# Official Journal C 32/2013

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2013.032.eng |
| --- | --- |
| Official Journal
  of the European Union | C 32 |
| | |
| English edition | Information and Notices | Volume 562 February 2013 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2013.032.eng

Official Journal

of the European Union

C 32

English edition

Information and Notices

Volume 562 February 2013

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2013/C 032/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 26, 26.1.2013 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2013/C 032/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 26, 26.1.2013

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2013/C 032/02 | Case C-476/12: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 24 October 2012 — Österreichischer Gewerkschaftsbund v Verband Österreichischer Banken und Bankiers | 2 |
| 2013/C 032/03 | Case C-479/12: Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 25 October 2012 — H. Gautzsch Großhandel GmbH & Co. KG v Münchener Boulevard Möbel Joseph Duna GmbH | 3 |
| 2013/C 032/04 | Case C-495/12: Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 5 November 2012 — The Bridport and West Dorset Golf Club Limited v The Commissioners for Her Majesty's Revenue & Customs | 3 |
| 2013/C 032/05 | Case C-509/12: Reference for a preliminary ruling from the Tribunal Central Administrativo Norte (Portugal) lodged on 9 November 2012 — IPTM-Instituto Portuário e dos Transportes Marítimos v Navileme-Consultadoria Náutica, Lda, Nautizende — Consultadoria Náutica, Lda | 4 |
| 2013/C 032/06 | Case C-522/12: Request for a preliminary ruling from the Bundesarbeitsgericht (Deutschland) lodged on 19 November 2012 — Tevfik Isbir v DB Services GmbH | 5 |
| 2013/C 032/07 | Case C-523/12: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Puglia (Italy) lodged on 19 November 2012 — Dirextra Alta Formazione Srl v Regione Puglia | 5 |
| 2013/C 032/08 | Case C-531/12 P: Appeal brought on 23 November 2012 by the Commune de Millau and the Société d’économie mixte d’équipement de l’Aveyron (SEMEA) against the judgment of the General Court (Third Chamber) delivered on 19 September 2012 in Joined Cases T-168/10 and T-572/10 European Commission v SEMEA and Commune de Millau | 6 |
| 2013/C 032/09 | Case C-533/12 P: Appeal brought on 22 November 2012 by the Société nationale maritime Corse-Méditerranée (SNCM) SA against the judgment delivered by the General Court (Fourth Chamber) on 11 September 2012 in Case T-565/08 Corsica Ferries France SAS v European Commission | 7 |
| 2013/C 032/10 | Case C-536/12 P: Appeal brought on 26 November 2012 by the French Republic against the judgment of the General Court (Fourth Chamber) delivered on 11 September 2012 in Case T-565/08 Corsica Ferries France SAS v European Commission | 7 |
| 2013/C 032/11 | Case C-545/12: Action brought on 27 November 2012 — European Commission v Republic of Cyprus | 8 |
| 2013/C 032/12 | Case C-550/12 P: Appeal brought on 3 December 2012 by J against the judgment delivered by the General Court (Sixth Chamber) on 27 September 2012 in Case T-160/10 J v European Parliament | 9 |
| 2013/C 032/13 | Case C-552/12 P: Appeal brought on 3 December 2012 by the Hellenic Republic against the judgment of the General Court (Fifth Chamber) delivered on 4 October 2012 in Case T-215/10 Greece v Commission | 9 |
| 2013/C 032/14 | Case C-553/12 P: Appeal brought on 30 November 2012 by the European Commission against the judgment delivered by the General Court (Sixth Chamber) on 20 September 2012 in Case T-169/08 DEI v Commission | 10 |
| 2013/C 032/15 | Case C-554/12 P: Appeal brought on 30 November 2012 by the European Commission against the judgment delivered by the General Court (Sixth Chamber) on 20 September 2012 in Case T-421/09 DEI v European Commission | 11 |
| 2013/C 032/16 | Case C-555/12: Reference for a preliminary ruling from the Tribunale di Tivoli (Italy) lodged on 3 December 2012 — Claudio Loreti and Others v Comune di Zagarolo | 11 |
| 2013/C 032/17 | Case C-558/12 P: Appeal brought on 4 December 2012 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment of the General Court (First Chamber) delivered on 21 September 2012 in Case T-278/10 Wesergold Getränkeindustrie GmbH & Co KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 12 |
| 2013/C 032/18 | Case C-559/12 P: Appeal brought on 5 December 2012 by the French Republic against the judgment of the General Court (Sixth Chamber) delivered on 20 September 2012 in Case T-154/10 France v Commission | 13 |
| 2013/C 032/19 | Case C-576/12 P: Appeal brought on 10 December 2012 by Ivan Jurašinović against the judgment of the General Court (Second Chamber, Extended Composition) delivered on 3 October 2012 in Case T-465/09 Jurašinović v Council | 14 |
| | General Court |
| 2013/C 032/20 | Case T-457/07: Judgment of the General Court of 12 December 2012 — Evropaïki Dynamiki v EFSA (Public procurement — Tender procedure — Provision of IT consultancy assistance services — Rejection of a tender and decision to award the contract to another tenderer — Admissibility — Obligation to state reasons — Selection criteria — Award criteria — Compliance with award criteria laid down in the tender specifications — Manifest error of assessment) | 15 |
| 2013/C 032/21 | Case T-332/09: Judgment of the General Court of (Third Chamber) of 12 December 2012 — Electrabel v Commission (Competition — Concentrations — Decision imposing a fine for having put a concentration into effect — Obligation not to put the concentration into effect — Obligation to state the reasons on which the decision is based — Error of assessment — Limitation period — Amount of the fine) | 15 |
| 2013/C 032/22 | Case T-352/09: Judgment of the General Court (Third Chamber) of 12 December 2012 — Novácke chemické závody v Commission (Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Fines — Obligation to state reasons — Proportionality — Equal treatment — 2006 Guidelines on the method of setting fines — Ability to pay) | 15 |
| 2013/C 032/23 | Case T-392/09: Judgment of the General Court (Third Chamber) of 12 December 2012 — 1. garantovaná v Commission (Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Imputability of the unlawful conduct — Fines — Ceiling of 10 % of turnover — Relevant turnover — Rights of the defence — Obligation to state reasons — Proportionality — 2006 Guidelines on the method of setting fines — Ability to pay) | 16 |
| 2013/C 032/24 | Case T-400/09: Judgment of the General Court of 12 December 2012 — Ecka Granulate and non ferrum Metallpulver v European Commission (Competition — Cartels — Market in calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price fixing and market sharing — Fines — Principle of the legality of criminal offences and penalties — 2006 guidelines for the calculation of the amount of fines — Mitigating circumstances — Cooperation during the administrative procedure — Proportionality — Ability to pay) | 16 |
| 2013/C 032/25 | Case T-410/09: Judgment of the General Court (Third Chamber) of 12 December 2012 — Almamet v Commission (Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Rights of the defence — Commission’s powers in inspections — Single and continuous infringement — Fines — Cooperation during the administrative procedure — Proportionality — 2006 Guidelines on the method of setting fines) | 17 |
| 2013/C 032/26 | Case T-78/11 P: Order of the General Court of 4 December 2012 — Lenz v Commission (Appeal — Public service — Officials — Social security — Reimbursement of the costs of treatment provided by a Heilpraktiker — Obligation to state reasons — Distortion of the facts) | 17 |
| 2013/C 032/27 | Case T-390/11: Order of the General Court of 12 December 2012 — Evonik Industries v OHIM Bornemann (EVONIK) (Community trade mark — Opposition — Withdrawal of opposition — No need to adjudicate) | 17 |
| 2013/C 032/28 | Case T-664/11: Order of the General Court of 6 December 2012 — Spa Monopole v OHIM — Royal Mediterranea (THAI SPA) (Community trade mark — Opposition proceedings — Limitation of services covered by the Community trade mark application — No need to adjudicate) | 18 |
| 2013/C 032/29 | Case T-492/12: Action brought on 12 November 2012 — von Storch and Others v ECB | 18 |
| 2013/C 032/30 | Case T-507/12: Action brought on 20 November 2012 — Slovenia v Commission | 19 |
| 2013/C 032/31 | Case T-516/12: Action brought on 27 November 2012 — Ted-Invest v OHIM — Scandia Down (sensi scandia) | 20 |
| 2013/C 032/32 | Case T-517/12: Action brought on 23 November 2012 — Alro v Commission | 20 |
| 2013/C 032/33 | Case T-518/12: Action brought on 27 November 2012 — Spirlea v Commission | 21 |
| 2013/C 032/34 | Case T-520/12: Action brought on 27 November 2012 — Pågen Trademark v OHIM (gifflar) | 22 |
| 2013/C 032/35 | Case T-522/12: Action brought on 30 November 2012 — Alfa-Beta Vassilopoulos v OHIM — Henkel (AB terra Leaf) | 22 |
| 2013/C 032/36 | Case T-523/12: Action brought on 30 November 2012 — Rani Refreshments/OHMI — Global-Invest Bartosz Turek (Sani) | 23 |
| 2013/C 032/37 | Case T-524/12: Action brought on 3 December 2012 — Recaro v OHIM — Certino Mode (RECARO) | 23 |
| 2013/C 032/38 | Case T-526/12: Action brought on 5 December 2012 — AXA Versicherung v Commission | 24 |
| 2013/C 032/39 | Case T-534/12: Action brought on 8 December 2012 — Still v OHIM (Fleet Data Services) | 25 |
| 2013/C 032/40 | Case T-535/12: Action brought on 8 December 2012 — Still v OHIM (Truck Data Services) | 25 |
| 2013/C 032/41 | Case T-366/00 RENV: Order of the General Court of 6 December 2012 — Scott v Commission | 26 |
| 2013/C 032/42 | Case T-258/04 RENV: Order of the President of the General Court of 6 December 2012 — Poland v Commission | 26 |
| 2013/C 032/43 | Case T-370/10: Order of the General Court of 4 December 2012 — Rubinetterie Flero v Commission | 26 |
| 2013/C 032/44 | Case T-560/11: Order of the General Court of 10 December 2012 — Kronofrance and Kronoply v Commission | 26 |
| 2013/C 032/45 | Case T-35/12: Order of the General Court of 12 December 2012 — Icelandic Group UK v Commission | 26 |
| 2013/C 032/46 | Case T-85/12: Order of the General Court of 12 December 2012 — Lilleborg v OHIM — Hardford Sweden (Pierre Robert) | 26 |
| 2013/C 032/47 | Case T-86/12: Order of the General Court of 12 December 2012 — Robert Group v OHIM — Hardford Sweden (Pierre Robert) | 27 |
| 2013/C 032/48 | Case T-210/12: Order of the General Court of 10 December 2012 — Viasat Broadcasting UK v Commission | 27 |
| 2013/C 032/49 | Joined Cases T-325/12 and T-332/12: Order of the General Court of 6 December 2012 — Netherlands and ING Groep v Commission | 27 |
| 2013/C 032/50 | Case T-333/12: Order of the General Court of 5 December 2012 — Soltau v Commission | 27 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2013/C 032/02

Case C-476/12: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 24 October 2012 — Österreichischer Gewerkschaftsbund v Verband Österreichischer Banken und Bankiers

2

2013/C 032/03

Case C-479/12: Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 25 October 2012 — H. Gautzsch Großhandel GmbH & Co. KG v Münchener Boulevard Möbel Joseph Duna GmbH

3

2013/C 032/04

Case C-495/12: Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 5 November 2012 — The Bridport and West Dorset Golf Club Limited v The Commissioners for Her Majesty's Revenue & Customs

3

2013/C 032/05

Case C-509/12: Reference for a preliminary ruling from the Tribunal Central Administrativo Norte (Portugal) lodged on 9 November 2012 — IPTM-Instituto Portuário e dos Transportes Marítimos v Navileme-Consultadoria Náutica, Lda, Nautizende — Consultadoria Náutica, Lda

4

2013/C 032/06

Case C-522/12: Request for a preliminary ruling from the Bundesarbeitsgericht (Deutschland) lodged on 19 November 2012 — Tevfik Isbir v DB Services GmbH

5

2013/C 032/07

Case C-523/12: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Puglia (Italy) lodged on 19 November 2012 — Dirextra Alta Formazione Srl v Regione Puglia

5

2013/C 032/08

Case C-531/12 P: Appeal brought on 23 November 2012 by the Commune de Millau and the Société d’économie mixte d’équipement de l’Aveyron (SEMEA) against the judgment of the General Court (Third Chamber) delivered on 19 September 2012 in Joined Cases T-168/10 and T-572/10 European Commission v SEMEA and Commune de Millau

6

2013/C 032/09

Case C-533/12 P: Appeal brought on 22 November 2012 by the Société nationale maritime Corse-Méditerranée (SNCM) SA against the judgment delivered by the General Court (Fourth Chamber) on 11 September 2012 in Case T-565/08 Corsica Ferries France SAS v European Commission

7

2013/C 032/10

Case C-536/12 P: Appeal brought on 26 November 2012 by the French Republic against the judgment of the General Court (Fourth Chamber) delivered on 11 September 2012 in Case T-565/08 Corsica Ferries France SAS v European Commission

Corsica Ferries France SAS

European Commission

7

2013/C 032/11

Case C-545/12: Action brought on 27 November 2012 — European Commission v Republic of Cyprus

8

2013/C 032/12

Case C-550/12 P: Appeal brought on 3 December 2012 by J against the judgment delivered by the General Court (Sixth Chamber) on 27 September 2012 in Case T-160/10 J v European Parliament

J

European Parliament

9

2013/C 032/13

Case C-552/12 P: Appeal brought on 3 December 2012 by the Hellenic Republic against the judgment of the General Court (Fifth Chamber) delivered on 4 October 2012 in Case T-215/10 Greece v Commission

Greece

Commission

9

2013/C 032/14

Case C-553/12 P: Appeal brought on 30 November 2012 by the European Commission against the judgment delivered by the General Court (Sixth Chamber) on 20 September 2012 in Case T-169/08 DEI v Commission

10

2013/C 032/15

Case C-554/12 P: Appeal brought on 30 November 2012 by the European Commission against the judgment delivered by the General Court (Sixth Chamber) on 20 September 2012 in Case T-421/09 DEI v European Commission

11

2013/C 032/16

Case C-555/12: Reference for a preliminary ruling from the Tribunale di Tivoli (Italy) lodged on 3 December 2012 — Claudio Loreti and Others v Comune di Zagarolo

11

2013/C 032/17

Case C-558/12 P: Appeal brought on 4 December 2012 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment of the General Court (First Chamber) delivered on 21 September 2012 in Case T-278/10 Wesergold Getränkeindustrie GmbH & Co KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

12

2013/C 032/18

Case C-559/12 P: Appeal brought on 5 December 2012 by the French Republic against the judgment of the General Court (Sixth Chamber) delivered on 20 September 2012 in Case T-154/10 France v Commission

France

Commission

13

2013/C 032/19

Case C-576/12 P: Appeal brought on 10 December 2012 by Ivan Jurašinović against the judgment of the General Court (Second Chamber, Extended Composition) delivered on 3 October 2012 in Case T-465/09 Jurašinović v Council

Jurašinović

Council

14

General Court

2013/C 032/20

Case T-457/07: Judgment of the General Court of 12 December 2012 — Evropaïki Dynamiki v EFSA (Public procurement — Tender procedure — Provision of IT consultancy assistance services — Rejection of a tender and decision to award the contract to another tenderer — Admissibility — Obligation to state reasons — Selection criteria — Award criteria — Compliance with award criteria laid down in the tender specifications — Manifest error of assessment)

15

2013/C 032/21

Case T-332/09: Judgment of the General Court of (Third Chamber) of 12 December 2012 — Electrabel v Commission (Competition — Concentrations — Decision imposing a fine for having put a concentration into effect — Obligation not to put the concentration into effect — Obligation to state the reasons on which the decision is based — Error of assessment — Limitation period — Amount of the fine)

15

2013/C 032/22

Case T-352/09: Judgment of the General Court (Third Chamber) of 12 December 2012 — Novácke chemické závody v Commission (Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Fines — Obligation to state reasons — Proportionality — Equal treatment — 2006 Guidelines on the method of setting fines — Ability to pay)

15

2013/C 032/23

Case T-392/09: Judgment of the General Court (Third Chamber) of 12 December 2012 — 1. garantovaná v Commission (Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Imputability of the unlawful conduct — Fines — Ceiling of 10 % of turnover — Relevant turnover — Rights of the defence — Obligation to state reasons — Proportionality — 2006 Guidelines on the method of setting fines — Ability to pay)

16

2013/C 032/24

Case T-400/09: Judgment of the General Court of 12 December 2012 — Ecka Granulate and non ferrum Metallpulver v European Commission (Competition — Cartels — Market in calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price fixing and market sharing — Fines — Principle of the legality of criminal offences and penalties — 2006 guidelines for the calculation of the amount of fines — Mitigating circumstances — Cooperation during the administrative procedure — Proportionality — Ability to pay)

16

2013/C 032/25

Case T-410/09: Judgment of the General Court (Third Chamber) of 12 December 2012 — Almamet v Commission (Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Rights of the defence — Commission’s powers in inspections — Single and continuous infringement — Fines — Cooperation during the administrative procedure — Proportionality — 2006 Guidelines on the method of setting fines)

