# Official Journal C 129/2013

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2013.129.eng |
| --- | --- |
| Official Journal
  of the European Union | C 129 |
| | |
| English edition | Information and Notices | Volume 564 May 2013 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2013.129.eng

Official Journal

of the European Union

C 129

English edition

Information and Notices

Volume 564 May 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 129/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 123, 27.4.2013 | 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 129/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 123, 27.4.2013

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2013/C 129/02 | Case C-393/11: Order of the Court (Eighth Chamber) of 7 March 2013 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Autorità per l’energia elettrica e il gas v Antonella Bertazzi and Others (Article 99 of the Rules of Procedure of the Court of Justice — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Fixed-term employment contracts in the public sector — Stabilisation procedure — Recruitment of workers employed for a fixed term as career civil servants without a public competition — Determination of length of service — Complete disregard of periods of service completed under fixed-term employment contracts — Principle of non-discrimination) | 2 |
| 2013/C 129/03 | Case C-563/11: Order of the Court (Fifth Chamber) of 28 February 2013 (request for a preliminary ruling from the Augstākās tiesas Senāts — Latvia) — SIA Forvards V v Valsts ieņēmumu dienests (Article 99 of the Rules of Procedure — Taxation — VAT — Sixth Directive — Right to deduct — Refusal — Invoice issued by a company considered fictitious) | 2 |
| 2013/C 129/04 | Case C-128/12: Order of the Court (Sixth Chamber) of 7 March 2013 (request for a preliminary ruling from the Tribunal do Trabalho do Porto — Portugal) — Sindicato dos Bancários do Norte, Sindicato dos Bancários do Centro, Sindicato dos Bancários do Sul e Ilhas, Luís Miguel Rodrigues Teixeira de Melo v BPN — Banco Português de Negócios SA (Reference for a preliminary ruling — Article 53(2) of the Rules of Procedure — Charter of Fundamental Rights of the European Union — National legislation establishing salary reductions for certain public sector workers — Failure to implement European Union law — Clear lack of jurisdiction of the Court of Justice) | 3 |
| 2013/C 129/05 | Case C-171/12 P: Order of the Court (Seventh Chamber) of 28 February 2013 — Carrols Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Giulio Gambettola (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 51(1)(b) — Community figurative mark Pollo Tropical CHICKEN ON THE GRILL — Application for a declaration of invalidity submitted by the proprietor of the national figurative mark Pollo Tropical CHICKEN ON THE GRILL and the national word mark POLLO TROPICAL — Absolute grounds for invalidity — Bad faith — Inadmissibility) | 3 |
| 2013/C 129/06 | Case C-178/12: Order of the Court (Eighth Chamber) of 7 March 2013 (request for a preliminary ruling from the Juzgado de lo Social — Spain) — Rafaela Rivas Montes v Instituto Municipal de Deportes de Córdoba (IMDECO) (Articles 53(2) and 99 of the Rules of Procedure of the Court — Social policy — Principle of equal treatment — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Fixed-term employment contracts in the public sector — Determination of length of service — Difference in treatment between civil servants and contractual staff — Taking into account previous periods of employment completed in the administration — Clear lack of jurisdiction of the Court) | 4 |
| 2013/C 129/07 | Case C-240/12: Order of the Court (First Chamber) of 14 March 2013 — (request for a preliminary ruling from the Rechtbank te Rotterdam — Netherlands) — Criminal proceedings against EBS Le relais Nord Pas De Calais (Request for a preliminary ruling — Inadmissibility) | 4 |
| 2013/C 129/08 | Case C-266/12 P: Order of the Court (Tenth Chamber) of 7 February 2013 — Jarosław Majtczak v Feng Shen Technology Co. Ltd, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeals — Community trade mark — Regulation (EC) No 40/94 — Article 51(1)(b) — Applicant’s bad faith when filing the Community trade mark — Figurative mark FS — Application for a declaration of invalidity) | 4 |
| 2013/C 129/09 | Case C-343/12: Order of the Court (Sixth Chamber) of 7 March 2013 (request for a preliminary ruling from the Rechtbank van Koophandel te Gent — Belgium) — Euronics Belgium CVBA v Kamera Express BV, Kamera Express Belgium BVBA (Article 99 of the Rules of Procedure — Directive 2005/29/EC — National legislation laying down a general prohibition of offering for sale or selling goods at a loss) | 5 |
| 2013/C 129/10 | Case C-433/12 P: Order of the Court (Tenth Chamber) of 7 March 2013 — Luigi Marcuccio v Court of Justice of the European Union (Appeal — Action to establish non-contractual liability — Refusal by the Court Registry to act on letters addressed by the appellant to the First Advocate General of the Court — Article 256(2) TFEU — Request to initiate a review procedure in respect of certain decisions terminating proceedings delivered by the General Court in certain cases on appeal) | 5 |
| 2013/C 129/11 | Case C-555/12: Order of the Court (Tenth Chamber) of 14 March 2013 (request for a preliminary ruling from the Tribunale di Tivoli — Italy) — Claudio Loreti, Maria Vallerotonda, Attilio Vallerotonda, Virginia Chellini v Comune di Zagarolo (Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Implementation of European Union law — None — Clear lack of jurisdiction of the Court) | 6 |
| 2013/C 129/12 | Case C-84/13 P: Appeal brought on 21 February 2013 by Electrabel SA against the judgment of the General Court (Third Chamber) delivered on 12 December 2012 in Case T-332/09 Electrabel v Commission | 6 |
| 2013/C 129/13 | Case C-94/13 P: Appeal brought on 26 February 2013 by Cooperativa tra i Lavoratori della Piccola Pesca di Pellestrina Soc. coop. rl and Others against the order of the General Court (Fourth Chamber) delivered on 12 December 2012 in Case T-260/00 Cooperativa San Marco fra Lavoratori della Piccola Pesca — Burano Soc. coop. rl and Others v European Commission | 7 |
| 2013/C 129/14 | Case C-95/13 P: Appeal brought on 26 February 2013 by Alfier Costruzioni Srl and Others against the order of the General Court (Fourth Chamber) delivered on 12 December 2012 in Case T-261/00 Sacaim SpA and Others v European Commission | 7 |
| 2013/C 129/15 | Case C-96/13: Action brought on 26 February 2013 — European Commission v Hellenic Republic | 8 |
| 2013/C 129/16 | Case C-97/13: Request for a preliminary ruling from the Tribunalul Sibiu (Romania) lodged on 27 February 2013 — Silvia Georgiana Câmpean v Administrația Finanțelor Publice a Municipiului Mediaș, Administrația Fondului pentru Mediu | 9 |
| 2013/C 129/17 | Case C-98/13: Request for a preliminary ruling from the Højesteret (Denmark) lodged on 27 February 2013 — Martin Blomqvist v Rolex SA, Manufacture des Montres Rolex SA | 9 |
| 2013/C 129/18 | Case C-103/13: Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 4 March 2013 — Snezhana Somova v Glaven direktor na Stolichno upravlenie Sotsialno osiguryavane | 10 |
| 2013/C 129/19 | Case C-107/13: Request for a preliminary ruling from the Administrativen sad — Veliko Tarnovo (Bulgaria) lodged on 4 March 2013 — FIRIN OOD v Direktsia Obzhalvane i danachno-osiguritelna praktika — Veliko Tarnovo | 11 |
| 2013/C 129/20 | Case C-115/13: Action brought on 11 March 2013 — European Commission v Hungary | 11 |
| 2013/C 129/21 | Case C-634/11: Order of the President of the Third Chamber of the Court of 1 March 2013 (request for a preliminary ruling from the High Court of Ireland — Ireland) — Irish Bank Resolution Corp. Ltd, formerly Anglo Irish Bank Corp. Ltd v Sean Quinn and Others | 12 |
| 2013/C 129/22 | Case C-333/12: Order of the President of the Court of 6 March 2013 — European Commission v Republic of Poland | 12 |
| 2013/C 129/23 | Case C-349/12: Order of the President of the Court of 14 February 2013 (request for a preliminary ruling from the Fővárosi Törvényszék, (formerly Fővárosi Bíróság) — Hungary) — Peró Gáz Kft v János Balla | 12 |
| 2013/C 129/24 | Case C-532/12: Order of the President of the Court of 8 March 2013 — European Commission v Grand Duchy of Luxembourg | 13 |
| 2013/C 129/25 | Case C-577/12: Order of the President of the Court of 7 February 2013 (request for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle, Wien (Austria)) — Michaela Hopfgartner | 13 |
| | General Court |
| 2013/C 129/26 | Case T-301/10: Judgment of the General Court of 19 March 2013 — in ‘t Veld v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the draft international Anti-Counterfeiting Trade Agreement (ACTA) — Negotiating documents — Refusal to grant access — Exception relating to the protection of the public interest with regard to international relations — Manifest error of assessment — Proportionality — Obligation to state reasons) | 14 |
| 2013/C 129/27 | Case T-324/10: Judgment of the General Court of 19 March 2013 — Firma Van Parys v Commission (Customs union — Imports of bananas from Ecuador — Post-clearance recovery of import duties — Request for remission of import duties — Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92 — Error by the customs authorities — Obvious negligence on the part of the interested party) | 14 |
