# Official Journal C 233/2009

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2009.233.eng |
| --- | --- |
| Official Journal
  of the European Union | C 233 |
| | |
| English edition | Information and Notices | Volume 5226 September 2009 |

ISSN 1725-2423

doi:10.3000/17252423.C_2009.233.eng

Official Journal

of the European Union

C 233

English edition

Information and Notices

Volume 5226 September 2009

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2009/C 233/01 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 220, 12.9.2009 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2009/C 233/01

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 220, 12.9.2009

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2009/C 233/02 | Case C-198/09: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 4 June 2009 — IFB Stroder Srl v Agenzia Italiana del Farmaco (AIFA) | 2 |
| 2009/C 233/03 | Case C-223/09: Action brought on 18 June 2009 — Commission of the European Communities v Republic of Poland | 3 |
| 2009/C 233/04 | Case C-228/09: Action brought on 24 June 2009 — Commission of the European Communities v Republic of Poland | 3 |
| 2009/C 233/05 | Case C-240/09: Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia) lodged on 3 July 2009 — Lesoochranárske Zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky | 3 |
| 2009/C 233/06 | Case C-243/09: Reference for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 3 July 2009 — Günter Fuβ v Stadt Halle (Saale) | 4 |
| 2009/C 233/07 | Case C-244/09: Action brought on 3 July 2009 — Commission of the European Communities v Federal Republic of Germany | 4 |
| 2009/C 233/08 | Case C-247/09: Reference for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany), lodged on 7 July 2009 — Alketa Xhymshiti v Bundesagentur für Arbeit — Familienkasse Lörrach | 5 |
| 2009/C 233/09 | Case C-251/09: Action brought on 7 July 2009 — Commission of the European Communities v Republic of Cyprus | 5 |
| 2009/C 233/10 | Case C-253/09: Action brought on 8 July 2009 — Commission of the European Communities v Republic of Hungary | 6 |
| 2009/C 233/11 | Case C-265/09 P: Appeal brought on 15 July 2009 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 29 April 2009 in Case T-23/07 Borco-Marken-Import Matthiesen GmbH & Co KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 7 |
| 2009/C 233/12 | Case C-271/09: Action brought on 16 July 2009 — Commission of the European Communities v Republic of Poland | 8 |
| 2009/C 233/13 | Case C-282/09 P: Appeal brought on 22 July 2009 by Caisse fédérale du Crédit mutuel Centre Est Europe (CFCMCEE) against the judgment of the Court of First Instance (Third Chamber) delivered on 20 May 2009 in Joined Cases T-405/07 and T-406/07 CFCMCEE v OHIM | 8 |
| 2009/C 233/14 | Case C-286/09: Reference for a preliminary ruling from the Corte d’appello di Roma (Italy) lodged on 24 July 2009 — Luigi Ricci v Istituto nazionale della previdenza sociale (INPS) | 9 |
| 2009/C 233/15 | Case C-287/09: Reference for a preliminary ruling from the Corte d’appello di Roma (Italy) lodged on 24 July 2009 — Aduo Pisaneschi v Istituto nazionale della previdenza sociale (INPS) | 9 |
| 2009/C 233/16 | Case C-290/09: Reference for a preliminary ruling from the Tribunale Amministrativo per la Sardegna (Italy), lodged on 27 July 2009 — Telecom Italia SpA v Regione autonoma della Sardegna | 10 |
| 2009/C 233/17 | Case C-292/09: Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 27 July 2009 — Isabella Calestani v Agenzia delle Entrate Ufficio di Parma | 10 |
| 2009/C 233/18 | Case C-293/09: Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 27 July 2009 — Paolo Lunardi v Agenzia delle Entrate Ufficio di Parma | 11 |
| 2009/C 233/19 | Case C-306/09: Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 31 July 2009 — I.B. v Conseil des ministres | 11 |
| 2009/C 233/20 | Case C-310/09: Reference for a preliminary ruling from the Conseil d’État (France) lodged on 4 August 2009 — Ministre du budget, des comptes publics et de la fonction publique v Société Accor | 11 |
| 2009/C 233/21 | Case C-322/09 P: Appeal brought on 12 August 2009 by NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB against the judgment of the Court of First Instance (First Chamber) delivered on 9 June 2009 in Case T-152/06: NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB v Commission of the European Communities | 12 |
| 2009/C 233/22 | Case C-330/09: Action brought on 17 August 2009 — Commission of the European Communities v Republic of Austria | 13 |
| | Court of First Instance |
| 2009/C 233/23 | Case T-498/07 P: Judgment of the Court of First Instance of 8 June 2009 — Krcova v Court of Justice (Appeal — Staff case — Officials — Recruitment — Probationary period — Extension of the probationary period — End of probation report — Dismissal at the end of the probationary period — Article 34 of the Staff Regulations — Obligation on the Civil Service Tribunal to state reasons) | 14 |
| 2009/C 233/24 | Case T-94/05: Order of the Court of First Instance of 29 June 2009 — Athinaïki Techniki AE v Commission of the European Communities (State aid — Complaint — Decision to take no further action on the complaint — Referral back to the Court of First Instance after setting aside — Withdrawal of the contested decision — No need to adjudicate) | 14 |
| 2009/C 233/25 | Case T-279/06: Order of the Court of First Instance of 2 July 2009 — Evropaïki Dynamiki v European Central Bank (ECB) (Public service contracts — Community public procurement procedure — Supply of consultancy and IT development services for the ECB — Rejection of a tender and decision to award the contract to other tenderers — Action for annulment — Interest in bringing proceedings — Ground for exclusion — Permit to be issued by a national authority — Action in part manifestly unfounded in law and in part manifestly inadmissible) | 15 |
| 2009/C 233/26 | Case T-159/08: Order of the Court of First Instance of 10 June 2009 — Procter & Gamble v OHIM — Bayer (LIVENSA) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate) | 15 |
| 2009/C 233/27 | Case T-176/08: Order of the Court of First Instance of 9 July 2009 — infeurope v Commission (Action for declaration of failure to act, for annulment and for damages — Public service contracts — Call for tenders concerning the maintenance of OHIM’s computer systems — Administrative appeal before the Commission — Implied Commission decision to dismiss — New claims — Connection between the action for a declaration of failure to act and the action for damages — Manifest inadmissibility) | 15 |
| 2009/C 233/28 | Case T-188/08: Order of the Court of First Instance of 9 July 2009 — infeurope v Commission (Action for declaration of failure to act, for annulment and for damages — Public service contracts — Call for tenders concerning consultancy, audit and study services for OHIM — Administrative appeal before the Commission — Implied Commission decision to dismiss — New claims — Connection between the action for a declaration of failure to act and the action for damages — Manifest inadmissibility) | 16 |
| 2009/C 233/29 | Case T-300/08: Order of the Court of First Instance of 14 July 2009 — Hoo Hing v OHIM — Tresplain Investments (Golden Elephant Brand) (Community trade mark — Invalidity proceedings — Article 63(4) of Regulation (EC) No 40/94 (now Article 65(4) of Regulation (EC) No 207/2009) — Act which upheld the applicant’s claims in their entirety — Inadmissibility) | 16 |
| 2009/C 233/30 | Case T-340/08 P: Order of the Court of First Instance of 22 June 2009 — Timmer v Court of Auditors (Appeal — Staff cases — Officials — Staff reporting — New and substantial facts — Appeal manifestly inadmissible in part and manifestly unfounded in part) | 17 |
| 2009/C 233/31 | Case T-371/08 P: Order of the Court of First Instance of 22 June 2009 — Nijs v Court of Auditors (Appeal — Public service — Officials — Decision to appoint the appellant’s superior — Internal competition — Staff Committee elections — Decision not to promote the appellant in 2006 — Appeal manifestly inadmissible in part and manifestly unfounded in part) | 17 |
| 2009/C 233/32 | Case T-376/08: Order of the Court of First Instance of 22 June 2009 — Nijs v Court of Auditors (Appeal — Public service — Officials — Evaluation report for 2005/2006 — Decision not to promote the appellant in 2007 — Decision of the Court of Auditors to renew the mandate for its Secretary General — Appeal manifestly inadmissible in part and manifestly unfounded in part) | 17 |
| 2009/C 233/33 | Case T-196/09 R: Order of the President of the Court of First Instance of 10 July 2009 — TerreStar Europe v Commission (Application for interim measures — Decision on the selection of operators of pan-European systems providing mobile satellite services — Application for suspension of operation of the measure and interim relief — No urgency) | 18 |
| 2009/C 233/34 | Case T-297/09: Action brought on 22 July 2009 — Evropaïki Dynamiki v EASA | 18 |
| 2009/C 233/35 | Case T-298/09: Action brought on 22 July 2009 — Evropaïki Dynamiki v Commission | 19 |
| 2009/C 233/36 | Case T-308/09: Action brought on 30 July 2009 — Italy v Commission | 19 |
| 2009/C 233/37 | Case T-311/09 P: Appeal brought on 4 August 2009 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 20 May 2009 in Case F-73/08, Marcuccio v Commission | 20 |
| 2009/C 233/38 | Joined Cases T-530/93, T-531/93, T-87/94, T-91/94, T-106/94, T-120/94 and T-124/94: Order of the Court of First Instance of 23 July 2009 — Kat and Others v Council and Commission | 21 |
| 2009/C 233/39 | Case T-533/93: Order of the Court of First Instance of 23 July 2009 — Bouma and Others v Council and Commission | 21 |
| 2009/C 233/40 | Joined Cases T-4/94, T-73/94, T-372/94, T-52/97, T-60/97, T-64/97 and T-144/97: Order of the Court of First Instance of 23 July 2009 — Wilman and Others v Council and Commission | 21 |
| 2009/C 233/41 | Case T-86/06: Order of the Court of First Instance of 16 July 2009 — Studio Bichara and Others v Commission | 21 |
| 2009/C 233/42 | Case T-48/08: Order of the Court of First Instance of 27 July 2009 — Fusco v OHIM — Fusco International (FUSCOLLECTION) | 21 |
| 2009/C 233/43 | Case T-129/08: Order of the Court of First Instance of 30 June 2009 — Sahlstedt and Others v Commission | 21 |
| 2009/C 233/44 | Case T-156/09: Order of the Court of First Instance of 24 June 2009 — Four Ace International v OHIM (skiken) | 21 |
| | European Union Civil Service Tribunal |
| 2009/C 233/45 | Case F-78/08: Order of the Civil Service Tribunal of 4 June 2009 — Locchi v Commission | 22 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2009/C 233/02

Case C-198/09: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 4 June 2009 — IFB Stroder Srl v Agenzia Italiana del Farmaco (AIFA)

2

2009/C 233/03

Case C-223/09: Action brought on 18 June 2009 — Commission of the European Communities v Republic of Poland

3

2009/C 233/04

Case C-228/09: Action brought on 24 June 2009 — Commission of the European Communities v Republic of Poland

3

2009/C 233/05

Case C-240/09: Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia) lodged on 3 July 2009 — Lesoochranárske Zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky

3

2009/C 233/06

Case C-243/09: Reference for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 3 July 2009 — Günter Fuβ v Stadt Halle (Saale)

4

2009/C 233/07

Case C-244/09: Action brought on 3 July 2009 — Commission of the European Communities v Federal Republic of Germany

4

2009/C 233/08

Case C-247/09: Reference for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany), lodged on 7 July 2009 — Alketa Xhymshiti v Bundesagentur für Arbeit — Familienkasse Lörrach

5

2009/C 233/09

Case C-251/09: Action brought on 7 July 2009 — Commission of the European Communities v Republic of Cyprus

5

2009/C 233/10

Case C-253/09: Action brought on 8 July 2009 — Commission of the European Communities v Republic of Hungary

6

2009/C 233/11

Case C-265/09 P: Appeal brought on 15 July 2009 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 29 April 2009 in Case T-23/07 Borco-Marken-Import Matthiesen GmbH & Co KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

7

2009/C 233/12

Case C-271/09: Action brought on 16 July 2009 — Commission of the European Communities v Republic of Poland

8

2009/C 233/13

Case C-282/09 P: Appeal brought on 22 July 2009 by Caisse fédérale du Crédit mutuel Centre Est Europe (CFCMCEE) against the judgment of the Court of First Instance (Third Chamber) delivered on 20 May 2009 in Joined Cases T-405/07 and T-406/07 CFCMCEE v OHIM

8

2009/C 233/14

Case C-286/09: Reference for a preliminary ruling from the Corte d’appello di Roma (Italy) lodged on 24 July 2009 — Luigi Ricci v Istituto nazionale della previdenza sociale (INPS)

9

2009/C 233/15

Case C-287/09: Reference for a preliminary ruling from the Corte d’appello di Roma (Italy) lodged on 24 July 2009 — Aduo Pisaneschi v Istituto nazionale della previdenza sociale (INPS)

