuels, where, after having been notified pursuant to the first subparagraph of Article 8(1), the draft was amended to take account of the Commission’s observations on it, and the amended draft was then communicated to the Commission. |
| --- | --- |

2.

Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, read in conjunction with Article 10(1), final indent, of that directive, must be interpreted as not requiring notification of draft national legislation which obliges petroleum companies placing petrol and/or diesel fuels on the market also to place on the market, in the same calendar year, certain percentages of biofuels, where, after having been notified pursuant to the first subparagraph of Article 8(1), the draft was amended to take account of the Commission’s observations on it, and the amended draft was then communicated to the Commission.

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(1)  OJ C 113, 9.4.2011.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/3 |
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23.3.2013

EN

Official Journal of the European Union

C 86/3

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Judgment of the Court (Second Chamber) of 31 January 2013 (request for a preliminary ruling from the High Court of Ireland — Ireland) — H.I.D., B.A. v Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General

(Case C-175/11) (1)

(Request for a preliminary ruling - Common European Asylum System - Application by a national of a third country seeking refugee status - Directive 2005/85/EC - Article 23 - Possibility of prioritising the processing of asylum applications - National procedure applying a prioritised procedure for the examination of applications by persons belonging to a certain category defined on the basis of nationality or country of origin - Right to an effective judicial remedy - Article 39 of Directive 2005/85 - Concept of ‘court or tribunal’ within the meaning of that article)

2013/C 86/04

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicants: H.I.D., B.A.

Defendants: Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General

Re:

Request for a preliminary ruling — High Court of Ireland — Interpretation of Articles 23 and 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) — Application by a national of a non-member country for refugee status — Conformity with European Union law of a national procedure which provides for the application of an accelerated or prioritised procedure for examining asylum applications brought by persons belonging to a category defined on the basis of nationality or country of origin — Right to an effective remedy — Concept of ‘court or tribunal’ within the meaning of Article 267 TFEU

Operative part of the judgment

| 1. | Article 23(3) and (4) of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status must be interpreted as not precluding a Member State from examining by way of prioritised or accelerated procedure, in compliance with the basic principles and guarantees set out in Chapter II of that directive, certain categories of asylum applications defined on the basis of the criterion of the nationality or country of origin of the applicant. |
| --- | --- |

1.

Article 23(3) and (4) of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status must be interpreted as not precluding a Member State from examining by way of prioritised or accelerated procedure, in compliance with the basic principles and guarantees set out in Chapter II of that directive, certain categories of asylum applications defined on the basis of the criterion of the nationality or country of origin of the applicant.

| 2. | Article 39 of Directive 2005/85 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows an applicant for asylum either to lodge an appeal against the decision of the determining authority before a court or tribunal such as the Refugee Appeals Tribunal (Ireland), and to bring an appeal against the decision of that tribunal before a higher court such as the High Court (Ireland), or to contest the validity of that determining authority’s decision before the High Court, the judgments of which may be the subject of an appeal to the Supreme Court (Ireland). |
| --- | --- |

2.

Article 39 of Directive 2005/85 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows an applicant for asylum either to lodge an appeal against the decision of the determining authority before a court or tribunal such as the Refugee Appeals Tribunal (Ireland), and to bring an appeal against the decision of that tribunal before a higher court such as the High Court (Ireland), or to contest the validity of that determining authority’s decision before the High Court, the judgments of which may be the subject of an appeal to the Supreme Court (Ireland).

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(1)  OJ C 204, 9.7.2011.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/4 |
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23.3.2013

EN

Official Journal of the European Union

C 86/4

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Judgment of the Court (Seventh Chamber) of 31 January 2013 — European Commission v Kingdom of the Netherlands

(Case C-301/11) (1)

(Tax legislation - Transfer of a residence for tax purposes - Freedom of establishment - Article 49 TFEU - Taxation of unrealised capital gains - Immediate exit tax)

2013/C 86/05

Language of the case: Dutch

Parties

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

Defendant: Kingdom of the Netherlands (represented by: C.Wissels, J. Langer and M. de Ree, acting as Agents)

Interveners in support of the defendant: Federal Republic of Germany (represented by: T. Henze and K. Petersen, acting as Agents), Kingdom of Spain (represented by: A. Rubio González, acting as Agent), Portuguese Republic (représentant: L. Inez Fernandes, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Interpretation of Article 49 TFEU — Exit tax for undertakings ceasing to have their tax residence in the Netherlands — Taxation of unrealised capital gains in the case of changing the undertaking’s residency, moving its permanent establishment or transferring its shares to another Member State

Operative part of the judgment

The Court:

| 1. | Declares that, by adopting and maintaining in force a national rule providing for the taxation of unrealised capital gains on the transfer of an undertaking or when transferring a company’s registered office or actual head office to another Member State, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 49 TFEU; |
| --- | --- |

1.

Declares that, by adopting and maintaining in force a national rule providing for the taxation of unrealised capital gains on the transfer of an undertaking or when transferring a company’s registered office or actual head office to another Member State, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 49 TFEU;

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

2.

Orders the Kingdom of the Netherlands to pay the costs;

| 3. | Orders the Federal Republic of Germany, the Kingdom of Spain and the Portuguese Republic to bear their own costs. |
| --- | --- |

3.

Orders the Federal Republic of Germany, the Kingdom of Spain and the Portuguese Republic to bear their own costs.

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(1)  OJ C 252, 27.8.2011.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/4 |
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23.3.2013

EN

Official Journal of the European Union

C 86/4

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Judgment of the Court (Fourth Chamber) of 31 January 2013 (request for a preliminary ruling from the Komisia za zashtita ot diskriminatsia — Bulgaria) — Valeri Hariev Belov v CHEZ Elektro Balgaria AD and Others

(Case C-394/11) (1)

(Request for a preliminary ruling - Article 267 TFEU - Concept of ‘national court’ - Lack of jurisdiction of the Court)

2013/C 86/06

Language of the case: Bulgarian

Referring court

Komisia za zashtita ot diskriminatsia, Bulgaria

Parties to the main proceedings

Applicant: Valeri Hariev Belov

Defendants: CHEZ Elektro Balgaria AD, Lidia Georgieva Dimitrova, Roselina Dimitrova Kostova, Kremena Stoyanova Stoyanova, CHEZ Razpredelenie Balgaria AD, Ivan Kovarzhchik, Atanas Antonov Dandarov, Irzhi Postolka,Vladimir Marek, Darzhavna Komisia po energi

Re:

Request for a preliminary ruling — Komisia za zashtita ot diskriminatsia — Interpretation of Article 2(1)(a) and (b), Article 3(1)(h) and Article 8(1) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22), Article 38 of the Charter of Fundamental Rights of the European Union, recital 29 in the preamble to, and Articles 1 and 13(1) of, Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC (OJ 2006 L 114, p. 64), Article 3(5) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regard to decommissioning and waste management activities (OJ 2003 L 176, p. 37), Article 3(7) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55) — Administrative practice of granting an electricity distribution undertaking freedom to install in Roma districts electricity meters attached to electricity poles in the streets at a height which is not accessible to users, and which does not enable consumers living in those districts to read their meters, whereas electricity meters are installed at an accessible height outside of Roma districts — Right or interest of the final electricity user to regularly check the electricity meeting reading — Burden of proof in discrimination cases.

Operative part of the judgment

The Court of Justice of the European Union does not have jurisdiction to answer the questions referred by the Komisia za zashtita ot diskriminatsia in its order for reference of 19 July 2011.

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(1)  OJ C 298, 8.10.2011.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/5 |
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23.3.2013

EN

Official Journal of the European Union

C 86/5

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Judgment of the Court (Grand Chamber) of 29 January 2013 (request for a preliminary ruling from the Curtea de Apel Constanța — Romania) — Ministerul Public — Parchetul de pe lângă Curtea de Apel Constanța — Execution of European arrest warrants issued against Ciprian Vasile Radu

(Case C-396/11) (1)

(Police and judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - European arrest warrant and surrender procedures between Member States - European arrest warrant issued for the purposes of prosecution - Grounds for refusing execution)

2013/C 86/07

Language of the case: Romanian

Referring court

Curte de Apel Constanța

Parties to the main proceedings

Applicant: Ciprian Vasile Radu

Re:

Request for a preliminary ruling — Curtea de Apel Constanța — Interpretation of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), and of Article 6 TEU and the Charter of Fundamental Rights of the European Union, in particular Articles 6, 48 and 52 thereof — European arrest warrant issued for prosecution purposes — Possibility for the Member State responsible for executing the warrant to refuse the request for surrender of the person sought on grounds of failure to comply with the Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union, and also because the Member State which issued the warrant has failed, in whole or in part, to transpose Framework Decision 2002/584/JHA into national law

Operative part of the judgment

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that the executing judicial authorities cannot refuse to execute a European arrest warrant issued for the purposes of conducting a criminal prosecution on the ground that the requested person was not heard in the issuing Member State before that arrest warrant was issued.

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(1)  OJ C 282, 24.9.2011.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/5 |
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23.3.2013

EN

Official Journal of the European Union

C 86/5

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Judgment of the Court (Third Chamber) of 31 January 2013 (request for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Stroy trans EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

(Case C-642/11) (1)

(Taxation - VAT - Directive 2006/112/EC - Principle of fiscal neutrality - Right of deduction - Refusal - Article 203 - Entry of the VAT on the invoice - Chargeability - Existence of a taxable transaction - Identical determination in respect of the issuer of the invoice and its recipient - Necessity)

2013/C 86/08

Language of the case: Bulgarian

Referring court

Administrativen sad Varna

Parties to the main proceedings

Claimant: Stroy trans EOOD

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

Re:

Request for a preliminary ruling — Administrativen sad Varna — Interpretation of Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Right to deduct input VAT — Tax payable owing to its being entered on the invoice despite the absence of supply or payment of the subject-matter of the invoice — Proof of actual supply of goods — No adjustment of the tax in the revised assessment relating to the taxable person’s direct supplier

Operative part of the judgment

| 1. | Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that:






  — | the value added tax entered by a person on an invoice is payable by him regardless of whether a taxable transaction actually exists; |
| --- | --- | --- |

1.

Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that:

—

the value added tax entered by a person on an invoice is payable by him regardless of whether a taxable transaction actually exists;

| — | it cannot be inferred from the mere fact that the tax authorities did not correct, in a tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter that those authorities have acknowledged that the invoice corresponded to an actual taxable transaction. |
| --- | --- |

—

it cannot be inferred from the mere fact that the tax authorities did not correct, in a tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter that those authorities have acknowledged that the invoice corresponded to an actual taxable transaction.

| 2. | The principles of fiscal neutrality, proportionality and the protection of legitimate expectations must be interpreted as not precluding the recipient of an invoice from being refused the right to deduct input value added tax because there is no actual taxable transaction even though, in the tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter was not adjusted. However, if, in the light of fraud or irregularities, committed by the issuer of the invoice or upstream of the transaction relied upon as the basis for the right of deduction, that transaction is considered not to have been actually carried out, it must be established, on the basis of objective factors and without requiring of the recipient of the invoice checks which are not his responsibility, that he knew or should have known that that transaction was connected with value added tax fraud, a matter which it is for the referring court to determine. |
| --- | --- |

2.

The principles of fiscal neutrality, proportionality and the protection of legitimate expectations must be interpreted as not precluding the recipient of an invoice from being refused the right to deduct input value added tax because there is no actual taxable transaction even though, in the tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter was not adjusted. However, if, in the light of fraud or irregularities, committed by the issuer of the invoice or upstream of the transaction relied upon as the basis for the right of deduction, that transaction is considered not to have been actually carried out, it must be established, on the basis of objective factors and without requiring of the recipient of the invoice checks which are not his responsibility, that he knew or should have known that that transaction was connected with value added tax fraud, a matter which it is for the referring court to determine.

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(1)  OJ C 80, 17.3.2012.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/6 |
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23.3.2013

EN

Official Journal of the European Union

C 86/6

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Judgment of the Court (Third Chamber) of 31 January 2013 (Request for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — LVK — 56 EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

(Case C-643/11) (1)

(Taxation - VAT - Directive 2006/112/EC - Principle of fiscal neutrality - Right of deduction - Refusal - Article 203 - Entering of the VAT on the invoice - Chargeability - Existence of a taxable transaction - Identical determination in respect of the issuer of the invoice and its recipient - Necessity)

2013/C 86/09

Language of the case: Bulgarian

Referring court

Administrativen sad Varna

Parties to the main proceedings

Applicant: LVK — 56 EOOD

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

Re:

Request for a preliminary ruling — Administrativen sad — Varna — Interpretation of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Right to deduct input VAT — Evidence of the existence of the chargeable event — Practice of the tax authorities refusing to grant the right to deduct VAT to the purchaser of taxable goods on the ground that there is no evidence that the supply took place, despite the finding that the tax had become chargeable at the level of the supplier

Operative part of the judgment

| 1. | Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that:






  — | the value added tax entered by a person on an invoice is payable by him regardless of whether a taxable transaction actually exists; |
| --- | --- | --- |

1.

Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that:

—

the value added tax entered by a person on an invoice is payable by him regardless of whether a taxable transaction actually exists;

| — | it cannot be inferred from the mere fact that the tax authorities did not correct, in a tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter that those authorities have acknowledged that the invoice corresponded to an actual taxable transaction. |
| --- | --- |

—

it cannot be inferred from the mere fact that the tax authorities did not correct, in a tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter that those authorities have acknowledged that the invoice corresponded to an actual taxable transaction.

| 2. | European Union law must be interpreted as meaning that Articles 167 and 168(a) of Directive 2006/112 and the principles of fiscal neutrality, legal certainty and equal treatment do not preclude the recipient of an invoice from being refused the right to deduct input value added tax because there is no actual taxable transaction even though, in the tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter was not adjusted. However, if, in the light of fraud or irregularities, committed by the issuer of the invoice or upstream of the transaction relied upon as the basis for the right of deduction, that transaction is considered not to have been actually carried out, it must be established, on the basis of objective factors and without requiring of the recipient of the invoice checks which are not his responsibility, that he knew or should have known that that transaction was connected with value added tax fraud, a matter which it is for the referring court to determine. |
| --- | --- |

2.

European Union law must be interpreted as meaning that Articles 167 and 168(a) of Directive 2006/112 and the principles of fiscal neutrality, legal certainty and equal treatment do not preclude the recipient of an invoice from being refused the right to deduct input value added tax because there is no actual taxable transaction even though, in the tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter was not adjusted. However, if, in the light of fraud or irregularities, committed by the issuer of the invoice or upstream of the transaction relied upon as the basis for the right of deduction, that transaction is considered not to have been actually carried out, it must be established, on the basis of objective factors and without requiring of the recipient of the invoice checks which are not his responsibility, that he knew or should have known that that transaction was connected with value added tax fraud, a matter which it is for the referring court to determine.