| 2013/C 129/28 | Case T-409/10: Judgment of the General Court of 22 March 2013 — Bottega Veneta International v OHIM (Shape of a handbag) (Community trade mark — Application for a three-dimensional Community trade mark — Shape of a handbag — Absolute grounds for refusal — Lack of distinctive character — Lack of distinctive character acquired through use — Article 7(1)(b) and Article 7(3) of Regulation (EC) No 207/2009 — Failure to take account of an element of the trade mark applied for — Rule No 9 of Regulation (EC) No 2868/95) | 15 |
| 2013/C 129/29 | Case T-410/10: Judgment of the General Court of 22 March 2013 — Bottega Veneta International v OHIM (Shape of a bag) (Community trade mark — Application for a three-dimensional Community trade mark — Shape of a bag — Absolute grounds for refusal — Lack of distinctive character — Lack of distinctive character acquired through use — Article 7(1)(b) and Article 7(3) of Regulation (EC) No 207/2009 — Failure to take account of an element of the trade mark applied for — Rule No 9 of Regulation (EC) No 2868/95) | 15 |
| 2013/C 129/30 | Case T-415/10: Judgment of the General Court of 20 March 2013 — Nexans France v Joint Undertaking Fusion for Energy (Public supply contracts — Euratom — Public procurement procedure of the Joint Undertaking Fusion for Energy — Supply of electrical equipment — Rejection of a tenderer’s bid — Open procedure — Bid containing reservations — Legal certainty — Legitimate expectation — Proportionality — Conflict of interests — Awarding decision — Action for annulment — Not directly concerned — Inadmissibility — Non-contractual liability) | 16 |
| 2013/C 129/31 | Case T-495/10: Judgment of the General Court of 20 March 2013 — Bank Saderat v Council (Common foreign and security policy — Restrictive measures against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Entity wholly owned by an entity identified as being involved in nuclear proliferation — Plea of illegality — Obligation to state reasons — Rights of the defence — Right to effective judicial protection) | 16 |
| 2013/C 129/32 | Case T-571/10: Judgment of the General Court of 22 March 2013 — Fabryka Łożysk Tocznych-Kraśnik v OHIM (FŁT-1) (Community trade mark — Opposition proceedings — Application for Community figurative mark FŁT-1 — Earlier Community figurative mark FŁT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 17 |
| 2013/C 129/33 | Case T-92/11: Judgment of the General Court of 20 March 2013 — Andersen v Commission (State aid — Aid granted by the Danish authorities to the public undertaking DSB — Public service contracts for the supply of passenger rail transport services between Copenhagen and Ystad — Decision declaring the aid compatible with the internal market subject to conditions — Temporal application of rules of substantive law) | 17 |
| 2013/C 129/34 | Case T-353/11: Judgment of the General Court of 21 March 2013 — Event v OHIM — CBT Comunicación Multimedia (eventer EVENT MANAGEMENT SYSTEMS) (Community trade mark — Opposition proceedings — Application for Community figurative mark eventer EVENT MANAGEMENT SYSTEMS — Earlier national word mark Event — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 18 |
| 2013/C 129/35 | Case T-489/11: Judgment of the General Court of 20 March 2013 — Ruse Industry v Commission (State aid — Aid granted by Bulgaria in the form of a debt waiver — Decision declaring that aid incompatible with the internal market and ordering its recovery — New aid — Distortion of competition — Obligation to state reasons) | 18 |
| 2013/C 129/36 | Case T-571/11: Judgment of the General Court of 20 March 2013 — El Corte Inglés v OHIM — Chez Gerard (CLUB GOURMET) (Community trade mark — Opposition proceedings — Application for Community word mark CLUB GOURMET — Earlier national figurative mark CLUB DEL GOURMET, EN. El Corte Inglés — Relative ground for refusal — Lack of similarity between the goods and services — Article 8(1)(b) of Regulation (EC) No 207/2009 — Arguments and evidence adduced for the first time before the General Court) | 18 |
| 2013/C 129/37 | Case T-624/11: Judgment of the General Court of 19 March 2013 — Yueqing Onesto Electric v OHIM — Ensto (ONESTO) (Community trade mark — Opposition proceedings — International registration designating the European Community — Figurative mark ONESTO — Earlier Community figurative mark ENSTO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 19 |
| 2013/C 129/38 | Case T-277/12: Judgment of the General Court of 20 March 2013 — Bimbo v OHIM — Café do Brasil (Caffè KIMBO) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Caffè KIMBO — Earlier national word mark BIMBO — Relative grounds for refusal — Well-known trade mark within the meaning of Article 6 bis of the Paris Convention — Article 8(1) of Regulation (EC) No 207/2009) | 19 |
| 2013/C 129/39 | Case T-198/09: Order of the General Court of 7 March 2013 — UOP v Commission (Action for annulment — State aid — No individual concern — Inadmissibility) | 19 |
| 2013/C 129/40 | Case T-607/11: Order of the General Court of 7 March 2013 — Henkel and Henkel France v Commission (Action for annulment — Request from the French competition authority seeking to obtain the transmission of certain documents contained in the Commission’s file relating to competition proceedings concerning the European market for consumer detergents — Use in the context of national proceedings concerning the French detergents sector — Disappearance of the legal interest in bringing proceedings — No need to adjudicate — Inadmissibility) | 20 |
| 2013/C 129/41 | Case T-64/12: Order of the General Court of 7 March 2013 — Henkel and Henkel France v Commission (Action for annulment — Request seeking to obtain the transmission to the French competition authority of certain documents contained in the Commission’s file relating to competition proceedings concerning the European market for consumer detergents — Use in the context of national proceedings concerning the French detergents sector — Lack of interest in bringing proceedings — Inadmissibility) | 20 |
| 2013/C 129/42 | Case T-27/13 R: Order of the President of the General Court of 11 March 2013 — Elan v Commission (Interim measures — State aid — Decision declaring the aid incompatible with the internal market and ordering its recovery from the beneficiary — Application for stay of execution — Lack of urgency) | 21 |
| 2013/C 129/43 | Case T-89/13 R: Order of the President of the General Court of 11 March 2013 — Calestep v ECHA (Application for interim measures — Fees and charges payable to ECHA — Reduced fees granted to small enterprises — Verification by ECHA of the declaration relating to the size of the enterprise — Decision ordering the recovery of the uncollected amount of the total fees payable — Application for suspension of operation of the decision — Disregard of the procedural requirements — Inadmissibility) | 21 |
| 2013/C 129/44 | Case T-103/13 P: Appeal brought on 19 February 2013 by European Commission against the judgment of the Civil Service Tribunal of 11 December 2012 in Case F-122/10, Cocchi and Falcione v Commission | 21 |
| 2013/C 129/45 | Case T-107/13 P: Appeal brought on 21 February 2013 by Cornelia Trentea against the judgment of the Civil Service Tribunal of 11 December 2012 in Case F-112/10 Trentea v FRA | 22 |
| 2013/C 129/46 | Case T-109/13: Action brought on 21 February 2013 — Othman v Council | 23 |
| 2013/C 129/47 | Case T-110/13: Action brought on 23 February 2013 — Republic of Lithuania v European Commission | 23 |
| 2013/C 129/48 | Case T-121/13: Action brought on 28 February 2013 — Oil Pension Fund Investment Company v Council | 24 |
| 2013/C 129/49 | Case T-127/13: Action brought on 4 March 2013 — El Corte Inglés v OHIM — Baumarkt Praktiker Deutschland (PRO OUTDOOR) | 25 |
| 2013/C 129/50 | Case T-134/13: Action brought on 28 February 2013 — Polynt and Sitre v ECHA | 26 |
| 2013/C 129/51 | Case T-135/13: Action brought on 28 February 2013 — Hitachi Chemical Europe and Others v ECHA | 26 |
| 2013/C 129/52 | Case T-137/13: Action brought on 7 March 2013 — Saferoad RRS v OHIM (MEGARAIL) | 27 |
| 2013/C 129/53 | Case T-152/13: Action brought on 15 March 2013 — Sea Handling v Commission | 28 |
| 2013/C 129/54 | Case T-167/13: Action brought on 18 March 2013 — Comune di Milano v Commission | 29 |
| | European Union Civil Service Tribunal |
| 2013/C 129/55 | Case F-94/11: Judgment of the Civil Service Tribunal (2nd Chamber) of 21 March 2013 — Brune v Commission (Civil service — Open competition — Annulment of a decision not to include the applicant on the reserve list — Implementation of a judgment — Principle of legality — Plea of illegality directed against the decision to reopen the competition procedure) | 30 |
| 2013/C 129/56 | Case F-2/13: Action brought on 7 January 2013 — ZZ v Commission | 30 |
| 2013/C 129/57 | Case F-3/13: Action brought on 14 January 2013 — CK v Commission | 31 |
| 2013/C 129/58 | Case F-15/13: Action brought on 11 February 2013 — ZZ v Commission | 31 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2013/C 129/02