17

2013/C 032/26

Case T-78/11 P: Order of the General Court of 4 December 2012 — Lenz v Commission (Appeal — Public service — Officials — Social security — Reimbursement of the costs of treatment provided by a Heilpraktiker — Obligation to state reasons — Distortion of the facts)

17

2013/C 032/27

Case T-390/11: Order of the General Court of 12 December 2012 — Evonik Industries v OHIM Bornemann (EVONIK) (Community trade mark — Opposition — Withdrawal of opposition — No need to adjudicate)

17

2013/C 032/28

Case T-664/11: Order of the General Court of 6 December 2012 — Spa Monopole v OHIM — Royal Mediterranea (THAI SPA) (Community trade mark — Opposition proceedings — Limitation of services covered by the Community trade mark application — No need to adjudicate)

18

2013/C 032/29

Case T-492/12: Action brought on 12 November 2012 — von Storch and Others v ECB

18

2013/C 032/30

Case T-507/12: Action brought on 20 November 2012 — Slovenia v Commission

19

2013/C 032/31

Case T-516/12: Action brought on 27 November 2012 — Ted-Invest v OHIM — Scandia Down (sensi scandia)

20

2013/C 032/32

Case T-517/12: Action brought on 23 November 2012 — Alro v Commission

20

2013/C 032/33

Case T-518/12: Action brought on 27 November 2012 — Spirlea v Commission

21

2013/C 032/34

Case T-520/12: Action brought on 27 November 2012 — Pågen Trademark v OHIM (gifflar)

22

2013/C 032/35

Case T-522/12: Action brought on 30 November 2012 — Alfa-Beta Vassilopoulos v OHIM — Henkel (AB terra Leaf)

22

2013/C 032/36

Case T-523/12: Action brought on 30 November 2012 — Rani Refreshments/OHMI — Global-Invest Bartosz Turek (Sani)

23

2013/C 032/37

Case T-524/12: Action brought on 3 December 2012 — Recaro v OHIM — Certino Mode (RECARO)

23

2013/C 032/38

Case T-526/12: Action brought on 5 December 2012 — AXA Versicherung v Commission

24

2013/C 032/39

Case T-534/12: Action brought on 8 December 2012 — Still v OHIM (Fleet Data Services)

25

2013/C 032/40

Case T-535/12: Action brought on 8 December 2012 — Still v OHIM (Truck Data Services)

25

2013/C 032/41

Case T-366/00 RENV: Order of the General Court of 6 December 2012 — Scott v Commission

26

2013/C 032/42

Case T-258/04 RENV: Order of the President of the General Court of 6 December 2012 — Poland v Commission

26

2013/C 032/43

Case T-370/10: Order of the General Court of 4 December 2012 — Rubinetterie Flero v Commission

26

2013/C 032/44

Case T-560/11: Order of the General Court of 10 December 2012 — Kronofrance and Kronoply v Commission

26

2013/C 032/45

Case T-35/12: Order of the General Court of 12 December 2012 — Icelandic Group UK v Commission

26

2013/C 032/46

Case T-85/12: Order of the General Court of 12 December 2012 — Lilleborg v OHIM — Hardford Sweden (Pierre Robert)

26

2013/C 032/47

Case T-86/12: Order of the General Court of 12 December 2012 — Robert Group v OHIM — Hardford Sweden (Pierre Robert)

27

2013/C 032/48

Case T-210/12: Order of the General Court of 10 December 2012 — Viasat Broadcasting UK v Commission

27

2013/C 032/49

Joined Cases T-325/12 and T-332/12: Order of the General Court of 6 December 2012 — Netherlands and ING Groep v Commission

27

2013/C 032/50

Case T-333/12: Order of the General Court of 5 December 2012 — Soltau v Commission

27

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 2.2.2013 | EN | Official Journal of the European Union | C 32/1 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/1

---

2013/C 32/01

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

OJ C 26, 26.1.2013

Past publications

OJ C 9, 12.1.2013

OJ C 399, 22.12.2012

OJ C 389, 15.12.2012

OJ C 379, 8.12.2012

OJ C 373, 1.12.2012

OJ C 366, 24.11.2012

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 2.2.2013 | EN | Official Journal of the European Union | C 32/2 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/2

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Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 24 October 2012 — Österreichischer Gewerkschaftsbund v Verband Österreichischer Banken und Bankiers

(Case C-476/12)

2013/C 32/02

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Österreichischer Gewerkschaftsbund

Defendants: Verband Österreichischer Banken und Bankiers

Questions referred

| 1. | Is the principle of pro rata temporis under Clause 4.2 of the Framework Agreement annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work (1), to be applied to a child allowance provided for in a collective agreement — such allowance being a social benefit provided by the employer in order to meet part of the parents’ expenses for the maintenance of the child in respect of whom the allowance is obtained — on the basis of the (appropriate) nature of that benefit? |
| --- | --- |

1.

Is the principle of pro rata temporis under Clause 4.2 of the Framework Agreement annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work (1), to be applied to a child allowance provided for in a collective agreement — such allowance being a social benefit provided by the employer in order to meet part of the parents’ expenses for the maintenance of the child in respect of whom the allowance is obtained — on the basis of the (appropriate) nature of that benefit?

| 2. | If Question 1 is answered in the negative:
  Is Clause 4.1 of the Framework Agreement annexed to Council Directive 97/81/EC to be interpreted as meaning that unequal treatment of part-time workers, by means of a proportionate reduction in their entitlement to child allowance according to working time, is — having regard to the social partners’ wide discretion in the determination of a particular social and economic policy objective and of the measures capable of achieving it — objectively justified on the basis that a prohibition of a proportionate grant:






  (a) | makes part-time work in the form of parental part-time working (Elternteilzeit) and/or minor activity during a period of parental leave (Elternkarenzurlaub) more difficult or impossible; and/or |
| --- | --- | --- |

2.

If Question 1 is answered in the negative:

Is Clause 4.1 of the Framework Agreement annexed to Council Directive 97/81/EC to be interpreted as meaning that unequal treatment of part-time workers, by means of a proportionate reduction in their entitlement to child allowance according to working time, is — having regard to the social partners’ wide discretion in the determination of a particular social and economic policy objective and of the measures capable of achieving it — objectively justified on the basis that a prohibition of a proportionate grant:

(a)

makes part-time work in the form of parental part-time working (Elternteilzeit) and/or minor activity during a period of parental leave (Elternkarenzurlaub) more difficult or impossible; and/or

| (b) | leads to distortion of competition on account of the greater financial burden placed on employers who employ a larger number of part-time workers, and to a lesser willingness on the part of employers to take on part-time workers; and/or |
| --- | --- |

(b)

leads to distortion of competition on account of the greater financial burden placed on employers who employ a larger number of part-time workers, and to a lesser willingness on the part of employers to take on part-time workers; and/or

| (c) | leads to more favourable treatment of part-time workers who have additional part-time work and multiple entitlement to a benefit — such as child allowance — under a collective agreement; and/or |
| --- | --- |

(c)

leads to more favourable treatment of part-time workers who have additional part-time work and multiple entitlement to a benefit — such as child allowance — under a collective agreement; and/or

| (d) | leads to more favourable treatment of part-time workers, because they have more free time than full-time workers and thus have better childcare options available to them? |
| --- | --- |

(d)

leads to more favourable treatment of part-time workers, because they have more free time than full-time workers and thus have better childcare options available to them?

| 3. | If Questions 1 and 2 are answered in the negative: is Article 28 of the Charter of Fundamental Rights to be interpreted as meaning that where, in a system of employment law in which substantial elements of minimum employment standards are established in accordance with the agreed social policy assessments of specially selected and qualified parties to a collective agreement, a point of detail in a collective agreement (albeit a point that breaches the European Union law principle of non-discrimination) — in this case, the proportionate grant of child allowance in the case of part-time working — is invalid (according to national practice), the penalty of invalidity extends to all the provisions of the collective agreement relating to that area (in this case, child allowance)? |
| --- | --- |

3.

If Questions 1 and 2 are answered in the negative: is Article 28 of the Charter of Fundamental Rights to be interpreted as meaning that where, in a system of employment law in which substantial elements of minimum employment standards are established in accordance with the agreed social policy assessments of specially selected and qualified parties to a collective agreement, a point of detail in a collective agreement (albeit a point that breaches the European Union law principle of non-discrimination) — in this case, the proportionate grant of child allowance in the case of part-time working — is invalid (according to national practice), the penalty of invalidity extends to all the provisions of the collective agreement relating to that area (in this case, child allowance)?

---

(1)  OJ 1998 L 14, p. 9, as amended by Directive 98/23/EC (OJ 1998 L 131, p. 10)

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/3 |
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Official Journal of the European Union

C 32/3

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 25 October 2012 — H. Gautzsch Großhandel GmbH & Co. KG v Münchener Boulevard Möbel Joseph Duna GmbH

(Case C-479/12)

2013/C 32/03

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Defendant and appellant on a point of law: H. Gautzsch Großhandel GmbH & Co. KG

Applicant and respondent on a point of law: Münchener Boulevard Möbel Joseph Duna GmbH

Questions referred

| 1. | Is Article 11(2) of Regulation (EC) No 6/2002 (1) to be interpreted as meaning that, in the normal course of business, a design could reasonably have become known to the circles specialised in the sector concerned, operating within the European Union, in the case where images of the design were distributed to traders? |
| --- | --- |

1.

Is Article 11(2) of Regulation (EC) No 6/2002 (1) to be interpreted as meaning that, in the normal course of business, a design could reasonably have become known to the circles specialised in the sector concerned, operating within the European Union, in the case where images of the design were distributed to traders?

| 2. | Is the first sentence of Article 7(1) of Regulation (EC) No 6/2002 to be interpreted as meaning that a design could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union, even though it was disclosed to third parties without any explicit or implicit conditions of confidentiality, in the case where






  (a) | it is made available to only one undertaking in the specialised circles,
  or |
| --- | --- | --- |

2.

Is the first sentence of Article 7(1) of Regulation (EC) No 6/2002 to be interpreted as meaning that a design could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union, even though it was disclosed to third parties without any explicit or implicit conditions of confidentiality, in the case where

(a)

it is made available to only one undertaking in the specialised circles,

or

| (b) | it is exhibited in a showroom of an undertaking in China which lies outside the scope of normal market analysis? |
| --- | --- |

(b)

it is exhibited in a showroom of an undertaking in China which lies outside the scope of normal market analysis?

| 3. | (a) | Is Article 19(2) of Regulation (EC) No 6/2002 to be interpreted as meaning that the holder of an unregistered Community design bears the burden of proving that the contested use results from copying the protected design? |
| --- | --- | --- |

3.

(a)

Is Article 19(2) of Regulation (EC) No 6/2002 to be interpreted as meaning that the holder of an unregistered Community design bears the burden of proving that the contested use results from copying the protected design?

| (b) | If Question 3(a) is answered in the affirmative:
  Is the burden of proof reversed or is the burden of proof incumbent on the holder of the unregistered Community design eased if there are material similarities between the design and the contested use? |
| --- | --- |

(b)

If Question 3(a) is answered in the affirmative:

Is the burden of proof reversed or is the burden of proof incumbent on the holder of the unregistered Community design eased if there are material similarities between the design and the contested use?

| 4. | (a) | Is the right to obtain an injunction prohibiting further infringement of an unregistered Community design, provided for in Article 19(2) and Article 89(1)(a) of Regulation (EC) No 6/2002, subject to limitation in time? |
| --- | --- | --- |

4.

(a)

Is the right to obtain an injunction prohibiting further infringement of an unregistered Community design, provided for in Article 19(2) and Article 89(1)(a) of Regulation (EC) No 6/2002, subject to limitation in time?

| (b) | If Question 4(a) is answered in the affirmative:
  Is the limitation in time governed by European Union law and, if so, by which provision? |
| --- | --- |

(b)

If Question 4(a) is answered in the affirmative:

Is the limitation in time governed by European Union law and, if so, by which provision?

| 5. | (a) | Is the right to obtain an injunction prohibiting further infringement of an unregistered Community design, provided for in Article 19(2) and Article 89(1)(a) of Regulation (EC) No 6/2002, subject to forfeiture? |
| --- | --- | --- |

5.

(a)

Is the right to obtain an injunction prohibiting further infringement of an unregistered Community design, provided for in Article 19(2) and Article 89(1)(a) of Regulation (EC) No 6/2002, subject to forfeiture?

| (b) | If Question 5(a) is answered in the affirmative:
  Is the forfeiture governed by European Union law and, if so, by which provision? |
| --- | --- |

(b)

If Question 5(a) is answered in the affirmative:

Is the forfeiture governed by European Union law and, if so, by which provision?

| 6. | Is Article 89(1)(d) of Regulation (EC) No 6/2002 to be interpreted as meaning that claims for destruction, disclosure of information and damages by reason of infringement of an unregistered Community design which are pursued in relation to the entirety of the European Union are subject to the law of the Member States in which the acts of infringement were committed? |
| --- | --- |

6.

Is Article 89(1)(d) of Regulation (EC) No 6/2002 to be interpreted as meaning that claims for destruction, disclosure of information and damages by reason of infringement of an unregistered Community design which are pursued in relation to the entirety of the European Union are subject to the law of the Member States in which the acts of infringement were committed?

---

(1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/3 |
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Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 5 November 2012 — The Bridport and West Dorset Golf Club Limited v The Commissioners for Her Majesty's Revenue & Customs

(Case C-495/12)

2013/C 32/04

Language of the case: English

Referring court

Upper Tribunal (Tax and Chancery Chamber)

Parties to the main proceedings

Applicant: The Bridport and West Dorset Golf Club Limited

Defendant: The Commissioners for Her Majesty's Revenue & Customs

Questions referred

| 1. | When applying the mandatory provisions of Article 134 to the provisions of Article 132(1)(m) of the Principal VAT Directive (1) in the circumstances of a body accepted to be a non-profit-making organisation making supplies of the right to play golf, what supplies, if any constitute ‘the transactions exempted’? |
| --- | --- |

1.

When applying the mandatory provisions of Article 134 to the provisions of Article 132(1)(m) of the Principal VAT Directive (1) in the circumstances of a body accepted to be a non-profit-making organisation making supplies of the right to play golf, what supplies, if any constitute ‘the transactions exempted’?

| 2. | Is it legitimate to restrict exemption under Article 132(1)(m) by reference to whether the services of granting a right to play golf are made to a member of the non-profit-making organisation ? |
| --- | --- |

2.

Is it legitimate to restrict exemption under Article 132(1)(m) by reference to whether the services of granting a right to play golf are made to a member of the non-profit-making organisation ?

| 3. | Are the provisions of Article 134 to be interpreted as restricting exemption only to supplies which are ‘closely linked’ (in the sense of peripheral) to the ‘transactions exempted’ or to any supply falling within Article 132(1)(m)? |
| --- | --- |

3.

Are the provisions of Article 134 to be interpreted as restricting exemption only to supplies which are ‘closely linked’ (in the sense of peripheral) to the ‘transactions exempted’ or to any supply falling within Article 132(1)(m)?

| 4. | In circumstances where the non-profit-making organisation by reference to its publicly stated aims, regularly and consistently permits non-members to play golf, what is the interpretation to be placed on the ‘basic purpose’ of making the charge to non-members? |
| --- | --- |

4.

In circumstances where the non-profit-making organisation by reference to its publicly stated aims, regularly and consistently permits non-members to play golf, what is the interpretation to be placed on the ‘basic purpose’ of making the charge to non-members?

| 5. | For the purposes of Article 134(b) to what must the ‘additional income’ be additional? |
| --- | --- |

5.

For the purposes of Article 134(b) to what must the ‘additional income’ be additional?

| 6. | If income derived from providing access to sporting facilities to non-members is not to be treated as ‘additional income’ for the purposes of Article 134(b), does Article 133(d) permit a Member State to exclude such income from exemption if it is likely to cause distortion of competition to the disadvantage of commercial enterprises subject to VAT, whilst not at the same time withdrawing the exemption form income derived from providing membership to members of the same non-profit-making organizations if the members’ subscriptions are themselves likely to cause at least some distortion of competition? |
| --- | --- |

6.

If income derived from providing access to sporting facilities to non-members is not to be treated as ‘additional income’ for the purposes of Article 134(b), does Article 133(d) permit a Member State to exclude such income from exemption if it is likely to cause distortion of competition to the disadvantage of commercial enterprises subject to VAT, whilst not at the same time withdrawing the exemption form income derived from providing membership to members of the same non-profit-making organizations if the members’ subscriptions are themselves likely to cause at least some distortion of competition?

| 7. | In particular, is it necessary for any condition implemented under Article 133(d) to apply to all services supplied by the non-profit-making organisation otherwise falling within the exemption or is it permissible to allow a partial restriction i.e. permitting exemption for the supply of the right to play golf to members but not to non-members where both membership and non-membership supplies are in competition with commercial organisations? |
| --- | --- |

7.

In particular, is it necessary for any condition implemented under Article 133(d) to apply to all services supplied by the non-profit-making organisation otherwise falling within the exemption or is it permissible to allow a partial restriction i.e. permitting exemption for the supply of the right to play golf to members but not to non-members where both membership and non-membership supplies are in competition with commercial organisations?

| 8. | What, if any, is the difference in requirement between Article 133(d) which requires a likely ‘distortion of competition’ and that in 134(b) which envisages only the existence of direct competition? |
| --- | --- |

8.

What, if any, is the difference in requirement between Article 133(d) which requires a likely ‘distortion of competition’ and that in 134(b) which envisages only the existence of direct competition?