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(1)  OJ C 80, 17.3.2012.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/7 |
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23.3.2013

EN

Official Journal of the European Union

C 86/7

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Request for a preliminary ruling from the Krajský súd v Prešove (Slovakia) lodged on 6 November 2012 — Spoločenstvo vlastníkov bytov MYJAVA v Podtatranská vodárenská prevádzková spoločnosť, a.s.

(Case C-496/12)

2013/C 86/10

Language of the case: Slovak

Referring court

Krajský súd v Prešove

Parties to the main proceedings

Applicant: Spoločenstvo vlastníkov bytov MYJAVA

Defendant: Podtatranská vodárenská prevádzková spoločnosť, a.s.

Questions referred

| 1. | Must the provisions of European Union directives such as Directive 1999/44/EC (1) of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, Council Directive 85/374/EEC (2) of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, and other directives intended for the protection of consumers, be interpreted as meaning that the same protection as for consumers is also afforded to a legal person, if in contracts covered by those directives it acts for purposes which are not related to a trade or business? |
| --- | --- |

1.

Must the provisions of European Union directives such as Directive 1999/44/EC (1) of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, Council Directive 85/374/EEC (2) of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, and other directives intended for the protection of consumers, be interpreted as meaning that the same protection as for consumers is also afforded to a legal person, if in contracts covered by those directives it acts for purposes which are not related to a trade or business?

| 2. | Must the provisions of European Union directives such as Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees and Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products be interpreted as meaning that a provision of national law, such as that at issue in the main proceedings, which when goods supplied are ascertained to be faulty limits a restitutionary claim such as a claim to recovery of the proceeds of unjust enrichment solely to the period from the last reading of the water meter carried out before the submission of the request is incompatible with them? |
| --- | --- |

2.

Must the provisions of European Union directives such as Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees and Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products be interpreted as meaning that a provision of national law, such as that at issue in the main proceedings, which when goods supplied are ascertained to be faulty limits a restitutionary claim such as a claim to recovery of the proceeds of unjust enrichment solely to the period from the last reading of the water meter carried out before the submission of the request is incompatible with them?

---

(1)  OJ 1999 L 171, p. 12.

(2)  OJ 1985 L 210, p. 29.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/7 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/7

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Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 19 December 2012 — Loredana Napoli v Ministero della Giustizia — Dipartimento Amministrazione Penitenziaria

(Case C-595/12)

2013/C 86/11

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Loredana Napoli

Defendant: Ministero della Giustizia — Dipartimento Amministrazione Penitenziaria

Questions referred

| 1. | Is Article 15 of Directive 2006/54/EC (1) (return from maternity leave) applicable to attendance of a professional training course in the context of an employment relationship and must it be interpreted as meaning that, at the end of the leave period, the female worker concerned has the right to be re-admitted to the same course still under way, or can it be interpreted as meaning that the female worker concerned may be enrolled on a subsequent course, even though the timing, at least, of that subsequent course is uncertain? |
| --- | --- |

1.

Is Article 15 of Directive 2006/54/EC (1) (return from maternity leave) applicable to attendance of a professional training course in the context of an employment relationship and must it be interpreted as meaning that, at the end of the leave period, the female worker concerned has the right to be re-admitted to the same course still under way, or can it be interpreted as meaning that the female worker concerned may be enrolled on a subsequent course, even though the timing, at least, of that subsequent course is uncertain?

| 2. | Must Article 2(2)(c) of Directive 2006/54/EC, which provides that any less favourable treatment related to maternity leave constitutes discrimination, be interpreted as affording female workers protection, which is absolute and cannot be affected by divergent interests, against any substantial inequality (Case C-136/95 Thibault [1998] ECR I-2011), so as to preclude national legislation which, by requiring dismissal from a professional training course and at the same time guaranteeing the option of enrolling on the following course, pursues the objective of providing adequate training but deprives the female worker of the opportunity to take up, at an earlier date, a new post together with male colleagues from the competition and course, and thus to receive the corresponding pay? |
| --- | --- |

2.

Must Article 2(2)(c) of Directive 2006/54/EC, which provides that any less favourable treatment related to maternity leave constitutes discrimination, be interpreted as affording female workers protection, which is absolute and cannot be affected by divergent interests, against any substantial inequality (Case C-136/95 Thibault [1998] ECR I-2011), so as to preclude national legislation which, by requiring dismissal from a professional training course and at the same time guaranteeing the option of enrolling on the following course, pursues the objective of providing adequate training but deprives the female worker of the opportunity to take up, at an earlier date, a new post together with male colleagues from the competition and course, and thus to receive the corresponding pay?

| 3. | Must Article 14(2) of Directive 2006/54/EC, under which a difference of treatment based on characteristics constituting a genuine occupational requirement does not amount to discrimination, be interpreted as permitting the Member State to delay access to employment to the detriment of a female worker who has been unable to undergo full professional training as a result of maternity leave? |
| --- | --- |

3.

Must Article 14(2) of Directive 2006/54/EC, under which a difference of treatment based on characteristics constituting a genuine occupational requirement does not amount to discrimination, be interpreted as permitting the Member State to delay access to employment to the detriment of a female worker who has been unable to undergo full professional training as a result of maternity leave?

| 4. | In the scenario set out in [Question 3], and accepting, in abstract terms, that Article 14(2) is applicable to the case set out therein, must that provision none the less be interpreted, in accordance with the general principle of proportionality, as precluding national legislation which requires that a female worker absent on maternity leave be dismissed from the course rather than ensuring that parallel remedial courses be set up in order to allow the training shortfall to be remedied, thereby combining the rights of the working mother and the public interest, but with the organisational and financial costs attached to that option? |
| --- | --- |

4.

In the scenario set out in [Question 3], and accepting, in abstract terms, that Article 14(2) is applicable to the case set out therein, must that provision none the less be interpreted, in accordance with the general principle of proportionality, as precluding national legislation which requires that a female worker absent on maternity leave be dismissed from the course rather than ensuring that parallel remedial courses be set up in order to allow the training shortfall to be remedied, thereby combining the rights of the working mother and the public interest, but with the organisational and financial costs attached to that option?

| 5. | If it is interpreted as precluding the national legislation referred to above, does Directive 2006/54/EC set out, in that regard, self-executing rules which are directly applicable by the national court? |
| --- | --- |

5.

If it is interpreted as precluding the national legislation referred to above, does Directive 2006/54/EC set out, in that regard, self-executing rules which are directly applicable by the national court?

---

(1)  Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23).

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/8 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/8

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Appeal brought on 19 December 2012 by Isdin, SA against the judgment of the General Court (Fourth Chamber) delivered on 9 October 2012 in Case T-366/11: Bial-Portela & Ca, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-597/12 P)

2013/C 86/12

Language of the case: English

Parties

Appellant: Isdin, SA (represented by: H. L. Mosback, Advocate, G. Marín Raigal, P. López Ronda, G. Macias Bonilla, abogados)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bial-Portela & Ca, SA

Form of order sought

The appellant claims that the Court should:

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

—

annul the contested decision;

| — | confirm the decision of 6 April 2001 of the First Board of Appeal of OHIM dismissing the opposition in its entirety; |
| --- | --- |

—

confirm the decision of 6 April 2001 of the First Board of Appeal of OHIM dismissing the opposition in its entirety;

| — | order Bial-Portela & Ca, SA to pay the costs. |
| --- | --- |

—

order Bial-Portela & Ca, SA to pay the costs.

Pleas in law and main arguments

The appellant submits that there has been a distortion of the evidence by the General Court, since that Court stated, in paragraph 34 of the contested Judgement, that ‘the Board of Appeal erred in finding that there is no phonetic similarity between the signs’. However, the Board of Appeal did not, as the General Court stated, err in finding that there was no phonetic similarity between the signs, but instead correctly analysed the phonetic similarity between the signs, and concluded that despite the phonetic similarities between the signs, the global sonority of the signs is different. This representation believes that the above conclusion of the Board of Appeal, which was distorted by the General Court, should be confirmed.

In addition, the appellant submits that there has been a distortion of the facts by the General Court since it stated, in paragraph 40 of the contested Judgement, that ‘the goods in Class 3 and a large proportion of the goods in Class 5 (...) are normally marketed on display in supermarkets and therefore chosen by customers after a visual examination of their packaging’. This factual finding was not backed up by any evidence and thereby distorted the facts on which a decision should have been based. In addition, this fact was not put forward by any of the parties, and therefore could only be taken into consideration if it was well known (and given the arguments in support of the lack of plausibility of this fact, to consider it as such would amount in itself to a distortion of the facts). Therefore, this fact cannot be used as a basis for a finding of likelihood of confusion.

The appellant also submits that the principle of audi alteram partem enshrined in Article 76(1) CTMR (1) (former Article 74(1) of Regulation 40/94 (2)) has been infringed and that the General Court erred in its application of Article 8(l)(b) CTMR and relevant case law, thereby infringing Union law. The General Court did not carry out an overall assessment of the marks at issue, taking into account all factors relevant to the circumstances of the present case.

---

(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1

(2)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/9 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/9

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Request for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge (Belgium) lodged on 20 December 2012 — JETAIR NV, BTW-eenheid BTWE Travel4you v FOD FINANCIËN

(Case C-599/12)

2013/C 86/13

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brugge

Parties to the main proceedings

Applicants: JETAIR NV, BTW-eenheid BTWE Travel4you

Defendant: FOD FINANCIËN

Questions referred

| 1. | Was Belgium entitled to amend its legislation by taxing an exempt service — in this case, journeys outside the EU — at a point in time (1 December 1977) just before the introduction of the Sixth VAT Directive (1) (1 January 1978) and thus circumvent the standstill provision in Article 28(3) of the Sixth Directive (now Article 370 of Council Directive 2006/112/EC), (2) which provides that the journeys referred to may continue to be taxed only if they were already taxed prior to the adoption of the Sixth Directive? |
| --- | --- |

1.

Was Belgium entitled to amend its legislation by taxing an exempt service — in this case, journeys outside the EU — at a point in time (1 December 1977) just before the introduction of the Sixth VAT Directive (1) (1 January 1978) and thus circumvent the standstill provision in Article 28(3) of the Sixth Directive (now Article 370 of Council Directive 2006/112/EC), (2) which provides that the journeys referred to may continue to be taxed only if they were already taxed prior to the adoption of the Sixth Directive?

| 2. | Should Belgium have refrained from taxing journeys outside the EU as of 13 June 1977 (the date of publication of the Sixth Directive)? |
| --- | --- |

2.

Should Belgium have refrained from taxing journeys outside the EU as of 13 June 1977 (the date of publication of the Sixth Directive)?

| 3. | Does Belgium infringe Article 309 of Council Directive 2006/112/EC by not treating travel agents, as regards their services outside the Community, as intermediaries and continuing nevertheless to tax those services? |
| --- | --- |

3.

Does Belgium infringe Article 309 of Council Directive 2006/112/EC by not treating travel agents, as regards their services outside the Community, as intermediaries and continuing nevertheless to tax those services?

| 4. | Do Articles 309, 153 and 370 of, and Annex X to, Council Directive 2006/112/EC infringe the general principles of Community law, the principle of equality, the principle of proportionality and the provisions concerning the free movement of persons, goods and services, inter alia, Articles 43 and 56 of the EC Treaty, by giving Member States the right to choose whether or not to tax services relating to journeys outside the Community? |
| --- | --- |

4.

Do Articles 309, 153 and 370 of, and Annex X to, Council Directive 2006/112/EC infringe the general principles of Community law, the principle of equality, the principle of proportionality and the provisions concerning the free movement of persons, goods and services, inter alia, Articles 43 and 56 of the EC Treaty, by giving Member States the right to choose whether or not to tax services relating to journeys outside the Community?

| 5. | Is it contrary to the principles of Community law, in particular the principles of equality and proportionality and the principle of neutrality with regard to VAT, for the Belgian State, by Royal Decree of 28 November 1999, to have made only travel agents, but not intermediaries, taxable with regard to journeys outside the EU? |
| --- | --- |

5.

Is it contrary to the principles of Community law, in particular the principles of equality and proportionality and the principle of neutrality with regard to VAT, for the Belgian State, by Royal Decree of 28 November 1999, to have made only travel agents, but not intermediaries, taxable with regard to journeys outside the EU?

---

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

(2)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/9 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/9

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Reference for a preliminary ruling from Supreme Court (Ireland) made on 27 December 2012 — HN v Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

(Case C-604/12)

2013/C 86/14

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Applicant: HN

Defendants: Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

Question referred

Does Council Directive 2004/83/EC (1), interpreted in the light of the principle of good administration in the law of the European Union and, in particular, as provided by Article 41 of the Charter of Fundamental Rights of the European Union, permit a Member State, to provide in its law that an application for subsidiary protection status can be considered only if the applicant has applied for and been refused refugee status in accordance with national law?

---

(1)  Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted

OJ L 304, p. 2

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/10 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/10

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Reference for a preliminary ruling from High Court of Justice (Chancery Division) Patents Court (United Kingdom) made on 18 December 2012 — Astrazeneca AB v Comptroller-General of Patents

(Case C-617/12)

2013/C 86/15

Language of the case: English

Referring court

High Court of Justice (Chancery Division) Patents Court

Parties to the main proceedings

Applicant: Astrazeneca AB

Defendant: Comptroller-General of Patents

Questions referred

| 1. | Is a Swiss marketing authorisation not granted pursuant to the administrative authorisation procedure laid down in Directive 2001/83/EC (1), but automatically recognised by Liechtenstein, capable of constituting the ‘first authorisation to place the product on the market’ for the purposes of Article 13(1) of Regulation 469/2009/EC (2)? |
| --- | --- |

1.

Is a Swiss marketing authorisation not granted pursuant to the administrative authorisation procedure laid down in Directive 2001/83/EC (1), but automatically recognised by Liechtenstein, capable of constituting the ‘first authorisation to place the product on the market’ for the purposes of Article 13(1) of Regulation 469/2009/EC (2)?

| 2. | Does it make a difference to the answer to the first question if:






  (a) | the set of clinical data upon which the Swiss authority granted the marketing authorisation was considered by the European Medicines Agency as not satisfying the conditions for the grant of a marketing authorisation pursuant to Regulation 726/2004/EC (3); and/or |
| --- | --- | --- |

2.