Case C-393/11: Order of the Court (Eighth Chamber) of 7 March 2013 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Autorità per l’energia elettrica e il gas v Antonella Bertazzi and Others (Article 99 of the Rules of Procedure of the Court of Justice — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Fixed-term employment contracts in the public sector — Stabilisation procedure — Recruitment of workers employed for a fixed term as career civil servants without a public competition — Determination of length of service — Complete disregard of periods of service completed under fixed-term employment contracts — Principle of non-discrimination)

2

2013/C 129/03

Case C-563/11: Order of the Court (Fifth Chamber) of 28 February 2013 (request for a preliminary ruling from the Augstākās tiesas Senāts — Latvia) — SIA Forvards V v Valsts ieņēmumu dienests (Article 99 of the Rules of Procedure — Taxation — VAT — Sixth Directive — Right to deduct — Refusal — Invoice issued by a company considered fictitious)

2

2013/C 129/04

Case C-128/12: Order of the Court (Sixth Chamber) of 7 March 2013 (request for a preliminary ruling from the Tribunal do Trabalho do Porto — Portugal) — Sindicato dos Bancários do Norte, Sindicato dos Bancários do Centro, Sindicato dos Bancários do Sul e Ilhas, Luís Miguel Rodrigues Teixeira de Melo v BPN — Banco Português de Negócios SA (Reference for a preliminary ruling — Article 53(2) of the Rules of Procedure — Charter of Fundamental Rights of the European Union — National legislation establishing salary reductions for certain public sector workers — Failure to implement European Union law — Clear lack of jurisdiction of the Court of Justice)

3

2013/C 129/05

Case C-171/12 P: Order of the Court (Seventh Chamber) of 28 February 2013 — Carrols Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Giulio Gambettola (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 51(1)(b) — Community figurative mark Pollo Tropical CHICKEN ON THE GRILL — Application for a declaration of invalidity submitted by the proprietor of the national figurative mark Pollo Tropical CHICKEN ON THE GRILL and the national word mark POLLO TROPICAL — Absolute grounds for invalidity — Bad faith — Inadmissibility)

3

2013/C 129/06

Case C-178/12: Order of the Court (Eighth Chamber) of 7 March 2013 (request for a preliminary ruling from the Juzgado de lo Social — Spain) — Rafaela Rivas Montes v Instituto Municipal de Deportes de Córdoba (IMDECO) (Articles 53(2) and 99 of the Rules of Procedure of the Court — Social policy — Principle of equal treatment — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Fixed-term employment contracts in the public sector — Determination of length of service — Difference in treatment between civil servants and contractual staff — Taking into account previous periods of employment completed in the administration — Clear lack of jurisdiction of the Court)

4

2013/C 129/07

Case C-240/12: Order of the Court (First Chamber) of 14 March 2013 — (request for a preliminary ruling from the Rechtbank te Rotterdam — Netherlands) — Criminal proceedings against EBS Le relais Nord Pas De Calais (Request for a preliminary ruling — Inadmissibility)

4

2013/C 129/08

Case C-266/12 P: Order of the Court (Tenth Chamber) of 7 February 2013 — Jarosław Majtczak v Feng Shen Technology Co. Ltd, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeals — Community trade mark — Regulation (EC) No 40/94 — Article 51(1)(b) — Applicant’s bad faith when filing the Community trade mark — Figurative mark FS — Application for a declaration of invalidity)

4

2013/C 129/09

Case C-343/12: Order of the Court (Sixth Chamber) of 7 March 2013 (request for a preliminary ruling from the Rechtbank van Koophandel te Gent — Belgium) — Euronics Belgium CVBA v Kamera Express BV, Kamera Express Belgium BVBA (Article 99 of the Rules of Procedure — Directive 2005/29/EC — National legislation laying down a general prohibition of offering for sale or selling goods at a loss)

5

2013/C 129/10

Case C-433/12 P: Order of the Court (Tenth Chamber) of 7 March 2013 — Luigi Marcuccio v Court of Justice of the European Union (Appeal — Action to establish non-contractual liability — Refusal by the Court Registry to act on letters addressed by the appellant to the First Advocate General of the Court — Article 256(2) TFEU — Request to initiate a review procedure in respect of certain decisions terminating proceedings delivered by the General Court in certain cases on appeal)

5

2013/C 129/11

Case C-555/12: Order of the Court (Tenth Chamber) of 14 March 2013 (request for a preliminary ruling from the Tribunale di Tivoli — Italy) — Claudio Loreti, Maria Vallerotonda, Attilio Vallerotonda, Virginia Chellini v Comune di Zagarolo (Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Implementation of European Union law — None — Clear lack of jurisdiction of the Court)

6

2013/C 129/12

Case C-84/13 P: Appeal brought on 21 February 2013 by Electrabel SA against the judgment of the General Court (Third Chamber) delivered on 12 December 2012 in Case T-332/09 Electrabel v Commission

6

2013/C 129/13

Case C-94/13 P: Appeal brought on 26 February 2013 by Cooperativa tra i Lavoratori della Piccola Pesca di Pellestrina Soc. coop. rl and Others against the order of the General Court (Fourth Chamber) delivered on 12 December 2012 in Case T-260/00 Cooperativa San Marco fra Lavoratori della Piccola Pesca — Burano Soc. coop. rl and Others v European Commission

7

2013/C 129/14

Case C-95/13 P: Appeal brought on 26 February 2013 by Alfier Costruzioni Srl and Others against the order of the General Court (Fourth Chamber) delivered on 12 December 2012 in Case T-261/00 Sacaim SpA and Others v European Commission

7

2013/C 129/15

Case C-96/13: Action brought on 26 February 2013 — European Commission v Hellenic Republic

8

2013/C 129/16

Case C-97/13: Request for a preliminary ruling from the Tribunalul Sibiu (Romania) lodged on 27 February 2013 — Silvia Georgiana Câmpean v Administrația Finanțelor Publice a Municipiului Mediaș, Administrația Fondului pentru Mediu

9

2013/C 129/17

Case C-98/13: Request for a preliminary ruling from the Højesteret (Denmark) lodged on 27 February 2013 — Martin Blomqvist v Rolex SA, Manufacture des Montres Rolex SA

9

2013/C 129/18

Case C-103/13: Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 4 March 2013 — Snezhana Somova v Glaven direktor na Stolichno upravlenie Sotsialno osiguryavane

10

2013/C 129/19

Case C-107/13: Request for a preliminary ruling from the Administrativen sad — Veliko Tarnovo (Bulgaria) lodged on 4 March 2013 — FIRIN OOD v Direktsia Obzhalvane i danachno-osiguritelna praktika — Veliko Tarnovo

11

2013/C 129/20

Case C-115/13: Action brought on 11 March 2013 — European Commission v Hungary

11

2013/C 129/21

Case C-634/11: Order of the President of the Third Chamber of the Court of 1 March 2013 (request for a preliminary ruling from the High Court of Ireland — Ireland) — Irish Bank Resolution Corp. Ltd, formerly Anglo Irish Bank Corp. Ltd v Sean Quinn and Others

12

2013/C 129/22

Case C-333/12: Order of the President of the Court of 6 March 2013 — European Commission v Republic of Poland

12

2013/C 129/23

Case C-349/12: Order of the President of the Court of 14 February 2013 (request for a preliminary ruling from the Fővárosi Törvényszék, (formerly Fővárosi Bíróság) — Hungary) — Peró Gáz Kft v János Balla

12

2013/C 129/24

Case C-532/12: Order of the President of the Court of 8 March 2013 — European Commission v Grand Duchy of Luxembourg

13

2013/C 129/25

Case C-577/12: Order of the President of the Court of 7 February 2013 (request for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle, Wien (Austria)) — Michaela Hopfgartner

13

General Court

2013/C 129/26

Case T-301/10: Judgment of the General Court of 19 March 2013 — in ‘t Veld v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the draft international Anti-Counterfeiting Trade Agreement (ACTA) — Negotiating documents — Refusal to grant access — Exception relating to the protection of the public interest with regard to international relations — Manifest error of assessment — Proportionality — Obligation to state reasons)

14

2013/C 129/27

Case T-324/10: Judgment of the General Court of 19 March 2013 — Firma Van Parys v Commission (Customs union — Imports of bananas from Ecuador — Post-clearance recovery of import duties — Request for remission of import duties — Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92 — Error by the customs authorities — Obvious negligence on the part of the interested party)