---

(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

OJ L 347, p. 1

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/4 |
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Official Journal of the European Union

C 32/4

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Reference for a preliminary ruling from the Tribunal Central Administrativo Norte (Portugal) lodged on 9 November 2012 — IPTM-Instituto Portuário e dos Transportes Marítimos v Navileme-Consultadoria Náutica, Lda, Nautizende — Consultadoria Náutica, Lda

(Case C-509/12)

2013/C 32/05

Language of the case: Portuguese

Referring court

Tribunal Central Administrativo Norte

Parties to the main proceedings

Applicant: IPTM-Instituto Portuário e dos Transportes Marítimos

Defendants: Navileme-Consultadoria Náutica, Lda, Nautizende — Consultadoria Náutica, Lda

Question referred

Must the law of the European Union, having regard to the principle of prohibition of discrimination between nationals of one Member State and nationals of another Member State (Article 18 TFEU, formerly Article 12 EC), having regard to the free movement of persons in the EU and exceptions thereto (Article 45(3) TFEU, formerly Article 39 EC) and having regard to the freedom to provide services and possible restrictions thereof (Article 52 TFEU, formerly Article 46 EC, by virtue of Article 62 TFEU, formerly Article 55 EC), be interpreted as precluding a provision of national law which requires residence within national territory as a precondition for the issue of a recreational boating licence?

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/5 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/5

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Request for a preliminary ruling from the Bundesarbeitsgericht (Deutschland) lodged on 19 November 2012 — Tevfik Isbir v DB Services GmbH

(Case C-522/12)

2013/C 32/06

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: Tevfik Isbir

Defendant: DB Services GmbH

Questions referred

| 1. | Is the expression ‘minimum rates of pay’ in Article 3(1), first subparagraph, point (c) of Directive 96/71/EC (1) to be interpreted as referring to the consideration of the employer for the work done by the worker which should be discharged according to the law, regulation or administrative provision or the universally applicable collective agreement referred to in the opening sentence of Article 3(1) of the directive only and exclusively by the collective minimum wage (‘usual work’), meaning that it is only those employer payments which reward that usual work and which must be available to the worker at the latest on the date when they are payable within the respective wage payment period which can be counted towards the fulfilment of the obligation to pay the minimum rate of pay? |
| --- | --- |

1.

Is the expression ‘minimum rates of pay’ in Article 3(1), first subparagraph, point (c) of Directive 96/71/EC (1) to be interpreted as referring to the consideration of the employer for the work done by the worker which should be discharged according to the law, regulation or administrative provision or the universally applicable collective agreement referred to in the opening sentence of Article 3(1) of the directive only and exclusively by the collective minimum wage (‘usual work’), meaning that it is only those employer payments which reward that usual work and which must be available to the worker at the latest on the date when they are payable within the respective wage payment period which can be counted towards the fulfilment of the obligation to pay the minimum rate of pay?

| 2. | Is the expression ‘minimum rates of pay’ in Article 3(1), first subparagraph, point (c) of Directive 96/71/EC to be interpreted as precluding national provisions or practices according to which payments by an employer are not be to regarded as part of the minimum wage and therefore cannot be counted towards fulfilment of the entitlement to the minimum wage, if the employer makes those payments on the basis of a collective agreement-based obligation,






  — | and the payments, according to the intention of the parties to the collective agreement and of the legislature, have capital-generating objectives for the workers, |
| --- | --- | --- |

2.

Is the expression ‘minimum rates of pay’ in Article 3(1), first subparagraph, point (c) of Directive 96/71/EC to be interpreted as precluding national provisions or practices according to which payments by an employer are not be to regarded as part of the minimum wage and therefore cannot be counted towards fulfilment of the entitlement to the minimum wage, if the employer makes those payments on the basis of a collective agreement-based obligation,

—

and the payments, according to the intention of the parties to the collective agreement and of the legislature, have capital-generating objectives for the workers,

and to that end,

| — | the monthly payments by the employer to the employee are for long-term purposes such as contributions towards savings, the construction or acquisition of a residence or capital life insurance, and |
| --- | --- |

—

the monthly payments by the employer to the employee are for long-term purposes such as contributions towards savings, the construction or acquisition of a residence or capital life insurance, and

| — | are subsidised by allowances and tax breaks from the State, and |
| --- | --- |

—

are subsidised by allowances and tax breaks from the State, and

| — | the worker is entitled to access those contributions only after several years have elapsed, and |
| --- | --- |

—

the worker is entitled to access those contributions only after several years have elapsed, and

| — | the level of the contributions in the form of a fixed monthly sum is dependent only on the agreed working time and not on the salary paid (‘capital-generating contributions’)? |
| --- | --- |

—

the level of the contributions in the form of a fixed monthly sum is dependent only on the agreed working time and not on the salary paid (‘capital-generating contributions’)?

---

(1)  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1)

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/5 |
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Official Journal of the European Union

C 32/5

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Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Puglia (Italy) lodged on 19 November 2012 — Dirextra Alta Formazione Srl v Regione Puglia

(Case C-523/12)

2013/C 32/07

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Puglia

Parties to the main proceedings

Applicant: Dirextra Alta Formazione Srl

Defendant: Regione Puglia

Question referred

Is a provision of law — such as Article 2(3) of Puglia Regional Law No 12/2009, in force at regional level — which regulates in a restrictive manner access to the market for the provision of certain specific services designed to enhance the level of education locally (post-graduate Masters degree courses), making such access conditional upon meeting a single requirement which, in relation to the purpose of the Community measure (enhancement of the quality of education and, accordingly, selection of individuals with suitable qualifications) is arbitrarily chosen and expressed (a number of hours spread over an unnecessarily long period) and not differentiated according to the actual duration of the specific service, compatible with Article 56 et seq. and Article 101 et seq. (formerly Article 49 et seq. and Article 81 et seq. of the EC Treaty) and Article 107 et seq. of the Treaty on the Functioning of the European Union (in the version in force from 1 December 2009) and with the principles of competition, proportionality, non-discrimination and equal treatment which may be inferred from those rules, and with Articles 9 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 2 of the Additional Protocol thereto and Articles 11 and 14 of the Charter of Fundamental Rights?

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/6 |
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2.2.2013

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Official Journal of the European Union

C 32/6

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Appeal brought on 23 November 2012 by the Commune de Millau and the Société d’économie mixte d’équipement de l’Aveyron (SEMEA) against the judgment of the General Court (Third Chamber) delivered on 19 September 2012 in Joined Cases T-168/10 and T-572/10 European Commission v SEMEA and Commune de Millau

(Case C-531/12 P)

2013/C 32/08

Language of the case: French

Parties

Appellants: Commune de Millau, Société d’économie mixte d’équipement de l’Aveyron (SEMEA) (represented by: F. Bleykasten, lawyer)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

| — | annul the judgment of the General Court of the European Union of 19 September 2012, |
| --- | --- |

—

annul the judgment of the General Court of the European Union of 19 September 2012,

Giving judgment itself,

| — | declare that the General Court has no jurisdiction to hear and determine the application brought by the Commission against the Commune de Millau, in Case T-572/10; |
| --- | --- |

—

declare that the General Court has no jurisdiction to hear and determine the application brought by the Commission against the Commune de Millau, in Case T-572/10;

| — | refer the Commission back to appeal before the competent French courts; |
| --- | --- |

—

refer the Commission back to appeal before the competent French courts;

| — | declare inadmissible the application brought by the Commission against the SEMEA, in Case T-168/10; |
| --- | --- |

—

declare inadmissible the application brought by the Commission against the SEMEA, in Case T-168/10;

As to the substance,

| — | state that the obligation which is the basis for the Commission’s complaint is time-barred under French law; |
| --- | --- |

—

state that the obligation which is the basis for the Commission’s complaint is time-barred under French law;

| — | reject the Commission’s claims directed against the Commune de Millau and against the SEMEA; |
| --- | --- |

—

reject the Commission’s claims directed against the Commune de Millau and against the SEMEA;

In the alternative,

| — | rule that the Commission has infringed the principles of legal certainty and of sound administration; |
| --- | --- |

—

rule that the Commission has infringed the principles of legal certainty and of sound administration;

| — | rule that the European Union has thus incurred non-contractual liability vis-à-vis the Commune de Millau and the SEMEA; |
| --- | --- |

—

rule that the European Union has thus incurred non-contractual liability vis-à-vis the Commune de Millau and the SEMEA;

| — | order the Commission to pay the Commune de Millau and SEMEA a principal sum corresponding to EUR 41 012, plus interest and ancillary sums calculated according to French law and running until the date of the judgment to be delivered; |
| --- | --- |

—

order the Commission to pay the Commune de Millau and SEMEA a principal sum corresponding to EUR 41 012, plus interest and ancillary sums calculated according to French law and running until the date of the judgment to be delivered;

In any event,

| — | declare that the costs of the present proceedings are to be borne by the Commission |
| --- | --- |

—

declare that the costs of the present proceedings are to be borne by the Commission

Pleas in law and main arguments

The appellants raise four grounds of appeal against the General Court’s judgment.

Firstly, the Commune de Millau claims that the General Court does not have jurisdiction to hear and determine the application brought against it. According to the appellant, it is impossible for a legal person governed by French law to conclude an arbitration clause by means of a stipulation for the benefit of a third party. In the appellant’s view, there is no convention under which the Commune de Millau could have stipulated an arbitration clause for the benefit of the Commission.

Secondly, the SEMEA claims that, by transferring its assets and liabilities to a partner in the form of a legal person, still solvent and governed by public law (the Commune de Millau), while it itself was in a state of insolvency, it legitimately liquidated its rights and obligations of a social nature.

Thirdly, the appellants argue that the General Court erred in law in so far as it failed to comply with the legal provision applicable as regards limitation of the action. The disputed claim arose during trade between the SEMEA and the Commission. Notwithstanding the administrative nature of the contract between the SEMEA and the Commission, the rule on limitation applicable in the present case is, according to the appellants, Article 189a, now Article 110-4 of the French Code du Commerce (Commercial Code). The appellants therefore submit that the Commission’s claim is time-barred.

Lastly, the appellants criticise the General Court for not having acknowledged the Commission’s liability, even though its failure to act, for 12 years, to recover its claim, constitutes negligence and infringes Article 41(3) of the Charter of Fundamental Rights of the European Union. The significant amount of interest claimed by the Commission is also linked to the Commission’s failure to recover its claim, so that there is indeed a causal link between the alleged harm and the Commission’s conduct. The appellants thus claim that the harm is linked to the impossibility for them of taking measures in due time to address the Commission’s complaint.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/7 |
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Appeal brought on 22 November 2012 by the Société nationale maritime Corse-Méditerranée (SNCM) SA against the judgment delivered by the General Court (Fourth Chamber) on 11 September 2012 in Case T-565/08 Corsica Ferries France SAS v European Commission

(Case C-533/12 P)

2013/C 32/09

Language of the case: French

Parties

Appellant: Société nationale maritime Corse-Méditerranée (SNCM) SA (represented by: A. Winckler and F.-C. Laprévote, lawyers)

Other parties to the proceedings: Corsica Ferries France SAS, European Commission, French Republic

Form of order sought

The appellant claims that the Court should:

| — | annul in part the judgment delivered by the General Court on 11 September 2012 in Case T-565/08 Corsica Ferries France SAS v European Commission in so far as it annuls the second and third paragraphs of Article 1 of Commission Decision 2009/611/EC of 8 July 2008 concerning the measures C-58/02 (ex N 118/02) which France has implemented in favour of the Société Nationale Maritime Corse-Méditerranée (SNCM) (1) on the grounds (i) that the Commission has committed an error in law and manifest errors of assessment so far as concerns its analyses of the negative sale price of EUR 158 million, of the capital contribution in conjunction and simultaneous with CGMF for an amount of EUR 8,75 million and aid to individuals for an amount of EUR 38,5 million; and (ii) that the analysis, by the Commission, of the balance for restructuring, for a final amount of EUR 15,81 million, was based on an incorrect premiss; |
| --- | --- |

—

annul in part the judgment delivered by the General Court on 11 September 2012 in Case T-565/08 Corsica Ferries France SAS v European Commission in so far as it annuls the second and third paragraphs of Article 1 of Commission Decision 2009/611/EC of 8 July 2008 concerning the measures C-58/02 (ex N 118/02) which France has implemented in favour of the Société Nationale Maritime Corse-Méditerranée (SNCM) (1) on the grounds (i) that the Commission has committed an error in law and manifest errors of assessment so far as concerns its analyses of the negative sale price of EUR 158 million, of the capital contribution in conjunction and simultaneous with CGMF for an amount of EUR 8,75 million and aid to individuals for an amount of EUR 38,5 million; and (ii) that the analysis, by the Commission, of the balance for restructuring, for a final amount of EUR 15,81 million, was based on an incorrect premiss;

| — | order Corsica Ferries to pay the costs. |
| --- | --- |

—

order Corsica Ferries to pay the costs.

Pleas in law and main arguments

The appellant raises four grounds of appeal seeking that the judgment of the General Court be set aside in part.

Firstly, in respect of the sale at a negative price, the appellant submits that the General Court has not only failed to have regard to the Commission’s discretion for the purposes of the application of the test of the private investor in a market economy, but has also committed an error of law as regards the interpretation of that test. The General Court distorted the Commission’s decision and failed to fulfil its obligation to state reasons in adopting an interpretation of the test of the private investor in a market economy which was contrary to Article 345 TFEU.

Secondly, in respect of the capital contribution, the appellant criticises the General Court for having distorted the Commission’s decision, in holding that that decision did not take into account all the relevant factors in its assessment of the comparable nature of the investment conditions of the private capital contributions made simultaneously.

Thirdly, in respect of measures involving aid to individuals, the General Court not only distorted the Commission’s decision, but it also committed an error of law and failed to fulfil its obligation to state reasons as regards the advantage from which it held the SNCM benefited.

Fourthly, having regard to the foregoing, the General Court’s reasoning relating to the balance for restructuring, calculated at EUR 15,81, is misplaced.

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(1)  OJ 2009 L 225, p. 180

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/7 |
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Appeal brought on 26 November 2012 by the French Republic against the judgment of the General Court (Fourth Chamber) delivered on 11 September 2012 in Case T-565/08 Corsica Ferries France SAS v European Commission

(Case C-536/12 P)

2013/C 32/10

Language of the case: French

Parties

Appellant: French Republic (represented by: G. de Bergues, D. Colas, N. Rouam and J. Rossi, Agents)

Other parties to the proceedings: Corsica Ferries France SAS, European Commission, Société nationale maritime Corse-Méditerranée (SNCM) SA

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment delivered by the Fourth Chamber of the General Court on 11 September 2012 in Case T-565/08 Corsica Ferries France v European Commission, in so far as it annulled the second and third paragraphs of Article 1 of Commission Decision 2009/611/EC of 8 July 2008 concerning the measures C-58/02 (ex N 118/02) which France has implemented in favour of the Société Nationale Maritime Corse-Méditerranée (SNCM); (1) |
| --- | --- |

—

set aside the judgment delivered by the Fourth Chamber of the General Court on 11 September 2012 in Case T-565/08 Corsica Ferries France v European Commission, in so far as it annulled the second and third paragraphs of Article 1 of Commission Decision 2009/611/EC of 8 July 2008 concerning the measures C-58/02 (ex N 118/02) which France has implemented in favour of the Société Nationale Maritime Corse-Méditerranée (SNCM); (1)

| — | rule definitively on the dispute or refer the case back to the General Court; |
| --- | --- |

—

rule definitively on the dispute or refer the case back to the General Court;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The appellant raises four grounds of appeal seeking that the judgment of the General Court be set aside.

Firstly, the appellant submits that the General Court infringed Article 107(1) TFEU in holding that the Commission erred in law in finding that the sale of the Société nationale maritime Corse-Méditerranée at a negative price of EUR 158 million did not constitute State aid. The appellant criticises the General Court for having considered that the Commission could not take into account the risk that the brand image of the State, as a global economic actor in the private sector, would be adversely affected, in the context of the reasonable private investor test, in order to determine whether the payment of supplementary redundancy payments to SNCM’s employees in the event of the liquidation of that undertaking would also have been made by a reasonable private investor. In addition, it criticises the General Court for having demanded evidence from the Commission that the payment of supplementary redundancy payments constituted a sufficiently established practice, or even the normal practice, among private entrepreneurs.

Secondly, the General Court committed an error in law derived from the infringement of Article 107(1) TFEU by holding that the Commission did not take into account all the relevant evidence in its analysis of the comparability of the capital contribution of EUR 8,75 million made by SNCM’s public shareholder and the capital contribution of EUR 26,25 million made by the private purchasers, and that the Commission ought to have taken into account the clause to cancel the sale conceded to the private purchasers in the context of SNCM’s privatisation.

Thirdly, the General Court infringed Article 36 of the Statute of the Court of Justice, read in combination with the first paragraph of Article 53 thereof, and Article 81 of the Rules of Procedure of the General Court, by treating as State aid the measures involving aid to individuals amounting to EUR 38,5 million, without ascertaining, in the alternative, whether that measure met the reasonable private investor test, as maintained by the Commission in the contested decision and the French Government at the hearing before the General Court.

Lastly, the General Court erred in law in holding that the Commission committed a manifest error of assessment in approving the balance for restructuring under Article 107(3)(c) TFEU and the Guidelines.