Does it make a difference to the answer to the first question if:

(a)

the set of clinical data upon which the Swiss authority granted the marketing authorisation was considered by the European Medicines Agency as not satisfying the conditions for the grant of a marketing authorisation pursuant to Regulation 726/2004/EC (3); and/or

| (b) | the Swiss marketing authorisation was suspended after grant and was only reinstated following the submission of additional data? |
| --- | --- |

(b)

the Swiss marketing authorisation was suspended after grant and was only reinstated following the submission of additional data?

| 3. | If Article 13(1) of Regulation 469/2009 refers solely to marketing authorisations granted pursuant to the administrative authorisation procedure laid down in Directive 2001/83/EC, does the fact that a medicinal product was first placed on the market within the EEA pursuant to a Swiss marketing authorisation automatically recognised in Liechtenstein which was not granted pursuant to Directive 2001/83/EC render that product ineligible for the grant of a supplementary protection certificate pursuant to Article 2 of Regulation 469/2009? |
| --- | --- |

3.

If Article 13(1) of Regulation 469/2009 refers solely to marketing authorisations granted pursuant to the administrative authorisation procedure laid down in Directive 2001/83/EC, does the fact that a medicinal product was first placed on the market within the EEA pursuant to a Swiss marketing authorisation automatically recognised in Liechtenstein which was not granted pursuant to Directive 2001/83/EC render that product ineligible for the grant of a supplementary protection certificate pursuant to Article 2 of Regulation 469/2009?

---

(1)  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 L 311, p. 67

(2)  Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products

OJ L 152, p. 1

(3)  Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency

OJ L 136, p. 1

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/10 |
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23.3.2013

EN

Official Journal of the European Union

C 86/10

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Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 10 January 2013 — Bayer CropScience AG

(Case C-11/13)

2013/C 86/16

Language of the case: German

Referring court

Bundespatentgericht

Parties to the main proceedings

Applicant and appellant: Bayer CropScience AG

Question referred

The following question is referred to the Court of Justice of the European Union for a preliminary ruling on the interpretation of Article 3(1) and of Article 1.8 and 1.3 of Regulation (EC) No 1610/96: (1)

Are the terms ‘product’ in Article 3(1) and Article 1.8 and ‘active substance’ in Article 1.3 of that regulation to be interpreted as covering a safener?

---

(1)  Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products (OJ 1996 L 198, p. 30).

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/10 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/10

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Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 14 January 2013 — Alpina River Cruises GmbH and Nicko Tours GmbH v Ministero delle infrastrutture e dei trasporti — Capitaneria di Porto di Chioggia

(Case C-17/13)

2013/C 86/17

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Alpina River Cruises GmbH, Nicko Tours GmbH

Defendant: Ministero delle infrastrutture e dei trasporti — Capitaneria di Porto di Chioggia

Question referred

Must Council Regulation (EEC) No 3577/92 of 7 December 1992 (1) be interpreted as applying to cruises carried out between ports within a Member State without different passengers embarking and disembarking in those ports, in that those cruises start and end with the same passengers embarking and disembarking in the same port within that Member State?

---

(1)  Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7).

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/11 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/11

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Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 15 January 2013 — Ministero dell’Interno v Fastweb S.p.a.

(Case C-19/13)

2013/C 86/18

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Ministero dell’Interno

Defendant: Fastweb S.p.a.

Questions referred

| 1. | Must Article 2d(4) of Directive 2007/66/EC (1) be construed as meaning that if, before awarding the contract directly to a specific economic operator, selected without prior publication of a contract notice, an awarding authority published the notice for voluntary ex ante transparency in the Official Journal of the European Union and waited at least 10 days before concluding the contract, the national court is — always and in any event — precluded from declaring the contract to be ineffective, even if it is established that there has been an infringement of the provisions permitting, subject to certain conditions, the award of a contract without a competitive tendering procedure? |
| --- | --- |

1.

Must Article 2d(4) of Directive 2007/66/EC (1) be construed as meaning that if, before awarding the contract directly to a specific economic operator, selected without prior publication of a contract notice, an awarding authority published the notice for voluntary ex ante transparency in the Official Journal of the European Union and waited at least 10 days before concluding the contract, the national court is — always and in any event — precluded from declaring the contract to be ineffective, even if it is established that there has been an infringement of the provisions permitting, subject to certain conditions, the award of a contract without a competitive tendering procedure?

| 2. | Is Article 2d(4) of Directive 2007/66/EC — if interpreted as making it impossible to declare a contract ineffective, in accordance with national law (Article 122 of the Code of administrative procedure), even though the national court has established an infringement of the provisions permitting, subject to certain conditions, the award of a contract without a competitive tendering procedure — compatible with the principles of equality of the parties, of non-discrimination and of protecting competition, and also of guaranteeing the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union? |
| --- | --- |

2.

Is Article 2d(4) of Directive 2007/66/EC — if interpreted as making it impossible to declare a contract ineffective, in accordance with national law (Article 122 of the Code of administrative procedure), even though the national court has established an infringement of the provisions permitting, subject to certain conditions, the award of a contract without a competitive tendering procedure — compatible with the principles of equality of the parties, of non-discrimination and of protecting competition, and also of guaranteeing the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union?

---

(1)  Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31).

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/11 |
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23.3.2013

EN

Official Journal of the European Union

C 86/11

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Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 15 January 2013 — Daniel Unland v Land Berlin

(Case C-20/13)

2013/C 86/19

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Daniel Unland

Defendant: Land Berlin

Questions referred

| 1. | Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land judges? |
| --- | --- |

1.

Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land judges?

| 2. | If Question 1 is answered in the affirmative: does the interpretation of this European primary and/or secondary law mean that a national provision under which the level of the basic pay of a judge on establishment of the status of judge, and the subsequent rise in that basic pay, is dependent on his age constitutes direct or indirect age discrimination? |
| --- | --- |

2.

If Question 1 is answered in the affirmative: does the interpretation of this European primary and/or secondary law mean that a national provision under which the level of the basic pay of a judge on establishment of the status of judge, and the subsequent rise in that basic pay, is dependent on his age constitutes direct or indirect age discrimination?

| 3. | If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience and/or interpersonal skills? |
| --- | --- |

3.

If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience and/or interpersonal skills?

| 4. | If Question 3 is also answered in the affirmative: does the interpretation of European primary and/or secondary law, where a non-discriminatory right to remuneration has not been implemented, permit a legal consequence other than retrospective remuneration of those discriminated against at the highest pay step in their pay grade?
  Does the legal consequence of infringement of the prohibition of discrimination in that case follow from European primary and/or secondary law itself, here in particular Directive 2000/78/EC, or does the claim follow only from the point of view of failure to implement the rules of European law in accordance with the claim to State liability under European Union law? |
| --- | --- |

4.

If Question 3 is also answered in the affirmative: does the interpretation of European primary and/or secondary law, where a non-discriminatory right to remuneration has not been implemented, permit a legal consequence other than retrospective remuneration of those discriminated against at the highest pay step in their pay grade?

Does the legal consequence of infringement of the prohibition of discrimination in that case follow from European primary and/or secondary law itself, here in particular Directive 2000/78/EC, or does the claim follow only from the point of view of failure to implement the rules of European law in accordance with the claim to State liability under European Union law?

| 5. | Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the judges’ having enforced that claim in good time? |
| --- | --- |

5.

Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the judges’ having enforced that claim in good time?

| 6. | If Questions 1 to 3 are answered in the affirmative: does it follow from the interpretation of European primary and/or secondary law that a transitional law — under which existing judges are placed on a step of the new system solely according to the amount of the basic pay they attained under the old (discriminatory) law on remuneration on the transition date, and according to which further progression to higher steps is thereupon calculated essentially according to the periods of experience attained since the entry into force of the transitional law, irrespective of the judge’s absolute period of experience — constitutes a perpetuation of the existing age discrimination, continuing until the highest pay step is reached in each case? |
| --- | --- |

6.

If Questions 1 to 3 are answered in the affirmative: does it follow from the interpretation of European primary and/or secondary law that a transitional law — under which existing judges are placed on a step of the new system solely according to the amount of the basic pay they attained under the old (discriminatory) law on remuneration on the transition date, and according to which further progression to higher steps is thereupon calculated essentially according to the periods of experience attained since the entry into force of the transitional law, irrespective of the judge’s absolute period of experience — constitutes a perpetuation of the existing age discrimination, continuing until the highest pay step is reached in each case?

| 7. | If Question 6 is also answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this unrestricted, continuing difference in treatment by the legislative aim whereby the transitional law is to protect not (only) the acquired rights of existing judges existing on the transition date but (also) the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration, and new judges are to be paid better than existing judges?
  Can the continuing discrimination against existing judges be justified by the fact that the regulatory alternative (individual placement also of existing judges according to periods of experience) would involve increased administrative expenditure? |
| --- | --- |

7.

If Question 6 is also answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this unrestricted, continuing difference in treatment by the legislative aim whereby the transitional law is to protect not (only) the acquired rights of existing judges existing on the transition date but (also) the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration, and new judges are to be paid better than existing judges?

Can the continuing discrimination against existing judges be justified by the fact that the regulatory alternative (individual placement also of existing judges according to periods of experience) would involve increased administrative expenditure?

| 8. | If such justification is rejected in Question 7: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing judges, permit a legal consequence other than retrospective and continuing remuneration of existing judges at the highest pay step in their pay grade? |
| --- | --- |

8.

If such justification is rejected in Question 7: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing judges, permit a legal consequence other than retrospective and continuing remuneration of existing judges at the highest pay step in their pay grade?

| 9. | If Questions 1 to 3 are answered in the affirmative and Question 6 is answered in the negative: does it follow from the interpretation of European primary and/or secondary law that a provision of a transitional law which secures faster pay progression from a certain pay step onwards for existing judges who had reached a certain age at the time of transition than for existing judges who were younger on the transition date constitutes direct or indirect age discrimination? |
| --- | --- |

9.

If Questions 1 to 3 are answered in the affirmative and Question 6 is answered in the negative: does it follow from the interpretation of European primary and/or secondary law that a provision of a transitional law which secures faster pay progression from a certain pay step onwards for existing judges who had reached a certain age at the time of transition than for existing judges who were younger on the transition date constitutes direct or indirect age discrimination?

| 10. | If Question 9 is answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this difference in treatment by the legislative aim of protecting not the acquired rights existing on the transition date but only the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration? |
| --- | --- |

10.

If Question 9 is answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this difference in treatment by the legislative aim of protecting not the acquired rights existing on the transition date but only the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration?

| 11. | If such justification is rejected in Question 10: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing judges, permit a legal consequence other than that of securing — retrospectively and on a continuing basis — the same pay progression for all existing judges as the favoured judges referred to in Question 9? |
| --- | --- |

11.

If such justification is rejected in Question 10: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing judges, permit a legal consequence other than that of securing — retrospectively and on a continuing basis — the same pay progression for all existing judges as the favoured judges referred to in Question 9?

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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).

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/12 |
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23.3.2013

EN

Official Journal of the European Union

C 86/12

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Request for a preliminary ruling from the Tribunale di Napoli (Italy) lodged on 17 January 2013 — Mascolo v Ministero dell’Istruzione, dell’Università e della Ricerca

(Case C-22/13)

2013/C 86/20

Language of the case: Italian

Referring court

Tribunale di Napoli

Parties to the main proceedings

Applicant: Raffaella Mascolo

Defendant: Ministero dell’Istruzione, dell’Università e della Ricerca

Questions referred

| 1. | Does the regulatory framework for the schools sector [which allows for successive fixed-term contracts to be concluded with the same teacher for an indefinite number of times and without any break in continuity, in order, inter alia, to address permanent staff-related requirements] constitute an equivalent measure within the meaning of Clause 5 of [the framework agreement set out in the annex to] Directive 1999/70/EC? (1) |
| --- | --- |

1.

Does the regulatory framework for the schools sector [which allows for successive fixed-term contracts to be concluded with the same teacher for an indefinite number of times and without any break in continuity, in order, inter alia, to address permanent staff-related requirements] constitute an equivalent measure within the meaning of Clause 5 of [the framework agreement set out in the annex to] Directive 1999/70/EC? (1)

| 2. | When is an employment relationship to be regarded as being for the public service of the ‘State’, for the purposes of Clause 5 of [the framework agreement set out in the annex to] Directive 1999/70/EC and, in particular, within the meaning of the expression ‘specific sectors and/or categories of workers’, and thus capable of justifying results that are different from those which ensue from employment relationships in the private sector? |
| --- | --- |

2.

When is an employment relationship to be regarded as being for the public service of the ‘State’, for the purposes of Clause 5 of [the framework agreement set out in the annex to] Directive 1999/70/EC and, in particular, within the meaning of the expression ‘specific sectors and/or categories of workers’, and thus capable of justifying results that are different from those which ensue from employment relationships in the private sector?

| 3. | Having regard to the explanations contained in Article 3(1)(c) of Directive 2000/78/EC (2) and in Article 14(1)(c) of Directive 2006/54/EC, (3) does the notion of employment conditions contained in Clause 4 of [the framework agreement set out in the annex to] Directive 1999/70/EC also include the consequences of the unlawful interruption of an employment relationship? If the answer to the preceding question is in the affirmative, is the difference between the consequences normally provided for in national law for the unlawful interruption of fixed-term employment relationships and for the unlawful interruption of employment relationships of indefinite duration justifiable under Clause 4? |
| --- | --- |

3.

Having regard to the explanations contained in Article 3(1)(c) of Directive 2000/78/EC (2) and in Article 14(1)(c) of Directive 2006/54/EC, (3) does the notion of employment conditions contained in Clause 4 of [the framework agreement set out in the annex to] Directive 1999/70/EC also include the consequences of the unlawful interruption of an employment relationship? If the answer to the preceding question is in the affirmative, is the difference between the consequences normally provided for in national law for the unlawful interruption of fixed-term employment relationships and for the unlawful interruption of employment relationships of indefinite duration justifiable under Clause 4?

| 4. | By virtue of the principle of sincere cooperation, is a State precluded from presenting to the Court of Justice of the European Union in a request for a preliminary ruling a deliberately untrue description of a national legislative framework and are the national courts obliged, in the absence of any alternative interpretation of national law that also satisfies the obligations deriving from membership of the European Union to the same degree, to interpret, where possible, national law in accordance with the interpretation given by the State? |
| --- | --- |

4.