14

2013/C 129/28

Case T-409/10: Judgment of the General Court of 22 March 2013 — Bottega Veneta International v OHIM (Shape of a handbag) (Community trade mark — Application for a three-dimensional Community trade mark — Shape of a handbag — Absolute grounds for refusal — Lack of distinctive character — Lack of distinctive character acquired through use — Article 7(1)(b) and Article 7(3) of Regulation (EC) No 207/2009 — Failure to take account of an element of the trade mark applied for — Rule No 9 of Regulation (EC) No 2868/95)

15

2013/C 129/29

Case T-410/10: Judgment of the General Court of 22 March 2013 — Bottega Veneta International v OHIM (Shape of a bag) (Community trade mark — Application for a three-dimensional Community trade mark — Shape of a bag — Absolute grounds for refusal — Lack of distinctive character — Lack of distinctive character acquired through use — Article 7(1)(b) and Article 7(3) of Regulation (EC) No 207/2009 — Failure to take account of an element of the trade mark applied for — Rule No 9 of Regulation (EC) No 2868/95)

15

2013/C 129/30

Case T-415/10: Judgment of the General Court of 20 March 2013 — Nexans France v Joint Undertaking Fusion for Energy (Public supply contracts — Euratom — Public procurement procedure of the Joint Undertaking Fusion for Energy — Supply of electrical equipment — Rejection of a tenderer’s bid — Open procedure — Bid containing reservations — Legal certainty — Legitimate expectation — Proportionality — Conflict of interests — Awarding decision — Action for annulment — Not directly concerned — Inadmissibility — Non-contractual liability)

16

2013/C 129/31

Case T-495/10: Judgment of the General Court of 20 March 2013 — Bank Saderat v Council (Common foreign and security policy — Restrictive measures against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Entity wholly owned by an entity identified as being involved in nuclear proliferation — Plea of illegality — Obligation to state reasons — Rights of the defence — Right to effective judicial protection)

16

2013/C 129/32

Case T-571/10: Judgment of the General Court of 22 March 2013 — Fabryka Łożysk Tocznych-Kraśnik v OHIM (FŁT-1) (Community trade mark — Opposition proceedings — Application for Community figurative mark FŁT-1 — Earlier Community figurative mark FŁT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

17

2013/C 129/33

Case T-92/11: Judgment of the General Court of 20 March 2013 — Andersen v Commission (State aid — Aid granted by the Danish authorities to the public undertaking DSB — Public service contracts for the supply of passenger rail transport services between Copenhagen and Ystad — Decision declaring the aid compatible with the internal market subject to conditions — Temporal application of rules of substantive law)

17

2013/C 129/34

Case T-353/11: Judgment of the General Court of 21 March 2013 — Event v OHIM — CBT Comunicación Multimedia (eventer EVENT MANAGEMENT SYSTEMS) (Community trade mark — Opposition proceedings — Application for Community figurative mark eventer EVENT MANAGEMENT SYSTEMS — Earlier national word mark Event — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

18

2013/C 129/35

Case T-489/11: Judgment of the General Court of 20 March 2013 — Ruse Industry v Commission (State aid — Aid granted by Bulgaria in the form of a debt waiver — Decision declaring that aid incompatible with the internal market and ordering its recovery — New aid — Distortion of competition — Obligation to state reasons)

18

2013/C 129/36

Case T-571/11: Judgment of the General Court of 20 March 2013 — El Corte Inglés v OHIM — Chez Gerard (CLUB GOURMET) (Community trade mark — Opposition proceedings — Application for Community word mark CLUB GOURMET — Earlier national figurative mark CLUB DEL GOURMET, EN. El Corte Inglés — Relative ground for refusal — Lack of similarity between the goods and services — Article 8(1)(b) of Regulation (EC) No 207/2009 — Arguments and evidence adduced for the first time before the General Court)

18

2013/C 129/37

Case T-624/11: Judgment of the General Court of 19 March 2013 — Yueqing Onesto Electric v OHIM — Ensto (ONESTO) (Community trade mark — Opposition proceedings — International registration designating the European Community — Figurative mark ONESTO — Earlier Community figurative mark ENSTO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

19

2013/C 129/38

Case T-277/12: Judgment of the General Court of 20 March 2013 — Bimbo v OHIM — Café do Brasil (Caffè KIMBO) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Caffè KIMBO — Earlier national word mark BIMBO — Relative grounds for refusal — Well-known trade mark within the meaning of Article 6 bis of the Paris Convention — Article 8(1) of Regulation (EC) No 207/2009)

19

2013/C 129/39

Case T-198/09: Order of the General Court of 7 March 2013 — UOP v Commission (Action for annulment — State aid — No individual concern — Inadmissibility)

19

2013/C 129/40

Case T-607/11: Order of the General Court of 7 March 2013 — Henkel and Henkel France v Commission (Action for annulment — Request from the French competition authority seeking to obtain the transmission of certain documents contained in the Commission’s file relating to competition proceedings concerning the European market for consumer detergents — Use in the context of national proceedings concerning the French detergents sector — Disappearance of the legal interest in bringing proceedings — No need to adjudicate — Inadmissibility)

20

2013/C 129/41

Case T-64/12: Order of the General Court of 7 March 2013 — Henkel and Henkel France v Commission (Action for annulment — Request seeking to obtain the transmission to the French competition authority of certain documents contained in the Commission’s file relating to competition proceedings concerning the European market for consumer detergents — Use in the context of national proceedings concerning the French detergents sector — Lack of interest in bringing proceedings — Inadmissibility)

20

2013/C 129/42

Case T-27/13 R: Order of the President of the General Court of 11 March 2013 — Elan v Commission (Interim measures — State aid — Decision declaring the aid incompatible with the internal market and ordering its recovery from the beneficiary — Application for stay of execution — Lack of urgency)

21

2013/C 129/43

Case T-89/13 R: Order of the President of the General Court of 11 March 2013 — Calestep v ECHA (Application for interim measures — Fees and charges payable to ECHA — Reduced fees granted to small enterprises — Verification by ECHA of the declaration relating to the size of the enterprise — Decision ordering the recovery of the uncollected amount of the total fees payable — Application for suspension of operation of the decision — Disregard of the procedural requirements — Inadmissibility)

21

2013/C 129/44

Case T-103/13 P: Appeal brought on 19 February 2013 by European Commission against the judgment of the Civil Service Tribunal of 11 December 2012 in Case F-122/10, Cocchi and Falcione v Commission

21

2013/C 129/45

Case T-107/13 P: Appeal brought on 21 February 2013 by Cornelia Trentea against the judgment of the Civil Service Tribunal of 11 December 2012 in Case F-112/10 Trentea v FRA

22

2013/C 129/46

Case T-109/13: Action brought on 21 February 2013 — Othman v Council

23

2013/C 129/47

Case T-110/13: Action brought on 23 February 2013 — Republic of Lithuania v European Commission

Republic of Lithuania

European Commission

23

2013/C 129/48

Case T-121/13: Action brought on 28 February 2013 — Oil Pension Fund Investment Company v Council

24

2013/C 129/49

Case T-127/13: Action brought on 4 March 2013 — El Corte Inglés v OHIM — Baumarkt Praktiker Deutschland (PRO OUTDOOR)

25

2013/C 129/50

Case T-134/13: Action brought on 28 February 2013 — Polynt and Sitre v ECHA

26

2013/C 129/51

Case T-135/13: Action brought on 28 February 2013 — Hitachi Chemical Europe and Others v ECHA

26

2013/C 129/52

Case T-137/13: Action brought on 7 March 2013 — Saferoad RRS v OHIM (MEGARAIL)

27

2013/C 129/53

Case T-152/13: Action brought on 15 March 2013 — Sea Handling v Commission

28

2013/C 129/54

Case T-167/13: Action brought on 18 March 2013 — Comune di Milano v Commission

29

European Union Civil Service Tribunal

2013/C 129/55

Case F-94/11: Judgment of the Civil Service Tribunal (2nd Chamber) of 21 March 2013 — Brune v Commission (Civil service — Open competition — Annulment of a decision not to include the applicant on the reserve list — Implementation of a judgment — Principle of legality — Plea of illegality directed against the decision to reopen the competition procedure)

30

2013/C 129/56

Case F-2/13: Action brought on 7 January 2013 — ZZ v Commission

30

2013/C 129/57

Case F-3/13: Action brought on 14 January 2013 — CK v Commission

31

2013/C 129/58

Case F-15/13: Action brought on 11 February 2013 — ZZ v Commission

31

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 4.5.2013 | EN | Official Journal of the European Union | C 129/1 |
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4.5.2013

EN

Official Journal of the European Union

C 129/1

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2013/C 129/01

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

OJ C 123, 27.4.2013

Past publications

OJ C 114, 20.4.2013

OJ C 108, 13.4.2013

OJ C 101, 6.4.2013

OJ C 86, 23.3.2013

OJ C 79, 16.3.2013

OJ C 71, 9.3.2013

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 4.5.2013 | EN | Official Journal of the European Union | C 129/2 |
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4.5.2013