9

2009/C 233/16

Case C-290/09: Reference for a preliminary ruling from the Tribunale Amministrativo per la Sardegna (Italy), lodged on 27 July 2009 — Telecom Italia SpA v Regione autonoma della Sardegna

10

2009/C 233/17

Case C-292/09: Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 27 July 2009 — Isabella Calestani v Agenzia delle Entrate Ufficio di Parma

10

2009/C 233/18

Case C-293/09: Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 27 July 2009 — Paolo Lunardi v Agenzia delle Entrate Ufficio di Parma

11

2009/C 233/19

Case C-306/09: Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 31 July 2009 — I.B. v Conseil des ministres

11

2009/C 233/20

Case C-310/09: Reference for a preliminary ruling from the Conseil d’État (France) lodged on 4 August 2009 — Ministre du budget, des comptes publics et de la fonction publique v Société Accor

11

2009/C 233/21

Case C-322/09 P: Appeal brought on 12 August 2009 by NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB against the judgment of the Court of First Instance (First Chamber) delivered on 9 June 2009 in Case T-152/06: NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB v Commission of the European Communities

12

2009/C 233/22

Case C-330/09: Action brought on 17 August 2009 — Commission of the European Communities v Republic of Austria

13

Court of First Instance

2009/C 233/23

Case T-498/07 P: Judgment of the Court of First Instance of 8 June 2009 — Krcova v Court of Justice (Appeal — Staff case — Officials — Recruitment — Probationary period — Extension of the probationary period — End of probation report — Dismissal at the end of the probationary period — Article 34 of the Staff Regulations — Obligation on the Civil Service Tribunal to state reasons)

14

2009/C 233/24

Case T-94/05: Order of the Court of First Instance of 29 June 2009 — Athinaïki Techniki AE v Commission of the European Communities (State aid — Complaint — Decision to take no further action on the complaint — Referral back to the Court of First Instance after setting aside — Withdrawal of the contested decision — No need to adjudicate)

14

2009/C 233/25

Case T-279/06: Order of the Court of First Instance of 2 July 2009 — Evropaïki Dynamiki v European Central Bank (ECB) (Public service contracts — Community public procurement procedure — Supply of consultancy and IT development services for the ECB — Rejection of a tender and decision to award the contract to other tenderers — Action for annulment — Interest in bringing proceedings — Ground for exclusion — Permit to be issued by a national authority — Action in part manifestly unfounded in law and in part manifestly inadmissible)

15

2009/C 233/26

Case T-159/08: Order of the Court of First Instance of 10 June 2009 — Procter & Gamble v OHIM — Bayer (LIVENSA) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

15

2009/C 233/27

Case T-176/08: Order of the Court of First Instance of 9 July 2009 — infeurope v Commission (Action for declaration of failure to act, for annulment and for damages — Public service contracts — Call for tenders concerning the maintenance of OHIM’s computer systems — Administrative appeal before the Commission — Implied Commission decision to dismiss — New claims — Connection between the action for a declaration of failure to act and the action for damages — Manifest inadmissibility)

15

2009/C 233/28

Case T-188/08: Order of the Court of First Instance of 9 July 2009 — infeurope v Commission (Action for declaration of failure to act, for annulment and for damages — Public service contracts — Call for tenders concerning consultancy, audit and study services for OHIM — Administrative appeal before the Commission — Implied Commission decision to dismiss — New claims — Connection between the action for a declaration of failure to act and the action for damages — Manifest inadmissibility)

16

2009/C 233/29

Case T-300/08: Order of the Court of First Instance of 14 July 2009 — Hoo Hing v OHIM — Tresplain Investments (Golden Elephant Brand) (Community trade mark — Invalidity proceedings — Article 63(4) of Regulation (EC) No 40/94 (now Article 65(4) of Regulation (EC) No 207/2009) — Act which upheld the applicant’s claims in their entirety — Inadmissibility)

16

2009/C 233/30

Case T-340/08 P: Order of the Court of First Instance of 22 June 2009 — Timmer v Court of Auditors (Appeal — Staff cases — Officials — Staff reporting — New and substantial facts — Appeal manifestly inadmissible in part and manifestly unfounded in part)

17

2009/C 233/31

Case T-371/08 P: Order of the Court of First Instance of 22 June 2009 — Nijs v Court of Auditors (Appeal — Public service — Officials — Decision to appoint the appellant’s superior — Internal competition — Staff Committee elections — Decision not to promote the appellant in 2006 — Appeal manifestly inadmissible in part and manifestly unfounded in part)

17

2009/C 233/32

Case T-376/08: Order of the Court of First Instance of 22 June 2009 — Nijs v Court of Auditors (Appeal — Public service — Officials — Evaluation report for 2005/2006 — Decision not to promote the appellant in 2007 — Decision of the Court of Auditors to renew the mandate for its Secretary General — Appeal manifestly inadmissible in part and manifestly unfounded in part)

17

2009/C 233/33

Case T-196/09 R: Order of the President of the Court of First Instance of 10 July 2009 — TerreStar Europe v Commission (Application for interim measures — Decision on the selection of operators of pan-European systems providing mobile satellite services — Application for suspension of operation of the measure and interim relief — No urgency)

18

2009/C 233/34

Case T-297/09: Action brought on 22 July 2009 — Evropaïki Dynamiki v EASA

18

2009/C 233/35

Case T-298/09: Action brought on 22 July 2009 — Evropaïki Dynamiki v Commission

19

2009/C 233/36

Case T-308/09: Action brought on 30 July 2009 — Italy v Commission

19

2009/C 233/37

Case T-311/09 P: Appeal brought on 4 August 2009 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 20 May 2009 in Case F-73/08, Marcuccio v Commission

20

2009/C 233/38

Joined Cases T-530/93, T-531/93, T-87/94, T-91/94, T-106/94, T-120/94 and T-124/94: Order of the Court of First Instance of 23 July 2009 — Kat and Others v Council and Commission

21

2009/C 233/39

Case T-533/93: Order of the Court of First Instance of 23 July 2009 — Bouma and Others v Council and Commission

21

2009/C 233/40

Joined Cases T-4/94, T-73/94, T-372/94, T-52/97, T-60/97, T-64/97 and T-144/97: Order of the Court of First Instance of 23 July 2009 — Wilman and Others v Council and Commission

21

2009/C 233/41

Case T-86/06: Order of the Court of First Instance of 16 July 2009 — Studio Bichara and Others v Commission

21

2009/C 233/42

Case T-48/08: Order of the Court of First Instance of 27 July 2009 — Fusco v OHIM — Fusco International (FUSCOLLECTION)

21

2009/C 233/43

Case T-129/08: Order of the Court of First Instance of 30 June 2009 — Sahlstedt and Others v Commission

21

2009/C 233/44

Case T-156/09: Order of the Court of First Instance of 24 June 2009 — Four Ace International v OHIM (skiken)

21

European Union Civil Service Tribunal

2009/C 233/45

Case F-78/08: Order of the Civil Service Tribunal of 4 June 2009 — Locchi v Commission

22

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

EN

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 26.9.2009 | EN | Official Journal of the European Union | C 233/1 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/1

---

2009/C 233/01

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

OJ C 220, 12.9.2009

Past publications

OJ C 205, 29.8.2009

OJ C 193, 15.8.2009

OJ C 180, 1.8.2009

OJ C 167, 18.7.2009

OJ C 153, 4.7.2009

OJ C 141, 20.6.2009

These texts are available on:

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

---

V Announcements

COURT PROCEEDINGS

Court of Justice

| 26.9.2009 | EN | Official Journal of the European Union | C 233/2 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/2

---

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 4 June 2009 — IFB Stroder Srl v Agenzia Italiana del Farmaco (AIFA)

(Case C-198/09)

2009/C 233/02

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: IFB Stroder Srl

Defendant: Agenzia Italiana del Farmaco (AIFA)

Question(s) referred

| 1. | After the provisions contained in Articles 2 and 3 [of Directive 89/105/EC] which modulate the relationship between the public authorities of a Member State and the pharmaceutical companies — by allowing the pricing of a medicinal product or the raising of its price to be determined on the basis of information provided by the [latter], but only in so far as is acceptable to the competent authority, and thus on the basis of dialogue between the undertakings themselves and the authorities competent to supervise pharmaceutical expenditure — Article 4(1) [of that Directive] concerning ‘price freeze[s] imposed on all medicinal products or on certain categories of medicinal products’ characterises a price freeze as a general instrument, the continuing use of which is conditional upon a review which must be carried out, at least once a year, with reference to the macro-economic conditions existing in the Member State in question. That provision allows the competent authorities a period of 90 days in which to take a final decision, requiring them, on expiry of that period, to announce what increases or decreases in prices are being made, if any. On a proper construction of the reference to ‘decreases in prices ... being made, if any’, is that provision to be interpreted as meaning that, as well as the general remedy of freezing the prices of all categories, or certain specific categories, of medicinal product, another general remedy may be applied in the form of a reduction in the prices of all categories, and of certain specific categories, of medicinal product, or must ‘decreases ..., if any’ be interpreted as referring exclusively to the medicinal products which are already subject to the price freeze? |
| --- | --- |

1.

After the provisions contained in Articles 2 and 3 [of Directive 89/105/EC] which modulate the relationship between the public authorities of a Member State and the pharmaceutical companies — by allowing the pricing of a medicinal product or the raising of its price to be determined on the basis of information provided by the [latter], but only in so far as is acceptable to the competent authority, and thus on the basis of dialogue between the undertakings themselves and the authorities competent to supervise pharmaceutical expenditure — Article 4(1) [of that Directive] concerning ‘price freeze[s] imposed on all medicinal products or on certain categories of medicinal products’ characterises a price freeze as a general instrument, the continuing use of which is conditional upon a review which must be carried out, at least once a year, with reference to the macro-economic conditions existing in the Member State in question. That provision allows the competent authorities a period of 90 days in which to take a final decision, requiring them, on expiry of that period, to announce what increases or decreases in prices are being made, if any. On a proper construction of the reference to ‘decreases in prices ... being made, if any’, is that provision to be interpreted as meaning that, as well as the general remedy of freezing the prices of all categories, or certain specific categories, of medicinal product, another general remedy may be applied in the form of a reduction in the prices of all categories, and of certain specific categories, of medicinal product, or must ‘decreases ..., if any’ be interpreted as referring exclusively to the medicinal products which are already subject to the price freeze?

| 2. | In requiring the competent authorities of a Member State to verify, at least once a year, in the case of price freezes, whether the macroeconomic conditions justify continuing that price freeze, may Article 4(1) [of Directive 89/105/EC] be interpreted as meaning that, if the reply to Question I is that a price reduction is permissible, it is possible to have recourse to such a measure even more than once in the course of a single year, and to do that again for many years (from 2002 until 2010)? |
| --- | --- |

2.

In requiring the competent authorities of a Member State to verify, at least once a year, in the case of price freezes, whether the macroeconomic conditions justify continuing that price freeze, may Article 4(1) [of Directive 89/105/EC] be interpreted as meaning that, if the reply to Question I is that a price reduction is permissible, it is possible to have recourse to such a measure even more than once in the course of a single year, and to do that again for many years (from 2002 until 2010)?

| 3. | Under the terms of Article 4 [of Directive 89/105/EC] — read in the light of the preamble emphasising that the principal aim of measures controlling the prices of medicinal products is ‘the promotion of public health by ensuring the availability of adequate supplies of medicinal products at a reasonable cost’ and preventing ‘disparities in such measures [which] may hinder or distort intra-Community trade in medicinal products’ — is it compatible with the Community rules to adopt measures which refer to economic values attributed to that expenditure on the basis of ‘predictions’ rather than values which have been ‘ascertained’ (this question relates to both situations)? |
| --- | --- |

3.

Under the terms of Article 4 [of Directive 89/105/EC] — read in the light of the preamble emphasising that the principal aim of measures controlling the prices of medicinal products is ‘the promotion of public health by ensuring the availability of adequate supplies of medicinal products at a reasonable cost’ and preventing ‘disparities in such measures [which] may hinder or distort intra-Community trade in medicinal products’ — is it compatible with the Community rules to adopt measures which refer to economic values attributed to that expenditure on the basis of ‘predictions’ rather than values which have been ‘ascertained’ (this question relates to both situations)?

| 4. | Must the requirements relating to compliance with the ceilings for pharmaceutical expenditure which each Member State is competent to determine be linked, point by point, to pharmaceutical expenditure alone, or is it within the powers of the Member States to take account also of data relating to other health expenditure? |
| --- | --- |

4.