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(1)  OJ 2009 L 225, p. 180

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/8 |
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2.2.2013

EN

Official Journal of the European Union

C 32/8

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Action brought on 27 November 2012 — European Commission v Republic of Cyprus

(Case C-545/12)

2013/C 32/11

Language of the case: Greek

Parties

Applicant: European Commission (represented by: P. Hetsch, J. Hottiaux and Μ. Constantinidis, Agents)

Defendant: Republic of Cyprus

Form of order sought

The applicant claims that the Court should:

| — | Declare that by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (recast) (OJ 2006 L 403 p. 18) and, in any event, by not communicating to the Commission the text of those provisions, the Republic of Cyprus failed to fulfil its obligations under Article 16 of that directive; |
| --- | --- |

—

Declare that by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (recast) (OJ 2006 L 403 p. 18) and, in any event, by not communicating to the Commission the text of those provisions, the Republic of Cyprus failed to fulfil its obligations under Article 16 of that directive;

| — | impose on the Republic of Cyprus, pursuant to Article 260(3) TFEU, payment of a daily penalty payment amounting to EUR 6 504,96 from the date of publication of the judgment of the Court; |
| --- | --- |

—

impose on the Republic of Cyprus, pursuant to Article 260(3) TFEU, payment of a daily penalty payment amounting to EUR 6 504,96 from the date of publication of the judgment of the Court;

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

—

order the Republic of Cyprus to pay the costs.

Pleas in law and main arguments

Article 16(1) of Directive 2006/126/EC obliges the Member States to adopt and publish, no later than 19 January 2011, the laws, regulations and administrative provisions necessary to comply with the new provisions which the directive concerned introduces and specifies.

The Republic of Cyprus has not fully transposed into domestic law the provisions of the directive. In particular, the Commission has ascertained that, at the date of lodging of the action, the Republic of Cyprus had not transposed into its domestic law Articles 1(1), 3, 7(1), 7(3), 7(5), 10 and 15 or Annex Ι, point 2, Annex ΙΙ, point 5.2 or Annexes IV, V and VI of the directive.

Consequently, the Commission considers that the Republic of Cyprus failed to fulfil its obligations under Article 260(3) TFEU.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/9 |
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2.2.2013

EN

Official Journal of the European Union

C 32/9

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Appeal brought on 3 December 2012 by J against the judgment delivered by the General Court (Sixth Chamber) on 27 September 2012 in Case T-160/10 J v European Parliament

(Case C-550/12 P)

2013/C 32/12

Language of the case: German

Parties

Appellant: J (represented by: A. Auer, Rechtsanwalt)

Other party to the proceedings: European Parliament

Form of order sought

The appellant claims that the Court of Justice should:

| — | set aside in its entirety the judgment of the General Court of the European Union of 27 September 2012 in Case T-160/10 and declare that ‘The judgment of the General Court of the European Union of 27 September 2012 in Case T-160/10 J v European Parliament is set aside in its entirety. The European Parliament is ordered to pay the costs’. |
| --- | --- |

—

set aside in its entirety the judgment of the General Court of the European Union of 27 September 2012 in Case T-160/10 and declare that ‘The judgment of the General Court of the European Union of 27 September 2012 in Case T-160/10 J v European Parliament is set aside in its entirety. The European Parliament is ordered to pay the costs’.

If the appeal is deemed to be founded, the appellant claims that the Court of Justice should:

| — | grant in full the application made at first instance for the annulment of the decision of the Committee on Petitions of the European Parliament of 2 March 2010 rejecting petition No 1673/2009 submitted by the appellant on 19 November 2009; |
| --- | --- |

—

grant in full the application made at first instance for the annulment of the decision of the Committee on Petitions of the European Parliament of 2 March 2010 rejecting petition No 1673/2009 submitted by the appellant on 19 November 2009;

| — | order the European Parliament to pay the costs incurred at first instance;
  in the alterative, |
| --- | --- |

—

order the European Parliament to pay the costs incurred at first instance;

in the alterative,

| — | refer the case back to the General Court for a new decision to be taken. |
| --- | --- |

—

refer the case back to the General Court for a new decision to be taken.

Grounds of appeal and main arguments

The General Court wrongly found there to have been no infringement of the duty to state reasons on the part of the Committee on Petitions in its declaration of inadmissibility of the appellant’s petition. The appellant submits that, in its petition, it complained expressly of the infringement of the right to property and an infringement of Directive 2004/48/EC (1) by the Austrian authorities. Those infringements were not addressed in the declaration of inadmissibility of the petition — even though they were referred to expressly — with the result that it was not possible for the appellant to understand why the European Parliament deemed its petition to be inadmissible.

Moreover, the General Court wrongly came to the conclusion that the conduct of the Austrian authorities was in no way linked to the implementation of European Union law. The Austrian authorities confiscated documents belonging to the appellant which are protected by copyright, without being provided with any compensation. As a result, the appellant’s right to (intellectual) property within the scope of Directive 2004/48/EC was infringed.

---

(1)  Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45). Corrigenda thereto: OJ 2004 L 195, p. 16 and OJ 2007 L 204, p. 27.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/9 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/9

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Appeal brought on 3 December 2012 by the Hellenic Republic against the judgment of the General Court (Fifth Chamber) delivered on 4 October 2012 in Case T-215/10 Greece v Commission

(Case C-552/12 P)

2013/C 32/13

Language of the case: Greek

Parties

Appellant: Hellenic Republic (represented by: I. Khalkias and E. Leftheriotou, Agents)

Other party to the proceedings: European Commission

Form of order sought

| — | The Hellenic Republic claims that the Court of Justice of the European Union should admit this appeal and set aside in its entirety the judgment under appeal of the General Court, for the reasons specifically set out, and order the Commission to pay the costs. |
| --- | --- |

—

The Hellenic Republic claims that the Court of Justice of the European Union should admit this appeal and set aside in its entirety the judgment under appeal of the General Court, for the reasons specifically set out, and order the Commission to pay the costs.

Pleas in law and main arguments

| — | As regards the corrections in the cotton sector and specifically as regards the compatibility of the scheme to support the production of cotton with the Integrated Administrative Control System (IACS), the Hellenic Republic relies on the following grounds of appeal:






  — | infringement of European Union law: incorrect interpretation and application of Articles 6, 7 and 17 of Regulation No 1051/2001 and of Article 10(1) and 2(c) and (e) of Regulation No 1591/2001 — insufficient statement of reasons — infringement of the principle of proportionality; |
| --- | --- | --- |

—

As regards the corrections in the cotton sector and specifically as regards the compatibility of the scheme to support the production of cotton with the Integrated Administrative Control System (IACS), the Hellenic Republic relies on the following grounds of appeal:

—

infringement of European Union law: incorrect interpretation and application of Articles 6, 7 and 17 of Regulation No 1051/2001 and of Article 10(1) and 2(c) and (e) of Regulation No 1591/2001 — insufficient statement of reasons — infringement of the principle of proportionality;

| — | infringement of European Union law: incorrect interpretation and application of Article 17 of Regulation No 1051/2001 — insufficient and/or contradictory statement of reasons. |
| --- | --- |

—

infringement of European Union law: incorrect interpretation and application of Article 17 of Regulation No 1051/2001 — insufficient and/or contradictory statement of reasons.

| — | As regards the environmental measures, the following grounds of appeal are relied on:






  — | infringement of European Union law: incorrect interpretation and application of the guidelines and of the principle of proportionality — inadequate statement of reasons; |
| --- | --- | --- |

—

As regards the environmental measures, the following grounds of appeal are relied on:

—

infringement of European Union law: incorrect interpretation and application of the guidelines and of the principle of proportionality — inadequate statement of reasons;

| — | infringement of European Union law: incorrect interpretation and application of Article 7(4) of Regulation 1051/01 and Article 1 of each of Regulations 1123/09, 903/05 and 871/06 — insufficient statement of reasons; |
| --- | --- |

—

infringement of European Union law: incorrect interpretation and application of Article 7(4) of Regulation 1051/01 and Article 1 of each of Regulations 1123/09, 903/05 and 871/06 — insufficient statement of reasons;

| — | infringement of the procedural guarantees of protection — insufficient statement of reasons. |
| --- | --- |

—

infringement of the procedural guarantees of protection — insufficient statement of reasons.

| — | As concerns the corrections in the area of rural development, the Hellenic Republic claims:






  — | incorrect interpretation and application of the provisions of Article 8 (1) and (2) of Regulation 1663/95 and, in addition, insufficient and/or contradictory statement of reasons. |
| --- | --- | --- |

—

As concerns the corrections in the area of rural development, the Hellenic Republic claims:

—

incorrect interpretation and application of the provisions of Article 8 (1) and (2) of Regulation 1663/95 and, in addition, insufficient and/or contradictory statement of reasons.

| — | In relation to the corrections in the area of aid to the most deprived, the Hellenic Republic relies on the following grounds of appeal:






  — | incorrect interpretation and application of Article 3(2) of Regulation 3149/92 — insufficient and/or contradictory statement of reasons — infringement of the principle of proportionality — incorrect interpretation and application of the rules of procedural equality and equal allocation of the burden of proof — defects in the procedure before the General Court which are prejudicial to the interests of the Hellenic Republic. |
| --- | --- | --- |

—

In relation to the corrections in the area of aid to the most deprived, the Hellenic Republic relies on the following grounds of appeal:

—

incorrect interpretation and application of Article 3(2) of Regulation 3149/92 — insufficient and/or contradictory statement of reasons — infringement of the principle of proportionality — incorrect interpretation and application of the rules of procedural equality and equal allocation of the burden of proof — defects in the procedure before the General Court which are prejudicial to the interests of the Hellenic Republic.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/10 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/10

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Appeal brought on 30 November 2012 by the European Commission against the judgment delivered by the General Court (Sixth Chamber) on 20 September 2012 in Case T-169/08 DEI v Commission

(Case C-553/12 P)

2013/C 32/14

Language of the case: Greek

Parties

Appellant: European Commission (represented by: T. Khristoforou and A. Antoniadis, Agents, and A. Ikonomou, dikigoros)

Other parties to the proceedings: Dimosia Epikhirisi Ilektrismou (DEI), Hellenic Republic, Energiaki Thessalonikis AE, Elliniki Energia kai Anaptixi AE (H.E. & D.S.A.)

Form of order sought

| — | set aside the General Court’s judgment of 20 September 2012 in Case T-169/08 in its entirety; |
| --- | --- |

—

set aside the General Court’s judgment of 20 September 2012 in Case T-169/08 in its entirety;

| — | give final judgment in the matter if it is considered that the state of the proceedings so permits; |
| --- | --- |

—

give final judgment in the matter if it is considered that the state of the proceedings so permits;

| — | order DEI to pay its own costs, and the Commission’s costs at first instance and on appeal. |
| --- | --- |

—

order DEI to pay its own costs, and the Commission’s costs at first instance and on appeal.

Pleas in law and main arguments

| — | By the first ground of appeal, the Commission contends that in the judgment under appeal the General Court erred in law with regard to the interpretation and application of Article 86(1) EC in conjunction with Article 82 EC, as interpreted by the Court of Justice of the European Union. Furthermore, the General Court applied those two articles to the facts of the present case incorrectly, which also constitutes incorrect characterisation and misinterpretation of the evidence and incorrect interpretation of the basis of the contested decision adopted by the Commission. The General Court’s assessments are also based on incorrect, defective and insufficient reasoning, they distort the sense of and misinterpret the evidence and they distort the basis of the contested decision adopted by the Commission, because that decision demonstrated that the State measures at issue adopted by the Hellenic Republic affected the structure of the market and created inequality of opportunity on the lignite market — inequality which had the effect of allowing DEI, a public undertaking, to extend its dominant position from the primary lignite-supply market to the secondary market for the wholesale supply of electricity in Greece, preventing new competitors from entering the market. |
| --- | --- |

—

By the first ground of appeal, the Commission contends that in the judgment under appeal the General Court erred in law with regard to the interpretation and application of Article 86(1) EC in conjunction with Article 82 EC, as interpreted by the Court of Justice of the European Union. Furthermore, the General Court applied those two articles to the facts of the present case incorrectly, which also constitutes incorrect characterisation and misinterpretation of the evidence and incorrect interpretation of the basis of the contested decision adopted by the Commission. The General Court’s assessments are also based on incorrect, defective and insufficient reasoning, they distort the sense of and misinterpret the evidence and they distort the basis of the contested decision adopted by the Commission, because that decision demonstrated that the State measures at issue adopted by the Hellenic Republic affected the structure of the market and created inequality of opportunity on the lignite market — inequality which had the effect of allowing DEI, a public undertaking, to extend its dominant position from the primary lignite-supply market to the secondary market for the wholesale supply of electricity in Greece, preventing new competitors from entering the market.

| — | According to the Commission, the judgment under appeal is also vitiated by error because it entirely overlooked the fact that the contested decision adopted by the Commission demonstrated that DEI’s preferential access to lignite, which was retained by the State measures at issue even after the liberalisation of the electricity market in Greece, and after the creation of the wholesale electricity supply market in May 2005, resulted in the structure of the market being affected because of the inequality of opportunity, thereby creating a situation in which DEI, solely by exercising its quasi-monopolistic rights to exploit lignite, was in a position to extend its dominant position from the primary to the secondary market. In that way DEI was led to engage in abusive behaviour on that secondary market, restricting or preventing access by new competitors (see, inter alia, the Court’s judgments in Raso, GB-Inno-BM, Connect Austria, Dusseldorp, CBEM and MOTOE). The extension of DEI’s dominant position from the primary to the secondary market and its retention on that market, and the undoubted competitive advantage that DEI enjoyed in electricity production because of the low cost of lignite, enabled DEI to feed electricity into the interconnected network in Greece at lower prices, in greater quantities and for a longer period, factors which amount to abusive behaviour (although the Court’s case-law does not require proof of behaviour of such kind, having regard to the specific facts of the present case). |
| --- | --- |

—

According to the Commission, the judgment under appeal is also vitiated by error because it entirely overlooked the fact that the contested decision adopted by the Commission demonstrated that DEI’s preferential access to lignite, which was retained by the State measures at issue even after the liberalisation of the electricity market in Greece, and after the creation of the wholesale electricity supply market in May 2005, resulted in the structure of the market being affected because of the inequality of opportunity, thereby creating a situation in which DEI, solely by exercising its quasi-monopolistic rights to exploit lignite, was in a position to extend its dominant position from the primary to the secondary market. In that way DEI was led to engage in abusive behaviour on that secondary market, restricting or preventing access by new competitors (see, inter alia, the Court’s judgments in Raso, GB-Inno-BM, Connect Austria, Dusseldorp, CBEM and MOTOE). The extension of DEI’s dominant position from the primary to the secondary market and its retention on that market, and the undoubted competitive advantage that DEI enjoyed in electricity production because of the low cost of lignite, enabled DEI to feed electricity into the interconnected network in Greece at lower prices, in greater quantities and for a longer period, factors which amount to abusive behaviour (although the Court’s case-law does not require proof of behaviour of such kind, having regard to the specific facts of the present case).

| — | The contested decision adopted by the Commission also found that DEI’s competitors needed a diversified spectrum of sources, including access to sufficient quantities of lignite, in order for them to enter the electricity market, viably remain there and effectively participate in competition there. That fact should have been known both to the Hellenic Republic, which failed to grant operating licences for exploitable lignite deposits to DEI’s potential competitors, and to DEI when it exercised its quasi-monopolistic rights, using its dominant position on the primary lignite market as leverage to extend its dominant position to the secondary market for the wholesale supply of electricity and to maintain it there, with the result that it de facto obstructed or prevented access of the potential new competitors to the secondary market in question. |
| --- | --- |

—

The contested decision adopted by the Commission also found that DEI’s competitors needed a diversified spectrum of sources, including access to sufficient quantities of lignite, in order for them to enter the electricity market, viably remain there and effectively participate in competition there. That fact should have been known both to the Hellenic Republic, which failed to grant operating licences for exploitable lignite deposits to DEI’s potential competitors, and to DEI when it exercised its quasi-monopolistic rights, using its dominant position on the primary lignite market as leverage to extend its dominant position to the secondary market for the wholesale supply of electricity and to maintain it there, with the result that it de facto obstructed or prevented access of the potential new competitors to the secondary market in question.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/11 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/11

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Appeal brought on 30 November 2012 by the European Commission against the judgment delivered by the General Court (Sixth Chamber) on 20 September 2012 in Case T-421/09 DEI v European Commission

(Case C-554/12 P)

2013/C 32/15

Language of the case: Greek

Parties

Appellant: European Commission (represented by: T. Khristoforou and A. Antoniadis, Agents, and A. Ikonomou, dikigoros)

Other parties to the proceedings: Dimosia Epikhirisi Ilektrismou AE (DEI), Hellenic Republic

Form of order sought

| — | set aside the General Court’s judgment of 20 September 2012 in Case T-421/09 in its entirety; |
| --- | --- |

—

set aside the General Court’s judgment of 20 September 2012 in Case T-421/09 in its entirety;

| — | give final judgment in the matter if it is considered that the state of the proceedings so permits; |
| --- | --- |

—

give final judgment in the matter if it is considered that the state of the proceedings so permits;

| — | order DEI to pay its own costs, and the Commission’s costs at first instance and on appeal. |
| --- | --- |

—

order DEI to pay its own costs, and the Commission’s costs at first instance and on appeal.