EN

Official Journal of the European Union

C 129/2

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Order of the Court (Eighth Chamber) of 7 March 2013 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Autorità per l’energia elettrica e il gas v Antonella Bertazzi and Others

(Case C-393/11) (1)

(Article 99 of the Rules of Procedure of the Court of Justice - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 4 - Fixed-term employment contracts in the public sector - Stabilisation procedure - Recruitment of workers employed for a fixed term as career civil servants without a public competition - Determination of length of service - Complete disregard of periods of service completed under fixed-term employment contracts - Principle of non-discrimination)

2013/C 129/02

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Autorità per l'energia elettrica e il gas

Defendants: Antonella Bertazzi, Annalise Colombo, Maria Valeria Contin, Angela Filippina Marasco, Guido Giussani, Lucia Lizzi, Fortuna Peranio

Re:

Request for a preliminary ruling — Consiglio di Stato — Interpretation of Clause 4 of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — National legislation under which it is possible, in derogation from the principle that public officials must be recruited by means of an open competition, for the public administrative authorities to enter into permanent work contracts with workers who have been in the employ of those authorities under fixed-term contracts — No account taken of the length of service accrued on the basis of the earlier, fixed-term contract, even where there is no interruption of the employment relationship

Operative part of the order

Clause 4 of the framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be understood as precluding national legislation, such as that at issue in the main proceedings, which completely prohibits periods of service completed by a fixed-term worker for a public authority being taken into account in order to determine the length of service of that worker upon his recruitment on a permanent basis by that same authority as a career civil servant under a stabilisation procedure specific to his employment relationship, unless the functions carried out under fixed-term employment contracts are not the equivalent of those carried out by a career civil servant belonging to the relevant category of that authority or, if not, that that prohibition is justified on ‘objective grounds’ for the purposes of clause 4(1) and/or (4), which it is for the referring court to determine. The mere fact that the fixed-term worker completed those periods of service on the basis of a fixed-term employment contract or relationship does not constitute such an objective ground.

---

(1)  OJ C 282, 24.9.2011.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/2 |
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4.5.2013

EN

Official Journal of the European Union

C 129/2

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Order of the Court (Fifth Chamber) of 28 February 2013 (request for a preliminary ruling from the Augstākās tiesas Senāts — Latvia) — SIA Forvards V v Valsts ieņēmumu dienests

(Case C-563/11) (1)

(Article 99 of the Rules of Procedure - Taxation - VAT - Sixth Directive - Right to deduct - Refusal - Invoice issued by a company considered fictitious)

2013/C 129/03

Language of the case: Latvian

Referring court

Augstākās tiesas Senāts

Parties to the main proceedings

Applicant: SIA Forvards V

Defendant: Valsts ieņēmumu dienests

Re:

Request for a preliminary ruling — Augstākās tiesas Senāts — Interpretation of Article 17(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Right to deduct input VAT — Taxable person fulfilling the requirements imposed by national law for deduction of the tax paid when goods are purchased, without any abusive conduct having been demonstrated — Refusal of the right to deduct VAT if it is established that the other party to the transaction is unable to supply the goods listed on the invoice which is formally in order

Operative part of the order

Article 17(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as precluding the recipient of an invoice from being denied the right to deduct input value added tax on the ground that, in the light of the fraud or irregularities committed by the issuer of that invoice, the transaction corresponding to the invoice is considered not to have been actually carried out, unless it is established, on the basis of objective factors and without requiring of the recipient of the invoice checks which are not its responsibility, that the recipient knew or should have known that that transaction was connected with value added tax fraud, a matter which it is for the referring court to determine.

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(1)  OJ C 13, 14.1.2012

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/3 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/3

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Order of the Court (Sixth Chamber) of 7 March 2013 (request for a preliminary ruling from the Tribunal do Trabalho do Porto — Portugal) — Sindicato dos Bancários do Norte, Sindicato dos Bancários do Centro, Sindicato dos Bancários do Sul e Ilhas, Luís Miguel Rodrigues Teixeira de Melo v BPN — Banco Português de Negócios SA

(Case C-128/12) (1)

(Reference for a preliminary ruling - Article 53(2) of the Rules of Procedure - Charter of Fundamental Rights of the European Union - National legislation establishing salary reductions for certain public sector workers - Failure to implement European Union law - Clear lack of jurisdiction of the Court of Justice)

2013/C 129/04

Language of the case: Portuguese

Referring court

Tribunal do Trabalho do Porto

Parties to the main proceedings

Applicants: Sindicato dos Bancários do Norte, Sindicato dos Bancários do Centro, Sindicato dos Bancários do Sul e Ilhas, Luís Miguel Rodrigues Teixeira de Melo

Defendant: BPN — Banco Português de Negócios SA

Re:

Request for a preliminary ruling — Tribunal do Trabalho do Porto — Interpretation of Articles 20, 21(1) and 31(1) of the Charter of Fundamental Rights of the European Union (OJ 2000 C 364, p. 1) — Observance of the principles of equality and non-discrimination and of the right to fair and just working conditions — National legislation providing for salary reductions for certain public sector workers

Operative part of the order

The Court of Justice of the European Union clearly lacks jurisdiction with regard to the request for a preliminary ruling from the Tribunal do Trabalho do Porto (Portugal), made by decision of 6 January 2012.

---

(1)  OJ C 151, 26.5.2012.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/3 |
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4.5.2013

EN

Official Journal of the European Union

C 129/3

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Order of the Court (Seventh Chamber) of 28 February 2013 — Carrols Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Giulio Gambettola

(Case C-171/12 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 51(1)(b) - Community figurative mark Pollo Tropical CHICKEN ON THE GRILL - Application for a declaration of invalidity submitted by the proprietor of the national figurative mark Pollo Tropical CHICKEN ON THE GRILL and the national word mark POLLO TROPICAL - Absolute grounds for invalidity - Bad faith - Inadmissibility)

2013/C 129/05

Language of the case: Spanish

Parties

Appellant: Carrols Corp. (represented by: I. Temiño Ceniceros, abogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, acting as Agent), Giulio Gambettola (represented by: F. Brandolini Kujman, abogado)

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 1 February 2012 in Case T-291/09 Carrols Corp. v OHIM, by which that Court dismissed an application for annulment of the decision of the First Board of Appeal of OHIM of 7 May 2009 (Case R 632/2008-1), relating to invalidity proceedings between Carrols Corp. and Mr Giulio Gambettola

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Carrols Corp. shall pay the costs. |
| --- | --- |

2.

Carrols Corp. shall pay the costs.

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(1)  OJ C 174, 16.6.2012.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/4 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/4

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Order of the Court (Eighth Chamber) of 7 March 2013 (request for a preliminary ruling from the Juzgado de lo Social — Spain) — Rafaela Rivas Montes v Instituto Municipal de Deportes de Córdoba (IMDECO)

(Case C-178/12) (1)

(Articles 53(2) and 99 of the Rules of Procedure of the Court - Social policy - Principle of equal treatment - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 4 - Fixed-term employment contracts in the public sector - Determination of length of service - Difference in treatment between civil servants and contractual staff - Taking into account previous periods of employment completed in the administration - Clear lack of jurisdiction of the Court)

2013/C 129/06

Language of the case: Spanish

Referring court

Juzgado de lo Social

Parties to the main proceedings

Applicant: Rafaela Rivas Montes

Defendant: Instituto Municipal de Deportes de Córdoba (IMDECO)

Re:

Request for a preliminary ruling — Juzgado de lo social — Interpretation of Article 45(4) TFEU — National legislation governing the method of calculation of length-of-service increments in the civil service — Application by a public authority of different rules according to whether the employment relationship is of a public service or of a contractual kind — Failure to take into account certain periods of service completed by contractual staff

Operative part of the order

The Court of Justice of the European Union clearly has no jurisdiction to reply to the questions referred for a preliminary ruling by the Juzgado de lo Social no 1 de Córdoba (Spain) by decision of 27 February 2012.

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(1)  OJ C 209, 14.7.2012.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/4 |
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4.5.2013

EN

Official Journal of the European Union

C 129/4

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Order of the Court (First Chamber) of 14 March 2013 — (request for a preliminary ruling from the Rechtbank te Rotterdam — Netherlands) — Criminal proceedings against EBS Le relais Nord Pas De Calais

(Case C-240/12) (1)

(Request for a preliminary ruling - Inadmissibility)

2013/C 129/07

Language of the case: Dutch

Referring court

Rechtbank te Rotterdam

Criminal proceedings against

EBS Le relais Nord Pas De Calais

Re:

Request for a preliminary ruling — Rechtbank te Rotterdam — Netherlands — Interpretation of Articles 15 and 26(1) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1) and of Article 2(32) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1) — Concept of transit — Shipment of waste by vessel from one Member State towards a State which does not fall within the scope of application of the OECD Decision — Passage, during the journey, in a port of another Member State

Operative part of the order

Request for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands), made by decision of 4 May 2012, is manifestly inadmissible.