Must the requirements relating to compliance with the ceilings for pharmaceutical expenditure which each Member State is competent to determine be linked, point by point, to pharmaceutical expenditure alone, or is it within the powers of the Member States to take account also of data relating to other health expenditure?

| 5. | Must the principles, to be inferred from ... Directive [89/105/EC], of transparency and of shared participation on the part of the undertakings with an interest in measures freezing the prices of pharmaceutical products or reducing them across the board be interpreted as requiring provision to be made, always and in any circumstances, for the possibility of derogation from the price imposed (Article 4(2) [of Directive 89/105/EC]) and for genuine participation by the applicant company, with the consequent need for the administrative authorities to state the reasons for any refusal? |
| --- | --- |

5.

Must the principles, to be inferred from ... Directive [89/105/EC], of transparency and of shared participation on the part of the undertakings with an interest in measures freezing the prices of pharmaceutical products or reducing them across the board be interpreted as requiring provision to be made, always and in any circumstances, for the possibility of derogation from the price imposed (Article 4(2) [of Directive 89/105/EC]) and for genuine participation by the applicant company, with the consequent need for the administrative authorities to state the reasons for any refusal?

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/3 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/3

---

Action brought on 18 June 2009 — Commission of the European Communities v Republic of Poland

(Case C-223/09)

2009/C 233/03

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: O. Beynet and M. Kaduczak, Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to ensure the implementation of Directive 2005/89/EC of the European Parliament and of the Council of 18 January 2006 concerning measures to safeguard security of electricity supply and infrastructure investment, (1) or in any event by failing to inform the Commission that it had adopted such provisions, the Republic of Poland has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to ensure the implementation of Directive 2005/89/EC of the European Parliament and of the Council of 18 January 2006 concerning measures to safeguard security of electricity supply and infrastructure investment, (1) or in any event by failing to inform the Commission that it had adopted such provisions, the Republic of Poland has failed to fulfil its obligations under that directive;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The period within which Directive 2005/89/EC had to be transposed expired on 24 February 2008. At the time when the present action was brought, the defendant had not adopted the measures necessary to transpose that directive, or in any event had not informed the Commission of such measures.

---

(1)  OJ 2006 L 33, p. 22.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/3 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/3

---

Action brought on 24 June 2009 — Commission of the European Communities v Republic of Poland

(Case C-228/09)

2009/C 233/04

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafyllou and A. Stobiecka-Kuik, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by including the amount of the ‘opłata rejestracyjna’ (registration charge) within the taxable amount for VAT levied in Poland on the supply, intra-Community acquisition or import of a passenger car, the Republic of Poland has failed to fulfil its obligations under Articles 78, 79, 83 and 86 of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1) |
| --- | --- |

—

declare that, by including the amount of the ‘opłata rejestracyjna’ (registration charge) within the taxable amount for VAT levied in Poland on the supply, intra-Community acquisition or import of a passenger car, the Republic of Poland has failed to fulfil its obligations under Articles 78, 79, 83 and 86 of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1)

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The plea advanced in the present case concerns the Republic of Poland’s inclusion of the amount of the registration charge in the taxable amount for VAT when the supply, intra-Community acquisition and import of unregistered passenger cars take place in that Member State.

In the Commission’s view, there is a fundamental similarity between the Polish tax/charge at issue in the present case and the Danish tax/charge in Case C-98/05 De Danske Bilimportører. In that case, the Court held that the relevant tax/registration charge does not fall within the taxable amount for VAT.

The Commission takes the view that the operation of the Polish registration charge in the case of successive transactions concerning the same vehicle prior to its registration shows that it is in essence a registration tax/charge, and not a tax on sales as the Republic of Poland maintains. The taxable person can deduct the amount of the registration charge from the amount of tax chargeable. This means that ultimately, through the system of deduction of the tax paid previously, the tax/charge is levied only once.

The Commission does not concur with the Republic of Poland’s argument that the person liable for payment of the registration charge is the seller, the intra-Community acquirer or the importer of the vehicle and not the person in whose name the car is registered.

---

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

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/3 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/3

---

Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia) lodged on 3 July 2009 — Lesoochranárske Zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky

(Case C-240/09)

2009/C 233/05

Language of the case: Slovak

Referring court

Najvyšší súd Slovenskej republiky

Parties to the main proceedings

Applicant: Lesoochranárske Zoskupenie VLK

Defendant: Ministerstvo životného prostredia Slovenskej republiky

Questions referred

| 1. | Is it possible to recognise Article 9 and in particular Article 9(3) of the Aarhus Convention, given that the principal objective pursued by that international treaty is to change the classic definition of locus standi by according the status of a party to proceedings to the public, or the public concerned, as having the direct effect of an international treaty (‘self-executing effect’) in a situation where the European Union acceded to that international treaty on 17 February 2005 but to date has not adopted Community legislation in order to transpose the treaty concerned into Community law? |
| --- | --- |

1.

Is it possible to recognise Article 9 and in particular Article 9(3) of the Aarhus Convention, given that the principal objective pursued by that international treaty is to change the classic definition of locus standi by according the status of a party to proceedings to the public, or the public concerned, as having the direct effect of an international treaty (‘self-executing effect’) in a situation where the European Union acceded to that international treaty on 17 February 2005 but to date has not adopted Community legislation in order to transpose the treaty concerned into Community law?

| 2. | Is it possible to recognise Article 9 and in particular Article 9(3) of the Aarhus Convention, which has become a part of Community law, as having the direct applicability or direct effect of Community law within the meaning of the settled case-law of the Court of Justice? |
| --- | --- |

2.

Is it possible to recognise Article 9 and in particular Article 9(3) of the Aarhus Convention, which has become a part of Community law, as having the direct applicability or direct effect of Community law within the meaning of the settled case-law of the Court of Justice?

| 3. | If the answer to the first of the second question is in the affirmative, is it then possible to interpret Article 9(3) of the Aarhus Convention, given the principal objective pursued by that international treaty, as meaning that it is necessary also to include within the concept ‘act of a public authority’ an act consisting in the delivery of decisions, that is to say, that the right of public access to judicial hearings intrinsically also includes the right to challenge the decision of an administrative body, the unlawfulness of which lies in its effect on the environment? |
| --- | --- |

3.

If the answer to the first of the second question is in the affirmative, is it then possible to interpret Article 9(3) of the Aarhus Convention, given the principal objective pursued by that international treaty, as meaning that it is necessary also to include within the concept ‘act of a public authority’ an act consisting in the delivery of decisions, that is to say, that the right of public access to judicial hearings intrinsically also includes the right to challenge the decision of an administrative body, the unlawfulness of which lies in its effect on the environment?

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/4 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/4

---

Reference for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 3 July 2009 — Günter Fuβ v Stadt Halle (Saale)

(Case C-243/09)

2009/C 233/06

Language of the case: German

Referring court

Verwaltungsgericht Halle

Parties to the main proceedings

Applicant: Günter Fuβ

Defendant: Stadt Halle (Saale)

Questions referred

| 1. | Is the concept of detriment in Article 22(1)(b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 (1) concerning certain aspects of the organisation of working time to be construed objectively or subjectively? |
| --- | --- |

1.

Is the concept of detriment in Article 22(1)(b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 (1) concerning certain aspects of the organisation of working time to be construed objectively or subjectively?

| 2. | Is there detriment within the meaning of Article 22(1)(b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time if, as a result of having requested that the maximum working time in future be complied with, an employee in the on-call service is transferred, against his will, to a different post that largely involves office duties? |
| --- | --- |

2.

Is there detriment within the meaning of Article 22(1)(b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time if, as a result of having requested that the maximum working time in future be complied with, an employee in the on-call service is transferred, against his will, to a different post that largely involves office duties?

| 3. | Is a fall in remuneration to be construed as detriment within the meaning of Article 22(1)(b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time if, as a result of the transfer, fewer unsocial hours (nights, Sundays and public holidays) are worked and the amount of the hardship allowance paid in respect of such hours is therefore also reduced? |
| --- | --- |

3.

Is a fall in remuneration to be construed as detriment within the meaning of Article 22(1)(b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time if, as a result of the transfer, fewer unsocial hours (nights, Sundays and public holidays) are worked and the amount of the hardship allowance paid in respect of such hours is therefore also reduced?

| 4. | In the event that the second or third questions are answered in the affirmative: can detriment resulting from a transfer be offset by other advantages inherent in the new post, such as shorter working hours or further training? |
| --- | --- |

4.

In the event that the second or third questions are answered in the affirmative: can detriment resulting from a transfer be offset by other advantages inherent in the new post, such as shorter working hours or further training?

---

(1)  OJ 2003 L 299, p. 9.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/4 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/4

---

Action brought on 3 July 2009 — Commission of the European Communities v Federal Republic of Germany

(Case C-244/09)

2009/C 233/07

Language of the case: German

Parties

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

Defendant: Federal Republic of Germany

Form of order sought

| — | Declare that, by restricting decreasing balance depreciation for wear and tear under Paragraph 7(5) of the Law on Income Tax (Einkommensteuergesetz) to buildings located in Germany, the Federal Republic of Germany has failed to fulfil its obligations under Article 56 EC; |
| --- | --- |

—

Declare that, by restricting decreasing balance depreciation for wear and tear under Paragraph 7(5) of the Law on Income Tax (Einkommensteuergesetz) to buildings located in Germany, the Federal Republic of Germany has failed to fulfil its obligations under Article 56 EC;

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

—

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The present action concerns the provisions of the German Law on Income Tax (Einkommensteuergesetz) whereby the ‘decreasing balance depreciation for wear and tear’ — that is, the use of depreciation rates higher than those used for straight line depreciation during the early stages of the depreciation period — which is provided for in the fiscal treatment of immovable property is restricted to buildings located in Germany.

This difference in the treatment of immovable property located in and outside Germany is, it is claimed, contrary to the free movement of capital guaranteed under Article 56 EC. According to settled case-law, Article 56 EC prohibits all measures which treat cross-border capital movements less favourably than wholly internal capital movements, thereby deterring residents from engaging in the former.

In consequence of the provision at issue, the cash-flow situation of an investor who is liable to tax is less favourable in the case of a foreign property than in the case of a property in Germany. The effect of this is that investment in property abroad is less appealing than investment in property in Germany, and investors might be deterred from constructing or buying a building in another Member State. According to the case-law, the improved cash-flow in the case of an investment in property in Germany amounts to a tax advantage which must be taken into account when comparing the treatment of wholly internal and cross-border situations.

Although the operation of the discriminatory provision being challenged in this case has been limited to buildings in respect of which an application for a building permit was made or a purchase contract concluded before 1 January 2006, this does not eliminate the restriction on the free movement of capital, since decreasing balance depreciation for wear and tear is ongoing.

According to the Federal Government, the aforementioned restriction is justified by overriding reasons in the public interest, since the purpose of the provision at issue is to promote the construction of apartments for rent in Germany.

It must be noted in this regard that, according to settled case-law, support for the domestic economy is not an objective that can justify a restriction of the fundamental freedoms. Even if the objective — promotion of the construction of apartments for rent — were to be recognised as a non-economic objective, the strict limitation of decreasing balance depreciation to buildings situated in Germany would be neither necessary nor proportionate. The promotion of the construction of apartments for rent in Germany would not be adversely affected if it were possible to apply the decreasing balance method of depreciation to immovable property in other Member States also.

The Federal Government has not, therefore, put forward any grounds that might justify the interference in the free movement of capital that has been established.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/5 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/5

---

Reference for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany), lodged on 7 July 2009 — Alketa Xhymshiti v Bundesagentur für Arbeit — Familienkasse Lörrach

(Case C-247/09)

2009/C 233/08

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Claimant: Alketa Xhymshiti

Defendant: Bundesagentur für Arbeit — Familienkasse Lörrach

Questions referred

| 1. | In cases in which a national of a non-member country is lawfully resident in a Member State of the European Union and works in the Swiss Confederation, does Regulation (EC) No 859/2003 (1) apply to him and his spouse, who is also a national of a non-member country, in their Member State of residence, with the result that the Member State of residence is obliged to apply Regulations (EEC) No 1408/71 (2) and (EEC) No 574/72 (3) to that employed person and his spouse? |
| --- | --- |

1.

In cases in which a national of a non-member country is lawfully resident in a Member State of the European Union and works in the Swiss Confederation, does Regulation (EC) No 859/2003 (1) apply to him and his spouse, who is also a national of a non-member country, in their Member State of residence, with the result that the Member State of residence is obliged to apply Regulations (EEC) No 1408/71 (2) and (EEC) No 574/72 (3) to that employed person and his spouse?

| 2. | If the answer to the first question is in the negative: in the circumstances set out in the first question, are Articles 2, 13 and 76 of Regulation (EEC) No 1408/71 and Article 10(1)(a) of Regulation (EEC) No 574/72 to be interpreted as meaning that a mother who is a national of a non-member country may be refused family benefits in her Member State of residence on the basis of the fact that she is a national of a non-member country, even though the child concerned is a Union citizen? |
| --- | --- |

2.