By virtue of the principle of sincere cooperation, is a State precluded from presenting to the Court of Justice of the European Union in a request for a preliminary ruling a deliberately untrue description of a national legislative framework and are the national courts obliged, in the absence of any alternative interpretation of national law that also satisfies the obligations deriving from membership of the European Union to the same degree, to interpret, where possible, national law in accordance with the interpretation given by the State?

| 5. | Is a statement of the circumstances in which a fixed-term employment contract may be converted into a permanent contract one of the conditions applicable to the contract or employment relationship contemplated by Directive 91/533/EC, (4) in particular, by Article 2(1) and (2)(e) thereof? |
| --- | --- |

5.

Is a statement of the circumstances in which a fixed-term employment contract may be converted into a permanent contract one of the conditions applicable to the contract or employment relationship contemplated by Directive 91/533/EC, (4) in particular, by Article 2(1) and (2)(e) thereof?

| 6. | If the answer to the preceding question is in the affirmative, is a retroactive amendment to the legislative framework which does not guarantee that employees can claim the rights conferred on them by the directive, that is to say, that the conditions of employment specified in the document under which they were recruited will be observed, contrary to Article 8(1) of Directive 91/533/EEC and to the objectives of that directive, in particular those mentioned in the second recital of the preamble thereto? |
| --- | --- |

6.

If the answer to the preceding question is in the affirmative, is a retroactive amendment to the legislative framework which does not guarantee that employees can claim the rights conferred on them by the directive, that is to say, that the conditions of employment specified in the document under which they were recruited will be observed, contrary to Article 8(1) of Directive 91/533/EEC and to the objectives of that directive, in particular those mentioned in the second recital of the preamble thereto?

---

(1)  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).

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

(3)  Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23).

(4)  Council Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ 1991 L 288, p. 32).

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/13 |
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23.3.2013

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Official Journal of the European Union

C 86/13

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Request for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 24 January 2013 — ASS.I.CA. and Kraft Foods Italia SpA v Associazioni fra produttori per la tutela del ‘Salame Felino’ and Others

(Case C-35/13)

2013/C 86/21

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Appellants: ASS.I.CA. — Associazione Industriali delle Carni, Kraft Foods Italia SpA

Respondents: Associazioni fra produttori per la tutela del ‘Salame Felino’ and Others

Questions referred

| 1. | Should Article 2 of Regulation (EEC) No 2081/92 (1) be interpreted as precluding a producers’ association from being able to claim the right exclusively to use, within the [European Union], a designation of geographical origin used within a Member State to designate a specific type of salami sausage, without having first obtained a legally binding measure from that Member State establishing the boundaries of the geographical area of production, the rules and regulations governing production, and any requirements which producers may have to satisfy in order to be entitled to use that designation? |
| --- | --- |

1.

Should Article 2 of Regulation (EEC) No 2081/92 (1) be interpreted as precluding a producers’ association from being able to claim the right exclusively to use, within the [European Union], a designation of geographical origin used within a Member State to designate a specific type of salami sausage, without having first obtained a legally binding measure from that Member State establishing the boundaries of the geographical area of production, the rules and regulations governing production, and any requirements which producers may have to satisfy in order to be entitled to use that designation?

| 2. | In the light of Regulation (EEC) No 2081/92, which set of rules should be applied within the [European Union] market and also within the market of a Member State to a geographical designation which has not obtained the registration referred to in that regulation? |
| --- | --- |

2.

In the light of Regulation (EEC) No 2081/92, which set of rules should be applied within the [European Union] market and also within the market of a Member State to a geographical designation which has not obtained the registration referred to in that regulation?

---

(1)  Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1992 L 208, p. 1).

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/14 |
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23.3.2013

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Official Journal of the European Union

C 86/14

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Appeal brought on 31 January 2013 by the Federal Republic of Germany against the judgment of the General Court (Third Chamber) delivered on 21 November 2012 in Case T-270/08 Federal Republic of Germany v European Commission

(Case C-54/13 P)

2013/C 86/22

Language of the case: German

Parties

Appellant: Federal Republic of Germany (represented by: T. Henze, acting as Agent, C. von Donat and J. Lipinsky, Rechtanwälte)

Other parties to the proceedings: European Commission, Kingdom of Spain, Kingdom of the Netherlands, French Republic

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court of the European Union of 21 November 2012 in Case T-270/08 Federal Republic of Germany, Kingdom of Spain (intervener), French Republic (intervener), Kingdom of the Netherlands (intervener) v European Commission, concerning the annulment of Commission Decision C(2008) 1615 final of 29 April 2008 reducing the financial contribution under the European Regional Development Fund (ERDF) initially granted for the Operational Programme falling under Objective 1 (1994-1999) for Berlin (East) in the Federal Republic of Germany, and annul the aforementioned decision of the Commission; |
| --- | --- |

—

set aside the judgment of the General Court of the European Union of 21 November 2012 in Case T-270/08 Federal Republic of Germany, Kingdom of Spain (intervener), French Republic (intervener), Kingdom of the Netherlands (intervener) v European Commission, concerning the annulment of Commission Decision C(2008) 1615 final of 29 April 2008 reducing the financial contribution under the European Regional Development Fund (ERDF) initially granted for the Operational Programme falling under Objective 1 (1994-1999) for Berlin (East) in the Federal Republic of Germany, and annul the aforementioned decision of the Commission;

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

—

order the Commission to pay the costs of the proceedings.

Grounds of appeal and main arguments

The appellant relies on four grounds in support of its appeal.

| | First ground of appeal: The General Court infringed Article 24(2) of Regulation No 4253/88 (1) in conjunction with Article 1 of Regulation No 2988/952 (2) and the principle of conferred powers (formerly Article 5 EC, now Article 5(2) EU, Article 7 TFEU), since, in the judgment under appeal, it made an error of law in assuming that a purely administrative error on the part of the national authorities constitutes an ‘irregularity’, which entitles the Commission to reduce financial assistance under Article 24(2) of Regulation No 4253/88. |
| --- | --- |

First ground of appeal: The General Court infringed Article 24(2) of Regulation No 4253/88 (1) in conjunction with Article 1 of Regulation No 2988/952 (2) and the principle of conferred powers (formerly Article 5 EC, now Article 5(2) EU, Article 7 TFEU), since, in the judgment under appeal, it made an error of law in assuming that a purely administrative error on the part of the national authorities constitutes an ‘irregularity’, which entitles the Commission to reduce financial assistance under Article 24(2) of Regulation No 4253/88.

| | Second ground of appeal: The General Court infringed Article 24(2) of Regulation No 4253/88 in conjunction with the principle of conferred powers (Article 5(2) EU, Article 7 TFEU), as it unlawfully authorised the Commission to make financial corrections by way of extrapolation (first part of the second ground of appeal). However, even if it could be inferred from Article 24(2) of Regulation No 4253/88 that the Commission is authorised to make reductions by way of extrapolation, the General Court wrongly approved the way in which that extrapolation was carried out in the present case. First, the Commission cannot systematically deem the error complained of to apply to the entire operational programme and extrapolate the resulting erroneous rate to the entire programme. Second, the Commission was not able to apply the samples which it used to reduce the financial contribution for the entire programme by means of extrapolation (second part of the second ground of appeal). Moreover, through the extrapolation of unrepresentative errors and flat-rate corrections, the Commission made disproportionate reductions in the financial contribution to the operational programme (third part of the second ground of appeal). |
| --- | --- |

Second ground of appeal: The General Court infringed Article 24(2) of Regulation No 4253/88 in conjunction with the principle of conferred powers (Article 5(2) EU, Article 7 TFEU), as it unlawfully authorised the Commission to make financial corrections by way of extrapolation (first part of the second ground of appeal). However, even if it could be inferred from Article 24(2) of Regulation No 4253/88 that the Commission is authorised to make reductions by way of extrapolation, the General Court wrongly approved the way in which that extrapolation was carried out in the present case. First, the Commission cannot systematically deem the error complained of to apply to the entire operational programme and extrapolate the resulting erroneous rate to the entire programme. Second, the Commission was not able to apply the samples which it used to reduce the financial contribution for the entire programme by means of extrapolation (second part of the second ground of appeal). Moreover, through the extrapolation of unrepresentative errors and flat-rate corrections, the Commission made disproportionate reductions in the financial contribution to the operational programme (third part of the second ground of appeal).

| | Third ground of appeal: The judgment under appeal also infringes Article 24(2) of Regulation No 4253/88 in conjunction with the principle of conferred powers, since the General Court appears to have wrongly assumed that the Commission was authorised to make a flat-rate correction (first part of the third ground of appeal). Even if the Commission had such authority to make a flat-rate correction, the General Court would still have been in error in accepting the Commission’s disproportionate flat-rate correction in the present case (second part of the third ground of appeal). |
| --- | --- |

Third ground of appeal: The judgment under appeal also infringes Article 24(2) of Regulation No 4253/88 in conjunction with the principle of conferred powers, since the General Court appears to have wrongly assumed that the Commission was authorised to make a flat-rate correction (first part of the third ground of appeal). Even if the Commission had such authority to make a flat-rate correction, the General Court would still have been in error in accepting the Commission’s disproportionate flat-rate correction in the present case (second part of the third ground of appeal).

| | Fourth ground of appeal: Finally, the General Court infringed the duty to provide grounds for its decisions, laid down in Article 81 of the Rules of Procedure of the General Court in conjunction with Articles 36 and 53(1) of the Statute of the Court of Justice, since it is not apparent from the grounds for the judgment under appeal that the General Court addressed the appellant’s claims relating to the inadmissibility of flat-rate financial corrections (first part of the second ground of appeal) or the reasons for rejecting those claims are not apparent. |
| --- | --- |

Fourth ground of appeal: Finally, the General Court infringed the duty to provide grounds for its decisions, laid down in Article 81 of the Rules of Procedure of the General Court in conjunction with Articles 36 and 53(1) of the Statute of the Court of Justice, since it is not apparent from the grounds for the judgment under appeal that the General Court addressed the appellant’s claims relating to the inadmissibility of flat-rate financial corrections (first part of the second ground of appeal) or the reasons for rejecting those claims are not apparent.

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(1)  Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).

(2)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).

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General Court

| 23.3.2013 | EN | Official Journal of the European Union | C 86/15 |
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Order of the General Court of 29 January 2013 — Sagar v Commission

(Case T-269/00) (1)

(Action for annulment - State aid - Reductions in social security contributions for undertakings in Venice and Chioggia - Decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid - Action manifestly lacking any foundation in law)

2013/C 86/23

Language of the case: Italian

Parties

Applicant: Sagar Srl (Segrate, Italy) (represented by: A. Vianello, M. Merola and M. Pappalardo, lawyers)

Defendant: European Commission (represented by: V. Di Bucci, Agent, and by A. Dal Ferro, lawyer)

Interveners in support of the applicant: Italian Republic (represented by: U. Leanza initially, then I. Braguglia, then R. Adam and finally I. Bruni, Agents, and by G. Aiello and P. Gentili, avvocati dello Stato)

Re:

Application for annulment of Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50)

Operative part of the order

| 1. | The plea of inadmissibility raised by the European Commission is joined to the main proceedings. |
| --- | --- |

1.

The plea of inadmissibility raised by the European Commission is joined to the main proceedings.

| 2. | The action is dismissed as manifestly lacking any foundation in law. |
| --- | --- |

2.

The action is dismissed as manifestly lacking any foundation in law.

| 3. | Sagar Srl, in addition to bearing its own costs, is to pay the costs incurred by the Commission. |
| --- | --- |

3.

Sagar Srl, in addition to bearing its own costs, is to pay the costs incurred by the Commission.

| 4. | The Italian Republic is to bear its own costs. |
| --- | --- |

4.

The Italian Republic is to bear its own costs.

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(1)  OJ C 355, 9.12.2000.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/15 |
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Order of the General Court of 29 January 2013 — Barbini and Others v Commission

(Case T-272/00) (1)

(Action for annulment - State aid - Reductions in social security contributions for undertakings in Venice and Chioggia - Decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid - Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

2013/C 86/24

Language of the case: Italian

Parties

Applicants: Alfredo Barbini Srl (Murano, Italy); Aureliano Toso Srl (Murano); AVMazzega Srl (Murano); Barovier & Toso vetrerie artistiche riunite Srl (Murano); Carlo Moretti Srl (Murano); Effetre SpA (Resana, Italy); Ferro & Lazzarini Srl (Murano); Formia Srl (Murano); Gino Cenedese & Figlio (Murano); La Murrina (Murano); Mazzuccato International Srl (Murano); Nason & Moretti Srl, (Murano); Tfz Internazionale Srl (Murano); V. Nason & C. Srl (Murano); Venini SpA (Murano); Vetreria de Majo Srl (Murano); and Vetreria LAG Srl (Murano) (represented by: A. Vianello, M. Merola and A. Sodano, lawyers)

Defendant: European Commission (represented by: V. Di Bucci, Agent, and by A. Dal Ferro, lawyer)

Intervener in support of the applicants: Italian Republic (represented by: U. Leanza initially, then by I. Braguglia, then R. Adam and finally I. Bruni, Agents, and by G. Aiello and P. Gentili, avvocati dello Stato)

Re:

Application for annulment of Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50)

Operative part of the order

| 1. | The plea of inadmissibility raised by the European Commission is joined to the main proceedings. |
| --- | --- |

1.

The plea of inadmissibility raised by the European Commission is joined to the main proceedings.

| 2. | The action is dismissed as, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law. |
| --- | --- |

2.

The action is dismissed as, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law.

| 3. | Alfredo Barbini Srl, Aureliano Toso Srl, AVMazzega Srl, Barovier & Toso vetrerie artistiche riunite Srl, Carlo Moretti Srl, Effetre SpA, Ferro & Lazzarini Srl, Formia Srl, Gino Cenedese & Figlio, La Murrina, Mazzuccato International Srl, Nason & Moretti Srl, Tfz Internazionale Srl, V. Nason & C. Srl, Venini SpA, Vetreria de Majo Srl, and Vetreria LAG Srl, in addition to bearing their own costs, are to pay the costs incurred by the Commission. |
| --- | --- |

3.

Alfredo Barbini Srl, Aureliano Toso Srl, AVMazzega Srl, Barovier & Toso vetrerie artistiche riunite Srl, Carlo Moretti Srl, Effetre SpA, Ferro & Lazzarini Srl, Formia Srl, Gino Cenedese & Figlio, La Murrina, Mazzuccato International Srl, Nason & Moretti Srl, Tfz Internazionale Srl, V. Nason & C. Srl, Venini SpA, Vetreria de Majo Srl, and Vetreria LAG Srl, in addition to bearing their own costs, are to pay the costs incurred by the Commission.

| 4. | The Italian Republic is to bear its own costs. |
| --- | --- |

4.

The Italian Republic is to bear its own costs.