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(1)  OJ C 243, 11.8.2012.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/4 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/4

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Order of the Court (Tenth Chamber) of 7 February 2013 — Jarosław Majtczak v Feng Shen Technology Co. Ltd, Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-266/12 P) (1)

(Appeals - Community trade mark - Regulation (EC) No 40/94 - Article 51(1)(b) - Applicant’s bad faith when filing the Community trade mark - Figurative mark ‘FS’ - Application for a declaration of invalidity)

2013/C 129/08

Language of the case: English

Parties

Appellant: Jarosław Majtczak (represented by: J. Radłowski, radca prawny)

Other parties to the proceedings: Feng Shen Technology Co. Ltd (represented by P. Rath, Rechtsanwalt), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent,)

Re:

Appeal brought against the judgment of the General Court (Fourth Chamber) of 21 March 2012 in Case T-227/09 Feng Shen Technology v OHIM — Majtczak (FS), by which the General Court annulled Decision R 529/2008-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 1 April 2009 dismissing the appeal brought against the decision of the Cancellation Division which had rejected the application for a declaration of invalidity brought by the applicant against the figurative mark ‘FS’ for goods in Class 26

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Jarosław Majtczak shall pay the costs. |
| --- | --- |

2.

Mr Jarosław Majtczak shall pay the costs.

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(1)  OJ C 258, 25.8.2012.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/5 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/5

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Order of the Court (Sixth Chamber) of 7 March 2013 (request for a preliminary ruling from the Rechtbank van Koophandel te Gent — Belgium) — Euronics Belgium CVBA v Kamera Express BV, Kamera Express Belgium BVBA

(Case C-343/12) (1)

(Article 99 of the Rules of Procedure - Directive 2005/29/EC - National legislation laying down a general prohibition of offering for sale or selling goods at a loss)

2013/C 129/09

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Gent

Parties to the main proceedings

Applicant: Euronics Belgium CVBA

Defendants: Kamera Express BV, Kamera Express Belgium BVBA

Re:

Request for a preliminary ruling — Rechtbank van Koophandel te Gent — Belgium — Interpretation of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC and Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) — National legislation laying down a general prohibition of sales at a loss, without exception, and intended to protect, inter alia, the interests of consumers — Compatibility with Directive 2005/29

Operative part of the order

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC and Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as precluding a national provision, such as that at issue in the main proceedings, which provides for a general prohibition of offering for sale or selling at a loss in so far as that provision pursues objectives relating to consumer protection.

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(1)  OJ C 303, 6.10.2012.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/5 |
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4.5.2013

EN

Official Journal of the European Union

C 129/5

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Order of the Court (Tenth Chamber) of 7 March 2013 — Luigi Marcuccio v Court of Justice of the European Union

(Case C-433/12 P) (1)

(Appeal - Action to establish non-contractual liability - Refusal by the Court Registry to act on letters addressed by the appellant to the First Advocate General of the Court - Article 256(2) TFEU - Request to initiate a review procedure in respect of certain decisions terminating proceedings delivered by the General Court in certain cases on appeal)

2013/C 129/10

Language of the case: Italian

Parties

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

Other party to the proceedings: Court of Justice of the European Union

Re:

Appeal against the order of the General Court (Second Chamber) of 3 July 2012 in Case T-27/12 Marcuccio v Court of Justice, by which that court dismissed an action seeking damages for the harm allegedly suffered by the appellant as a result of the Registry’s refusal to act on documents addressed by the appellant to the First Advocate General of the Court of Justice requesting that a review procedure be initiated in respect of decisions terminating proceedings delivered by the General Court in Cases T-278/07 P, T-114/08 P, T-32/09 P and T-166/09 P.

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Luigi Marcuccio is ordered to pay the costs. |
| --- | --- |

2.

Mr Luigi Marcuccio is ordered to pay the costs.

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(1)  OJ C 355, 17.11.2012.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/6 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/6

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Order of the Court (Tenth Chamber) of 14 March 2013 (request for a preliminary ruling from the Tribunale di Tivoli — Italy) — Claudio Loreti, Maria Vallerotonda, Attilio Vallerotonda, Virginia Chellini v Comune di Zagarolo

(Case C-555/12) (1)

(Reference for a preliminary ruling - Charter of Fundamental Rights of the European Union - Implementation of European Union law - None - Clear lack of jurisdiction of the Court)

2013/C 129/11

Language of the case: Italian

Referring court

Tribunale di Tivoli

Parties to the main proceedings

Applicants: Claudio Loreti, Maria Vallerotonda, Attilio Vallerotonda, Virginia Chellini

Defendant: Comune di Zagarolo

Re:

Request for a preliminary ruling — Tribunale di Tivoli — Interpretation of Article 47(3) of the Charter of Fundamental Rights of the European Union and of Article 6 of the European Convention on Human Rights, read in conjunction with Article 6 TEU and Article 52(3) of the Charter of Fundamental Rights — National legislation providing for a division of jurisdiction as between civil and administrative courts based on the distinction between individual rights and legitimate interests — Those concepts not clearly distinguished

Operative part of the order

The Court of Justice of the European Union clearly has no jurisdiction to reply to the questions referred for a preliminary ruling by the Tribunale di Tivoli (Italy).

---

(1)  OJ C 32, 2.2.2013

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/6 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/6

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Appeal brought on 21 February 2013 by Electrabel SA against the judgment of the General Court (Third Chamber) delivered on 12 December 2012 in Case T-332/09 Electrabel v Commission

(Case C-84/13 P)

2013/C 129/12

Language of the case: French

Parties

Appellant: Electrabel SA (represented by: M. Pittie and P. Honoré, avocats)

Other party to the proceedings: European Commission

Form of order sought

| — | Declare the appeal admissible and well founded; |
| --- | --- |

—

Declare the appeal admissible and well founded;

| — | in consequence, set aside the judgment under appeal in so far as it orders Electrabel to pay a fine in the amount of EUR 20 million; |
| --- | --- |

—

in consequence, set aside the judgment under appeal in so far as it orders Electrabel to pay a fine in the amount of EUR 20 million;

| — | in consequence:






  — | either refer the case back to the General Court for a fresh decision, |
| --- | --- | --- |

—

in consequence:

—

either refer the case back to the General Court for a fresh decision,

| — | or give final judgment granting the form of order sought by the applicant at first instance and annulling the decision at issue in so far as it orders Electrabel to pay a fine in the amount of EUR 20 million or significantly reducing the amount of that fine; |
| --- | --- |

—

or give final judgment granting the form of order sought by the applicant at first instance and annulling the decision at issue in so far as it orders Electrabel to pay a fine in the amount of EUR 20 million or significantly reducing the amount of that fine;

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

—

order the European Commission to pay all the costs.

Pleas in law and main arguments

The appellant relies on three pleas in law in support of its appeal against the judgment by which the General Court affirmed the Commission’s decision of 10 June 2009 ordering Electrabel to pay a fine of EUR 20 million for infringement of Article 7 of Regulation (EEC) No 4064/89 (1) on the control of concentrations.

In the first place, the appellant claims that the General Court infringed the provisions of Article 14(3) of the aforementioned regulation, in that it accepted the alleged ‘duration’ of the infringement as a factor relevant to the setting of the amount of the fine, whereas that article provides that the amount of the fine must be set solely on the basis of the ‘nature’ and ‘gravity’ of the infringement.

In the second place, the appellant claims that the General Court failed to have regard to the principle that the law should not be retroactive, in that it applied the provisions of Regulation (EC) No 139/2004 (2) to a concentration that predated the entry into force of that regulation, and which was therefore covered by the provisions of Regulation (EEC) No 4064/89.

Lastly, the appellant takes the view that the General Court erred in law and that its reasons were contradictory, in that it categorised the infringement that Electrabel was found to have committed as continuous, whereas it was a one-off infringement.

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(1)  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1).

(2)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/7 |
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Official Journal of the European Union

C 129/7

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Appeal brought on 26 February 2013 by Cooperativa tra i Lavoratori della Piccola Pesca di Pellestrina Soc. coop. rl and Others against the order of the General Court (Fourth Chamber) delivered on 12 December 2012 in Case T-260/00 Cooperativa San Marco fra Lavoratori della Piccola Pesca — Burano Soc. coop. rl and Others v European Commission

(Case C-94/13 P)

2013/C 129/13

Language of the case: Italian

Parties

Appellant: Cooperativa tra i Lavoratori della Piccola Pesca di Pellestrina Soc. coop. rl and Others (represented by: A. Vianello, A. Bortoluzzi and A. Veronese, avvocati)

Other parties to the proceedings: European Commission; Italian Republic, Cooperative Pescatori di San Pietro in Volta Soc. Coop. rl and Others

Form of order sought

| — | Annul and/or vary the order under appeal and order the Commission to pay the costs. |
| --- | --- |

—

Annul and/or vary the order under appeal and order the Commission to pay the costs.