If the answer to the first question is in the negative: in the circumstances set out in the first question, are Articles 2, 13 and 76 of Regulation (EEC) No 1408/71 and Article 10(1)(a) of Regulation (EEC) No 574/72 to be interpreted as meaning that a mother who is a national of a non-member country may be refused family benefits in her Member State of residence on the basis of the fact that she is a national of a non-member country, even though the child concerned is a Union citizen?

---

(1)  Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality (OJ 2003 L 124, p. 1).

(2)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).

(3)  Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1972 (I), p. 159).

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/5 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/5

---

Action brought on 7 July 2009 — Commission of the European Communities v Republic of Cyprus

(Case C-251/09)

2009/C 233/09

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: C. Zadra and I. Khatzigiannis)

Defendant: Republic of Cyprus

Form of order sought

| — | declare that the Republic of Cyprus has failed to fulfil its obligations under Articles 4(2) and 31(1) of Directive 93/38/EEC (1) and Article 1(1) of Directive 92/13/EEC; (2) |
| --- | --- |

—

declare that the Republic of Cyprus has failed to fulfil its obligations under Articles 4(2) and 31(1) of Directive 93/38/EEC (1) and Article 1(1) of Directive 92/13/EEC; (2)

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

—

order the Republic of Cyprus to pay the costs.

Pleas in law and main arguments

The Arkhi Ilektrikou Kiprou (Electricity Authority of Cyprus) is stated to have infringed Directives 93/38/EEC and 92/13/EEC in the course of the tendering procedure under reference number 40/2005 which related to a contract for the design, supply and construction of the fourth unit of the Vasilikos Power Station.

The Commission submits that the infringement of Articles 4(2) and 31(1) of Directive 93/38 is due to the grounds for rejection of the complainant’s tender and acceptance of that of the other tenderer on the basis of a criterion which was not referred to clearly in the call for tenders.

So far as concerns the infringement of Directive 92/13, a measure relating to procedure, the Commission submits (i) that, inasmuch as the contracting authority itself created by its conduct a state of uncertainty as to the interpretation to be given to the grounds which resulted in the rejection of the complainant’s tender, it infringed Directive 92/13 as interpreted in the light of the objective of effectiveness pursued by that directive, and (ii) that the contracting authority cannot give reasons for its decision by simply referring to the evaluation reports.

---

(1)  Council Directive of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84).

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

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/6 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/6

---

Action brought on 8 July 2009 — Commission of the European Communities v Republic of Hungary

(Case C-253/09)

2009/C 233/10

Language of the case: Hungarian

Parties

Applicant(s): Commission of the European Communities (represented by: R. Lyal and K. Ritzné Talabér, Agents)

Defendant(s): Republic of Hungary

Form of order sought

| — | Declare that the Republic of Hungary has failed to fulfil its obligations under Articles 18 EC, 39 EC and 43 EC and Articles 28 and 31 of the EEA Agreement by giving less favourable treatment to the purchase of residential property in Hungary on the sale of residential property in another State than is given to the purchase of residential property in Hungary on the sale of residential property in Hungary. |
| --- | --- |

—

Declare that the Republic of Hungary has failed to fulfil its obligations under Articles 18 EC, 39 EC and 43 EC and Articles 28 and 31 of the EEA Agreement by giving less favourable treatment to the purchase of residential property in Hungary on the sale of residential property in another State than is given to the purchase of residential property in Hungary on the sale of residential property in Hungary.

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

—

order the Republic of Hungary to pay the costs.

Pleas in law and main arguments

The subject of the present action is the provision of Hungarian tax law under which, to establish the taxable amount at the time of acquisition of residential property situated in Hungary, it is only possible to deduct the price of the property sold from the value of the property purchased if the former is situated in Hungary.

This rule is contrary to the principles of freedom of movement for persons and freedom of establishment laid down by Articles 18 EC, 39 EC and 43 EC and Articles 28 and 31 of the EEA Agreement.

The purpose of the above provisions of Community law is to facilitate the exercise of professional activity of any type anywhere in the Community for citizens of the Member States and, at the same time prohibit any measure as a result of which citizens of any Member State of the Community who, in exercise of their right to freedom of movement, wish to carry out an economic activity in the territory of another Member State are placed in a less favourable position. It is settled case-law that provisions which prevent or discourage a national of a Member State from leaving his country of origin to exercise his right to freedom of movement constitute obstacles to that freedom even where they apply regardless of the nationality of the persons concerned.

However, the Hungarian tax law which is the subject of this action is a provision of that sort. As a result of the exclusion of the tax advantage described, foreign or Hungarian citizens who exercise their right to freedom of movement and live for some time in another Member State and purchase property there, will have less incentive to purchase residential property in Hungary than those who live in Hungary and buy a new property to replace that they already have in the territory of the country. In that way, the Hungarian legislation may, clearly, have the effect of discouraging citizens of other Member States from settling in Hungary. The Commission considers that such persons, who may have already paid taxes of a similar amount in the State where they previously resided when they bought their property, are in the same situation as those who bought their previous residence in Hungary. Consequently, such persons must receive the same treatment. However, since the Hungarian legislation places those who buy residential property to replace property in any other Member State in a worse position than those who likewise bought property but already had property within the territory, it treats situations which are objectively the same differently and thus constitutes discriminatory legislation.

The only argument put forward by the Government of the Republic of Hungary is not such as to justify such a breach of law.

First, as regards the objection relating to the need to guarantee the cohesion of the tax system, it must be observed that, in the present case, no direct relationship can be discerned between the tax advantage in question and the offsetting of that advantage through a particular tax base, which is required so that the alleged need to guarantee the cohesion of the tax system can constitute a justified limitation on the exercise of the fundamental freedoms. From an economic point of view, there is no direct relationship between the acquisition of another property and the obligation to pay tax, and the sale of the first property and the taxes paid at that point in time, these being matters which only the Hungarian legislature considers to be connected.

Finally, regarding the argument put forward by the Hungarian Government that the need to take account of properties sold in other Member States and the taxes paid at the time of their purchase and the prevention of abuses which may have occurred in connection with those transactions would cause serious administrative problems, the Commission states that potential administrative difficulties cannot in any event justify the infringement of the fundamental freedoms guaranteed by Community law. The Republic of Hungary does have the option of imposing specific requirements in order to obtain the necessary information, but those requirements may not be disproportionate to the objective pursued.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/7 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/7

---

Appeal brought on 15 July 2009 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 29 April 2009 in Case T-23/07 Borco-Marken-Import Matthiesen GmbH & Co KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-265/09 P)

2009/C 233/11

Language of the case: German

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider)

Other party to the proceedings: Borco-Marken-Import Matthiesen GmbH & Co KG

Form of order sought

| — | Set aside the judgment appealed against; |
| --- | --- |

—

Set aside the judgment appealed against;

| — | Dismiss the action brought against the decision of the Fourth Board of Appeal of the Office of 30 November 2006 in Case R 808/2006-4; in the alternative, refer the case back to the Court of First Instance; |
| --- | --- |

—

Dismiss the action brought against the decision of the Fourth Board of Appeal of the Office of 30 November 2006 in Case R 808/2006-4; in the alternative, refer the case back to the Court of First Instance;

| — | Order the other parties to the proceedings to pay the costs both of the proceedings at first instance and of the appeal proceedings. |
| --- | --- |

—

Order the other parties to the proceedings to pay the costs both of the proceedings at first instance and of the appeal proceedings.

Pleas in law and main arguments

The present appeal is brought against the judgment of the Court of First Instance, by which the decision of the Fourth Board of Appeal of the Office of 30 November 2006 concerning the rejection of the respondent’s application for registration of the sign ‘α’ as a Community trade mark was annulled. The Court of First Instance took the view that the Board of Appeal misapplied Article 7(1)(b) of Council Regulation (EC) No 40/94 (‘Regulation No 40/94’) by finding that the sign applied for lacked distinctive character solely because of its lack of graphical modifications or ornamentations in relation to the Times New Roman character font, without carrying out an examination as to whether, on the facts, that sign is capable of distinguishing, in the mind of the reference public, the goods at issue from those of the applicant’s competitors.

The plea in law claims that Article 7(1)(b) of Regulation No 40/94 has been infringed. The Office takes the view that the Court of First Instance misinterpreted that provision in three respects.

First, contrary to the view of the Court of First Instance, it is not always necessary when assessing the applicability of Article 7(1) of Regulation No 40/94 to determine the distinctive character of a sign by means of a specific examination focusing on the individual goods. For individual categories of signs (for example three-dimensional signs, colour marks, slogans, domain names) the case-law has allowed an examination of the actual distinctive character under Article 7(1)(b) of Regulation No 40/94 on the basis of general statements concerning consumers perceptions and how they are conditioned and has thereby often forgone a specific examination of the goods and services covered by the application for registration. The case-law has also acknowledged that in relation to some categories of signs actual distinctive character can as a rule only be achieved on the basis of ‘implantation’.

Second, the Court of First Instance failed to understand that the assessment of distinctive character is a decision based on a prediction and therefore always has a conjectural character.

Third, the Court of First Instance misunderstood the apportionment of the duties to provide evidence in the context of the assessment of the applicability of Article 7(1)(b) of Regulation No 40/94, in so far as it assumed that it was always necessary for the Office to prove the lack of distinctive character of a sign applied for by reference to specific facts. The registration procedure was an administrative procedure, not an adversarial one in which the Office was obliged to prove the obstacles to registration to the applicant. Where an applicant claims that, in contrast to the assessment made by the Office, a mark applied for has a distinctive character, it is therefore for the applicant to prove, by means of specific and well-founded information, that the mark applied for has distinctive character by nature or has acquired it in consequence of use.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/8 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/8

---

Action brought on 16 July 2009 — Commission of the European Communities v Republic of Poland

(Case C-271/09)

2009/C 233/12

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: E. Montaguti and K. Hermann, Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by maintaining in force Articles 143, 136(3) and 136a(2) of the Law of 28 August 1997 on the organisation and operation of pension funds (Ustawa o organizacji i funkcjonowaniu funduszy emerytalynch), which limit foreign investments by Polish open pension funds, the Republic of Poland has failed to fulfil its obligations under Article 56 EC; |
| --- | --- |

—

declare that, by maintaining in force Articles 143, 136(3) and 136a(2) of the Law of 28 August 1997 on the organisation and operation of pension funds (Ustawa o organizacji i funkcjonowaniu funduszy emerytalynch), which limit foreign investments by Polish open pension funds, the Republic of Poland has failed to fulfil its obligations under Article 56 EC;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

In the view of the Commission, Article 143 of the Law of 28 August 1997 on the organisation and operation of pension funds (‘the Law on Pension Funds’) limits the value of investments outside the Republic of Poland (‘foreign investments’) which open pension funds may make pursuant to paragraph (2) of that article to merely 5 % of the value of the assets of the open pension fund concerned. Furthermore, the list of types of foreign investments set out in Article 143(1) of the Law on Pension Funds does not include a range of investment categories which are available for open pension fund investments within the territory of the Republic of Poland.

Pursuant to Article 136(3) of the Law on Pension Funds, the value of investments in securities with participating rights issued by joint investment bodies which have their place of establishment outside Poland, referred to in Article 143(1) of that Law, is not taken into consideration in the determination of the net assets of open pension funds. By contrast, the level of administration charges for which open pension funds are liable is calculated on the basis of the value of those funds net assets. Consequently, according to the applicant, that provision amounts to a restriction on the movement of capital within the meaning of Article 56 EC inasmuch as it discourages open pension funds from investing assets in non-Polish investment funds.

Article 136a(2) of the Law on Pension Funds provides that the costs of transactions associated with foreign clearing institutions may be met by open pension fund assets only in an amount which does not exceed the corresponding costs of national clearing institutions. This provision may, in the Commission’s view, deter open pension funds from investing outside Poland in so far as they will be unable to cover the costs of transactions from open pension fund assets in the full amount as is possible in the case of national investments.