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(1)  OJ C 355, 9.12.2000.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/16 |
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Official Journal of the European Union

C 86/16

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Order of the General Court of 29 January 2013 — Unindustria and Others v Commission

(Case T-273/00) (1)

(Action for annulment - State aid - Reductions in social security contributions for undertakings in Venice and Chioggia - Decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid - Action manifestly lacking any foundation in law)

2013/C 86/25

Language of the case: Italian

Parties

Applicants: Unione degli industriali della provincia di Venezia (Unindustria) (Venice, Italy); Comitato «Venezia vuole vivere» (Venice); Siram SpA (Milan, Italy); Fiorital Srl (Venice); Jesurum di M. e A. Levi Morenos Sas (Venice); Grafiche Veneziane Srl (Venice); Cantiere navale De Poli SpA (Pellestrina, Italy); Aive Srl (Marcon, Italy); Bortoli Ettore Srl (Venice); Tessuti Artistici Fortuny SpA (Venice); Lorenzo Rubelli SpA (Venice); Tecnomare SpA (Venice); and Arsenale Venezia SpA (Venice) (represented by: A. Vianello, M. Merola and A. Sodano, lawyers)

Defendant: European Commission (represented by: V. Di Bucci, Agent, and by A. Dal Ferro, lawyer)

Intervener in support of the applicants: Italian Republic (represented by: U. Leanza initially, then I. Braguglia, then R. Adam and finally I. Bruni, Agents, and by G. Aiello and P. Gentili, avvocati dello Stato)

Re:

Application for annulment of Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50)

Operative part of the order

| 1. | The plea of inadmissibility raised by the European Commission is joined to the main proceedings. |
| --- | --- |

1.

The plea of inadmissibility raised by the European Commission is joined to the main proceedings.

| 2. | The action is dismissed as manifestly lacking any foundation in law. |
| --- | --- |

2.

The action is dismissed as manifestly lacking any foundation in law.

| 3. | The Unione degli industriali della provincia di Venezia (Unindustria), the Comitato ‘Venezia vuole vivire’, Siram SpA, Fiorital Srl, Jesurum di M. e A. Levi Morenos Sas, Grafiche Veneziane Srl, Cantiere navale De Poli SpA, Aive Srl, Bortoli Ettore Srl, Tessuti Artistici Fortuny SpA, Lorenzo Rubelli SpA, Tecnomare SpA and Arsenale Venezia SpA, in addition to bearing their own costs, are to pay the costs incurred by the Commission; |
| --- | --- |

3.

The Unione degli industriali della provincia di Venezia (Unindustria), the Comitato ‘Venezia vuole vivire’, Siram SpA, Fiorital Srl, Jesurum di M. e A. Levi Morenos Sas, Grafiche Veneziane Srl, Cantiere navale De Poli SpA, Aive Srl, Bortoli Ettore Srl, Tessuti Artistici Fortuny SpA, Lorenzo Rubelli SpA, Tecnomare SpA and Arsenale Venezia SpA, in addition to bearing their own costs, are to pay the costs incurred by the Commission;

| 4. | The Italian Republic is to bear its own costs. |
| --- | --- |

4.

The Italian Republic is to bear its own costs.

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(1)  OJ C 355, 9.12.2000.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/16 |
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Order of the President of the General Court of 1 February 2013 — Travetanche Injection v Commission

(Case T-368/11 R)

(Application for interim measures - Dismissal of the main action - No need to adjudicate)

2013/C 86/26

Language of the case: English

Parties

Applicant: Travetanche Injection SPRL (Brussels, Belgium) (represented by: K. Van Maldegem and R. Cana, lawyers)

Defendant: European Commission (represented by: P. Oliver and E. Manhaeve, Agents, assisted by K. Sawyer, Barrister)

Re:

Application for suspension of operation of Commission Regulation (EU) No 366/2011 of 14 April 2011 amending Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) as regards Annex XVII (Acrylamide)

Operative part of the order

There is no longer any need to adjudicate on the application for interim measures.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/17 |
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23.3.2013

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Official Journal of the European Union

C 86/17

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Order of the General Court of 5 February 2013 — BSI v Council

(Case T-551/11) (1)

(Action for annulment - Dumping - Extension of anti-dumping duty imposed on the imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia - Independent importer - Article 263, fourth paragraph of TFEU - Lack of individual concern - Legislative measure containing implementing measure - Inadmissible)

2013/C 86/27

Language of the case: Italian

Parties

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

Defendant: Council of the European Union (represented by: J.-P. Hix and P. Mahnič Bruni, Agents, assisted initially by G. Berrisch and M. de Morpurgo, then by G. Berrisch, lawyers)

Intervener in support of the defendant: European Commission (represented by: M. França and D. Grespan, Agents)

Re:

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

Operative part of the order

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

The action is dismissed as inadmissible.

| 2. | Brugola Service International Srl (BSI) is ordered to bear its own costs and to pay those incurred by the Council of the European Union. |
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2.

Brugola Service International Srl (BSI) is ordered to bear its own costs and to pay those incurred by the Council of the European Union.

| 3. | The European Commission is ordered to bear its own costs. |
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3.

The European Commission is ordered to bear its own costs.

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(1)  OJ C 370, 17.12.2011.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/17 |
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23.3.2013

EN

Official Journal of the European Union

C 86/17

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Appeal brought on 8 January 2013 by Dana Mocová against the judgment of the Civil Service Tribunal of 13 June 2012 in Case F-41/11 Mocová v Commission

(Case T-347/12 P)

2013/C 86/28

Language of the case: French

Parties

Appellant: Dana Mocová (Prague, Czech Republic) (represented by: D. Abreu Caldas, S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Other party to the proceedings: European Commission

Form of order sought by the appellant

The appellant claims that the General Court should:

| — | Set aside the judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 in Case F-41/11 Dana Mocová v European Commission; |
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Set aside the judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 in Case F-41/11 Dana Mocová v European Commission;

| — | Annul the decision rejecting the request for renewal of the appellant’s contract; |
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Annul the decision rejecting the request for renewal of the appellant’s contract;

| — | Order the Commission to pay the costs of the proceedings at first instance and the appeal proceedings. |
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—

Order the Commission to pay the costs of the proceedings at first instance and the appeal proceedings.

Pleas in law and main arguments

The appellant relies on two grounds of appeal.

| 1. | First ground of appeal, alleging an error of law as regards the scope of the principle of legality, since the Civil Service Tribunal (CST) considered, first, that the reasons given by the authority empowered to conclude contracts of employment (‘the AECE’) at the stage at which the complaint was rejected can be substituted for and alter the reasons given when the appellant’s request for extension of her contract as a member of the temporary staff was rejected and, second, that the reasoning is valid even those it is based on factors established after the contested measure was adopted. The appellant submits that:






  — | if, in the present case, the appellant’s contract was not renewed on account of the rule prohibiting cumulative periods of service of more than eight years, the AECE was not subsequently entitled to state, in its response to the complaint, that the contract had not been renewed on account of budgetary constraints, the appellant’s merits and the interests of the service, and then go on to claim, before the Tribunal, that the only reason for non-renewal was budgetary constraints; |
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1.

First ground of appeal, alleging an error of law as regards the scope of the principle of legality, since the Civil Service Tribunal (CST) considered, first, that the reasons given by the authority empowered to conclude contracts of employment (‘the AECE’) at the stage at which the complaint was rejected can be substituted for and alter the reasons given when the appellant’s request for extension of her contract as a member of the temporary staff was rejected and, second, that the reasoning is valid even those it is based on factors established after the contested measure was adopted. The appellant submits that:

—

if, in the present case, the appellant’s contract was not renewed on account of the rule prohibiting cumulative periods of service of more than eight years, the AECE was not subsequently entitled to state, in its response to the complaint, that the contract had not been renewed on account of budgetary constraints, the appellant’s merits and the interests of the service, and then go on to claim, before the Tribunal, that the only reason for non-renewal was budgetary constraints;

| — | the CST is required, contrary to what is stated at paragraph 50 of the judgment under appeal, to examine the plea of illegality in respect of the eight year rule, a plea which was raised when the request for extension of the contract as a temporary member of staff was rejected. |
| --- | --- |

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the CST is required, contrary to what is stated at paragraph 50 of the judgment under appeal, to examine the plea of illegality in respect of the eight year rule, a plea which was raised when the request for extension of the contract as a temporary member of staff was rejected.

| 2. | Second ground of appeal, alleging an error of law, on the basis that the CST took the view that the AECE had taken the contested decision with due regard to the interests of the service, even though the CST stated that the Commission had acknowledged at the hearing that only budgetary constraints could have been invoked at first instance as justification for the contested decision. The appellant also submits that the CST failed to have regard to its duty to state reasons and its duty to examine all the breaches of law alleged before it, in that it failed to make any reference to the appellant’s arguments concerning the contradiction between the reasons given relating to the laying off of staff due to budgetary constraints and the creation of new posts for temporary staff at Grade AD9. |
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2.

Second ground of appeal, alleging an error of law, on the basis that the CST took the view that the AECE had taken the contested decision with due regard to the interests of the service, even though the CST stated that the Commission had acknowledged at the hearing that only budgetary constraints could have been invoked at first instance as justification for the contested decision. The appellant also submits that the CST failed to have regard to its duty to state reasons and its duty to examine all the breaches of law alleged before it, in that it failed to make any reference to the appellant’s arguments concerning the contradiction between the reasons given relating to the laying off of staff due to budgetary constraints and the creation of new posts for temporary staff at Grade AD9.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/18 |
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23.3.2013

EN

Official Journal of the European Union

C 86/18

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Action brought on 4 January 2013 — Advance Magazine Publishers/OHIM — Montres Tudor (GLAMOUR)

(Case T-1/13)

2013/C 86/29

Language in which the application was lodged: English

Parties

Applicant: Advance Magazine Publishers, Inc. (New York, United States) (represented by: T. Raab, H. Lauf and V. Ahmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Montres Tudor SA (Geneva, Switzerland)

Form of order sought

The applicant claims that the Court should:

| — | Fully set aside the decision of the Second Board of Appeal of the Office for the Harmonization in the Internal Market (Trade Marks and Designs) of 10 October 2012, appeal no. R 0231/2012-2; |
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Fully set aside the decision of the Second Board of Appeal of the Office for the Harmonization in the Internal Market (Trade Marks and Designs) of 10 October 2012, appeal no. R 0231/2012-2;

| — | award the costs of the proceedings against the defendant and the other party to the proceedings before the Board of Appeal of OHIM. |
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award the costs of the proceedings against the defendant and the other party to the proceedings before the Board of Appeal of OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘GLAMOUR’ Community trade mark application No 9 380 916

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

Mark or sign cited in opposition: International registration with effect in the Community, ‘TUDOR GLAMOUR’ for goods in class 14

Decision of the Opposition Division: Upheld the opposition for all the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/18 |
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23.3.2013

EN

Official Journal of the European Union

C 86/18

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Action brought on 4 January 2013 — Sherwin-Williams Sweden/OHIM — Akzo Nobel Coatings International (ARTI)

(Case T-12/13)

2013/C 86/30

Language in which the application was lodged: English

Parties

Applicant: Sherwin-Williams Sweden AB (Märsta, Sweden) (represented by: L. Ström, lawyer)

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

Other party to the proceedings before the Board of Appeal: Akzo Nobel Coatings International BV (Arnhem, Netherlands)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the OHIM First Board of Appeal No R 2085/2011-1 dated, 18 October 2012, (confirming the decision of the Opposition Division Opposition No B 1 717 142, dated 9 August 2011); |
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Annul the decision of the OHIM First Board of Appeal No R 2085/2011-1 dated, 18 October 2012, (confirming the decision of the Opposition Division Opposition No B 1 717 142, dated 9 August 2011);

| — | Award the costs in favour of the applicant. |
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Award the costs in favour of the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘ARTI’ for goods in class 2 — Community trade mark registration No 9 017 427

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

Mark or sign cited in opposition: Benelux trade mark registration No 753 216 and International Trade mark registration No 872 478 of the word mark ‘ARTITUDE’ for goods in class 2

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/19 |
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23.3.2013

EN

Official Journal of the European Union

C 86/19

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Action brought on 3 January 2013 — MasterCard International/OHIM — Nehra (surfpin)

(Case T-13/13)

2013/C 86/31

Language in which the application was lodged: English

Parties

Applicant: MasterCard International, Inc. (New York, United States) (represented by: N. Bolter and C. Sawdy, solicitors)

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

Other party to the proceedings before the Board of Appeal: Sheetal Nehra (London, United Kingdom)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision under Articles 8(1)(b), 8(4) and 8(5) CTMR; |
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—

Annul the decision under Articles 8(1)(b), 8(4) and 8(5) CTMR;

| — | Uphold the applicant’s opposition filed against the respondent’s mark in its entirety; |
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Uphold the applicant’s opposition filed against the respondent’s mark in its entirety;

| — | In the alternative, uphold the applicant’s opposition in respect of such services for which it is found that a likelihood of confusion exists and/or for such services where it is determined there exists a risk of the application mark taking unfair advantage of, or being detrimental to, the distinctive character or repute of the applicant’s mark; and |
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In the alternative, uphold the applicant’s opposition in respect of such services for which it is found that a likelihood of confusion exists and/or for such services where it is determined there exists a risk of the application mark taking unfair advantage of, or being detrimental to, the distinctive character or repute of the applicant’s mark; and

| — | Order the respondent to pay the cost of the applicant. |
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Order the respondent to pay the cost of the applicant.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark in blue, black and white containing the word element ‘surfpin’ and a device of three overlapping circles for services in classes 36 — Community trade mark application No 8 368 862

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

Mark or sign cited in opposition: Figurative marks in different colours containing a device of overlapping circles and some of them the word elements ‘MasterCard Worldwide’ or ‘MasterCard’ — Community trade mark registration No 5 198 585, Community trade mark registration No 5 198 494, UK trade mark registration No 2 425 471, UK trade mark registration No 2 429 669, Community trade mark registration No 5 646 261, Community trade mark registration No 761 221, Community trade mark registration No 5 646 492 and Community trade mark registration No 5 646 609 for goods and services in classes 3, 5, 6, 9, 12, 14, 16, 18, 20, 21, 24, 25, 27, 28, 35, 36, 38, 39, 41, 42, 43, 44 and 45

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and (4) and (5) of Council Regulation No 207/2009.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/19 |
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23.3.2013

EN

Official Journal of the European Union

C 86/19

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Action brought on 3 January 2013 — Seal Trademarks/OHIM — Exel Composites (XCEL)

(Case T-14/13)

2013/C 86/32

Language in which the application was lodged: English

Parties

Applicant: Seal Trademarks Pty Ltd (Queensland, Australia) (represented by: E. Armijo Chávarri, lawyer)

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

Other party to the proceedings before the Board of Appeal: Exel Composites Oyj (Mäntyharju, Finland)

Form of order sought

The applicant claims that the Court should:

| — | Annul the Second Board of Appeal’s Decision of 11 October 2012 or; |
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Annul the Second Board of Appeal’s Decision of 11 October 2012 or;

| — | Subsidiarily, modify it, because it goes contrary to Articles 42, paragraphs 2 and 3, and 8, paragraph 1, letter b) of the CTMR (expressly sentencing OHIM to court fees). |
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Subsidiarily, modify it, because it goes contrary to Articles 42, paragraphs 2 and 3, and 8, paragraph 1, letter b) of the CTMR (expressly sentencing OHIM to court fees).