Pleas in law and main arguments

In support of their appeal, the appellants allege errors of law in the application of the principles outlined by the Court of Justice in the judgment in ‘Comitato Venezia vuole vivere’, first, with regard to the obligation to state reasons for the Commission’s decisions on State aid and, second, with regard to the allocation of the burden of proof as to the conditions set out in Article 107(1) TFEU.

By the order that is the subject of this appeal, the General Court did not follow the rulings of the judgment delivered by the Court of Justice on 9 June 2011 in ‘Comitato Venezia vuole vivere’, in so far as it states that the Commission’s decision ‘must contain in itself all the matters essential for its implementation by the national authorities’. However, even though the decision lacked the matters essential for its implementation by the national authorities, the General Court failed to point to any deficiency in the method used by the Commission in the contested decision, and consequently erred in law.

On the basis of the principles outlined by the Court in the judgment in ‘Comitato Venezia vuole vivere’, when aid is being recovered, it is the Member State — and not, therefore, the individual beneficiary — which is required to show, in each individual case, that the conditions laid down in Article 107(1) are met. In the present case, however, in the contested decision the Commission failed to clarify the ‘modalities’ of any such verification; consequently, since it did not have available to it, at the time when the aid was to be recovered, the matters essential for the purpose of showing that the advantages granted constituted, in the hands of the beneficiaries, State aid, the Italian Republic — by Law No 228 of 24 December 2012 (Article 1, paragraphs 351 et seq.) — decided to reverse the burden of proof, in breach of Community case-law. According to the Italian legislator, in particular, it is not for the State but for the individual beneficiaries of aid granted in the form of relief to prove that the advantages in question do not distort competition or affect trade between Member States. In the absence of any such proof, there is a presumption that the advantage granted was likely to distort trade and affect trade between Member States. That is contrary to the principles outlined by the Court in its judgment in ‘Comitato Venezia vuole vivere’.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/7 |
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4.5.2013

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Official Journal of the European Union

C 129/7

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Appeal brought on 26 February 2013 by Alfier Costruzioni Srl and Others against the order of the General Court (Fourth Chamber) delivered on 12 December 2012 in Case T-261/00 Sacaim SpA and Others v European Commission

(Case C-95/13 P)

2013/C 129/14

Language of the case: Italian

Parties

Appellant: Alfier Costruzioni Srl and Others (represented by: A. Vianello, A. Bortoluzzi and A. Veronese, avvocati)

Other parties to the proceedings: European Commission, Italian Republic, Sacaim SpA and Others

Form of order sought

| — | Annul and/or vary the order under appeal and order the Commission to pay the costs. |
| --- | --- |

—

Annul and/or vary the order under appeal and order the Commission to pay the costs.

Pleas in law and main arguments

In support of their appeal, the appellants allege errors of law in the application of the principles outlined by the Court of Justice in the judgment in ‘Comitato Venezia vuole vivere’, first, with regard to the obligation to state reasons for the Commission’s decisions on State aid and, second, with regard to the allocation of the burden of proof as regards the conditions set out in Article 107(1) TFEU.

By the order under appeal, the General Court did not follow the rulings of the judgment delivered by the Court of Justice on 9 June 2011 in ‘Comitato Venezia vuole vivere’, in so far as that judgment states that the Commission’s decision ‘must contain in itself all the matters essential for its implementation by the national authorities’. Even though the decision lacked the matters essential for its implementation by the national authorities, the General Court failed to point to any deficiency in the method used by the Commission in the contested decision, and consequently erred in law.

On the basis of the principles outlined by the Court of Justice in the judgment in ‘Comitato Venezia vuole vivere’, when aid is being recovered, it is the Member State — and not, therefore, the individual beneficiary — which is required to show, in each individual case, that the conditions laid down in Article 107(1) are met. In the present case, however, in the contested decision the Commission failed to specify the ‘modalities’ for any such verification. Consequently, since it did not have available to it, at the time when the aid was to be recovered, the matters essential for the purpose of showing whether the advantages granted constituted, in the hands of the beneficiaries, State aid, the Italian Republic — by Law No 228 of 24 December 2012 (Article 1, paragraphs 351 et seq.) — decided to reverse the burden of proof, in breach of Community case law. According to the Italian legislature, in particular, it is not for the State but for the individual beneficiaries of aid granted in the form of relief to prove that the advantages in question do not distort competition or affect trade between Member States. In the absence of any such proof, there is a presumption that the advantage granted was likely to distort trade and affect trade between Member States. That is clearly contrary to the principles outlined by the Court in its judgment in ‘Comitato Venezia vuole vivere’.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/8 |
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4.5.2013

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Official Journal of the European Union

C 129/8

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Action brought on 26 February 2013 — European Commission v Hellenic Republic

(Case C-96/13)

2013/C 129/15

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Patakia and A. Tokár)

Defendant: Hellenic Republic

Form of order sought

| — | declare that, by inserting terms in the open invitation to tender for the provision of services to support the production operation of OPS-IKA (the integrated information system of the Idrima Kinonikon Asfalision (Social Security Institution; ‘the IKA’)) and of the IKA’s website and to expand the databases, for a period of 30 months (invitation to tender No L30/POY/9/5-6-2009 — published in the Official Journal of the European Union under No 2009/S110-159234), under which, first, the tenderers had to have experience in the performance of similar contracts for a Greek insurance body and, second, experience of the subcontractors could not establish experience of the tenderers, the Hellenic Republic has failed to fulfil its obligations under Article 2, and Articles 44(2) and 48 in conjunction with Article 2, of Directive 2004/18/EC; (1) |
| --- | --- |

—

declare that, by inserting terms in the open invitation to tender for the provision of services to support the production operation of OPS-IKA (the integrated information system of the Idrima Kinonikon Asfalision (Social Security Institution; ‘the IKA’)) and of the IKA’s website and to expand the databases, for a period of 30 months (invitation to tender No L30/POY/9/5-6-2009 — published in the Official Journal of the European Union under No 2009/S110-159234), under which, first, the tenderers had to have experience in the performance of similar contracts for a Greek insurance body and, second, experience of the subcontractors could not establish experience of the tenderers, the Hellenic Republic has failed to fulfil its obligations under Article 2, and Articles 44(2) and 48 in conjunction with Article 2, of Directive 2004/18/EC; (1)

| — | order the Hellenic Republic to pay the costs. |
| --- | --- |

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

| 1. | The pleaded infringement of Articles 44(2) and 48 of Directive 2004/18, in conjunction with Article 2, concerns the tender procedure of the IKA, as contracting authority, relating to the provision of services to support the production operation of OPS-IKA (the integrated information system of the IKA) and of the IKA’s website and to expand the databases. |
| --- | --- |

1.

The pleaded infringement of Articles 44(2) and 48 of Directive 2004/18, in conjunction with Article 2, concerns the tender procedure of the IKA, as contracting authority, relating to the provision of services to support the production operation of OPS-IKA (the integrated information system of the IKA) and of the IKA’s website and to expand the databases.

| 2. | The Commission considers that the term of the invitation to tender requiring experience in achieving an integrated information system for a social security institution in Greece constitutes a geographical condition that infringes the principles of equal treatment and non-discrimination as laid down in Articles 2, 44(2) and 48 of Directive 2004/18. |
| --- | --- |

2.

The Commission considers that the term of the invitation to tender requiring experience in achieving an integrated information system for a social security institution in Greece constitutes a geographical condition that infringes the principles of equal treatment and non-discrimination as laid down in Articles 2, 44(2) and 48 of Directive 2004/18.

| 3. | It is noted that, in their responses to the Commission’s reasoned opinion, the Greek authorities assumed the obligation to make all the changes in accordance with the Commission’s complaint, accepting in essence the alleged infringement. |
| --- | --- |

3.

It is noted that, in their responses to the Commission’s reasoned opinion, the Greek authorities assumed the obligation to make all the changes in accordance with the Commission’s complaint, accepting in essence the alleged infringement.

| 4. | Also, the Commission considers that the term of the invitation to tender which provides that experience of the tenderer’s subcontractors does not establish experience of the tenderer infringes Article 48 of Directive 2004/18 since, as a result of that term, tenderers cannot rely on third parties’ experience in order to demonstrate that they have the required technical ability to perform the contract concerned. |
| --- | --- |

4.

Also, the Commission considers that the term of the invitation to tender which provides that experience of the tenderer’s subcontractors does not establish experience of the tenderer infringes Article 48 of Directive 2004/18 since, as a result of that term, tenderers cannot rely on third parties’ experience in order to demonstrate that they have the required technical ability to perform the contract concerned.

| 5. | In their response, the Greek authorities gave the commitment that the tender documentation for the new procurement procedure would expressly provide for the possibility for economic operators submitting tenders to rely on the relevant experience of third-party entities such as subcontractors, accepting in essence also the abovementioned second complaint of the Commission. |
| --- | --- |

5.