Pleas in law and main arguments

| 1. | By its judgment in Case T-421/09, the General Court annulled the decision of 4 August 2009 by which the Commission found that the corrective measures proposed by the Hellenic Republic were necessary and proportionate for removing the consequences of the infringement and ensuring compliance with the previous decision of 5 March 2008 (‘the decision of 4 August 2009’ or ‘the contested decision’). The General Court held that the contested decision had to be annulled, basing its assessment solely on the fact that the Commission’s previous decision of 5 March 2008, upon which the contested decision was exclusively founded, had in the meantime been annulled by its judgment in Case T-169/08, also delivered on 20 September 2012. |
| --- | --- |

1.

By its judgment in Case T-421/09, the General Court annulled the decision of 4 August 2009 by which the Commission found that the corrective measures proposed by the Hellenic Republic were necessary and proportionate for removing the consequences of the infringement and ensuring compliance with the previous decision of 5 March 2008 (‘the decision of 4 August 2009’ or ‘the contested decision’). The General Court held that the contested decision had to be annulled, basing its assessment solely on the fact that the Commission’s previous decision of 5 March 2008, upon which the contested decision was exclusively founded, had in the meantime been annulled by its judgment in Case T-169/08, also delivered on 20 September 2012.

| 2. | Since the Commission considers that the General Court’s judgment in Case T-169/08 is based on many errors of law, on defective and insufficient reasoning and on misinterpretation of the evidence and of the basis of the Commission’s decision of 5 March 2008, it has already also brought an appeal against that judgment of the General Court. Therefore, if that appeal against the judgment in Case T-169/08 is upheld, the sole basis upon which the judgment under appeal in the present case (T-421/09) was founded will also automatically disappear. |
| --- | --- |

2.

Since the Commission considers that the General Court’s judgment in Case T-169/08 is based on many errors of law, on defective and insufficient reasoning and on misinterpretation of the evidence and of the basis of the Commission’s decision of 5 March 2008, it has already also brought an appeal against that judgment of the General Court. Therefore, if that appeal against the judgment in Case T-169/08 is upheld, the sole basis upon which the judgment under appeal in the present case (T-421/09) was founded will also automatically disappear.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/11 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/11

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Reference for a preliminary ruling from the Tribunale di Tivoli (Italy) lodged on 3 December 2012 — Claudio Loreti and Others v Comune di Zagarolo

(Case C-555/12)

2013/C 32/16

Language of the case: Italian

Referring court

Tribunale di Tivoli

Parties to the main proceedings

Applicants: Claudio Loreti and Others

Defendant: Comune di Zagarolo

Questions referred

It is considered necessary to refer to the European Court of Justice of the European Union questions of interpretation for a preliminary ruling on:

| 1. | the compatibility of Article 7 of the Code of Administrative Procedure in force in the Italian Republic, which, pursuant to Article 103 of the Italian Constitution, provides that
  ‘[t]he administrative courts shall have jurisdiction to hear disputes concerning issues of legitimate interests and, in the specific areas laid down by law, disputes involving individual rights, relating to the exercise of or failure to exercise administrative powers in relation to measures, acts, agreements or conduct involving the exercise of those powers, including indirectly, on the part of public authorities. Acts or measures adopted by the Government in the exercise of political power may not be challenged before the courts’,
  with Article 6 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms] and Articles 47 and 52(3) of the [Charter of Fundamental Rights of the European Union], as incorporated following the amendment of Article 6 [TEU]:






  (a) | in so far as it allocates to different judicial bodies the power to rule on individual legal situations which are distinguished in abstracto (legitimate interests and individual rights) but the positive identification of which is in fact difficult or indeed impossible in the absence of provisions specifying their actual content; |
| --- | --- | --- |

1.

the compatibility of Article 7 of the Code of Administrative Procedure in force in the Italian Republic, which, pursuant to Article 103 of the Italian Constitution, provides that

‘[t]he administrative courts shall have jurisdiction to hear disputes concerning issues of legitimate interests and, in the specific areas laid down by law, disputes involving individual rights, relating to the exercise of or failure to exercise administrative powers in relation to measures, acts, agreements or conduct involving the exercise of those powers, including indirectly, on the part of public authorities. Acts or measures adopted by the Government in the exercise of political power may not be challenged before the courts’,

with Article 6 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms] and Articles 47 and 52(3) of the [Charter of Fundamental Rights of the European Union], as incorporated following the amendment of Article 6 [TEU]:

(a)

in so far as it allocates to different judicial bodies the power to rule on individual legal situations which are distinguished in abstracto (legitimate interests and individual rights) but the positive identification of which is in fact difficult or indeed impossible in the absence of provisions specifying their actual content;

| (b) | in so far as it provides that the courts have jurisdiction to rule on the same matters on the basis of criteria (the identification of different individual legal situations) which no longer reflect factual reality after the introduction of the possibility of bringing an action for compensation in respect of legitimate interests (for which provision is now made as of the year 2000 in order to bring domestic legislation in line with Community principles), with significant differences, including with regard to the procedural rules for bringing actions; |
| --- | --- |

(b)

in so far as it provides that the courts have jurisdiction to rule on the same matters on the basis of criteria (the identification of different individual legal situations) which no longer reflect factual reality after the introduction of the possibility of bringing an action for compensation in respect of legitimate interests (for which provision is now made as of the year 2000 in order to bring domestic legislation in line with Community principles), with significant differences, including with regard to the procedural rules for bringing actions;

as well as, in general,

| 2. | on the compatibility of Article 103 of the Italian Constitution, in so far as it provides for and affords different forms of protection in respect of individual legal situations (referred to as legitimate interests) for which there is no equivalent under Community law, by conferring competence in this area on different judicial systems, the jurisdiction of which is altered from time to time. |
| --- | --- |

2.

on the compatibility of Article 103 of the Italian Constitution, in so far as it provides for and affords different forms of protection in respect of individual legal situations (referred to as legitimate interests) for which there is no equivalent under Community law, by conferring competence in this area on different judicial systems, the jurisdiction of which is altered from time to time.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/12 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/12

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Appeal brought on 4 December 2012 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment of the General Court (First Chamber) delivered on 21 September 2012 in Case T-278/10 Wesergold Getränkeindustrie GmbH & Co KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-558/12 P)

2013/C 32/17

Language of the case: German

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: A. Pohlmann, lawyer)

Other parties to the proceedings: Wesergold Getränkeindustrie GmbH & Co. KG, Lidl Stiftung & Co. KG

Form of order sought

The appellant claims that the Court should:

| — | Set aside the judgment under appeal; |
| --- | --- |

—

Set aside the judgment under appeal;

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

—

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

Grounds of appeal and main arguments

The present appeal challenges the judgment of the General Court of 21 September 2012 in Case T-278/10, by which that Court annulled the decision of the First Board of Appeal of OHIM of 24 March 2010 (Case R 770/2009-1).

In support of its appeal the appellant puts forward three grounds of appeal:

| | First, it pleads infringement of Article 8(1)(b) of Regulation No 207/2009 (1) because the General Court annulled the decision of the Board of Appeal due to the latter’s failure to carry out an examination of the enhanced distinctiveness of the earlier marks, although the General Court itself held that the signs at issue are different overall, so that there can, for that reason alone, be no likelihood of confusion. |
| --- | --- |

First, it pleads infringement of Article 8(1)(b) of Regulation No 207/2009 (1) because the General Court annulled the decision of the Board of Appeal due to the latter’s failure to carry out an examination of the enhanced distinctiveness of the earlier marks, although the General Court itself held that the signs at issue are different overall, so that there can, for that reason alone, be no likelihood of confusion.

| | Secondly, the appellant submits that there is infringement of Article 76(1) of Regulation No 207/2009 in conjunction with Article 64(1) of Regulation No 207/2009 as those provisions presuppose that Wesergold Getränkeindustrie should have pleaded the enhanced distinctiveness of the opposing marks, which however clearly does not correspond to the facts. Wesergold Getränkeindustrie had already abandoned the argument of enhanced distinctiveness acquired through use in the course of the opposition proceedings, at the latest, however, in the appeal proceedings. The General Court’s assertion to the contrary, that Wesergold Getränkeindustrie still claimed in the appeal proceedings that there was enhanced distinctiveness acquired through use, is an obvious distortion of the facts, which requires no new evidence. |
| --- | --- |

Secondly, the appellant submits that there is infringement of Article 76(1) of Regulation No 207/2009 in conjunction with Article 64(1) of Regulation No 207/2009 as those provisions presuppose that Wesergold Getränkeindustrie should have pleaded the enhanced distinctiveness of the opposing marks, which however clearly does not correspond to the facts. Wesergold Getränkeindustrie had already abandoned the argument of enhanced distinctiveness acquired through use in the course of the opposition proceedings, at the latest, however, in the appeal proceedings. The General Court’s assertion to the contrary, that Wesergold Getränkeindustrie still claimed in the appeal proceedings that there was enhanced distinctiveness acquired through use, is an obvious distortion of the facts, which requires no new evidence.

| | Thirdly, the judgment is contrary to the settled case-law according to which an error cannot result in the annulment of a decision if that error clearly has no effects on the decision. The issue of enhanced distinctiveness is irrelevant to the decision not only because of the dissimilarity which the General Court expressly found to exist between the signs, but also because Wesergold Getränkeindustrie had already, by the documents submitted in the opposition proceedings, prima facie adduced no evidence of enhanced distinctiveness acquired through use. The General Court should have carried out a short examination as to the validity of that obviously inadequate evidence, which was submitted on 10 March 2008, in order to prevent an unnecessary delay in the proceedings and an unnecessary increase in the costs thereof. |
| --- | --- |

Thirdly, the judgment is contrary to the settled case-law according to which an error cannot result in the annulment of a decision if that error clearly has no effects on the decision. The issue of enhanced distinctiveness is irrelevant to the decision not only because of the dissimilarity which the General Court expressly found to exist between the signs, but also because Wesergold Getränkeindustrie had already, by the documents submitted in the opposition proceedings, prima facie adduced no evidence of enhanced distinctiveness acquired through use. The General Court should have carried out a short examination as to the validity of that obviously inadequate evidence, which was submitted on 10 March 2008, in order to prevent an unnecessary delay in the proceedings and an unnecessary increase in the costs thereof.

---

(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)

---

| 2.2.2013 | EN | Official Journal of the European Union | C 32/13 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/13

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Appeal brought on 5 December 2012 by the French Republic against the judgment of the General Court (Sixth Chamber) delivered on 20 September 2012 in Case T-154/10 France v Commission

(Case C-559/12 P)

2013/C 32/18

Language of the case: French

Parties

Appellant: French Republic (represented by: G. de Bergues, J. Gstalter, D. Colas, Agents)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | set aside in its entirety the judgment of the General Court of the European Union of 20 September 2012 in Case T-154/10 France v Commission; |
| --- | --- |

—

set aside in its entirety the judgment of the General Court of the European Union of 20 September 2012 in Case T-154/10 France v Commission;

| — | rule definitively on the dispute in annulling Commission Decision 2010/605/EU of 26 January 2010 on State aid C-56/07 (ex E 15/05) granted by France to La Poste (1) or refer the case back to the General Court; |
| --- | --- |

—

rule definitively on the dispute in annulling Commission Decision 2010/605/EU of 26 January 2010 on State aid C-56/07 (ex E 15/05) granted by France to La Poste (1) or refer the case back to the General Court;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The French Government raises four grounds in support of its appeal.

By its first ground of appeal, the French Government claims, first, that, in the judgment under appeal, the General Court clearly failed to have regard to the meaning of the pleas of that Government when it held that all the pleas put forward were essentially connected to the determination of the existence of an advantage, and not also to the determination of the existence of a transfer of State resources. Secondly, and as a consequence, the General Court infringed Article 44(1)(c) and Article 48(2) of the Rules of Procedure of the General Court when it declared inadmissible the argument of the French Government alleging infringement of the condition relating to the existence of a transfer of State resources.

By its second ground of appeal, the French Government claims that the General Court erred in law when it held that the Commission established to the requisite legal standard the existence of a State guarantee granted to La Poste. In the alternative, that Government claims that the General Court distorted the evidence submitted to it in so far as it held that the evidence put forward by the Commission demonstrated that there was a State guarantee.

By its third ground of appeal, the French Government claims that the General Court distorted French law, failed to have regard to its obligation to state reasons and, in the alternative, erred in the legal description of the facts, when it rejected the second plea raised by that Government alleging errors of fact and law so far as concerns the existence of an unlimited State guarantee in favour of La Poste. There are four parts to that ground of appeal.

Firstly, the French Government claims that the General Court distorted French law when it held that the Commission had correctly concluded that French law did not exclude the possibility for the State to grant an implied guarantee to publicly owned industrial and commercial establishments (‘EPIC’).

Secondly, the French Government claims that the General Court distorted French law when it approved the Commission’s findings concerning the consequences stemming from the application of Law No 80-539 of 16 July 1980 on the penalties imposed in administrative matters and on the execution of judgments by legal entities governed by public law.

Thirdly, the French Government claims that the General Court distorted French law and failed to have regard to its obligation to state reasons when it rejected the branch of that Government’s plea alleging that the Commission erred in so far as it equiparated the conditions for incurring State liability with a guarantee mechanism.

Fourthly, the French Government claims that the General Court distorted French law when it rejected the branch of that Government’s plea alleging the Commission erred as regards the consequences of any transfer of the obligations of a dissolved EPIC.

By its fourth and last ground of appeal, the French Government claims that the General Court erred in law when it held that the Commission proved to the requisite legal standard the existence of an advantage which stems from the alleged State guarantee granted to La Poste. In the alternative, the French Government claims that the General Court distorted the evidence submitted to it when it held that the evidence put forward by that Government did not invalidate the Commission’s finding so far as concerns the existence of an advantage.

---

(1)  OJ 2010 L 274, p. 1

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/14 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/14

---

Appeal brought on 10 December 2012 by Ivan Jurašinović against the judgment of the General Court (Second Chamber, Extended Composition) delivered on 3 October 2012 in Case T-465/09 Jurašinović v Council

(Case C-576/12 P)

2013/C 32/19

Language of the case: French

Parties

Appellant: Ivan Jurašinović (represented by: N. Amara-Lebret, avocate)

Other party to the proceedings: Council of the European Union

Form of order sought

The appellant claims that the Court should:

| — | set aside the decision under appeal, refer the case back to the General Court or, failing this; |
| --- | --- |

—

set aside the decision under appeal, refer the case back to the General Court or, failing this;

| — | annul the decision of 22 September 2009 by which the applicant was granted only partial access to the following documents: reports of the European Union observers present in Croatia, in the Knin area, of 1 August to 31 August 1995; |
| --- | --- |

—

annul the decision of 22 September 2009 by which the applicant was granted only partial access to the following documents: reports of the European Union observers present in Croatia, in the Knin area, of 1 August to 31 August 1995;

| — | order the Council of the European Union to authorise access, in electronic form, to all the documents requested; |
| --- | --- |

—

order the Council of the European Union to authorise access, in electronic form, to all the documents requested;

| — | order the Council of the European Union to pay the applicant the sum of EUR 8 000 not including charges for litigation costs with interest at the ECB rate until the date of registration of the application. |
| --- | --- |

—

order the Council of the European Union to pay the applicant the sum of EUR 8 000 not including charges for litigation costs with interest at the ECB rate until the date of registration of the application.

Pleas in law and main arguments

In support of his appeal, the appellant puts forward three grounds of appeal.

Firstly, the appellant takes the view that the General Court infringed the general principle of the right to a fair trial, since it could not have legitimately ruled on the application without having previously examined the documents to which access was requested.

Secondly, the applicant raises the infringement of Articles 9(1) and 4(1)(a) of Regulation No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, (1) because, while Article 4(1)(a) provides that it is possible to refuse access to a document undermining the public interest as regards international relations, such a refusal cannot be founded on the sensitive nature of documents which, since they have not been classified, are not entitled to protection under Article 9(1).

Thirdly, the appellant alleges that the General Court erred in law concerning the existence of an earlier disclosure of the documents. In so far as the communication drawn up between the Council and the International Criminal Tribunal for the former Yugoslavia may have as its basis only Regulation No 1049/2001, the existence of an earlier disclosure, to the benefit of a defendant, of European Union citizenship, in the context of criminal proceedings pending before the International Criminal Tribunal for the former Yugoslavia, required that the application be granted.

---

(1)  OJ 2001 L 145, p. 43

---

General Court

| 2.2.2013 | EN | Official Journal of the European Union | C 32/15 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/15

---

Judgment of the General Court of 12 December 2012 — Evropaïki Dynamiki v EFSA

(Case T-457/07) (1)

(Public procurement - Tender procedure - Provision of IT consultancy assistance services - Rejection of a tender and decision to award the contract to another tenderer - Admissibility - Obligation to state reasons - Selection criteria - Award criteria - Compliance with award criteria laid down in the tender specifications - Manifest error of assessment)

2013/C 32/20

Language of the case: English

Parties

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

Defendant: European Food Safety Authority (EFSA) (represented initially by A. Cuvillier, subsequently by S. Gabbi and D. Detken, and finally by D. Detken, acting as Agents, assisted by J. Stuyck and A.-M. Vandromme, lawyers)

Re:

Application for annulment of the decision of EFSA of 1 October 2007 rejecting the tender submitted by the applicant in response to Call for Tenders EFSA/IT/2007/14 for IT Consultancy Assistance (OJ 2007/S 97-118626) and awarding the contract to another tenderer.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the European Food Safety Authority (EFSA) rejecting the tender submitted by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE in response to Call for Tenders EFSA/IT/2007/14 for IT Consultancy Assistance and awarding the contract to another tenderer; |
| --- | --- |

1.