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘XCEL’ for goods in classes 18, 25 and 28 — Community trade mark registration No 3 809 571

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

Mark or sign cited in opposition: Community trade mark registration No 2 996 891, Austrian trade mark registration No 149 726 and Swedish trade mark registration No 324 307 of the word mark ‘EXEL’ for goods in classes 18 and 28

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 42(2) and (3) and 8(1)(b) of Council Regulation No 207/2009.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/20 |
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23.3.2013

EN

Official Journal of the European Union

C 86/20

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Action brought on 18 January 2013 — dm-drogerie markt/OHIM — Semtee (CALDEA)

(Case T-26/13)

2013/C 86/33

Language in which the application was lodged: English

Parties

Applicant: dm-drogerie markt GmbH & Co. KG (Karlsruhe, Germany) (represented by: O. Bludovsky and B. Beinert, lawyers)

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

Other party to the proceedings before the Board of Appeal: Semtee (Escaldes Engornay, Andorra)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the Fits Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Design) of 10 October 2012 (Appeal relating to Opposition Proceedings No R 2432/2011-1) and, by the way of correction, delete the applicant’s trademark; |
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Annul the decision of the Fits Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Design) of 10 October 2012 (Appeal relating to Opposition Proceedings No R 2432/2011-1) and, by the way of correction, delete the applicant’s trademark;

| — | Alternatively annul the decision of the Fits Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Design) of 10 October 2012 (Appeal relating to Opposition Proceedings No R 2432/2011-1) and, to remit the case to the Office for Harmonisation; |
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Alternatively annul the decision of the Fits Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Design) of 10 October 2012 (Appeal relating to Opposition Proceedings No R 2432/2011-1) and, to remit the case to the Office for Harmonisation;

| — | Alternatively annul the decision of the Fits Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Design) of 10 October 2012 (Appeal relating to Opposition Proceedings No R 2432/2011-1). |
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Alternatively annul the decision of the Fits Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Design) of 10 October 2012 (Appeal relating to Opposition Proceedings No R 2432/2011-1).

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘CALDEA’, for goods and services in classes 3, 35, 37, 42, 44 and 45 — Community trade mark application No 9 264 433

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

Mark or sign cited in opposition: International registration with effect inter alia in the European Union No 894 004 for goods in classes 3, 5 and 8

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and (5) of Council Regulation No 207/2009.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/20 |
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23.3.2013

EN

Official Journal of the European Union

C 86/20

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Action brought on 23 January 2013 — Elan v Commission

(Case T-27/13)

2013/C 86/34

Language of the case: Slovene

Parties

Applicant: Elan, proizvodnja športnih izdelkov, d.o.o. (Begunje na Gorenskem, Slovenia) (represented by: P. Pensa, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Articles 2 to 5 of Commission Decision of 19 September 2012 on the measures in favour of the undertaking ELAN d.o.o., SA.26379 (C 13/2010); |
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annul Articles 2 to 5 of Commission Decision of 19 September 2012 on the measures in favour of the undertaking ELAN d.o.o., SA.26379 (C 13/2010);

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

Pleas in law and main arguments

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

| 1. | First plea in law: breach of the duty to give reasons (Article 296 TFEU, second paragraph) and breach of essential procedural requirements for want of reasons (Article 263 TFEU, second paragraph)
  The Commission has given inadequate reasons to explain why it ascribes to the State the capital contribution made by the companies Zavarovalnica Triglav and Triglav Naložbe. What is more, it has not explained why it did not accept the transfers within the marine division of the company Elan as proper compensatory measures. |
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1.

First plea in law: breach of the duty to give reasons (Article 296 TFEU, second paragraph) and breach of essential procedural requirements for want of reasons (Article 263 TFEU, second paragraph)

The Commission has given inadequate reasons to explain why it ascribes to the State the capital contribution made by the companies Zavarovalnica Triglav and Triglav Naložbe. What is more, it has not explained why it did not accept the transfers within the marine division of the company Elan as proper compensatory measures.

| 2. | Second plea in law: infringement of Article 107(1) TFEU by reason of a manifest error in the assessment of the facts with regard to the existence of State resources and because the Commission ascribed to the State the conduct of the companies Zavarovalnica Triglav, Triglav Naložbe and KAD-PPS
  In the first place, the Commission committed a manifest error in assessing the facts with regard to the control and influence of the State over the Zavod za pokojninsko in invalidsko zavarovanje (ZPIZ) [Institute for pension and invalidity insurance] and hence over the companies Zavarovalnica Triglav and Triglav Naložbe. In the second place, the Commission has not mentioned any of the indicators necessary, in accordance with the Stardust Marine case-law (Case C–482/99 France v Commission [2002] ECR I–4397), if it is to be possible to ascribe to the State the conduct of the companies FAD-PPS, Zavarovalnica Triglav and Triglav Naložbe, quite overlooking the fact that the private companies Zavarovalnica Triglav e Triglav Naložbe exercised negative control over Elan. |
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2.

Second plea in law: infringement of Article 107(1) TFEU by reason of a manifest error in the assessment of the facts with regard to the existence of State resources and because the Commission ascribed to the State the conduct of the companies Zavarovalnica Triglav, Triglav Naložbe and KAD-PPS

In the first place, the Commission committed a manifest error in assessing the facts with regard to the control and influence of the State over the Zavod za pokojninsko in invalidsko zavarovanje (ZPIZ) [Institute for pension and invalidity insurance] and hence over the companies Zavarovalnica Triglav and Triglav Naložbe. In the second place, the Commission has not mentioned any of the indicators necessary, in accordance with the Stardust Marine case-law (Case C–482/99 France v Commission [2002] ECR I–4397), if it is to be possible to ascribe to the State the conduct of the companies FAD-PPS, Zavarovalnica Triglav and Triglav Naložbe, quite overlooking the fact that the private companies Zavarovalnica Triglav e Triglav Naložbe exercised negative control over Elan.

| 3. | Third plea in law: infringement of Article 107(1) TFEU with regard to the compatibility of the members’ conduct with the principle of the private investor operating in a market economy by reason of an obviously incorrect assessment of the facts in respect of the decision-making of the members before recapitalising and putting measure No 2 into effect (recapitalisation of Elan in 2008)
  It is plain that the Commission wrongly took as established fact six decisive circumstances on the basis of which it concluded that measure No 2 was incompatible with the principle of the private investor operating in a market economy:






  — | first, the Commission misleadingly took into consideration the worst appraisal of the value of Elan’s own capital, although four assessments had been made in the rapid appraisal of value; |
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3.

Third plea in law: infringement of Article 107(1) TFEU with regard to the compatibility of the members’ conduct with the principle of the private investor operating in a market economy by reason of an obviously incorrect assessment of the facts in respect of the decision-making of the members before recapitalising and putting measure No 2 into effect (recapitalisation of Elan in 2008)

It is plain that the Commission wrongly took as established fact six decisive circumstances on the basis of which it concluded that measure No 2 was incompatible with the principle of the private investor operating in a market economy:

—

first, the Commission misleadingly took into consideration the worst appraisal of the value of Elan’s own capital, although four assessments had been made in the rapid appraisal of value;

| — | second, arbitrarily and without an expert’s report, it rejected as out of date and irrelevant the appraisal of value made by the Audit-IN company, and without justification gave preference to the rapid appraisal of value; |
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—

second, arbitrarily and without an expert’s report, it rejected as out of date and irrelevant the appraisal of value made by the Audit-IN company, and without justification gave preference to the rapid appraisal of value;

| — | third, it wrongly found that no private investor had played a part in the recapitalisation, although the proportion of private capital was at least 35.05 %; |
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—

third, it wrongly found that no private investor had played a part in the recapitalisation, although the proportion of private capital was at least 35.05 %;

| — | fourth, the Commission wrongly found that the long-term plan 2008-2012 and the recovery plan had been drawn up by Elan itself, for it completely disregarded the fact that the basis for the preparation of the recovery plan for Elan was the reorientation strategy devised for the company by an external consultant; |
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—

fourth, the Commission wrongly found that the long-term plan 2008-2012 and the recovery plan had been drawn up by Elan itself, for it completely disregarded the fact that the basis for the preparation of the recovery plan for Elan was the reorientation strategy devised for the company by an external consultant;

| — | fifth, the finding that no agreement had been reached with the banks regarding the reprogramming of loans in existence before the recapitalisation is incorrect too, for it is evident that the Commission disregarded the evidence showing that the banks confirmed to Elan that they would consolidate the loans if the members of Elan would recapitalise the company; |
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—

fifth, the finding that no agreement had been reached with the banks regarding the reprogramming of loans in existence before the recapitalisation is incorrect too, for it is evident that the Commission disregarded the evidence showing that the banks confirmed to Elan that they would consolidate the loans if the members of Elan would recapitalise the company;

| — | sixth, the Commission’s assertion that the recapitalisation of Elan in 2007 was unsuccessful and that for that reason private shareholders would no longer invest in Elan is untrue. |
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sixth, the Commission’s assertion that the recapitalisation of Elan in 2007 was unsuccessful and that for that reason private shareholders would no longer invest in Elan is untrue.

| 4. | Fourth plea in law: manifest error in assessing the facts with regard to the compensatory measures referred to in points 38 to 40 of the Community guidelines on State aid for rescuing and restructuring firms in difficulty and infringement of Article 107(3)(c) TFEU.
  The Commission found, plainly incorrectly, that Elan had not put proper compensatory measures into effect and therefore misapplied Article 107(3)(c) TFEU in conjunction with the Community guidelines on State aid for rescuing and restructuring firms in difficulty:






  — | in the first place, the Commission disregarded the fact that the reorientation strategy explicitly states that in an emergency the distribution company in the United States of America would be put into liquidation; |
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4.

Fourth plea in law: manifest error in assessing the facts with regard to the compensatory measures referred to in points 38 to 40 of the Community guidelines on State aid for rescuing and restructuring firms in difficulty and infringement of Article 107(3)(c) TFEU.

The Commission found, plainly incorrectly, that Elan had not put proper compensatory measures into effect and therefore misapplied Article 107(3)(c) TFEU in conjunction with the Community guidelines on State aid for rescuing and restructuring firms in difficulty:

—

in the first place, the Commission disregarded the fact that the reorientation strategy explicitly states that in an emergency the distribution company in the United States of America would be put into liquidation;

| — | in the second place, the Commission was wrong to say that it was on the initiative of the firm Dal Bello that collaboration in the common distribution company was brought to an end; |
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—

in the second place, the Commission was wrong to say that it was on the initiative of the firm Dal Bello that collaboration in the common distribution company was brought to an end;

| — | in the third place, the Commission without justification failed to take into consideration the effect of the compensatory measures relating to the retail ski market on Elan’s ‘chief’ business, that of manufacturing skis. |
| --- | --- |

—

in the third place, the Commission without justification failed to take into consideration the effect of the compensatory measures relating to the retail ski market on Elan’s ‘chief’ business, that of manufacturing skis.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/22 |
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23.3.2013

EN

Official Journal of the European Union

C 86/22

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Appeal brought on 24 January 2013 by Vincent Bouillez against the judgment of the Civil Service Tribunal of 14 November 2012 in Case F-75/11, Vincent Bouillez v Council

(Case T-31/13 P)

2013/C 86/35

Language of the case: French

Parties

Appellant: Vincent Bouillez (Overijse, Belgium) (represented by: D. Abreu Caldas, A. Coolen, J.-N. Louis and É Marchal, lawyers)

Other party to the proceedings: Council of the European Union

Form of order sought by the appellant

The applicant claims that the Court should:

| — | set aside the judgment of the Civil Service Tribunal (Third Chamber) of 14 November 2012 in Case F-75/11 Vincent Bouillez v Council; |
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—

set aside the judgment of the Civil Service Tribunal (Third Chamber) of 14 November 2012 in Case F-75/11 Vincent Bouillez v Council;

| — | annul the decision not to promote the applicant; |
| --- | --- |

—

annul the decision not to promote the applicant;

| — | order the Council to pay the costs at first instance and on appeal. |
| --- | --- |

—

order the Council to pay the costs at first instance and on appeal.

Pleas in law and main arguments

In support of the appeal, the appellant relies on three pleas in law.

| 1. | First plea in law, alleging an error of law in so far as the CST held, without ascertaining whether the contested decision at first instance complied with the duty to state reasons for a decision whereas the CST did not request any evidence from the Council as to the actual application of the criteria in Article 45 of the Staff Regulations in the comparative examination of the examination of the applicant’s merits as compared with those of other officials eligible for promotion. |
| --- | --- |

1.

First plea in law, alleging an error of law in so far as the CST held, without ascertaining whether the contested decision at first instance complied with the duty to state reasons for a decision whereas the CST did not request any evidence from the Council as to the actual application of the criteria in Article 45 of the Staff Regulations in the comparative examination of the examination of the applicant’s merits as compared with those of other officials eligible for promotion.

| 2. | Second plea in law, alleging an error of law, since the CST based its decision on mere statements by the Council that the level of responsibilities had indeed been taken into account in the comparative examination of the merits in order to conclude that the applicant has not shown the contrary in spite of information provided by the applicant in the measures of organisation of procedure, from which it was clear that several officials who were promoted did not have a level of responsibilities or a harmonised mark as high as the applicant’s or a higher number of languages used (paragraphs 45 and 46 of the contested decision). |
| --- | --- |

2.