It is the Commission’s view that Article 56 EC applies to the investment activity of an open pension fund which forms part of the Polish pension system based on the capitalisation of contributions from members of the open pension fund. The restrictions on the movement of capital here in issue cannot be justified on grounds of prudential supervision under Article 58 EC or on overriding grounds of public interest, as quantitative and type-related restrictions are not proper measures by which to guarantee effectively the financial stability of members contributions collected by the open pension funds. In any event, all of the measures here in dispute are disproportionate.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/8 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/8

---

Appeal brought on 22 July 2009 by Caisse fédérale du Crédit mutuel Centre Est Europe (CFCMCEE) against the judgment of the Court of First Instance (Third Chamber) delivered on 20 May 2009 in Joined Cases T-405/07 and T-406/07 CFCMCEE v OHIM

(Case C-282/09 P)

2009/C 233/13

Language of the case: French

Parties

Appellant: Caisse fédérale du Crédit mutuel Centre Est Europe (CFCMCEE) (represented by: P. Greffe and L. Paudrat, avocats)

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

Form of order sought

Set aside the judgment delivered on 20 May 2009 by the Court of First Instance of the European Communities (Third Chamber) in so far as it dismisses, in part, the appellant’s action and upholds the decisions of the Office for Harmonisation in the Internal Market of 10 July 2007 (Case R 119/2007-1) and of 12 September 2007 (Case R 120/2007-1) refusing the applications to register PAYWEB CARD (No 003861051) and P@YWEB CARD (No 003861044) as Community trade marks in respect of the following goods and services:

| — | ‘integrated circuit cards (smart cards), magnetic encoded cards, magnetic or smart identity cards, magnetic or smart payment cards, both credit and debit, coin-operated mechanisms for television sets’ in Class 9; |
| --- | --- |

—

‘integrated circuit cards (smart cards), magnetic encoded cards, magnetic or smart identity cards, magnetic or smart payment cards, both credit and debit, coin-operated mechanisms for television sets’ in Class 9;

| — | ‘real estate affairs, accident insurance underwriting, debt collection agencies, financial analysis, insurance underwriting, real estate appraisal, issue of tokens of value, savings banks, exchanging money, cheque verification, issuing of travellers cheques, financial consultancy, insurance brokerage, housing agents, stocks and bonds brokerage, deposits of valuables, safe deposit services, financial evaluation and assessments (insurance, banking, real estate), financial information (insurance, banking, real estate), financial management, financial information, rent collection, health insurance underwriting, marine insurance underwriting, life insurance underwriting, on-line financial information services, computerised interactive financial information services’ in Class 36; |
| --- | --- |

—

‘real estate affairs, accident insurance underwriting, debt collection agencies, financial analysis, insurance underwriting, real estate appraisal, issue of tokens of value, savings banks, exchanging money, cheque verification, issuing of travellers cheques, financial consultancy, insurance brokerage, housing agents, stocks and bonds brokerage, deposits of valuables, safe deposit services, financial evaluation and assessments (insurance, banking, real estate), financial information (insurance, banking, real estate), financial management, financial information, rent collection, health insurance underwriting, marine insurance underwriting, life insurance underwriting, on-line financial information services, computerised interactive financial information services’ in Class 36;

| — | ‘communications by computer terminals, sending of telegrams, information about telecommunication, electronic mail, message sending, computer aided transmission of messages and images, satellite transmission’ in Class 38. |
| --- | --- |

—

‘communications by computer terminals, sending of telegrams, information about telecommunication, electronic mail, message sending, computer aided transmission of messages and images, satellite transmission’ in Class 38.

Pleas in law and main arguments

The appellant relies, in essence, on two grounds of appeal:

By its first ground of appeal, it submits that the Court of First Instance failed to fulfil its duty to state reasons — and thereby infringed Article 253 EC and Article 73 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) — by failing to criticise the relevant decisions of OHIM for lacking a statement of reasons. In the decisions referred to, the Board of Appeal of OHIM carried out a global assessment of the distinctive character of the word signs PAYWEB CARD and P@YWEB CARD in relation to the goods and services referred to, without stating the reasons for its decision in respect of each of them. However, a global statement of reasons is possible only if the goods and services have a sufficiently direct and specific link to each other to the extent that they form a sufficiently homogenous category or group, which is evidently not the case here, since the goods and services covered by the application for registration fulfil different functions.

By its second ground of appeal, the appellant challenges the Court of First Instance’s assessment that there is a certain overlap in the scope of the absolute grounds for refusal set out in Article 7(1)(b) to (d) of Regulation No 40/94. According to the case-law of the Court of Justice, each of the grounds for refusal of registration listed in Article 7(1) of that regulation is effectively independent of the others and calls for separate examination. The Court of First Instance thus erred in its application of Article 7(1)(b) in regard to the goods in Class 9 by failing to undertake an actual individual examination of the grounds for refusal laid down by that provision.

---

(1)  OJ 1994 L 11, p. 1.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/9 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/9

---

Reference for a preliminary ruling from the Corte d’appello di Roma (Italy) lodged on 24 July 2009 — Luigi Ricci v Istituto nazionale della previdenza sociale (INPS)

(Case C-286/09)

2009/C 233/14

Language of the case: Italian

Referring court

Corte d’appello di Roma

Parties to the main proceedings

Applicant: Luigi Ricci

Defendant: Istituto nazionale della previdenza sociale (INPS)

Question referred

The Court of Justice is asked to give a preliminary ruling under Article 234 EC as to whether Articles 17, 39 and 42 EC, and the relevant provisions of Regulation No 1408/71, must be interpreted as meaning that the principle that all insurance periods must be aggregated for the purposes of entitlement to the right to benefits, and of the acquisition and maintenance of that right — a principle implemented through the adoption, by the Council, of Regulation No 1408/71 — applies in all cases where the aggregation and pro rata mechanism must be used for the purposes of recognising the right to a given benefit, with the result that account must be taken to that end both of the insurance periods completed under the legislation of each Member State, and of those completed under the social insurance scheme applicable to employees of the Community institutions.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/9 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/9

---

Reference for a preliminary ruling from the Corte d’appello di Roma (Italy) lodged on 24 July 2009 — Aduo Pisaneschi v Istituto nazionale della previdenza sociale (INPS)

(Case C-287/09)

2009/C 233/15

Language of the case: Italian

Referring court

Corte d’appello di Roma

Parties to the main proceedings

Applicant: Aduo Pisaneschi

Defendant: Istituto nazionale della previdenza sociale (INPS)

Questions referred

The Court of Justice is asked to give a preliminary ruling under Article 234 EC as to whether Articles 17, 39 and 42 EC, and the relevant provisions of Regulation No 1408/71, must be interpreted as meaning that the principle that all insurance periods must be aggregated for the purposes of entitlement to the right to benefits, and of the acquisition and maintenance of that right — a principle implemented through the adoption, by the Council, of Regulation No 1408/71 — applies in all cases where the aggregation and pro rata mechanism must be used for the purposes of recognising the right to a given benefit, with the result that account must be taken to that end both of the insurance periods completed under the legislation of each Member State, and of those completed under the social insurance scheme applicable to employees of the Community institutions.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/10 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/10

---

Reference for a preliminary ruling from the Tribunale Amministrativo per la Sardegna (Italy), lodged on 27 July 2009 — Telecom Italia SpA v Regione autonoma della Sardegna

(Case C-290/09)

2009/C 233/16

Language of the case: Italian

Referring court

Tribunale Amministrativo per la Sardegna

Parties to the main proceedings

Claimant: Telecom Italia SpA

Defendant: Regione autonoma della Sardegna

Questions referred

| 1. | Must the provisions of Directive 2004/18/EC (1) on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts that are referred to in section 10 [of the order for reference] be interpreted as precluding a temporary grouping of undertakings, the members of which include a State agency of the kind described in section 12 [of the order for reference], from taking part in a tendering procedure for the award of a contract for a service such as the documentation, dissemination and implementation of the ‘Homogeneous System of Visual Identity of the Cultural Sites and Institutions: Cultural Heritage of Sardinia’, the subject of the tendering procedure advertised by the Sardinia Region? |
| --- | --- |

1.

Must the provisions of Directive 2004/18/EC (1) on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts that are referred to in section 10 [of the order for reference] be interpreted as precluding a temporary grouping of undertakings, the members of which include a State agency of the kind described in section 12 [of the order for reference], from taking part in a tendering procedure for the award of a contract for a service such as the documentation, dissemination and implementation of the ‘Homogeneous System of Visual Identity of the Cultural Sites and Institutions: Cultural Heritage of Sardinia’, the subject of the tendering procedure advertised by the Sardinia Region?

| 2. | Are the provisions of Italian law contained in Article 3(22) and (19) of the Public Contracts Code, enacted by Legislative Decree No 163/2006 (which provide, respectively, that ‘the term “economic operator” shall include a contractor, supplier, service provider or a group or consortium of these’ and ‘the terms “contractor”, “supplier” and “service provider” shall mean any natural or legal person, or body without legal personality, including a European Economic Interest Group (EEIG) formed pursuant to Legislative Decree No 240 of 23 July 1991, which “offers on the market”, respectively, the execution of works or a work, the supply of products or the provision of services’), and in Article 34 of that Public Contracts Code (which lists the entities allowed to participate in public procurement procedures) contrary to Directive 2004/18/EC if interpreted as restricting participation in tendering procedures to professional providers of such services and as excluding public entities the primary objects of which are not-for-profit, such as research? |
| --- | --- |

2.

Are the provisions of Italian law contained in Article 3(22) and (19) of the Public Contracts Code, enacted by Legislative Decree No 163/2006 (which provide, respectively, that ‘the term “economic operator” shall include a contractor, supplier, service provider or a group or consortium of these’ and ‘the terms “contractor”, “supplier” and “service provider” shall mean any natural or legal person, or body without legal personality, including a European Economic Interest Group (EEIG) formed pursuant to Legislative Decree No 240 of 23 July 1991, which “offers on the market”, respectively, the execution of works or a work, the supply of products or the provision of services’), and in Article 34 of that Public Contracts Code (which lists the entities allowed to participate in public procurement procedures) contrary to Directive 2004/18/EC if interpreted as restricting participation in tendering procedures to professional providers of such services and as excluding public entities the primary objects of which are not-for-profit, such as research?

---

(1)  OJ 2004 L 134, p. 114.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/10 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/10

---

Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 27 July 2009 — Isabella Calestani v Agenzia delle Entrate Ufficio di Parma

(Case C-292/09)

2009/C 233/17

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Parma

Parties to the main proceedings

Applicant: Isabella Calestani

Defendant: Agenzia delle Entrate Ufficio di Parma

Question referred

Is Article 19(5) of Presidential Decree No 633/72 at variance with Community law and with the principle of the neutrality of VAT, and in particular has Sixth Directive 77/388/EEC of 17 May 1977 been incorrectly transposed in so far as domestic legislation does not provide that VAT is deductible on purchases made by taxable persons whose transactions are exempt?

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/11 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/11

---

Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 27 July 2009 — Paolo Lunardi v Agenzia delle Entrate Ufficio di Parma

(Case C-293/09)

2009/C 233/18

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Parma

Parties to the main proceedings

Applicant: Paolo Lunardi

Defendant: Agenzia delle Entrate Ufficio di Parma

Question referred

Is Article 19(5) of Presidential Decree No 633/72 at variance with Community law and with the principle of the neutrality of VAT, and in particular has Sixth Directive 77/388/EEC of 17 May 1977 been incorrectly transposed in so far as the practical consequence of national law is that, as a result of the method prescribed for calculating the deductible proportion, a taxable person whose transactions are exempt under statute has no right to deduct VAT paid on purchases of equipment?

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/11 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/11

---

Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 31 July 2009 — I.B. v Conseil des ministres

(Case C-306/09)

2009/C 233/19

Language of the case: French

Referring court

Cour consitutionnelle

Parties to the main proceedings

Applicant: I.B.

Defendant: Conseil des ministres

Questions referred

| 1. | Is a European arrest warrant issued for the purposes of the execution of a sentence imposed in absentia, without the convicted person having been informed of the date and place of the hearing, and against which that person still has a remedy, to be considered to be, not an arrest warrant issued for the purposes of the execution of a custodial sentence or detention order within the meaning of Article 4(6) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (1) but an arrest warrant for the purposes of prosecution within the meaning of Article 5(3) of the Framework Decision? |
| --- | --- |

1.

Is a European arrest warrant issued for the purposes of the execution of a sentence imposed in absentia, without the convicted person having been informed of the date and place of the hearing, and against which that person still has a remedy, to be considered to be, not an arrest warrant issued for the purposes of the execution of a custodial sentence or detention order within the meaning of Article 4(6) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (1) but an arrest warrant for the purposes of prosecution within the meaning of Article 5(3) of the Framework Decision?

| 2. | If the reply to the first question is in the negative, are Article 4(6) and Article 5(6) of the Framework Decision to be interpreted as not permitting the Member States to make the surrender to the judicial authorities of the issuing State of a person residing on their territory who is the subject, in the circumstances described in the first question, of an arrest warrant for the purposes of the execution of a custodial sentence or detention order, subject to a condition that that person be returned to the executing State in order to serve there the custodial sentence or detention order imposed by a final judgment against that person in the issuing State? |
| --- | --- |

2.