Annuls the decision of the European Food Safety Authority (EFSA) rejecting the tender submitted by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE in response to Call for Tenders EFSA/IT/2007/14 for IT Consultancy Assistance and awarding the contract to another tenderer;

| 2. | Orders EFSA to pay the costs. |
| --- | --- |

2.

Orders EFSA to pay the costs.

---

(1)  OJ C 51, 23.2.2008.

---

| 2.2.2013 | EN | Official Journal of the European Union | C 32/15 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/15

---

Judgment of the General Court of (Third Chamber) of 12 December 2012 — Electrabel v Commission

(Case T-332/09) (1)

(Competition - Concentrations - Decision imposing a fine for having put a concentration into effect - Obligation not to put the concentration into effect - Obligation to state the reasons on which the decision is based - Error of assessment - Limitation period - Amount of the fine)

2013/C 32/21

Language of the case: French

Parties

Applicant: Electrabel (Brussels, Belgium) (represented by: M. Pittie and P. Honoré, lawyers)

Defendant: European Commission (represented by: A. Bouquet and V. Di Bucci, acting as Agents)

Re:

Annulment of Commission Decision C(2009) 4416 final of 10 June 2009, imposing a fine for having implemented a concentration contrary to Article 7(1) of Council Regulation (EEC) No 4064/89 (COMP/M.4994 Electrabel — Compagnie Nationale du Rhône) and, in the alternative, the annulment of or the reduction of the amount of the fine imposed on the applicant by that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Electrabel to pay the costs. |
| --- | --- |

2.

Orders Electrabel to pay the costs.

---

(1)  OJ C 267, 7.11.2009.

---

| 2.2.2013 | EN | Official Journal of the European Union | C 32/15 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/15

---

Judgment of the General Court (Third Chamber) of 12 December 2012 — Novácke chemické závody v Commission

(Case T-352/09) (1)

(Competition - Agreements, decisions and concerted practices - Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom - Decision finding an infringement of Article 81 EC - Price-fixing and market-sharing - Fines - Obligation to state reasons - Proportionality - Equal treatment - 2006 Guidelines on the method of setting fines - Ability to pay)

2013/C 32/22

Language of the case: English

Parties

Applicant: Novácke chemické závody a.s. (Nováky, Slovakia) (represented initially by: A. Černejová, and subsequently by M. Bol’oš and L. Bányaiová, lawyers)

Defendant: European Commission (represented by: F. Castillo de la Torre, N. von Lingen and A. Tokár, acting as Agents)

Intervener in support of the applicant: Slovak Republic (represented by: B. Ricziová, acting as Agent)

Re:

Application for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it concerns the applicant, and, in the alternative, cancellation or a reduction of the fine imposed on the applicant by that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Novácke chemické závody a.s. to bear its own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders Novácke chemické závody a.s. to bear its own costs and to pay those incurred by the European Commission;

| 3. | Orders the Slovak Republic to bear its own costs. |
| --- | --- |

3.

Orders the Slovak Republic to bear its own costs.

---

(1)  OJ C 267, 7.11.2009.

---

| 2.2.2013 | EN | Official Journal of the European Union | C 32/16 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/16

---

Judgment of the General Court (Third Chamber) of 12 December 2012 — 1. garantovaná v Commission

(Case T-392/09) (1)

(Competition - Agreements, decisions and concerted practices - Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom - Decision finding an infringement of Article 81 EC - Price-fixing and market-sharing - Imputability of the unlawful conduct - Fines - Ceiling of 10 % of turnover - Relevant turnover - Rights of the defence - Obligation to state reasons - Proportionality - 2006 Guidelines on the method of setting fines - Ability to pay)

2013/C 32/23

Language of the case: English

Parties

Applicant: 1. garantovaná a.s. (Bratislava, Slovakia) (represented initially by: M. Powell, Solicitor, A. Sutton and G. Forwood, Barristers, and subsequently by M. Powell, G. Forwood, M. Staroň and P. Hodál, lawyers)

Defendant: European Commission (represented by: J. Bourke, N. von Lingen and A. Tokár, acting as Agents)

Re:

Application for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it concerns the applicant, and, in the alternative, a reduction of the fine imposed on the applicant by that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders 1. garantovaná a.s. to pay the costs. |
| --- | --- |

2.

Orders 1. garantovaná a.s. to pay the costs.

---

(1)  OJ C 297, 5.12.2009.

---

| 2.2.2013 | EN | Official Journal of the European Union | C 32/16 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/16

---

Judgment of the General Court of 12 December 2012 — Ecka Granulate and non ferrum Metallpulver v European Commission

(Case T-400/09) (1)

(Competition - Cartels - Market in calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom - Decision finding an infringement of Article 81 EC - Price fixing and market sharing - Fines - Principle of the legality of criminal offences and penalties - 2006 guidelines for the calculation of the amount of fines - Mitigating circumstances - Cooperation during the administrative procedure - Proportionality - Ability to pay)

2013/C 32/24

Language of the case: German

Parties

Applicants: Ecka Granulate GmbH & Co. KG (Fürth, Germany); non ferrum Metallpulver GmbH & Co. KG (St. Georgen bei Salzburg, Austria) (represented initially by: H. Janssen and M. Franz, and subsequently by: H. Janssen and P. Homann, lawyers)

Defendant: European Commission (represented by: A. Antoniadis, K. Mojzesowicz and N. von Lingen, acting as Agents)

Intervener in support of the defendant: Council of the European Union (represented by: M. Simm and G. Kimberley, acting as Agents)

Re:

Action for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it concerns the applicants and, in the alternative, reduction of the fine imposed on the applicants in that decision

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ecka Granulate GmbH & Co. KG and non ferrum Metallpulver GmbH & Co. KG to pay the costs incurred by the European Commission and to bear their own costs; |
| --- | --- |

2.

Orders Ecka Granulate GmbH & Co. KG and non ferrum Metallpulver GmbH & Co. KG to pay the costs incurred by the European Commission and to bear their own costs;

| 3. | Orders the Council of the European Union to bear its own costs. |
| --- | --- |

3.

Orders the Council of the European Union to bear its own costs.

---

(1)  OJ C 297, 5.12.2009.

---

| 2.2.2013 | EN | Official Journal of the European Union | C 32/17 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/17

---

Judgment of the General Court (Third Chamber) of 12 December 2012 — Almamet v Commission

(Case T-410/09) (1)

(Competition - Agreements, decisions and concerted practices - Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom - Decision finding an infringement of Article 81 EC - Price-fixing and market-sharing - Rights of the defence - Commission’s powers in inspections - Single and continuous infringement - Fines - Cooperation during the administrative procedure - Proportionality - 2006 Guidelines on the method of setting fines)

2013/C 32/25

Language of the case: English

Parties

Applicant: Almamet GmbH Handel mit Spänen und Pulvern aus Metall (Ainring, Germany) (represented by: S. Hautbourg and C. Renner, lawyers)

Defendant: European Commission (represented by: N. Khan, V. Bottka and N. von Lingen, acting as Agents)

Re:

Application for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it concerns the applicant, and, in the alternative, a reduction of the fine imposed on the applicant by that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Almamet GmbH Handel mit Spänen und Pulvern aus Metall to bear its own costs and to pay those incurred by the European Commission. |
| --- | --- |

2.

Orders Almamet GmbH Handel mit Spänen und Pulvern aus Metall to bear its own costs and to pay those incurred by the European Commission.

---

(1)  OJ C 312, 19.12.2009.

---

| 2.2.2013 | EN | Official Journal of the European Union | C 32/17 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/17

---

Order of the General Court of 4 December 2012 — Lenz v Commission

(Case T-78/11 P) (1)

(Appeal - Public service - Officials - Social security - Reimbursement of the costs of treatment provided by a ‘Heilpraktiker’ - Obligation to state reasons - Distortion of the facts)

2013/C 32/26

Language of the case: German

Parties

Appellant: Erika Lenz (Osnabrück, Germany) (represented by: V. Lenz and J. Römer, lawyers)

Other party to the proceedings: European Commission (represented by: J. Currall and B. Eggers, Agents)

Re:

Appeal brought against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 14 December 2010 in Case F-80/09 Lenz v Commission [2010] ECR II-A-1-0000, and seeking that that judgment be set aside

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Ms Erika Lenz is to bear her own costs and to pay those incurred by the European Commission in the present proceedings. |
| --- | --- |

2.

Ms Erika Lenz is to bear her own costs and to pay those incurred by the European Commission in the present proceedings.

---

(1)  OJ C 103, 2.4.2011.

---

| 2.2.2013 | EN | Official Journal of the European Union | C 32/17 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/17

---

Order of the General Court of 12 December 2012 — Evonik Industries v OHIM Bornemann (EVONIK)

(Case T-390/11) (1)

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

2013/C 32/27

Language of the case: German

Parties

Applicant: Evonik Industries (Essen, Germany) (represented by: J. Albrecht, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Johann Heinrich Bornemann GmbH — Geschäftsbereich Kunststofftechnik Obernkirchen (Obernkirchen, Germany) (represented by: A. Oldekop, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 19 April 2011 (Case R 1802/2010-2), relating to opposition proceedings between Johann Heinrich Bornemann GmbH — Geschäftsbereich Kunststofftechnik Obernkirchen and Evonik Industries AG.

Operative part of the order

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

1.

There is no need to adjudicate on the action.

| 2. | The applicant and the intervener shall bear their own costs and shall each pay half of the costs incurred by the defendant. |
| --- | --- |

2.

The applicant and the intervener shall bear their own costs and shall each pay half of the costs incurred by the defendant.

---

(1)  OJ C 269, 10.9.2011.

---

| 2.2.2013 | EN | Official Journal of the European Union | C 32/18 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/18

---

Order of the General Court of 6 December 2012 — Spa Monopole v OHIM — Royal Mediterranea (THAI SPA)

(Case T-664/11) (1)

(Community trade mark - Opposition proceedings - Limitation of services covered by the Community trade mark application - No need to adjudicate)

2013/C 32/28

Language of the case: French

Parties

Applicant: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. de Brouwer, E. Cornu and É. De Gryse, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Royal Mediterranea, SA (Madrid, Spain)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 October 2011 (Case R 1976/2010-4) relating to opposition proceedings between Spa Monopole, compagnie fermière de Spa SA/NV and Royal Mediterranea, SA.

Operative part of the order

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

1.

There is no need to adjudicate on the action.

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

2.

Each party shall bear its own costs.

---

(1)  OJ C 65, 3.3.2012.

---

| 2.2.2013 | EN | Official Journal of the European Union | C 32/18 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/18

---

Action brought on 12 November 2012 — von Storch and Others v ECB

(Case T-492/12)

2013/C 32/29

Language of the case: German

Parties

Applicants: Sven A. von Storch (Berlin, Germany) and 5 216 others (represented by: M. Kerber and V. von Storch)

Defendant: European Central Bank

Form of order sought

The applicants claim that the General Court should:

| — | declare the decisions of the European Central Bank of 6 September 2012 on a number of technical features regarding the Eurosystem’s outright transactions in secondary sovereign bond markets incompatible with Articles 123 to 125 TFEU, declare the legal effect referred to in Article 264 TFEU and prevent further implementation; |
| --- | --- |

—

declare the decisions of the European Central Bank of 6 September 2012 on a number of technical features regarding the Eurosystem’s outright transactions in secondary sovereign bond markets incompatible with Articles 123 to 125 TFEU, declare the legal effect referred to in Article 264 TFEU and prevent further implementation;

| — | declare the decision of the European Central Bank of 6 September 2012 on additional measures to preserve collateral availability for counterparties in order to maintain their access to the Eurosystem’s liquidity-providing operators incompatible with Articles 123 to 125 TFEU, declare the legal effect referred to in Article 264 TFEU and prevent further implementation; |
| --- | --- |

—

declare the decision of the European Central Bank of 6 September 2012 on additional measures to preserve collateral availability for counterparties in order to maintain their access to the Eurosystem’s liquidity-providing operators incompatible with Articles 123 to 125 TFEU, declare the legal effect referred to in Article 264 TFEU and prevent further implementation;

| — | in accordance with Article 87(2) of the Rules of Procedure, order the defendant to pay the costs. |
| --- | --- |

—

in accordance with Article 87(2) of the Rules of Procedure, order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on the following pleas in law.

| 1. | The decisions in dispute infringe Articles 123 to 125 TFEU. In that regard, the applicants claim that Article 123 TFEU prohibits monetising State debt and that on the basis of Regulation (EC) No 3603/93 (1) that prohibition applies generally, namely to the primary and secondary markets. |
| --- | --- |

1.

The decisions in dispute infringe Articles 123 to 125 TFEU. In that regard, the applicants claim that Article 123 TFEU prohibits monetising State debt and that on the basis of Regulation (EC) No 3603/93 (1) that prohibition applies generally, namely to the primary and secondary markets.

| 2. | Furthermore, the ECB infringes Article 127 TFEU. The applicants claim that the ECB’s monetary mandate is aimed at price stability. By implementing the measures, the ECB is carrying out fiscal policy and is acting ultra vires. |
| --- | --- |

2.

Furthermore, the ECB infringes Article 127 TFEU. The applicants claim that the ECB’s monetary mandate is aimed at price stability. By implementing the measures, the ECB is carrying out fiscal policy and is acting ultra vires.

| 3. | Also the contested decisions are contrary to Protocol (No 27) on the internal market and competition (2) together with Article 51 TEU. According to the applicants, the acquisition of government securities from States in a state of financial emergency constitutes direct intervention in a market sector which is characterised by oversupply. That acquisition constitutes an artificial reduction in supply with corresponding effects on the current yield of those securities which are incompatible with the principles of undistorted competition. |
| --- | --- |

3.

Also the contested decisions are contrary to Protocol (No 27) on the internal market and competition (2) together with Article 51 TEU. According to the applicants, the acquisition of government securities from States in a state of financial emergency constitutes direct intervention in a market sector which is characterised by oversupply. That acquisition constitutes an artificial reduction in supply with corresponding effects on the current yield of those securities which are incompatible with the principles of undistorted competition.

| 4. | The ECB is acting contrary to the combined provisions of Article 130 TFEU and Article 7 of the ESCB/ECB statute (3) as the President of the ECB succumbed to pressure to adopt the contested decisions. |
| --- | --- |

4.

The ECB is acting contrary to the combined provisions of Article 130 TFEU and Article 7 of the ESCB/ECB statute (3) as the President of the ECB succumbed to pressure to adopt the contested decisions.

| 5. | The acquisition of government securities which is motivated by considerations of fiscal policy rather than monetary policy, and which does not seek to guarantee price stability, adversely affects the markets and accordingly threatens confidence in an independent monetary policy. In the applicants’ opinion, it follows from the rules of the European monetary union that they have a right to demand the discontinuance of manifestly destabilising conduct which is incompatible in particular with Article 123 and Article 125 TFEU. |
| --- | --- |

5.

The acquisition of government securities which is motivated by considerations of fiscal policy rather than monetary policy, and which does not seek to guarantee price stability, adversely affects the markets and accordingly threatens confidence in an independent monetary policy. In the applicants’ opinion, it follows from the rules of the European monetary union that they have a right to demand the discontinuance of manifestly destabilising conduct which is incompatible in particular with Article 123 and Article 125 TFEU.

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(1)  Council Regulation (EC) No 3603/93 of 13 December 1993 specifying definitions for the application of the prohibitions referred to in Articles 104 and 104b (1) of the Treaty (OJ 1993 L 332, p. 1).

(2)  OJ 2010 C 83, p. 309.

(3)  Protocol (No 4) on the statute of the European System of Central Banks and of the European Central Bank (OJ 2010 C 83, p. 230).