Second plea in law, alleging an error of law, since the CST based its decision on mere statements by the Council that the level of responsibilities had indeed been taken into account in the comparative examination of the merits in order to conclude that the applicant has not shown the contrary in spite of information provided by the applicant in the measures of organisation of procedure, from which it was clear that several officials who were promoted did not have a level of responsibilities or a harmonised mark as high as the applicant’s or a higher number of languages used (paragraphs 45 and 46 of the contested decision).

| 3. | Third plea in law, alleging contradictory reasoning, in so far as the CST could not state on one hand that the Council rightly decided to carry out a fresh comparative examination of the merits of all Grade AST 6 officials eligible for promotion in promotion year 2007 and then hold that the Council was not required to take into account the merits of a specific official who had already been promoted in that year and whose promotion had become final (concerning paragraphs 69 and 70 of the judgment under appeal).
  The applicant also asserts that the CST has committed an error in law by failing to classify the facts, on the basis of the evidence in the file, as constituting a manifest error of assessment. |
| --- | --- |

3.

Third plea in law, alleging contradictory reasoning, in so far as the CST could not state on one hand that the Council rightly decided to carry out a fresh comparative examination of the merits of all Grade AST 6 officials eligible for promotion in promotion year 2007 and then hold that the Council was not required to take into account the merits of a specific official who had already been promoted in that year and whose promotion had become final (concerning paragraphs 69 and 70 of the judgment under appeal).

The applicant also asserts that the CST has committed an error in law by failing to classify the facts, on the basis of the evidence in the file, as constituting a manifest error of assessment.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/22 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/22

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Appeal brought on 24 January 2013 by Mario Paulo da Silva Tenreiro against the judgment of the Civil Service Tribunal of 14 November 2012 in Case F-120/11 da Silva Tenreiro v Commission

(Case T-32/13 P)

2013/C 86/36

Language of the case: French

Parties

Appellant: Mario Paulo da Silva Tenreiro (Kraainem, Belgium) (represented by S. Orlandi, J.-N. Louis and D. Abreu Caldas, lawyers)

Other party to the proceedings: European Commission

Form of order sought by the appellant

| — | Order






  — | that the judgment of the Civil Service Tribunal delivered on 14 November 2012 (Case F-120/11 da Silva Tenreiro v Commission) dismissing the action brought by the applicant is annulled; |
| --- | --- | --- |

—

Order

—

that the judgment of the Civil Service Tribunal delivered on 14 November 2012 (Case F-120/11 da Silva Tenreiro v Commission) dismissing the action brought by the applicant is annulled;

| — | giving judgment itself, |
| --- | --- |

—

giving judgment itself,

| — | order






  — | that the decision of the European Commission rejecting the applicant’s application for the vacant post of Director of Directorate A ‘Civil Justice’ in Directorate General (DG) ‘Justice’ and the decision nominating Ms Y to that post are annulled; |
| --- | --- | --- |

—

order

—

that the decision of the European Commission rejecting the applicant’s application for the vacant post of Director of Directorate A ‘Civil Justice’ in Directorate General (DG) ‘Justice’ and the decision nominating Ms Y to that post are annulled;

| — | order the Commission to pay the costs at both instances. |
| --- | --- |

—

order the Commission to pay the costs at both instances.

Pleas in law and main arguments

In support of the appeal, the appellant relies on two pleas in law.

| 1. | First plea in law, alleging distortion of the facts:






  — | firstly, in that the CST considered that the term ‘background’ used in the vacancy notice in the contested procedure referred to experience and not to training. The appellant submits that it is apparent in particular from the vacancy notices published by the Commission that when professional experience is required, the term ‘experience’ is used rather than ‘background’; |
| --- | --- | --- |

1.

First plea in law, alleging distortion of the facts:

—

firstly, in that the CST considered that the term ‘background’ used in the vacancy notice in the contested procedure referred to experience and not to training. The appellant submits that it is apparent in particular from the vacancy notices published by the Commission that when professional experience is required, the term ‘experience’ is used rather than ‘background’;

| — | secondly, in that the CST considered that the term ‘regulation’ did not refer to regulatory mechanisms but to the legislative process. |
| --- | --- |

—

secondly, in that the CST considered that the term ‘regulation’ did not refer to regulatory mechanisms but to the legislative process.

| 2. | Second plea in law, alleging errors of law, the CST having examined the indications of misuse of power in an isolated rather than global manner, without seeking to establish whether the indications taken together, given their number, made it possible to call into question the lawfulness of the decisions contested at first instance.
  In addition, the appellant argues that the CST disregarded, in the light of the inequality of arms of the parties, the right to a fair hearing by refusing to adopt measures of organisation of the procedure enabling the indications of misuse of power to be emphasised and evidence to be adduced of a factor which could have been demonstrated only by such a measure. |
| --- | --- |

2.

Second plea in law, alleging errors of law, the CST having examined the indications of misuse of power in an isolated rather than global manner, without seeking to establish whether the indications taken together, given their number, made it possible to call into question the lawfulness of the decisions contested at first instance.

In addition, the appellant argues that the CST disregarded, in the light of the inequality of arms of the parties, the right to a fair hearing by refusing to adopt measures of organisation of the procedure enabling the indications of misuse of power to be emphasised and evidence to be adduced of a factor which could have been demonstrated only by such a measure.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/23 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/23

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Action brought on 24 January 2013 — Türkiye Garanti Bankasi/OHIM — Card & Finance Consulting (bonus&more)

(Case T-33/13)

2013/C 86/37

Language in which the application was lodged: English

Parties

Applicant: Türkiye Garanti Bankasi AS (Istanbul, Turkey) (represented by: J. Güell Serra, lawyer)

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

Other party to the proceedings before the Board of Appeal: Card & Finance Consulting GmbH (Nürnberg, Germany)

Form of order sought

The applicant claims that the Court should:

| — | Annul the contested decision; and |
| --- | --- |

—

Annul the contested decision; and

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘bonus&more’, for services in classes 35, 36, 38, 41 and 42 — Community trade mark application No 9 037 251

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

Mark or sign cited in opposition: The International Registration of the figurative mark ‘bonusnet’, for goods and services in classes 9, 35, 36, 38 and 42 — International Registration No 931 921

Decision of the Opposition Division: Upheld the opposition in part

Decision of the Board of Appeal: Allows the appeal and rejects the opposition

Pleas in law: Infringement of Articles 8(1)(b) of Council Regulation No 207/2009.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/23 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/23

---

Action brought on 22 January 2013 — Exakt Advanced Technologies v OHIM — Exakt Precision Tools (EXAKT)

(Case T-37/13)

2013/C 86/38

Language in which the application was lodged: German

Parties

Applicant: Exakt Advanced Technologies GmbH (Norderstedt, Germany) (represented by: A. von Bismarck, lawyer)

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

Other party to the proceedings before the Board of Appeal: Exakt Precision Tools Ltd (Aberdeen, United Kingdom)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 October 2012 in Case R 1764/2011-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 October 2012 in Case R 1764/2011-1;

| — | Order the intervener to pay the costs including those incurred in the course of the appeal proceedings. |
| --- | --- |

—

Order the intervener to pay the costs including those incurred in the course of the appeal proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the figurative mark including the word element ‘EXAKT’ for goods and services in Classes 7, 9 and 37 — Community trade mark No 3 996 592

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity of the Community trade mark: Exakt Precision Tools Ltd

Grounds for the application for a declaration of invalidity: the figurative mark including the word element ‘EXAKT’ for goods in Classes 7, 8 and 9

Decision of the Cancellation Division: the application was upheld

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 8(1)(b) and Article 53(1)(a) of Regulation No 207/2009

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/24 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/24

---

Action brought on 29 January 2013 — Roy v Council and Commission

(Case T-41/13)

2013/C 86/39

Language of the case: French

Parties

Applicant: René Roy (Juillac-le-Coq, France) (represented by: C.-E. Gudin, lawyer)

Defendants: Council of the European Union and European Commission

Form of order sought

| — | Compensation in full for the loss suffered by reason of the fines, namely the sum of EUR 87 400; |
| --- | --- |

—

Compensation in full for the loss suffered by reason of the fines, namely the sum of EUR 87 400;

| — | Compensation in full for his non-pecuniary loss, namely the sum of EUR 100 000; |
| --- | --- |

—

Compensation in full for his non-pecuniary loss, namely the sum of EUR 100 000;

| — | Order the Council and the Commission to pay all the costs. |
| --- | --- |

—

Order the Council and the Commission to pay all the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on pleas in law which are in essence identical or similar to those raised in Cases T-195/11 Cahier and Others v Council and Commission
   (1) and T-458/11 Riche v Council and Commission. (2)

---

(1)  OJ 2011 C 173, p. 14.

(2)  OJ 2011 C 298, p. 28.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/24 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/24

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Action brought on 28 January 2013 — Sabores de Navarra v OHIM — Frutas Solano (KIT, EL SABOR DE NAVARRA)

(Case T-46/13)

2013/C 86/40

Language in which the application was lodged: Spanish

Parties

Applicant: Sabores de Navarra, AIE (Pamplona, Spain) (represented by: J. Calderón Chavero and O. González Fernández, lawyers)

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

Other party to the proceedings before the Board of Appeal: Frutas Solano, SA (Calahorra, Spain)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 November 2012 in Cases R 2542/2011-2 and R 2550/2011-2; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 November 2012 in Cases R 2542/2011-2 and R 2550/2011-2;

| — | consequently, apply the decision of 11 October 2011 adopted by the Cancellation Division of OHIM in annulment proceedings No 4633 C; that decision declared invalid in part Community Trade Mark No 5042346 ‘KIT, EL SABOR DE NAVARRA’ (word mark) in respect of Class 29 for ‘Preserved, dried and cooked fruits and vegetables; jellies, jams, compotes; all originating in Navarra’ and in respect of Class 30 for ‘Pastry and confectionery, honey, treacle; sauces (condiments); spices’; |
| --- | --- |

—

consequently, apply the decision of 11 October 2011 adopted by the Cancellation Division of OHIM in annulment proceedings No 4633 C; that decision declared invalid in part Community Trade Mark No 5042346 ‘KIT, EL SABOR DE NAVARRA’ (word mark) in respect of Class 29 for ‘Preserved, dried and cooked fruits and vegetables; jellies, jams, compotes; all originating in Navarra’ and in respect of Class 30 for ‘Pastry and confectionery, honey, treacle; sauces (condiments); spices’;

| — | uphold the applicant’s submissions requiring the relevant Cancellation Division of OHIM to declare invalid once again the goods set out in the previous point; |
| --- | --- |

—

uphold the applicant’s submissions requiring the relevant Cancellation Division of OHIM to declare invalid once again the goods set out in the previous point;

| — | order OHIM to pay the costs associated with the present action. |
| --- | --- |

—

order OHIM to pay the costs associated with the present action.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘KIT, EL SABOR DE NAVARRA’ for goods in Classes 29, 30 and 33 — Registered Community Trade Mark No 5 042 346

Proprietor of the Community trade mark: Frutas Solano, SA

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

Grounds for the application for a declaration of invalidity: Figurative mark with the word element ‘Sabores de Navarra La Sabiduría del Sabor’ for goods and services in Classes 29, 30, 33, 39 and 42

Decision of the Cancellation Division: Application upheld in part

Decision of the Board of Appeal: Appeal brought by Frutas Solano, SA upheld in part and partial annulment of the decision of the Cancellation Division, dismissal of the applicant’s action

Pleas in law:

| — | Breach of Article 8(1)(b) of Regulation No 207/2009, in conjunction with Article 53(1)(a) of that regulation; |
| --- | --- |

—

Breach of Article 8(1)(b) of Regulation No 207/2009, in conjunction with Article 53(1)(a) of that regulation;

| — | Breach of Article 15 of Regulation No 207/2009 |
| --- | --- |

—

Breach of Article 15 of Regulation No 207/2009

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/25 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/25

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Action brought on 30 January 2013 — Goldsteig Käsereien Bayerwald v OHIM — Vieweg (goldstück)

(Case T-47/13)

2013/C 86/41

Language in which the application was lodged: German

Parties

Applicant: Goldsteig Käsereien Bayerwald GmbH (Cham, Germany) (represented by: S. Biagosch, lawyer)

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

Other party to the proceedings before the Board of Appeal: Christin Vieweg (Sonneberg, Germany)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 November 2012 in Case R 2589/2011-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 November 2012 in Case R 2589/2011-1;

| — | Order OHIM to bear its own costs and to pay those incurred by the applicant. |
| --- | --- |

—

Order OHIM to bear its own costs and to pay those incurred by the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: Christin Vieweg

Community trade mark concerned: the figurative mark including the word element ‘goldstück’ for goods in Classes 29 and 30 — Community trade mark application No 9 153 677

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

Mark or sign cited in opposition: the word mark ‘GOLDSTEIG’ for goods and services in Classes 29 and 43

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the Opposition Division’s decision was annulled and the applicant’s opposition was rejected

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/25 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/25

---

Action brought on 30 January 2013 — Out of the Blue KG v OHIM — Mombauer (REFLEXX)

(Case T-48/13)

2013/C 86/42

Language of the case: German

Parties

Applicant: Out of the blue KG (Lilienthal, Germany) (represented by: G. Hasselblatt and I. George, lawyers)

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

Other party to the proceedings before the Board of Appeal: Meinhard Mombauer (Cologne, Germany)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2012 in Case R 1656/2011-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2012 in Case R 1656/2011-4;

| — | Order OHIM to bear its own costs and those of the applicant; |
| --- | --- |

—

Order OHIM to bear its own costs and those of the applicant;

| — | Were Meinhard Mombauer to participate as intervener in the proceedings, order him to bear his own costs. |
| --- | --- |

—

Were Meinhard Mombauer to participate as intervener in the proceedings, order him to bear his own costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Out of the blue KG

Community trade mark concerned: Word mark ‘REFLEXX’ for goods in Class 9 — Application for Community trade mark No 7 239 511

Proprietor of the mark or sign cited in the opposition proceedings: Meinhard Mombauer

Mark or sign cited in opposition: Figurative mark, containing the word element ‘RELFECTS’, for goods in Class 9

Decision of the Opposition Division: The opposition was upheld

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in Law: Infringement of Article 42(5) in conjunction with Article 8(1)(b) of Regulation No 207/2009

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/26 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/26

---

Action brought on 25 January 2013 — Think Schuhwerk v OHIM — Müller (VOODOO)

(Case T-50/13)

2013/C 86/43

Language in which the application was lodged: German

Parties

Applicant: Think Schuhwerk GmbH (Kopfing, Austria) (represented by: M. Gail, lawyer)

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

Other party to the proceedings before the Board of Appeal: Andreas Müller (Ulm, Germany)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 November 2012 in Case R 474/2012-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 November 2012 in Case R 474/2012-4;

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

—

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

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘VOODOO’ for goods in Class 25 — Community trade mark No 5 832 464

Proprietor of the Community trade mark: Andreas Müller

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

Grounds for the application for a declaration of invalidity: Infringement of Article 52(1)(a) in conjunction with Article 7(1)(b) and (c) of Regulation No 207/2009 and infringement of Article 52(1)(b) of Regulation No 207/2009

Decision of the Cancellation Division: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 52(1)(a) in conjunction with Article 7(1)(b) and (c) of Regulation No 207/2009 and infringement of Article 52(1)(b) of Regulation No 207/2009

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/26 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/26

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Action brought on 30 January 2013 — Evropaïki Dynamiki v EIB

(Case T-51/13)

2013/C 86/44

Language of the case: Greek

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: V. Christianos, lawyer)

Defendant: European Investment Bank

Form of order sought

The applicant claims that the General Court should:

| — | order the EIB to pay to the applicant the sum of EUR 536 610,22, as compensation for the damage which the applicant suffered as a result of the loss of the opportunity to be awarded the framework agreement, with compensatory interest from 31/01/2008 until the date of delivery of the judgment in this case and with default interest from the date of delivery of the judgment in this dispute until full payment;· |
| --- | --- |

—

order the EIB to pay to the applicant the sum of EUR 536 610,22, as compensation for the damage which the applicant suffered as a result of the loss of the opportunity to be awarded the framework agreement, with compensatory interest from 31/01/2008 until the date of delivery of the judgment in this case and with default interest from the date of delivery of the judgment in this dispute until full payment;·

| — | order the EIB to pay to the applicant the sum of EUR 150 000, as exemplary damages, with compensatory interest from 31 January 2008 until the date of delivery of the judgment in this case and with default interest from the date of delivery of the judgment in this dispute until full payment; |
| --- | --- |

—

order the EIB to pay to the applicant the sum of EUR 150 000, as exemplary damages, with compensatory interest from 31 January 2008 until the date of delivery of the judgment in this case and with default interest from the date of delivery of the judgment in this dispute until full payment;

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

—

order the EIB to pay the applicant’s costs.