If the reply to the first question is in the negative, are Article 4(6) and Article 5(6) of the Framework Decision to be interpreted as not permitting the Member States to make the surrender to the judicial authorities of the issuing State of a person residing on their territory who is the subject, in the circumstances described in the first question, of an arrest warrant for the purposes of the execution of a custodial sentence or detention order, subject to a condition that that person be returned to the executing State in order to serve there the custodial sentence or detention order imposed by a final judgment against that person in the issuing State?

| 3. | If the reply to the second question is in the affirmative, do the articles in question contravene Article 6(2) of the Treaty on European Union and, in particular, the principles of equality and non-discrimination? |
| --- | --- |

3.

If the reply to the second question is in the affirmative, do the articles in question contravene Article 6(2) of the Treaty on European Union and, in particular, the principles of equality and non-discrimination?

| 4. | If the reply to the first question is in the negative, are Articles 3 and 4 of the Framework Decision to be interpreted as preventing the judicial authorities of a Member State from refusing the execution of a European arrest warrant if there are valid grounds for believing that its execution would have the effect of infringing the fundamental rights of the person concerned, as enshrined by Article 6(2) of the Treaty on European Union? |
| --- | --- |

4.

If the reply to the first question is in the negative, are Articles 3 and 4 of the Framework Decision to be interpreted as preventing the judicial authorities of a Member State from refusing the execution of a European arrest warrant if there are valid grounds for believing that its execution would have the effect of infringing the fundamental rights of the person concerned, as enshrined by Article 6(2) of the Treaty on European Union?

---

(1)  OJ 2002 L 190, p. 1.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/11 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/11

---

Reference for a preliminary ruling from the Conseil d’État (France) lodged on 4 August 2009 — Ministre du budget, des comptes publics et de la fonction publique v Société Accor

(Case C-310/09)

2009/C 233/20

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Ministre du budget, des comptes publics et de la fonction publique

Defendant: Société Accor

Questions referred

| 1. | (a) | Must Articles 56 and 43 of the Treaty Establishing the European Community be interpreted as meaning that they preclude a tax regime intended to eliminate economic double taxation of dividends which:






  (i) | allows a parent company to set off against the advance payment, for which it is liable when it redistributes to its shareholders dividends paid by its subsidiaries, the tax credit applied to the distribution of those dividends if they come from a subsidiary established in France, |
| --- | --- | --- | --- |

1.

(a)

Must Articles 56 and 43 of the Treaty Establishing the European Community be interpreted as meaning that they preclude a tax regime intended to eliminate economic double taxation of dividends which:

(i)

allows a parent company to set off against the advance payment, for which it is liable when it redistributes to its shareholders dividends paid by its subsidiaries, the tax credit applied to the distribution of those dividends if they come from a subsidiary established in France,

| (ii) | but does not offer that option if those dividends come from a subsidiary established in another Member State of the European Community, since, in that case, that regime does not give entitlement to a tax credit applied to the distribution of those dividends by that subsidiary on the ground that such a regime would in itself, with respect to the parent company, infringe the principles of the free movement of capital or freedom of establishment? |
| --- | --- |

(ii)

but does not offer that option if those dividends come from a subsidiary established in another Member State of the European Community, since, in that case, that regime does not give entitlement to a tax credit applied to the distribution of those dividends by that subsidiary on the ground that such a regime would in itself, with respect to the parent company, infringe the principles of the free movement of capital or freedom of establishment?

| (b) | If the answer to the first question is in the negative, must those articles be interpreted as meaning that they none the less preclude such a regime if the shareholders position must also be taken into account on the ground that, given the making of the advance payment, the amount of the dividends received from its subsidiaries and redistributed by the parent company to its shareholders will differ according to the location of those subsidiaries, in France or in another Member State of the European Communities, with the result that that regime deters shareholders from investing in the parent company and, therefore, affects the raising of capital by that company and is likely to deter that company from allocating capital to subsidiaries established in Member States other than France or from creating such subsidiaries in those States? |
| --- | --- |

(b)

If the answer to the first question is in the negative, must those articles be interpreted as meaning that they none the less preclude such a regime if the shareholders position must also be taken into account on the ground that, given the making of the advance payment, the amount of the dividends received from its subsidiaries and redistributed by the parent company to its shareholders will differ according to the location of those subsidiaries, in France or in another Member State of the European Communities, with the result that that regime deters shareholders from investing in the parent company and, therefore, affects the raising of capital by that company and is likely to deter that company from allocating capital to subsidiaries established in Member States other than France or from creating such subsidiaries in those States?

| 2. | If the answer to I1 or I2 is in the affirmative and if Articles 56 and 43 of the Treaty Establishing the European Community are to be interpreted as meaning that they preclude the advance payment tax regime described above and that, therefore, the administration is, in principle, required to reimburse the sums received on the basis of that regime in so far as they were received contrary to Community law, does that duty, in such a regime which does not of itself lead to the passing on of a tax onto a third party by the person liable for the tax preclude:






  (a) | the administration from opposing the reimbursement of the sums paid by the parent company on the ground that that reimbursement would lead to the unjust enrichment of the parent company, |
| --- | --- | --- |

2.

If the answer to I1 or I2 is in the affirmative and if Articles 56 and 43 of the Treaty Establishing the European Community are to be interpreted as meaning that they preclude the advance payment tax regime described above and that, therefore, the administration is, in principle, required to reimburse the sums received on the basis of that regime in so far as they were received contrary to Community law, does that duty, in such a regime which does not of itself lead to the passing on of a tax onto a third party by the person liable for the tax preclude:

(a)

the administration from opposing the reimbursement of the sums paid by the parent company on the ground that that reimbursement would lead to the unjust enrichment of the parent company,

| (b) | and, if the answer is in the negative, the fact that the sum paid by the parent company does not constitute an accounting or tax charge for it but is set off only against the total of the sums which may be redistributed to its shareholders can be pleaded in support of an argument that that sum should not be reimbursed to the company? |
| --- | --- |

(b)

and, if the answer is in the negative, the fact that the sum paid by the parent company does not constitute an accounting or tax charge for it but is set off only against the total of the sums which may be redistributed to its shareholders can be pleaded in support of an argument that that sum should not be reimbursed to the company?

| 3. | Taking account of the answer to the questions set out in I and II, do the Community principles of equivalence and effectiveness preclude the reimbursement of sums which ensure the application of the same tax regime to dividends redistributed by the parent company, whether those dividends originate from sums distributed by its subsidiaries established in France in another Member State of the European Community being subject to the condition, (apart, where relevant, in the case of stipulations in a bilateral convention applicable between France and the Member State where the subsidiary is established relating to the exchange of information) that the person liable for the tax furnishes evidence which is in its sole possession and relating with respect to each dividend concerned, in particular to the rate of taxation actually applied and the amount of tax actually paid on profits made by its subsidiaries established in the Member States of the European Community other than France, whereas, with respect to subsidiaries established in France that evidence, known to the administration, is not required? |
| --- | --- |

3.

Taking account of the answer to the questions set out in I and II, do the Community principles of equivalence and effectiveness preclude the reimbursement of sums which ensure the application of the same tax regime to dividends redistributed by the parent company, whether those dividends originate from sums distributed by its subsidiaries established in France in another Member State of the European Community being subject to the condition, (apart, where relevant, in the case of stipulations in a bilateral convention applicable between France and the Member State where the subsidiary is established relating to the exchange of information) that the person liable for the tax furnishes evidence which is in its sole possession and relating with respect to each dividend concerned, in particular to the rate of taxation actually applied and the amount of tax actually paid on profits made by its subsidiaries established in the Member States of the European Community other than France, whereas, with respect to subsidiaries established in France that evidence, known to the administration, is not required?

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/12 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/12

---

Appeal brought on 12 August 2009 by NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB against the judgment of the Court of First Instance (First Chamber) delivered on 9 June 2009 in Case T-152/06: NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB v Commission of the European Communities

(Case C-322/09 P)

2009/C 233/21

Language of the case: English

Parties

Appellant: NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB (represented by: M. Merola and L. Armati, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment under appeal in its entirety; |
| --- | --- |

—

set aside the judgment under appeal in its entirety;

| — | declare the action of Destination Stockholm in case T-152/06 admissible and grounded, and therefore grant the forms of order sought at first instance; |
| --- | --- |

—

declare the action of Destination Stockholm in case T-152/06 admissible and grounded, and therefore grant the forms of order sought at first instance;

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

—

order the Commission to bear costs.

In the alternative:

| — | set aside the judgment under appeal in its entirety and declare the action of Destination Stockholm in case T-152/06 admissible; |
| --- | --- |

—

set aside the judgment under appeal in its entirety and declare the action of Destination Stockholm in case T-152/06 admissible;

| — | refer the case back to the Court of First Instance for the examination of the merits of the case; |
| --- | --- |

—

refer the case back to the Court of First Instance for the examination of the merits of the case;

| — | reserve the costs of the proceedings at first instance and on appeal. |
| --- | --- |

—

reserve the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

The appellant submits that, in judgment under appeal, the Court of First Instance:

| — | misapplied Article 230 EC by manifestly distorting of the content of the contested letters, the intention of their author and the evidence adduced before the CFI; |
| --- | --- |

—

misapplied Article 230 EC by manifestly distorting of the content of the contested letters, the intention of their author and the evidence adduced before the CFI;

| — | incorrectly classified the Commission's position on the compatibility of the contested measures as preliminary and used a contradictory reasoning on the same issue; |
| --- | --- |

—

incorrectly classified the Commission's position on the compatibility of the contested measures as preliminary and used a contradictory reasoning on the same issue;

| — | inappropriately made reference to Article 88(1) EC by considering that the Commission rejected a request to recommend appropriate measures; |
| --- | --- |

—

inappropriately made reference to Article 88(1) EC by considering that the Commission rejected a request to recommend appropriate measures;

| — | incorrectly applied Articles 4, 10, 13 and 20(2) of the Regulation No 659/1999 (1), in particular by ruling that the classification by the Commission of the contested measures as existing aid prevents the rejection of a complaint from being challenged. |
| --- | --- |

—

incorrectly applied Articles 4, 10, 13 and 20(2) of the Regulation No 659/1999 (1), in particular by ruling that the classification by the Commission of the contested measures as existing aid prevents the rejection of a complaint from being challenged.

---

(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty OJ L 83, p. 1.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/13 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/13

---

Action brought on 17 August 2009 — Commission of the European Communities v Republic of Austria

(Case C-330/09)

2009/C 233/22

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: G. Braun and M. Adam, acting as Agents)

Defendant: Republic of Austria

Form of order sought

| — | Declare that, by failure to adopt the laws, regulations and administrative provisions necessary to implement Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC (1) or by failing to notify the commission thereof, the Republic of Austria has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failure to adopt the laws, regulations and administrative provisions necessary to implement Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC (1) or by failing to notify the commission thereof, the Republic of Austria has failed to fulfil its obligations under that directive;

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

—

order Republic of Austria to pay the costs.

Pleas in law and main arguments

The period prescribed for implementation of the directive expired on 29 June 2008. At the time the present action was lodged, the defendant had not yet adopted the necessary measures for the implementation of this directive, or had in any case not notified the Commission thereof.

---

(1)  OJ L 157, p. 87.

---

Court of First Instance

| 26.9.2009 | EN | Official Journal of the European Union | C 233/14 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/14

---

Judgment of the Court of First Instance of 8 June 2009 — Krcova v Court of Justice

(Case T-498/07 P) (1)

(Appeal - Staff case - Officials - Recruitment - Probationary period - Extension of the probationary period - End of probation report - Dismissal at the end of the probationary period - Article 34 of the Staff Regulations - Obligation on the Civil Service Tribunal to state reasons)

2009/C 233/23

Language of the case: French

Parties

Appellant: Erika Krcova (Trnava, Slovakia) (represented by: J. Rooy, lawyer)

Other party to the proceedings: Court of Justice of the European Communities (represented by: M. Schauss initially, then A.V. Placco, Agents)

Re:

Appeal brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 18 October 2007 in Case F-112/06 Krcova v Court of Justice ECR-SC I-A-0000, for that judgment to be set aside.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Erika Krcova to bear her own costs and to pay those incurred by the Court of Justice of the European Communities before the Court of First Instance. |
| --- | --- |

2.

Orders Erika Krcova to bear her own costs and to pay those incurred by the Court of Justice of the European Communities before the Court of First Instance.

---

(1)  OJ C 209, 15.8.2008.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/14 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/14

---

Order of the Court of First Instance of 29 June 2009 — Athinaïki Techniki AE v Commission of the European Communities

(Case T-94/05) (1)

(State aid - Complaint - Decision to take no further action on the complaint - Referral back to the Court of First Instance after setting aside - Withdrawal of the contested decision - No need to adjudicate)

2009/C 233/24

Language of the case: French

Parties

Applicant: Athinaïki Techniki AE (Athens, Greece) (represented by: S. Pappas, lawyer)

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

Intervener in support of the defendant: Athens Resort Casino AE Symmetochon (Marrousi, Greece) (represented by: F. Carlin, Barrister and N. Korogiannakis, lawyer)

Re:

Application for annulment of the Commission’s decision of 2 December 2004 to take no further action on the applicant’s complaint related to alleged State aid granted by the Hellenic Republic to the Hyatt Regency consortium in connection with the ‘Casino Mont Parnès’ public contract.