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/19 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/19

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Action brought on 20 November 2012 — Slovenia v Commission

(Case T-507/12)

2013/C 32/30

Language of the case: Slovenian

Parties

Applicant: Republic of Slovenia (represented by V. Klemenc, State advocate, and A. Grum, assistant State advocate)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | annul Commission Decision of 19 October 2012 on the measures in favour of the undertaking ELAN d.o.o., SA.26379 (C-13/2010) (ex NN 17/2010), notified to Slovenia by the Commission by letter SG-Greffe(2012) D/14375 of 20 September 2012, in which it was decided, inter alia, in Article 2 that in 2008 Slovenia had unlawfully given effect to a measure of State aid in favour of Elan, in the form of recapitalisation of that body in the sum of EUR 10 million, contrary to Article 108(3) of the Treaty on the Functioning of the European Union, wherefore Slovenia is obliged to recover from the beneficiary the aid declared illegal, and |
| --- | --- |

—

annul Commission Decision of 19 October 2012 on the measures in favour of the undertaking ELAN d.o.o., SA.26379 (C-13/2010) (ex NN 17/2010), notified to Slovenia by the Commission by letter SG-Greffe(2012) D/14375 of 20 September 2012, in which it was decided, inter alia, in Article 2 that in 2008 Slovenia had unlawfully given effect to a measure of State aid in favour of Elan, in the form of recapitalisation of that body in the sum of EUR 10 million, contrary to Article 108(3) of the Treaty on the Functioning of the European Union, wherefore Slovenia is obliged to recover from the beneficiary the aid declared illegal, and

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law: in the contested decision the Commission misapplied Articles 107(1) TFEU and 345 TFEU and infringed substantive procedural requirements, for it assessed the facts incorrectly and gave defective and/or incorrect reasons for the decision at issue concerning the question whether a recapitalisation measure in 2008 can be attributed to the Republic of Slovenia.
  It is the applicant’s opinion that the Commission, contrary to Articles 107(1) TFEU and 345 TFEU, concluded that the conduct of the members of Elan on the latter’s recapitalisation in 2008 could be attributed to the Republic of Slovenia. The Commission’s conclusion was based on the fact that the State, as owner, appoints the supervisory council; the Commission thereby discriminates, in the applicant’s view, against the twofold system of management of public undertakings.
  The reasoning for the decision is deficient – that is to say, it wants relevant, adequate grounds – and incorrect, in that the Commission argues that there exist strong indications of the State’s being closely involved in the decision-making process of a company with share capital (Kapitalska družba, ‘KAD’) and of a consultancy and management company (Družba za svetovanje in upravljanje, DSU), that is to say, its arguments rest on no more than unreliable evidence and hear-say evidence. The contested decision is quite unsupported by reasons in respect too of the other members of Elan, against whom the Commission intends to level only an allegation of ‘parallel conduct’. In the applicant’s opinion, the factors mentioned by the Commission in the contested decision in no way amount to evidence that would, in accordance with the case-law of the Court of Justice and the General Court, demonstrate the State authorities’ involvement in the adoption of the measure recapitalising Elan in 2008. |
| --- | --- |

1.

First plea in law: in the contested decision the Commission misapplied Articles 107(1) TFEU and 345 TFEU and infringed substantive procedural requirements, for it assessed the facts incorrectly and gave defective and/or incorrect reasons for the decision at issue concerning the question whether a recapitalisation measure in 2008 can be attributed to the Republic of Slovenia.

It is the applicant’s opinion that the Commission, contrary to Articles 107(1) TFEU and 345 TFEU, concluded that the conduct of the members of Elan on the latter’s recapitalisation in 2008 could be attributed to the Republic of Slovenia. The Commission’s conclusion was based on the fact that the State, as owner, appoints the supervisory council; the Commission thereby discriminates, in the applicant’s view, against the twofold system of management of public undertakings.

The reasoning for the decision is deficient – that is to say, it wants relevant, adequate grounds – and incorrect, in that the Commission argues that there exist strong indications of the State’s being closely involved in the decision-making process of a company with share capital (Kapitalska družba, ‘KAD’) and of a consultancy and management company (Družba za svetovanje in upravljanje, DSU), that is to say, its arguments rest on no more than unreliable evidence and hear-say evidence. The contested decision is quite unsupported by reasons in respect too of the other members of Elan, against whom the Commission intends to level only an allegation of ‘parallel conduct’. In the applicant’s opinion, the factors mentioned by the Commission in the contested decision in no way amount to evidence that would, in accordance with the case-law of the Court of Justice and the General Court, demonstrate the State authorities’ involvement in the adoption of the measure recapitalising Elan in 2008.

| 2. | Second plea in law: in the contested decision, the Commission misapplied Article 107(1) TFEU and infringed substantive procedural requirements, for it assessed the facts incorrectly and gave defective and/or incorrect reasons for the decision at issue with regard to the conclusion that the measure recapitalising Elan in 2008 had not been effected in accordance with the principle of the private investor operating in a market economy, thus affording Elan a selective advantage.
  The applicant claims in its action that the measure recapitalising Elan in 2008 was effected in accordance with the principle of the prudent private investor operating in a market economy, for the members, when deciding on the recapitalisation measure, relied on the appraisal of the undertaking in which proper consideration was given to the worsening of Elan’s operations in the greater part of the winter season of 2007/2008, and therefore during the first quarter of 2008 too. The worsening state of affairs in 2008 was not, however, so drastic as to affect the reliability of an assessment of the value of the undertaking. The members took their decision as long-term shareholders in an undertaking that had temporarily run into difficulties, but that was in the long term capable not merely of surviving, but also of returning to profitable operation. In its contested decision, the Commission did not satisfactorily explain why it took selective account of an estimate of the value of the undertaking, thus acting arbitrarily. |
| --- | --- |

2.

Second plea in law: in the contested decision, the Commission misapplied Article 107(1) TFEU and infringed substantive procedural requirements, for it assessed the facts incorrectly and gave defective and/or incorrect reasons for the decision at issue with regard to the conclusion that the measure recapitalising Elan in 2008 had not been effected in accordance with the principle of the private investor operating in a market economy, thus affording Elan a selective advantage.

The applicant claims in its action that the measure recapitalising Elan in 2008 was effected in accordance with the principle of the prudent private investor operating in a market economy, for the members, when deciding on the recapitalisation measure, relied on the appraisal of the undertaking in which proper consideration was given to the worsening of Elan’s operations in the greater part of the winter season of 2007/2008, and therefore during the first quarter of 2008 too. The worsening state of affairs in 2008 was not, however, so drastic as to affect the reliability of an assessment of the value of the undertaking. The members took their decision as long-term shareholders in an undertaking that had temporarily run into difficulties, but that was in the long term capable not merely of surviving, but also of returning to profitable operation. In its contested decision, the Commission did not satisfactorily explain why it took selective account of an estimate of the value of the undertaking, thus acting arbitrarily.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/20 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/20

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Action brought on 27 November 2012 — Ted-Invest v OHIM — Scandia Down (sensi scandia)

(Case T-516/12)

2013/C 32/31

Language in which the application was lodged: English

Parties

Applicant: Ted — Invest EOOD (Plovdiv, Bulgaria) (represented by: A. Ivanova, lawyer)

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

Other party to the proceedings before the Board of Appeal: Scandia Down LLC (Weehawken, United States)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 2247/2011-1, for declaring the trademark as invalid for the goods in classes 20 and 24; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 2247/2011-1, for declaring the trademark as invalid for the goods in classes 20 and 24;

| — | Alternatively if the Court does not uphold the whole appeal, to uphold the appeal and to annul the decision of the First Board of Appeal in connection with the goods in class 20. |
| --- | --- |

—

Alternatively if the Court does not uphold the whole appeal, to uphold the appeal and to annul the decision of the First Board of Appeal in connection with the goods in class 20.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘sensi scandia’, for goods in classes 16, 20 and 24 — Community trade mark registration No 8596975

Proprietor of the Community trade mark: The applicant

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

Grounds for the application for a declaration of invalidity: The request for a declaration of invalidity was based on the grounds laid down in Article 53(1) in conjunction with Article 8(1)(b) of Council Regulation No 207/2009, and was based on the Community trade mark registration No 8173312 of the word mark ‘SCANDIA HOME’, for goods and services in classes 20, 24, 25 and 35

Decision of the Cancellation Division: Declared the contested CTM invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 53(1) in conjunction with Articles 8(2) and 8(1) of Council Regulation No 207/2009.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/20 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/20

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Action brought on 23 November 2012 — Alro v Commission

(Case T-517/12)

2013/C 32/32

Language of the case: English

Parties

Applicant: Alro SA (Slatina, Romania) (represented by: C. Quigley, QC, O. Bretz, Solicitor, and S. Verschuur, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul the Commission’s decision of 26 April 2012 to open, pursuant to Article 108(2) of the Treaty on the Functioning of the European Union (‘TFEU’) and Article 4(4) of Council’s Regulation (EC) No 659/1999 (1) (‘the Procedural Regulation’), a formal investigation into alleged unlawful State aid granted by Romania, through its control of Hidroelectrica S.A. (‘Hidroelectrica’), to ALRO in the form of preferential tariffs for the purchase of electricity through a contract concluded in 2005 and its successive amendments; |
| --- | --- |

—

Annul the Commission’s decision of 26 April 2012 to open, pursuant to Article 108(2) of the Treaty on the Functioning of the European Union (‘TFEU’) and Article 4(4) of Council’s Regulation (EC) No 659/1999 (1) (‘the Procedural Regulation’), a formal investigation into alleged unlawful State aid granted by Romania, through its control of Hidroelectrica S.A. (‘Hidroelectrica’), to ALRO in the form of preferential tariffs for the purchase of electricity through a contract concluded in 2005 and its successive amendments;

| — | Alternatively, annul the said decision of 26 April 2012 in so far as it applies to the period 1 January 2007 to 31 December 2009; |
| --- | --- |

—

Alternatively, annul the said decision of 26 April 2012 in so far as it applies to the period 1 January 2007 to 31 December 2009;

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

—

Order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging a material error of law
  In relation to the first plea, stating that the Commission committed a material error of law in relation to the scope of Article 107(1) TFEU, ALRO will demonstrate that the Commission has failed to apply properly the requirements relating to imputability, as set out in Case C-482/99, France v Commission [2002] ECR I-4397 (‘the Stardust Marine judgment’). In particular, the Commission has sought to base its analysis solely on ‘organic’ indicators. However, ALRO will demonstrate that the requirements set out in the Stardust Marine judgment also require the Commission to demonstrate the existence of other substantive indicators because ‘organic’ indicators in isolation are insufficient to establish imputability. |
| --- | --- |

1.

First plea in law, alleging a material error of law

In relation to the first plea, stating that the Commission committed a material error of law in relation to the scope of Article 107(1) TFEU, ALRO will demonstrate that the Commission has failed to apply properly the requirements relating to imputability, as set out in Case C-482/99, France v Commission [2002] ECR I-4397 (‘the Stardust Marine judgment’). In particular, the Commission has sought to base its analysis solely on ‘organic’ indicators. However, ALRO will demonstrate that the requirements set out in the Stardust Marine judgment also require the Commission to demonstrate the existence of other substantive indicators because ‘organic’ indicators in isolation are insufficient to establish imputability.

| 2. | Second plea in law, alleging a manifest error of assessment
  In relation to the second plea in law, stating that the Commission committed manifest errors of assessment in reaching the conclusion that Hidroelectrica’s actions were imputable to the Romanian State, ALRO will demonstrate that the Commission has failed to analyse correctly the governance structure of Hidroelectrica and the impact that this structure has on the decision-making process of this organisation. Secondly, ALRO will outline why the Commission was wrong to compare the ALRO contract to the agreement between Hidroelectrica and ArcelorMittal. Thirdly, it will demonstrate why the Ministerial Order No 445/2009 is not relevant to the Commission’s analysis and why its references to press reports in 2010 are insufficient to meet the evidentiary threshold necessary to demonstrate imputability. |
| --- | --- |

2.

Second plea in law, alleging a manifest error of assessment

In relation to the second plea in law, stating that the Commission committed manifest errors of assessment in reaching the conclusion that Hidroelectrica’s actions were imputable to the Romanian State, ALRO will demonstrate that the Commission has failed to analyse correctly the governance structure of Hidroelectrica and the impact that this structure has on the decision-making process of this organisation. Secondly, ALRO will outline why the Commission was wrong to compare the ALRO contract to the agreement between Hidroelectrica and ArcelorMittal. Thirdly, it will demonstrate why the Ministerial Order No 445/2009 is not relevant to the Commission’s analysis and why its references to press reports in 2010 are insufficient to meet the evidentiary threshold necessary to demonstrate imputability.

| 3. | Third plea in law, alleging an inadequate statement of reasons
  In relation to the third plea in law, ALRO will demonstrate that for the points relied on by the Commission (as outlined in the paragraph above), it has failed to provide an adequate statement of reasons, and has therefore acted contrary to the requirements of Article 296 TFEU. Such a statement of reasons is necessary to allow the General Court to review the legality of the decision and to provide the parties concerned with the information necessary to enable them to ascertain whether or not the decision is well-founded. As indicated in more detail in this application, the contested decision fails to satisfy this requirement. |
| --- | --- |

3.

Third plea in law, alleging an inadequate statement of reasons

In relation to the third plea in law, ALRO will demonstrate that for the points relied on by the Commission (as outlined in the paragraph above), it has failed to provide an adequate statement of reasons, and has therefore acted contrary to the requirements of Article 296 TFEU. Such a statement of reasons is necessary to allow the General Court to review the legality of the decision and to provide the parties concerned with the information necessary to enable them to ascertain whether or not the decision is well-founded. As indicated in more detail in this application, the contested decision fails to satisfy this requirement.

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(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)

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/21 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/21

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Action brought on 27 November 2012 — Spirlea v Commission

(Case T-518/12)

2013/C 32/33

Language of the case: German

Parties

Applicants: Darius Nicolai Spirlea (Capezzano Pianore, Italy) and Mihaela Spirlea (Capezzano Pianore) (represented by: V. Foerster and T. Pahl, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

| — | accept the present application made on the basis of Article 263 TFEU; |
| --- | --- |

—

accept the present application made on the basis of Article 263 TFEU;

| — | declare the action admissible; |
| --- | --- |

—

declare the action admissible;

| — | declare the action to be founded and, accordingly, that the defendant committed significant procedural errors and made other substantive errors of law; |
| --- | --- |

—

declare the action to be founded and, accordingly, that the defendant committed significant procedural errors and made other substantive errors of law;

| — | on that basis, annul the Commission’s decision of 27 September 2012 to bring an end to EU pilot procedure No 2070/11/SNCO (Ref. Ares [2012] 1135073); |
| --- | --- |

—

on that basis, annul the Commission’s decision of 27 September 2012 to bring an end to EU pilot procedure No 2070/11/SNCO (Ref. Ares [2012] 1135073);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on three pleas in law.

| 1. | First plea in law: setting up an EU pilot procedure without any legal basis (Articles 290 and 291 TFEU)






  — | In the context of this plea, the applicants submit that the launching of an EU pilot procedure amounts to an additional procedural requirement to Article 258 TFEU. This procedural requirement — for which the Commission does not have any power or delegated power under the Treaties — has been used contrary to the rule of law and in a non-transparent procedure which, moreover, undermines the procedure for failure to fulfil obligations laid down in Article 258 TFEU. |
| --- | --- | --- |

1.

First plea in law: setting up an EU pilot procedure without any legal basis (Articles 290 and 291 TFEU)

—

In the context of this plea, the applicants submit that the launching of an EU pilot procedure amounts to an additional procedural requirement to Article 258 TFEU. This procedural requirement — for which the Commission does not have any power or delegated power under the Treaties — has been used contrary to the rule of law and in a non-transparent procedure which, moreover, undermines the procedure for failure to fulfil obligations laid down in Article 258 TFEU.

| 2. | Second plea in law: infringement of the Commission communication of 20 March 2002 to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law. (1)







  — | In this regard, the applicants submit that the Commission arbitrarily bypassed its communication on relations with the complainant in respect of infringements of Community law and, without offering any alternative, transferred the applicants’ complaints to the EU pilot procedure, the rules of which are not accessible to the applicants. |
| --- | --- | --- |

2.

Second plea in law: infringement of the Commission communication of 20 March 2002 to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law. (1)

—

In this regard, the applicants submit that the Commission arbitrarily bypassed its communication on relations with the complainant in respect of infringements of Community law and, without offering any alternative, transferred the applicants’ complaints to the EU pilot procedure, the rules of which are not accessible to the applicants.

| 3. | Third plea in law: infringement of the duty to state reasons






  — | In this context, they complain that the Commission’s grounds do not contain any clarification of the facts in relation to the application of Regulation (EC) No 1394/2007 (2) and do not address the specific legal complaints made by the applicants in connection with EU law. |
| --- | --- | --- |

3.

Third plea in law: infringement of the duty to state reasons

—

In this context, they complain that the Commission’s grounds do not contain any clarification of the facts in relation to the application of Regulation (EC) No 1394/2007 (2) and do not address the specific legal complaints made by the applicants in connection with EU law.

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(1)  OJ 2002 C 244, p. 5.

(2)  Regulation (EC) No 1394/2007 of the European Parliament and of the Council of 13 November 2007 on advanced therapy medicinal products and amending Directive 2001/83/EC and Regulation (EC) No 726/2004 (OJ 2007 L 324, p. 121).