Pleas in law and main arguments

By this action, the applicant claims, under the second paragraph of Article 340 TFEU read together with Article 266 TFEU, before the General Court of the European Union compensation for the damage which it has suffered because of the unlawful conduct of the European Investment Bank (‘the EIB’).

That damage arose when, as was ruled by the General Court in its judgment of 20 September 2011 in Case Τ-461/08 Evropaïki Dynamiki v EIB, the EIB unlawfully rejected the applicant’s tender in the call for tenders relating to the award of a framework agreement for the provision of services.

In that context, the applicant claims, first, damages by way of compensation for the damage which the applicant suffered as a result of the loss of the opportunity to be awarded the framework agreement, as a means of restoration of the status quo ante, and, secondly, exemplary damages for the unlawful and improper conduct of the EIB towards the applicant.

The applicant maintains that the conditions for establishing the EIB’s non-contractual liability, as set out in settled case-law, to enable it to be compensated are satisfied.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/27 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/27

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Action brought on 6 February 2013 — GOLAM v OHIM — Glaxo Group (METABIOMAX)

(Case T-62/13)

2013/C 86/45

Language in which the application was lodged: Greek

Parties

Applicant: Sofia Golam (Athens, Greece) (represented by: N. Trovas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Glaxo Group Ltd (Greenford, United Kingdom)

Form of order sought

The applicant claims that the General Court should:

| — | uphold the present action, so as to annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2012 in Case R 2089/2011-2; |
| --- | --- |

—

uphold the present action, so as to annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2012 in Case R 2089/2011-2;

| — | reject the opposition of the other party before the Board of Appeal and grant the application lodged by the applicant in its entirety; |
| --- | --- |

—

reject the opposition of the other party before the Board of Appeal and grant the application lodged by the applicant in its entirety;

| — | order the other party before the Board of Appeal to pay the applicant the costs of the present proceedings. |
| --- | --- |

—

order the other party before the Board of Appeal to pay the applicant the costs of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘METABIOMAX’, for goods in Classes 5, 16 and 30 — Community trade mark application No 8885261

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

Mark or sign cited in opposition: The Community word mark ‘BIOMAX’ which has been registered under No 2661858, for goods in Classes 5, 30 and 32.

Decision of the Opposition Division: Opposition partly upheld.

Decision of the Board of Appeal: Decision of the Opposition Division partly annulled.

Pleas in law: Infringement of Article 8(1)(b) and Article 8(5) of Council Regulation No 207/2009

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/27 |
| --- | --- | --- | --- |

23.3.2013

EN

Official Journal of the European Union

C 86/27

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Action brought on 4 February 2013 — ANKO v Commission

(Case T-64/13)

2013/C 86/46

Language of the case: Greek

Parties

Applicant: ANKO AE Antiprosopion, Emporiou kai Viomikhanias (Athens, Greece) (represented by: V. Khristianos, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | declare that the applicant does not have to refund as wrongly paid the sum which the Commission paid to it for the DOC@HAND project; |
| --- | --- |

—

declare that the applicant does not have to refund as wrongly paid the sum which the Commission paid to it for the DOC@HAND project;

| — | declare that the applicant does not have to pay the Commission liquidated damages for the DOC@HAND project; |
| --- | --- |

—

declare that the applicant does not have to pay the Commission liquidated damages for the DOC@HAND project;

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

—

order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

The present action concerns liability of the Commission under contract No 508015 relating to the carrying out of the project ‘Knowledge Sharing and Decision Support for Healthcare Professionals’ (DOC@HAND), pursuant to Article 272 TFEU. Specifically, the applicant submits that, although it performed its contractual obligations, the Commission, in breach of the aforementioned contract, of the principle of good faith, of the prohibition of the abuse of rights, and of proportionality, sought reimbursement of the sums paid to it.

For that reason, the applicant submits, first, that it does not have to refund as wrongly paid the whole of the sum which the Commission paid to it for the DOC@HAND project and, second, that it does not have to pay the Commission liquidated damages for the DOC@HAND project.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/28 |
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23.3.2013

EN

Official Journal of the European Union

C 86/28

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Action brought on 7 February 2013 — Al-Tabbaa v Council

(Case T-74/13)

2013/C 86/47

Language of the case: English

Parties

Applicant: Mazen Al-Tabbaa (Beirut, Lebanon) (represented by: M. Lester, Barrister, and G. Martin, Solicitor)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | Annul Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782/CFSP (OJ 2012 L 330, p. 21), insofar as it concerns the applicant; |
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Annul Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782/CFSP (OJ 2012 L 330, p. 21), insofar as it concerns the applicant;

| — | Annul Council Implementing Regulation (EU) No 1117/2012 of 29 November 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2012 L 330, p. 9), insofar as it concerns the applicant; and |
| --- | --- |

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Annul Council Implementing Regulation (EU) No 1117/2012 of 29 November 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2012 L 330, p. 9), insofar as it concerns the applicant; and

| — | Order the defendant to pay the applicant’s costs. |
| --- | --- |

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Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the defendant committed a manifest error of fact and assessment in deciding to apply these restrictive measures to the applicant and in considering that any of the criteria for listing were fulfilled. |
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1.

First plea in law, alleging that the defendant committed a manifest error of fact and assessment in deciding to apply these restrictive measures to the applicant and in considering that any of the criteria for listing were fulfilled.

| 2. | Second plea in law, alleging that the defendant failed to give the applicant sufficient or adequate reasons for his inclusion in the contested measures. |
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2.

Second plea in law, alleging that the defendant failed to give the applicant sufficient or adequate reasons for his inclusion in the contested measures.

| 3. | Third plea in law, alleging that the defendant violated the applicant’s basic fundamental rights of defence and the right to effective judicial protection. |
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3.

Third plea in law, alleging that the defendant violated the applicant’s basic fundamental rights of defence and the right to effective judicial protection.

| 4. | Fourth plea in law, alleging that the defendant infringed, without justification or proportion, the applicant’s fundamental rights, in particular his right to property, to conduct his business, to reputation, and to private and family life. |
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4.

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

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/28 |
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23.3.2013

EN

Official Journal of the European Union

C 86/28

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Action brought on 13 February 2013 — Syrian Lebanese Commercial Bank v Council

(Case T-80/13)

2013/C 86/48

Language of the case: French

Parties

Applicant: Syrian Lebanese Commercial Bank S.A.L. (Beirut, Lebanon) (represented by: P. Vanderveeren, L. Defalque and T. Bontinck, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | Annul Article 25 of Council Decision 2012/739/CFSP of 29 November 2012 and Annex I.b thereto in so far as the applicant appears at No 34 of that annex; |
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—

Annul Article 25 of Council Decision 2012/739/CFSP of 29 November 2012 and Annex I.b thereto in so far as the applicant appears at No 34 of that annex;

| — | Annul Article 1 of Council Implementing Regulation (EU) No 1117/2012 of 29 November 2012 in so far as it has the consequence of maintaining the applicant’s listing in Annex II to Council Regulation (EU) No 36/2012 by application of Article 1 of Council Implementing Regulation No 55/2012 of 23 January 2012 and paragraph 27 of the annex to that regulation; |
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Annul Article 1 of Council Implementing Regulation (EU) No 1117/2012 of 29 November 2012 in so far as it has the consequence of maintaining the applicant’s listing in Annex II to Council Regulation (EU) No 36/2012 by application of Article 1 of Council Implementing Regulation No 55/2012 of 23 January 2012 and paragraph 27 of the annex to that regulation;

| — | Annul, in so far as necessary, the Council’s decision letter of 30 November 2012; |
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Annul, in so far as necessary, the Council’s decision letter of 30 November 2012;

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

Order the Council to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging a lack of sufficient and precise reasons, since the Council merely set out vague and general considerations without indicating the specific and concrete reasons for its belief that the applicant must be made subject to restrictive measures. |
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1.

First plea in law, alleging a lack of sufficient and precise reasons, since the Council merely set out vague and general considerations without indicating the specific and concrete reasons for its belief that the applicant must be made subject to restrictive measures.

| 2. | Second plea in law, alleging infringement of the rights of the defence, the right to a fair hearing and to effective judicial protection, since the applicant was not heard during the procedure of adoption of the contested acts and because of the Council’s implied refusal to produce the evidence justifying the nature and scope of the penalty. |
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2.

Second plea in law, alleging infringement of the rights of the defence, the right to a fair hearing and to effective judicial protection, since the applicant was not heard during the procedure of adoption of the contested acts and because of the Council’s implied refusal to produce the evidence justifying the nature and scope of the penalty.

| 3. | Third plea in law, alleging a manifest error of assessment as regards the implication of the applicant in the financing of the Syrian regime, since the Council has shown no proof, either before or after adoption of the contested acts, of the applicant’s participation in the financing of that regime. |
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3.

Third plea in law, alleging a manifest error of assessment as regards the implication of the applicant in the financing of the Syrian regime, since the Council has shown no proof, either before or after adoption of the contested acts, of the applicant’s participation in the financing of that regime.

| 4. | Fourth plea in law, alleging defects in the examination carried out by the Council, tainting by illegality the restrictive measures applied by the Council since the Council failed to examine the relevance and basis of the information and evidence on which restrictive measures may be based before adopting them. |
| --- | --- |

4.

Fourth plea in law, alleging defects in the examination carried out by the Council, tainting by illegality the restrictive measures applied by the Council since the Council failed to examine the relevance and basis of the information and evidence on which restrictive measures may be based before adopting them.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/29 |
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23.3.2013

EN

Official Journal of the European Union

C 86/29

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Order of the General Court of 29 January 2013 — Dimension Data Belgium v Parliament

(Case T-650/11) (1)

2013/C 86/49

Language of the case: French

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

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(1)  OJ C 73, 10.3.2012.

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European Union Civil Service Tribunal

| 23.3.2013 | EN | Official Journal of the European Union | C 86/30 |
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23.3.2013

EN

Official Journal of the European Union

C 86/30

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Action brought on 24 December 2012 — ZZ v Commission

(Case F-158/12)

2013/C 86/50

Language of the case: French

Parties

Applicant: ZZ (represented by: A. Salerno and B. Cortese, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision rejecting the request for employment of the applicant as a member of the contract staff in function group III which was made by the Office for Infrastructures and Logistics in Luxembourg and damages for the material damage suffered.

Form of order sought

| — | Annul the decision of the Head of Unit of the ‘Recruitment and end of service’ unit (DG HR.B.2) of the European Commission of 6 March 2012 rejecting the application for employment of the applicant as a member of the contract staff in function group III which had been made by the Office for Infrastructures and Logistics in Luxembourg; |
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Annul the decision of the Head of Unit of the ‘Recruitment and end of service’ unit (DG HR.B.2) of the European Commission of 6 March 2012 rejecting the application for employment of the applicant as a member of the contract staff in function group III which had been made by the Office for Infrastructures and Logistics in Luxembourg;

| — | order the defendant to compensate for the material damage caused to the applicant by the contested decision; to evaluate the amount corresponding to the difference between the payments corresponding to function group III since the month of October 2011 and those payments which he continued to receive as a member of the contractual staff of function group I, plus corresponding interest from the due date of each months’ pay until the date of their actual payment; |
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—

order the defendant to compensate for the material damage caused to the applicant by the contested decision; to evaluate the amount corresponding to the difference between the payments corresponding to function group III since the month of October 2011 and those payments which he continued to receive as a member of the contractual staff of function group I, plus corresponding interest from the due date of each months’ pay until the date of their actual payment;

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

—

order the Commission to pay the costs.

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| 23.3.2013 | EN | Official Journal of the European Union | C 86/30 |
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23.3.2013

EN

Official Journal of the European Union

C 86/30

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Action brought on 28 December 2012 — ZZ v EEA

(Case F-162/12)

2013/C 86/51

Language of the case: French

Parties

Applicant: ZZ (represented by: S. Orlandi, J.-N. Louis and D. Abreu Caldas, lawyers)

Defendant: European Environment Agency

Subject-matter and description of the proceedings

Annulment of the decision to reinstate the applicant following sick leave after the date when, according to medical opinion, he was fit for work.

Form of order sought

| — | Annul the decision of 20 September 2012 by the authority empowered to conclude contracts, rejecting the complaint of 21 May 2012 seeking withdrawal of the decision of 21 February 2012 to reinstate the applicant on 24 January 2012 following sick leave. |
| --- | --- |

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Annul the decision of 20 September 2012 by the authority empowered to conclude contracts, rejecting the complaint of 21 May 2012 seeking withdrawal of the decision of 21 February 2012 to reinstate the applicant on 24 January 2012 following sick leave.

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

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Order the defendant to pay the costs.

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