Operative part of the order

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

1.

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

| 2. | The Commission of the European Communities shall bear all the costs. |
| --- | --- |

2.

The Commission of the European Communities shall bear all the costs.

---

(1)  OJ C 106, 30.4.2005.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/15 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/15

---

Order of the Court of First Instance of 2 July 2009 — Evropaïki Dynamiki v European Central Bank (ECB)

(Case T-279/06) (1)

(Public service contracts - Community public procurement procedure - Supply of consultancy and IT development services for the ECB - Rejection of a tender and decision to award the contract to other tenderers - Action for annulment - Interest in bringing proceedings - Ground for exclusion - Permit to be issued by a national authority - Action in part manifestly unfounded in law and in part manifestly inadmissible)

2009/C 233/25

Language of the case: English

Parties

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

Defendant: European Central Bank (represented by: F. von Lindeiner and G. Gruber, agents)

Re:

Application for annulment of the ECB’s decision of 31 July 2006 rejecting the offer made by the applicant in the negotiated procedure for the supply of consultancy and IT development services for the ECB and the decision to award the contract to other tenderers.

Operative part of the order

The Court:

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

1.

Dismisses the action.

| 2. | Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs. |
| --- | --- |

2.

Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

---

(1)  OJ C 294 of 2.12.2006.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/15 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/15

---

Order of the Court of First Instance of 10 June 2009 — Procter & Gamble v OHIM — Bayer (LIVENSA)

(Case T-159/08) (1)

(Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)

2009/C 233/26

Language of the case: English

Parties

Applicant: The Procter & Gamble Company (Cincinnati, United States) (represented by: K. Sandberg, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Bayer AG (Leverkusen, Germany)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 11 February 2008 (Case R 960/2007-2) relating to opposition proceedings between Bayer AG and The Procter & Gamble Company.

Operative part of the order

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

1.

There is no longer any need to adjudicate in the action.

| 2. | The applicant shall bear its own costs and shall pay those incurred by OHIM. |
| --- | --- |

2.

The applicant shall bear its own costs and shall pay those incurred by OHIM.

---

(1)  OJ C 171, 5.7.2008.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/15 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/15

---

Order of the Court of First Instance of 9 July 2009 — infeurope v Commission

(Case T-176/08) (1)

(Action for declaration of failure to act, for annulment and for damages - Public service contracts - Call for tenders concerning the maintenance of OHIM’s computer systems - Administrative appeal before the Commission - Implied Commission decision to dismiss - New claims - Connection between the action for a declaration of failure to act and the action for damages - Manifest inadmissibility)

2009/C 233/27

Language of the case: English

Parties

Applicant: infeurope (Luxembourg, Luxembourg) (represented by: O. Mader, lawyer)

Defendant: Commission of the European Communities (represented by: N.Bambara and E. Manhaeve, acting as Agents)

Re:

First, APPLICATION for a declaration that the Commission failed to act in that it unlawfully failed to annul the decision to award framework contracts under the tendering procedure AO/042/05 of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) for software maintenance relating to OHIM core business systems on trade marks and designs, and to terminate the specific contracts concluded under those framework contracts and, in the alternative, APPLICATION for annulment of the alleged implied decision of the Commission to dismiss the applicant’s administrative appeal of 2 December 2007 in the context of that tendering procedure and, secondly, APPLICATION for compensation for the harm allegedly suffered as a result of the alleged unlawful omissions on the part of the Commission.

Operative part of the order

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

1.

The action is dismissed.

| 2. | infeurope shall bear its own costs and pay those incurred by the Commission. |
| --- | --- |

2.

infeurope shall bear its own costs and pay those incurred by the Commission.

| 3. | It is not necessary to rule on the application to intervene submitted by European Dynamics SA. |
| --- | --- |

3.

It is not necessary to rule on the application to intervene submitted by European Dynamics SA.

| 4. | infeurope, the Commission and European Dynamics shall bear their own costs in connection with the application to intervene. |
| --- | --- |

4.

infeurope, the Commission and European Dynamics shall bear their own costs in connection with the application to intervene.

---

(1)  OJ C 171, of 5.7.2008.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/16 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/16

---

Order of the Court of First Instance of 9 July 2009 — infeurope v Commission

(Case T-188/08) (1)

(Action for declaration of failure to act, for annulment and for damages - Public service contracts - Call for tenders concerning consultancy, audit and study services for OHIM - Administrative appeal before the Commission - Implied Commission decision to dismiss - New claims - Connection between the action for a declaration of failure to act and the action for damages - Manifest inadmissibility)

2009/C 233/28

Language of the case: English

Parties

Applicant: infeurope (Luxembourg, Luxembourg) (represented by: O. Mader, lawyer)

Defendant: Commission of the European Communities (represented by: N. Bambara and E. Manhaeve, acting as Agents)

Re:

First, APPLICATION for a declaration that the Commission failed to act in that it unlawfully failed to annul the decision to award framework contracts following the call for tenders procedure AO/026/06 of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) for the provision of consultancy services, audits and studies, and to terminate the specific contracts concluded under those framework contracts and, in the alternative, APPLICATION for annulment of the alleged implied decision of the Commission to dismiss the applicant’s administrative appeal of 13 December 2007 in the context of that tendering procedure and, secondly, APPLICATION for compensation for the harm allegedly suffered as a result of the alleged unlawful omissions on the part of the Commission.

Operative part of the order

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

1.

The action is dismissed.

| 2. | infeurope is ordered to pay the costs. |
| --- | --- |

2.

infeurope is ordered to pay the costs.

---

(1)  OJ C 171, of 5.7.2008.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/16 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/16

---

Order of the Court of First Instance of 14 July 2009 — Hoo Hing v OHIM — Tresplain Investments (Golden Elephant Brand)

(Case T-300/08) (1)

(Community trade mark - Invalidity proceedings - Article 63(4) of Regulation (EC) No 40/94 (now Article 65(4) of Regulation (EC) No 207/2009) - Act which upheld the applicant’s claims in their entirety - Inadmissibility)

2009/C 233/29

Language of the case: English

Parties

Applicant: Hoo Hing Holdings Ltd (Romford, Essex, United Kingdom) (represented by: M. Edenborough, barrister)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Tresplain Investments Ltd (Tsing Yi, Hong Kong) (represented by: D. McFarland, barrister)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 7 May 2008 (case R 889/2007-1) relating to invalidity proceedings between Hoo Hing Holdings Ltd and Tresplain Investments Ltd.

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | Hoo Hing Holdings Ltd is ordered to pay the costs. |
| --- | --- |

2.

Hoo Hing Holdings Ltd is ordered to pay the costs.

---

(1)  OJ C 247, 27.9.2008.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/17 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/17

---

Order of the Court of First Instance of 22 June 2009 — Timmer v Court of Auditors

(Case T-340/08 P) (1)

(Appeal - Staff cases - Officials - Staff reporting - New and substantial facts - Appeal manifestly inadmissible in part and manifestly unfounded in part)

2009/C 233/30

Language of the case: French

Parties

Appellant: Marianne Timmer (Saint-Sauves-d’Auvergne, France) (represented by: F. Rollinger, lawyer)

Other party to the proceedings: Court of Auditors of the European Communities (represented by: T. Kennedy, J.-M. Steiner and G. Corstens, acting as Agents)

Re:

Appeal against the order of the Civil Service Tribunal of the European Union (Second Chamber) of 5 June 2008 in Case F-123/06 Timmer v Court of Auditors, not yet published in the ECR, and seeking annulment of that order.

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Ms Marianne Timmer is ordered to bear her own costs and to pay those of the Court of Auditors of the European Communities in the present proceedings. |
| --- | --- |

2.

Ms Marianne Timmer is ordered to bear her own costs and to pay those of the Court of Auditors of the European Communities in the present proceedings.

---

(1)  OJ C 285, 8.11.2008.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/17 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/17

---

Order of the Court of First Instance of 22 June 2009 — Nijs v Court of Auditors

(Case T-371/08 P) (1)

(Appeal - Public service - Officials - Decision to appoint the appellant’s superior - Internal competition - Staff Committee elections - Decision not to promote the appellant in 2006 - Appeal manifestly inadmissible in part and manifestly unfounded in part)

2009/C 233/31

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by: F. Rollinger and A. Hertzog, lawyers)

Other party: Court of Auditors (represented by: T. Kennedy, J.-M. Stenier and J. Vermer, agents)

Re:

Appeal brought against the order of the Civil Service Tribunal of the European Union (First Chamber) of 26 June 2008 in Case F-5/07 Nijs v Court of Auditors [2009] ECR I-0000 seeking that that order be set aside.

Operative part of the order

The Court:

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

1.

Dismisses the appeal.

| 2. | Orders Bart Nijs to bear his own costs and to pay those incurred by the Court of Auditors of the European Communities in the present proceedings. |
| --- | --- |

2.

Orders Bart Nijs to bear his own costs and to pay those incurred by the Court of Auditors of the European Communities in the present proceedings.

---

(1)  OJ C 301 of 22.11.2008.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/17 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/17

---

Order of the Court of First Instance of 22 June 2009 — Nijs v Court of Auditors

(Case T-376/08) (1)

(Appeal - Public service - Officials - Evaluation report for 2005/2006 - Decision not to promote the appellant in 2007 - Decision of the Court of Auditors to renew the mandate for its Secretary General - Appeal manifestly inadmissible in part and manifestly unfounded in part)

2009/C 233/32

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by: F. Rollinger and A. Hertzog, lawyers)

Defendant: Court of Auditors (represented by: T. Kennedy, J.-M. Stenier and G. Corstens, agents)

Re:

Appeal brought against the order of the Civil Service Tribunal of the European Union (Second Chamber) of 26 June 2008 in Case F-1/08 Nijs v Court of Auditors [2009] ECR I-0000 seeking that that order be set aside.

Operative part of the order

The Court:

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

1.

Dismisses the appeal.

| 2. | Orders Bart Nijs to bear his own costs and to pay those incurred by the Court of Auditors of the European Communities in the present proceedings. |
| --- | --- |

2.

Orders Bart Nijs to bear his own costs and to pay those incurred by the Court of Auditors of the European Communities in the present proceedings.

---

(1)  OJ C 301 of 22.11.2008.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/18 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/18

---

Order of the President of the Court of First Instance of 10 July 2009 — TerreStar Europe v Commission

(Case T-196/09 R)

(Application for interim measures - Decision on the selection of operators of pan-European systems providing mobile satellite services - Application for suspension of operation of the measure and interim relief - No urgency)

2009/C 233/33

Language of the case: English

Parties

Applicant: TerreStar Europe Ltd (London, United Kingdom) (represented by: R. Olofsson, lawyer and J. Killick, Barrister)

Defendant: Commission of the European Communities (represented by: G. Braun, A. Nijenhuis, K. Platteau and D. Van Liedekerke, lawyers)

Re:

In essence, application for suspension of operation of Commission Decision 2009/449/EC of 13 May 2009 on the selection of operators of pan-European systems providing mobile satellite services (MSS) (OJ 2009 L 149, p. 65).

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

The costs are reserved.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/18 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/18

---

Action brought on 22 July 2009 — Evropaïki Dynamiki v EASA

(Case T-297/09)

2009/C 233/34

Language of the case: English

Parties

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

Defendant: European Aviation Safety Agency

Form of order sought

| — | annul the EASA’s decisions to select the bids of the applicant, filed in response to the open Call for Tenders EASA.2009.OP.02 Lot 1, Lot 2, Lot 3 and Lot 5 on ICT services (OJ 2009/S 22-030588) as second and third contractor in the cascade mechanism, communicated to the applicant by four separate letters dated 12 May 2009, 8 July 2009, 13 July 2009 and 15 July 2009 and all further related decisions of EASA including the one to award the contract to the successful contractors; |
| --- | --- |

—

annul the EASA’s decisions to select the bids of the applicant, filed in response to the open Call for Tenders EASA.2009.OP.02 Lot 1, Lot 2, Lot 3 and Lot 5 on ICT services (OJ 2009/S 22-030588) as second and third contractor in the cascade mechanism, communicated to the applicant by four separate letters dated 12 May 2009, 8 July 2009, 13 July 2009 and 15 July 2009 and all further related decisions of EASA including the one to award the contract to the successful contractors;

| — | order the EASA to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 6 100 000; |
| --- | --- |

—

order the EASA to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 6 100 000;

| — | order the EASA to pay the applicant’s legal costs and expenses incurred in connection with this application, even if the current application is rejected. |
| --- | --- |

—

order the EASA to pay the applicant’s legal costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

In the present case, the applicant seeks the annulment of the defendant’s decision to select its bids submitted in response to a call for an open tender for ITC services (EASA.2009.OP.02) as second and third contractor in the cascade mechanism and to award the contract to the successful contractors. The applicant further requests compensation for the alleged damages in account of the tender procedure.