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/22 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/22

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Action brought on 27 November 2012 — Pågen Trademark v OHIM (gifflar)

(Case T-520/12)

2013/C 32/34

Language of the case: Swedish

Parties

Applicant: Pågen Trademark AB (Malmö, Sweden) (represented by J. Norderyd, lawyer)

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

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 September 2012 (1) in Case R 46/2012-2 and declare that Community trade mark No 1 009 0331 GIFFLAR (fig) applied for by Pågen Trademark AB is to be published and registered, or, in the alternative, order OHIM to publish and register the trade mark; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 September 2012 (1) in Case R 46/2012-2 and declare that Community trade mark No 1 009 0331 GIFFLAR (fig) applied for by Pågen Trademark AB is to be published and registered, or, in the alternative, order OHIM to publish and register the trade mark;

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

—

Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark containing the word element ‘gifflar’ for goods in Classes 29, 30 and 31 — application for registration of Community trade mark No 1 009 0331

Decision of the Examiner: Rejection in part of the application for registration

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

| — | Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 |
| --- | --- |

—

Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009

| — | Infringement of Article 7(3) of Regulation No 207/2009 |
| --- | --- |

—

Infringement of Article 7(3) of Regulation No 207/2009

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(1)  Translator’s note: The correct date of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 46/2012-2 is 18 September 2012 as stated in the OHIM database.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/22 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/22

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Action brought on 30 November 2012 — Alfa-Beta Vassilopoulos v OHIM — Henkel (AB terra Leaf)

(Case T-522/12)

2013/C 32/35

Language in which the application was lodged: English

Parties

Applicant: Alfa-Beta Vassilopoulos SA (Gerakas Attikis, Greece) (represented by: N. Lymperis, lawyer)

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

Other party to the proceedings before the Board of Appeal: Henkel AG & Co. KGaA (Düsseldorf, Germany)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 October 2012 in case R 2122/2011-4 and the appeal be upheld so that CTM application AB TERRA LEAF (& device) No 8573651 proceeds to registration for all goods applied for; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 October 2012 in case R 2122/2011-4 and the appeal be upheld so that CTM application AB TERRA LEAF (& device) No 8573651 proceeds to registration for all goods applied for; and

| — | Order the defendant and the opponent to pay the costs of these proceedings, including those incurred in opposition and appeal proceedings. |
| --- | --- |

—

Order the defendant and the opponent to pay the costs of these proceedings, including those incurred in opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘AB terra Leaf’ in black and white, for goods in classes 3, 5 and 16 — Community trade mark application No 8573651

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

Mark or sign cited in opposition: Community trade mark registration No 33472909 of the word mark ‘TERRA’, for goods in classes 3 and 21

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 75 of Council Regulation No 207/2009.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/23 |
| --- | --- | --- | --- |

2.2.2013

EN

Official Journal of the European Union

C 32/23

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Action brought on 30 November 2012 — Rani Refreshments/OHMI — Global-Invest Bartosz Turek (Sani)

(Case T-523/12)

2013/C 32/36

Language in which the application was lodged: English

Parties

Applicant: Rani Refreshments FZCO (Dubai, United Arab Emirates) (represented by: M. Chapple, Barrister)

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

Other party to the proceedings before the Board of Appeal: Global-Invest Bartosz Turek (Poczesna, Poland)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 September 2012 in case R 236/2012-4; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 September 2012 in case R 236/2012-4; and

| — | Order the defendant to pay to the applicant the costs incurred by the applicant in connection with its application and the decision. |
| --- | --- |

—

Order the defendant to pay to the applicant the costs incurred by the applicant in connection with its application and the decision.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘Sani’ in green, willow green and white, for among others, goods in classes 29, 30 and 32 — Community trade mark application No 9087479

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

Mark or sign cited in opposition: Community trade mark registration No 2587244 of the figurative mark in green, white, black and blue ‘Rani’, for goods in class 32; Community trade mark registration No 4005211 of the figurative mark in blue and white ‘Rani’, for goods in classes 29 and 30; Community trade mark registration No 2587293 of the figurative mark in blue and white ‘RANI FLOAT’, for goods in class 32; Community trade mark registration No 2587269 of the figurative mark in orange, yellow, black, white, red, pink, blue and green ‘Rani’, for goods in classes 16, 21 and 32; United Kingdom trade mark registration No 1239206 of the figurative mark ‘rani’, for goods in class 32

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

Decision of the Board of Appeal: Dismissed the appeal

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

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/23 |
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2.2.2013

EN

Official Journal of the European Union

C 32/23

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Action brought on 3 December 2012 — Recaro v OHIM — Certino Mode (RECARO)

(Case T-524/12)

2013/C 32/37

Language in which the application was lodged: English

Parties

Applicant: Recaro Beteiligungs-GmbH (Kaiserslautern, Germany) (represented by: J. Weiser, lawyer)

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

Other party to the proceedings before the Board of Appeal: Certino Mode, SL (Elche, Spain)

Form of order sought

The applicant claims that the Court should:

| — | Alter the contested decision so that the appeal brought by the intervener is rejected and CTM No 734343 ‘RECARO’ is revoked in its entirety; |
| --- | --- |

—

Alter the contested decision so that the appeal brought by the intervener is rejected and CTM No 734343 ‘RECARO’ is revoked in its entirety;

| — | In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 1761/2011-1; and |
| --- | --- |

—

In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 1761/2011-1; and

| — | Order OHIM and, as the case may be, the intervener to pay the costs for these proceedings and of the appeal procedure before OHIM. |
| --- | --- |

—

Order OHIM and, as the case may be, the intervener to pay the costs for these proceedings and of the appeal procedure before OHIM.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been made: The word mark ‘RECARO’, for goods in classes 10 and 25 — Community trade mark registration No 734343

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Party applying for revocation of the Community trade mark: The applicant

Decision of the Cancellation Division: Revoked the Community trade mark

Decision of the Board of Appeal: Partially annulled the contested decision

Pleas in law:

| — | Infringement of Article 51(1)(a) in conjunction with Article 15 of Council Regulation No 207/2009; |
| --- | --- |

—

Infringement of Article 51(1)(a) in conjunction with Article 15 of Council Regulation No 207/2009;

| — | Infringement of Article 76(2) of Council Regulation No 207/2009 in conjunction with Rule 50(1) of Commission Regulation No 2868/95; and |
| --- | --- |

—

Infringement of Article 76(2) of Council Regulation No 207/2009 in conjunction with Rule 50(1) of Commission Regulation No 2868/95; and

| — | Infringement of Article 75(1) of Council Regulation No 207/2009 |
| --- | --- |

—

Infringement of Article 75(1) of Council Regulation No 207/2009

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/24 |
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2.2.2013

EN

Official Journal of the European Union

C 32/24

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Action brought on 5 December 2012 — AXA Versicherung v Commission

(Case T-526/12)

2013/C 32/38

Language of the case: German

Parties

Applicant: AXA Versicherung AG (Cologne, Germany) (represented by: C. Bahr, S. Dethof and A. Malec, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the contested refusal; |
| --- | --- |

—

annul the contested refusal;

| — | in the alternative, annul the contested refusal in part; |
| --- | --- |

—

in the alternative, annul the contested refusal in part;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant challenges the Commission’s negative decisions by silence refusing the applicant access — for a second time — to the Commission’s file in Case COMP/39.125 — Carglass.

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

| 1. | First plea in law: infringement of the duty to carry out a concrete and individual examination of the requested documents under Article 2 and 4 of Regulation (EC) No 1049/2001. (1)







  — | The applicant submits, in this regard, that the Commission failed to comply with its duty under Articles 2 and 4 of Regulation (EC) No 1049/2001 to carry out a concrete and individual examination of the requested documents. Instead, it wrongfully categorised the documents concerned on the basis of formal criteria. |
| --- | --- | --- |

1.

First plea in law: infringement of the duty to carry out a concrete and individual examination of the requested documents under Article 2 and 4 of Regulation (EC) No 1049/2001. (1)

—

The applicant submits, in this regard, that the Commission failed to comply with its duty under Articles 2 and 4 of Regulation (EC) No 1049/2001 to carry out a concrete and individual examination of the requested documents. Instead, it wrongfully categorised the documents concerned on the basis of formal criteria.

| 2. | Second plea in law: infringement of the first and third indents of Article 4(2) and of the second subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 by refusing access to specific documents in the file.






  — | The applicant submits that the Commission unlawfully gave too broad an interpretation to the scope of the exceptions laid down in Article 4(2) of Regulation (EC) No 1049/2001. The applicant takes the view that: (i) commercial interests would not be undermined for the purposes of the first indent of Article 4(2) of Regulation (EC) No 1049/200 and, (ii) the Commission is not entitled to rely on the protection of investigations under the third indent of Article 4(2) of Regulation (EC) No 1049/2001. |
| --- | --- | --- |

2.

Second plea in law: infringement of the first and third indents of Article 4(2) and of the second subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 by refusing access to specific documents in the file.

—

The applicant submits that the Commission unlawfully gave too broad an interpretation to the scope of the exceptions laid down in Article 4(2) of Regulation (EC) No 1049/2001. The applicant takes the view that: (i) commercial interests would not be undermined for the purposes of the first indent of Article 4(2) of Regulation (EC) No 1049/200 and, (ii) the Commission is not entitled to rely on the protection of investigations under the third indent of Article 4(2) of Regulation (EC) No 1049/2001.

| — | In addition, the decision-making process would not be seriously undermined (subparagraph 2 of Article 4(3) of Regulation No 1049/2001). |
| --- | --- |

—

In addition, the decision-making process would not be seriously undermined (subparagraph 2 of Article 4(3) of Regulation No 1049/2001).

| — | Moreover, the Commission wrongly denies that there is an overriding public interest in disclosing the documents requested. |
| --- | --- |

—

Moreover, the Commission wrongly denies that there is an overriding public interest in disclosing the documents requested.

| 3. | Third plea in law: infringement of Article 4(6) of Regulation (EC) No 1049/2001 by refusing full access to specific documents






  — | In this regard, the applicant submits that the Commission infringed Article 4(6) of Regulation (EC) No 1049/2001 by failing to grant access in part to the relevant documents. The Commission failed to examine whether access should be granted to some of the documents, thereby infringing the requirements of Regulation (EC) No 1049/2001. |
| --- | --- | --- |

3.

Third plea in law: infringement of Article 4(6) of Regulation (EC) No 1049/2001 by refusing full access to specific documents

—

In this regard, the applicant submits that the Commission infringed Article 4(6) of Regulation (EC) No 1049/2001 by failing to grant access in part to the relevant documents. The Commission failed to examine whether access should be granted to some of the documents, thereby infringing the requirements of Regulation (EC) No 1049/2001.

| 4. | Fourth plea in law: infringement of the first and third indents of Article 4(2), the second subparagraph of Article 4(3) and Article 4(1)(b) of Regulation (EC) No 1049/2001 by refusing access to the complete version of the contents page of the Commission’s file.






  — | In this context, the applicant claims that the Commission gave too broad an interpretation to the exceptions under Article 4 of Regulation (EC) No 1049/2001 also in relation to the application for access to the unredacted version of the contents page. The applicant takes the view that, also in this regard, commercial interests — the first indent of Article 4(2) of Regulation (EC) No 1049/2001 — and the protection of investigations — the third indent of Article 4(2) of Regulation (EC) No 1049/2001 –could not be undermined. |
| --- | --- | --- |

4.

Fourth plea in law: infringement of the first and third indents of Article 4(2), the second subparagraph of Article 4(3) and Article 4(1)(b) of Regulation (EC) No 1049/2001 by refusing access to the complete version of the contents page of the Commission’s file.

—

In this context, the applicant claims that the Commission gave too broad an interpretation to the exceptions under Article 4 of Regulation (EC) No 1049/2001 also in relation to the application for access to the unredacted version of the contents page. The applicant takes the view that, also in this regard, commercial interests — the first indent of Article 4(2) of Regulation (EC) No 1049/2001 — and the protection of investigations — the third indent of Article 4(2) of Regulation (EC) No 1049/2001 –could not be undermined.

| — | In addition, it submits that the privacy of the individual under Article 4(1)(b) of Regulation (EC) No 1049/2001 would not be undermined. |
| --- | --- |

—

In addition, it submits that the privacy of the individual under Article 4(1)(b) of Regulation (EC) No 1049/2001 would not be undermined.

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(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/25 |
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2.2.2013

EN

Official Journal of the European Union

C 32/25

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Action brought on 8 December 2012 — Still v OHIM (Fleet Data Services)

(Case T-534/12)

2013/C 32/39

Language of the case: German

Parties

Applicant: Still GmbH (Hamburg, Germany) (represented by S. Waller, lawyer)

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

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 September 2012 in Case R 130/2012-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 September 2012 in Case R 130/2012-1;

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

—

Order the defendant to pay the costs;

| — | Join the case under Article 50(1) of the Rules of Procedure of the General Court with the action brought in parallel against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 4/2012-1, also of 10 September 2012, regarding the Community trade mark application ‘Truck Data Services’, application No 009931429. |
| --- | --- |

—

Join the case under Article 50(1) of the Rules of Procedure of the General Court with the action brought in parallel against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 4/2012-1, also of 10 September 2012, regarding the Community trade mark application ‘Truck Data Services’, application No 009931429.

Pleas in law and main arguments

Community trade mark concerned: the figurative mark including the word elements ‘Fleet Data Services’ for goods and services in Classes 9, 12, 35, 36, 37 and 39 — Community trade mark application No 9 931 387

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law:

| — | Infringement of Article 7(1)(c) of Regulation No 207/2009 |
| --- | --- |

—

Infringement of Article 7(1)(c) of Regulation No 207/2009

| — | Infringement of Article 7(1)(b) of Regulation No 207/2009 |
| --- | --- |

—

Infringement of Article 7(1)(b) of Regulation No 207/2009

| — | Infringement of the second sentence of Article [75] of Regulation No 207/2009 |
| --- | --- |

—

Infringement of the second sentence of Article [75] of Regulation No 207/2009

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/25 |
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2.2.2013

EN

Official Journal of the European Union

C 32/25

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Action brought on 8 December 2012 — Still v OHIM (Truck Data Services)

(Case T-535/12)

2013/C 32/40

Language of the case: German

Parties

Applicant: Still GmbH (Hamburg, Germany) (represented by S. Waller, lawyer)

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

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 September 2012 in Case R 4/2012-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 September 2012 in Case R 4/2012-1;

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

—

Order the defendant to pay the costs;

| — | Join the case under Article 50(1) of the Rules of Procedure of the General Court with the action brought in parallel against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 130/2012-1, also of 10 September 2012, regarding the Community trade mark application ‘Fleet Data Services’, application No 009931387. |
| --- | --- |

—

Join the case under Article 50(1) of the Rules of Procedure of the General Court with the action brought in parallel against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 130/2012-1, also of 10 September 2012, regarding the Community trade mark application ‘Fleet Data Services’, application No 009931387.

Pleas in law and main arguments

Community trade mark concerned: the figurative mark including the word elements ‘Truck Data Services’ for goods and services in Classes 9, 12, 35, 36, 37 and 39 — Community trade mark application No 9 931 429

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law:

| — | Infringement of Article 7(1)(c) of Regulation No 207/2009 |
| --- | --- |

—

Infringement of Article 7(1)(c) of Regulation No 207/2009

| — | Infringement of Article 7(1)(b) of Regulation No 207/2009 |
| --- | --- |

—

Infringement of Article 7(1)(b) of Regulation No 207/2009

| — | Infringement of the second sentence of Article [75] of Regulation No 207/2009 |
| --- | --- |

—

Infringement of the second sentence of Article [75] of Regulation No 207/2009

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/26 |
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2.2.2013

EN

Official Journal of the European Union

C 32/26

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Order of the General Court of 6 December 2012 — Scott v Commission

(Case T-366/00 RENV) (1)

2013/C 32/41

Language of the case: English

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

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(1)  OJ C 61, 24.2.2001.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/26 |
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2.2.2013

EN

Official Journal of the European Union

C 32/26

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Order of the President of the General Court of 6 December 2012 — Poland v Commission

(Case T-258/04 RENV) (1)

2013/C 32/42

Language of the case: Polish

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

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(1)  OJ C 251, 9.10.2004.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/26 |
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2.2.2013

EN

Official Journal of the European Union

C 32/26

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Order of the General Court of 4 December 2012 — Rubinetterie Flero v Commission

(Case T-370/10) (1)

2013/C 32/43

Language of the case: Italian

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

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(1)  OJ C 288, 23.10.2010.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/26 |
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2.2.2013

EN

Official Journal of the European Union

C 32/26

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Order of the General Court of 10 December 2012 — Kronofrance and Kronoply v Commission

(Case T-560/11) (1)

2013/C 32/44

Language of the case: German

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

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(1)  OJ C 13, 14.1.2012.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/26 |
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2.2.2013

EN

Official Journal of the European Union

C 32/26

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Order of the General Court of 12 December 2012 — Icelandic Group UK v Commission

(Case T-35/12) (1)

2013/C 32/45

Language of the case: English

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

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(1)  OJ C 73, 10.3.2012.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/26 |
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2.2.2013

EN

Official Journal of the European Union

C 32/26

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Order of the General Court of 12 December 2012 — Lilleborg v OHIM — Hardford Sweden (Pierre Robert)

(Case T-85/12) (1)

2013/C 32/46

Language of the case: English

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

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(1)  OJ C 118, 21.4.2012.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/27 |
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2.2.2013

EN

Official Journal of the European Union

C 32/27

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Order of the General Court of 12 December 2012 — Robert Group v OHIM — Hardford Sweden (Pierre Robert)

(Case T-86/12) (1)

2013/C 32/47

Language of the case: English

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

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(1)  OJ C 118, 21.4.2012.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/27 |
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2.2.2013

EN

Official Journal of the European Union

C 32/27

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Order of the General Court of 10 December 2012 — Viasat Broadcasting UK v Commission

(Case T-210/12) (1)

2013/C 32/48

Language of the case: English

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

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(1)  OJ C 209, 14.7.2012.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/27 |
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2.2.2013

EN

Official Journal of the European Union

C 32/27

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Order of the General Court of 6 December 2012 — Netherlands and ING Groep v Commission

(Joined Cases T-325/12 and T-332/12) (1)

2013/C 32/49

Language of the case: Dutch

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

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(1)  OJ C 273, 8.9.2012.

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| 2.2.2013 | EN | Official Journal of the European Union | C 32/27 |
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2.2.2013

EN

Official Journal of the European Union

C 32/27

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Order of the General Court of 5 December 2012 — Soltau v Commission

(Case T-333/12) (1)

2013/C 32/50

Language of the case: German

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

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(1)  OJ C 303, 6.10.2012.

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