In support of its claims, the applicant puts forward the following pleas in law.

First, the applicant claims that the defendant infringed the principle of good administration and equal treatment as it failed to observe the exclusion criteria provided for by Articles 93(1) and 94 of the financial regulation (1) by not excluding from the tender proceeding one of the members of the winning consortium being accused by national authorities and even accepting to be guilty for illegal activities and specifically for fraud, corruption, bribery, in the context of contract awarded from public authorities in the European Union and internationally, as well as for falsifying its books and one other winning contractor being in serious breach of its contractual obligations in its relations with the European Commission. By doing so, the defendant infringed as well Articles 133a and 134 of the implementing rules (2) and Article 45 of directive 2004/18/CE (3).

Furthermore, the applicant invokes the defendant’s alleged professional misconduct arising from the potential usage of non WTO/GPA subcontractors by one of the winning tenderers.

Second, the applicant submits that the defendant committed manifest errors of assessment and that it failed to state reasons in breach of the financial regulation and its implementing rules as well as in breach of directive 2004/18/CE (3) and of Article 253 EC. It states that the defendant also infringed the principle of equal treatment as one of the winning tenderers had not complied with the tender specifications.

---

(1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

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

(3)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/19 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/19

---

Action brought on 22 July 2009 — Evropaïki Dynamiki v Commission

(Case T-298/09)

2009/C 233/35

Language of the case: English

Parties

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

Defendant: Commission of the European Communities

Form of order sought

| — | annul the Commission’s decisions to select the bids of the applicant, filed in response to the open Call for Tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) Lot 1 ‘IS Development and Maintenance’ and Lot 2 ‘IS Studies, Testing, Training and Support’ (OJ 2008/S 158-212752) second contractor in the cascade mechanism, communicated to the applicant by two separate letters dated 12 May 2009 and all further related decisions of Commission including the one to award the respective contracts to the successful contractors; |
| --- | --- |

—

annul the Commission’s decisions to select the bids of the applicant, filed in response to the open Call for Tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) Lot 1 ‘IS Development and Maintenance’ and Lot 2 ‘IS Studies, Testing, Training and Support’ (OJ 2008/S 158-212752) second contractor in the cascade mechanism, communicated to the applicant by two separate letters dated 12 May 2009 and all further related decisions of Commission including the one to award the respective contracts to the successful contractors;

| — | order the Commission to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 9 554 480; |
| --- | --- |

—

order the Commission to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 9 554 480;

| — | order the Commission to pay the applicant’s legal costs and expenses incurred in connection with this application, even if the current application is rejected. |
| --- | --- |

—

order the Commission to pay the applicant’s legal costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

In the present case, the applicant seeks the annulment of the defendant’s decision to select its bids, submitted in response to a call for an open tender for external service provision for educational programmes (ESP-ISEP) (EAC/01/2008), as second contractor in the cascade mechanism and to award the respective contracts to the successful contractors. The applicant further requests compensation for the alleged damages in account of the tender procedure.

In support of its claims, the applicant puts forward the following pleas in law.

First, the applicant claims that the defendant infringed the principles of good administration and equal treatment as it failed to observe the exclusion criteria provided for by Articles 93(1) and 94 of the financial regulation (1) by not excluding from the tender proceeding one of the members of the winning consortium being in breach of its contractual obligations to the defendant. By doing so, the defendant infringed as well Articles 133a and 134 of the implementing rules (2).

Second, the applicant submits that the defendant infringed Article 100(2) of the financial regulation as it failed to properly state reasons. In the applicant’s opinion, the comments given by the Commission were generic, misleading and vague.

Third, the applicant contends that the Commission has illegally extended the validity of the tenders in violation of Article 130 of the financial regulation and in violation of the principles of good administration, transparency and equal treatment.

---

(1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

(2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, as amended by Commission Regulation (EC,Euratom) No 478/2007 of 23 April 2007 (OJ 2007 L 111, p. 13).

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/19 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/19

---

Action brought on 30 July 2009 — Italy v Commission

(Case T-308/09)

2009/C 233/36

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul letter No 4263 of 20 May 2009 of the European Commission — Directorate General for Regional Policy — concerning ‘Regional Operational Programme “Campania” 2000-2006. Request for payment No Sysfin 2009/0154 Adonis A/723 of 12 January 2009’, containing the following decision: ‘The sum of EUR 18 544 968,79 relating to expenditure incurred after 17 May 2006 in relation to measure 1.7 concerning the regional waste management and disposal system is non-eligible’. |
| --- | --- |

—

Annul letter No 4263 of 20 May 2009 of the European Commission — Directorate General for Regional Policy — concerning ‘Regional Operational Programme “Campania” 2000-2006. Request for payment No Sysfin 2009/0154 Adonis A/723 of 12 January 2009’, containing the following decision: ‘The sum of EUR 18 544 968,79 relating to expenditure incurred after 17 May 2006 in relation to measure 1.7 concerning the regional waste management and disposal system is non-eligible’.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied on in Case T-99/09 Italy v Commission. (1)

The applicant submits, in particular:

| — | Infringement of Articles 32 and 39 of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds, (2) in so far as the defendant reduced payment of the expenditure certified in respect of measure 1.7 ‘pending the outcome of Case T-99/09’ and that the fact that there are proceedings pending against previous payment procedure measures is not one of the circumstances in which payment from Structural Funds may be reduced in accordance with the provisions referred to above. |
| --- | --- |

—

Infringement of Articles 32 and 39 of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds, (2) in so far as the defendant reduced payment of the expenditure certified in respect of measure 1.7 ‘pending the outcome of Case T-99/09’ and that the fact that there are proceedings pending against previous payment procedure measures is not one of the circumstances in which payment from Structural Funds may be reduced in accordance with the provisions referred to above.

| — | Infringement of Article 230 EC. It is submitted in this connection that if, as a result of bringing legal proceedings, Member States should fear that subsequent intermediate payments will be reduced, they will no longer have the freedom to exercise the fundamental right to judicial protection. |
| --- | --- |

—

Infringement of Article 230 EC. It is submitted in this connection that if, as a result of bringing legal proceedings, Member States should fear that subsequent intermediate payments will be reduced, they will no longer have the freedom to exercise the fundamental right to judicial protection.

---

(1)  OJ C 102, 1.5.2009, p. 34.

(2)  OJ L 161, 26.6.1999, p. 1.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/20 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/20

---

Appeal brought on 4 August 2009 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 20 May 2009 in Case F-73/08, Marcuccio v Commission

(Case T-311/09 P)

2009/C 233/37

Language of the case: Italian

Parties

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

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

In any event:

| — | Annul the judgment under appeal in its entirety. |
| --- | --- |

—

Annul the judgment under appeal in its entirety.

| — | Declare that the action which gave rise to the judgment under appeal is perfectly admissible. |
| --- | --- |

—

Declare that the action which gave rise to the judgment under appeal is perfectly admissible.

Principal claim:

| — | Annul the respondent’s decision refusing the application dated 27 June 2007. |
| --- | --- |

—

Annul the respondent’s decision refusing the application dated 27 June 2007.

| — | Annul the respondent’s decision rejecting the application dated 29 June 2007. |
| --- | --- |

—

Annul the respondent’s decision rejecting the application dated 29 June 2007.

| — | Annul the respondent decision rejecting the application dated 30 June 2007. |
| --- | --- |

—

Annul the respondent decision rejecting the application dated 30 June 2007.

| — | Annul the respondent’s decision rejecting the application dated 2 July 2007. |
| --- | --- |

—

Annul the respondent’s decision rejecting the application dated 2 July 2007.

| — | Annul, in so far as necessary, the memorandum dated 29 April 2008 signed by Mr Bernhard Jansen. |
| --- | --- |

—

Annul, in so far as necessary, the memorandum dated 29 April 2008 signed by Mr Bernhard Jansen.

| — | On the basis set out in the application initiating the proceedings, order that the EC pay to the applicant the sum of EUR 4 747,29 or such greater or lesser sum as the Court of First Instance may consider appropriate, together with interest on that sum with effect from 7 November 2007 at the rate of 10 % per annum with annual capitalisation, or at such rate with capitalisation and from such date as the Court of First Instance may consider appropriate. |
| --- | --- |

—

On the basis set out in the application initiating the proceedings, order that the EC pay to the applicant the sum of EUR 4 747,29 or such greater or lesser sum as the Court of First Instance may consider appropriate, together with interest on that sum with effect from 7 November 2007 at the rate of 10 % per annum with annual capitalisation, or at such rate with capitalisation and from such date as the Court of First Instance may consider appropriate.

| — | Order the EC to reimburse the appellant in respect of all costs, charges and fees incurred by him in the proceedings at first instance and in these appeal proceedings. |
| --- | --- |

—

Order the EC to reimburse the appellant in respect of all costs, charges and fees incurred by him in the proceedings at first instance and in these appeal proceedings.

In the alternative:

| — | Refer the case back to the Civil Service Tribunal for a fresh decision. |
| --- | --- |

—

Refer the case back to the Civil Service Tribunal for a fresh decision.

Pleas in law and main arguments

The present appeal is brought against the order of the Civil Service Tribunal (CST) of 20 May 2009 in Case F-73/08. That order dismissed as partly inadmissible and partly unfounded an action seeking annulment of the defendant’s decision to reject the appellant’s requests for reimbursement of certain medical expenses at the normal rate and at the ‘additional’ rate, namely 100 %.

In support of his claims, the appellant alleges infringement of the principle that reasons must be given for a Community decision, misapplication of the concept of a challengeable act and breach of the principle of res judicata, the principle of the division of powers and of the case-law relating the effects of the annulment by the Community judicature of a decision adopted by a Community institution.

The appellant also alleges infringement of the concepts of lis pendens and of a confirmatory decision and of the provisions governing rulings on costs in legal proceedings.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/21 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/21

---

Order of the Court of First Instance of 23 July 2009 — Kat and Others v Council and Commission

(Joined Cases T-530/93, T-531/93, T-87/94, T-91/94, T-106/94, T-120/94 and T-124/94) (1)

2009/C 233/38

Language of the case: Dutch

The President of the Eighth Chamber has ordered that the joined cases be removed from the register.

---

(1)  OJ C 334, 9.12.1993.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/21 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/21

---

Order of the Court of First Instance of 23 July 2009 — Bouma and Others v Council and Commission

(Case T-533/93) (1)

2009/C 233/39

Language of the case: Dutch

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

---

(1)  OJ C 334, 9.12.1993.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/21 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/21

---

Order of the Court of First Instance of 23 July 2009 — Wilman and Others v Council and Commission

(Joined Cases T-4/94, T-73/94, T-372/94, T-52/97, T-60/97, T-64/97 and T-144/97) (1)

2009/C 233/40

Language of the case: Dutch

The President of the Eighth Chamber has ordered that the joined cases be removed from the register.

---

(1)  OJ C 43, 12.2.1994.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/21 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/21

---

Order of the Court of First Instance of 16 July 2009 — Studio Bichara and Others v Commission

(Case T-86/06) (1)

2009/C 233/41

Language of the case: Italian

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

---

(1)  OJ C 121, 20.5.2006.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/21 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/21

---

Order of the Court of First Instance of 27 July 2009 — Fusco v OHIM — Fusco International (FUSCOLLECTION)

(Case T-48/08) (1)

2009/C 233/42

Language of the case: Italian

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

---

(1)  OJ C 92, 12.4.2008.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/21 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/21

---

Order of the Court of First Instance of 30 June 2009 — Sahlstedt and Others v Commission

(Case T-129/08) (1)

2009/C 233/43

Language of the case: Finnish

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

---

(1)  OJ C 128, 24.5.2008.

---

| 26.9.2009 | EN | Official Journal of the European Union | C 233/21 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/21

---

Order of the Court of First Instance of 24 June 2009 — Four Ace International v OHIM (skiken)

(Case T-156/09) (1)

2009/C 233/44

Language of the case: German

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

---

(1)  OJ C 153, 4.7.2009.

---

European Union Civil Service Tribunal

| 26.9.2009 | EN | Official Journal of the European Union | C 233/22 |
| --- | --- | --- | --- |

26.9.2009

EN

Official Journal of the European Union

C 233/22

---

Order of the Civil Service Tribunal of 4 June 2009 — Locchi v Commission

(Case F-78/08) (1)

2009/C 233/45

Language of the case: French

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

---

(1)  OJ C 301, 22.11.2008, p. 66.

---