In their response, the Greek authorities gave the commitment that the tender documentation for the new procurement procedure would expressly provide for the possibility for economic operators submitting tenders to rely on the relevant experience of third-party entities such as subcontractors, accepting in essence also the abovementioned second complaint of the Commission.

| 6. | Nevertheless, the Greek authorities failed to set a specific date for a new invitation to tender and instead decided to extend the duration of the previous contract, invoking grounds relating to the internal legal order. |
| --- | --- |

6.

Nevertheless, the Greek authorities failed to set a specific date for a new invitation to tender and instead decided to extend the duration of the previous contract, invoking grounds relating to the internal legal order.

| 7. | The Commission therefore established that the pleaded infringement of the aforesaid provisions of Directive 2004/18 is continuing, without the grounds invoked being capable of justifying the infringement, and brought an action for declaration of that infringement before the Court of Justice. |
| --- | --- |

7.

The Commission therefore established that the pleaded infringement of the aforesaid provisions of Directive 2004/18 is continuing, without the grounds invoked being capable of justifying the infringement, and brought an action for declaration of that infringement before the Court of Justice.

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(1)  OJ L 134, 30.4.2004, p. 114.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/9 |
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Official Journal of the European Union

C 129/9

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Request for a preliminary ruling from the Tribunalul Sibiu (Romania) lodged on 27 February 2013 — Silvia Georgiana Câmpean v Administrația Finanțelor Publice a Municipiului Mediaș, Administrația Fondului pentru Mediu

(Case C-97/13)

2013/C 129/16

Language of the case: Romanian

Referring court

Tribunalul Sibiu

Parties to the main proceedings

Applicant: Silvia Georgiana Câmpean

Defendants: Administrația Finanțelor Publice a Municipiului Mediaș, Administrația Fondului pentru Mediu

Questions referred

| 1. | Is the body of rules introduced by Law No 9/2012 in breach of Article 110 TFEU, and does it amount to the introduction of a measure which is manifestly discriminatory? |
| --- | --- |

1.

Is the body of rules introduced by Law No 9/2012 in breach of Article 110 TFEU, and does it amount to the introduction of a measure which is manifestly discriminatory?

| 2. | Must Article 110 TFEU be interpreted as precluding the body of rules introduced by Law No 9/2012 (in its original wording) establishing a tax on pollutant emissions from motor vehicles, if that tax is structured in such a way as to discourage the putting into circulation in that Member State of second-hand vehicles purchased in other Member States, but without discouraging the purchase of second-hand vehicles of the same age and condition on the domestic market? |
| --- | --- |

2.

Must Article 110 TFEU be interpreted as precluding the body of rules introduced by Law No 9/2012 (in its original wording) establishing a tax on pollutant emissions from motor vehicles, if that tax is structured in such a way as to discourage the putting into circulation in that Member State of second-hand vehicles purchased in other Member States, but without discouraging the purchase of second-hand vehicles of the same age and condition on the domestic market?

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/9 |
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4.5.2013

EN

Official Journal of the European Union

C 129/9

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Request for a preliminary ruling from the Højesteret (Denmark) lodged on 27 February 2013 — Martin Blomqvist v Rolex SA, Manufacture des Montres Rolex SA

(Case C-98/13)

2013/C 129/17

Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings

Applicant: Martin Blomqvist

Defendants: Rolex SA, Manufacture des Montres Rolex SA

Questions referred

| 1. | Is Article 4(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (1) to be interpreted in such a way that it must be viewed as constituting ‘distribution to the public’ in a Member State of copyright-protected goods if an undertaking enters into an agreement via a website in a third country for the sale and dispatch of the goods to a private purchaser with an address known to the vendor in the Member State where the goods are protected by copyright, receives payment for the goods and effects dispatch to the purchaser at the agreed address, or is it also a condition in that situation that the goods must have been the subject, prior to the sale, of an offer for sale or an advertisement targeted at, or shown on a website intended for, consumers in the Member State where the goods are delivered? |
| --- | --- |

1.

Is Article 4(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (1) to be interpreted in such a way that it must be viewed as constituting ‘distribution to the public’ in a Member State of copyright-protected goods if an undertaking enters into an agreement via a website in a third country for the sale and dispatch of the goods to a private purchaser with an address known to the vendor in the Member State where the goods are protected by copyright, receives payment for the goods and effects dispatch to the purchaser at the agreed address, or is it also a condition in that situation that the goods must have been the subject, prior to the sale, of an offer for sale or an advertisement targeted at, or shown on a website intended for, consumers in the Member State where the goods are delivered?

| 2. | Is Article 5(1) and (3) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (2) to be interpreted in such a way that it must be viewed as constituting ‘[use] in the course of trade’ of a trade mark in a Member State if an undertaking enters into an agreement via a website in a third country for the sale and dispatch of goods bearing the trade mark to a private purchaser with an address known to the vendor in the Member State where the trade mark is registered, receives payment for the goods and effects dispatch to the purchaser at the agreed address, or is it also a condition in that situation that the goods must have been the subject, prior to the sale, of an offer for sale or an advertisement targeted at, or shown on a website intended for, consumers in the State in question? |
| --- | --- |

2.

Is Article 5(1) and (3) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (2) to be interpreted in such a way that it must be viewed as constituting ‘[use] in the course of trade’ of a trade mark in a Member State if an undertaking enters into an agreement via a website in a third country for the sale and dispatch of goods bearing the trade mark to a private purchaser with an address known to the vendor in the Member State where the trade mark is registered, receives payment for the goods and effects dispatch to the purchaser at the agreed address, or is it also a condition in that situation that the goods must have been the subject, prior to the sale, of an offer for sale or an advertisement targeted at, or shown on a website intended for, consumers in the State in question?

| 3. | Is Article 9(1) and (2) of Council Regulation No 207/2009 of 26 February 2009 on the Community trade mark (3) to be interpreted in such a way that it must be viewed as constituting ‘[use] in the course of trade’ of a trade mark in a Member State if an undertaking enters into an agreement via a website in a third country for the sale and dispatch of goods bearing the Community trade mark to a private purchaser with an address known to the vendor in a Member State, receives payment for the goods and effects dispatch to the purchaser at the agreed address, or is it also a condition in that situation that the goods must have been the subject, prior to the sale, of an offer for sale or an advertisement targeted at, or shown on a website intended for, consumers in the State in question? |
| --- | --- |

3.

Is Article 9(1) and (2) of Council Regulation No 207/2009 of 26 February 2009 on the Community trade mark (3) to be interpreted in such a way that it must be viewed as constituting ‘[use] in the course of trade’ of a trade mark in a Member State if an undertaking enters into an agreement via a website in a third country for the sale and dispatch of goods bearing the Community trade mark to a private purchaser with an address known to the vendor in a Member State, receives payment for the goods and effects dispatch to the purchaser at the agreed address, or is it also a condition in that situation that the goods must have been the subject, prior to the sale, of an offer for sale or an advertisement targeted at, or shown on a website intended for, consumers in the State in question?

| 4. | Is Article 2(1)(b) of Council Regulation No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (4) to be interpreted in such a way that it is a condition for the application in a Member State of the provisions on the prevention of release for free circulation and the destruction of ‘pirated goods’ that ‘distribution to the public’ must have occurred in the Member State under the same criteria as indicated in the answer to question 1? |
| --- | --- |

4.

Is Article 2(1)(b) of Council Regulation No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (4) to be interpreted in such a way that it is a condition for the application in a Member State of the provisions on the prevention of release for free circulation and the destruction of ‘pirated goods’ that ‘distribution to the public’ must have occurred in the Member State under the same criteria as indicated in the answer to question 1?

| 5. | Is Article 2(1)(a) of Council Regulation No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights to be interpreted in such a way that it is a condition for the application in a Member State of the provisions on the prevention of release for free circulation and the destruction of ‘counterfeit goods’ that ‘[use] in the course of trade’ must have occurred in the Member State under the same criteria as indicated in the answers to questions 2 and 3? |
| --- | --- |

5.

Is Article 2(1)(a) of Council Regulation No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights to be interpreted in such a way that it is a condition for the application in a Member State of the provisions on the prevention of release for free circulation and the destruction of ‘counterfeit goods’ that ‘[use] in the course of trade’ must have occurred in the Member State under the same criteria as indicated in the answers to questions 2 and 3?

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(1)  OJ 2001 L 167, p. 10.

(2)  OJ 2008 L 299, p. 25.

(3)  OJ 2009 L 78, p. 1.

(4)  OJ 2003 L 196, p. 7.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/10 |
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Official Journal of the European Union

C 129/10

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Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 4 March 2013 — Snezhana Somova v Glaven direktor na Stolichno upravlenie ‘Sotsialno osiguryavane’

(Case C-103/13)

2013/C 129/18

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Snezhana Somova

Defendant: Glaven direktor na Stolichno upravlenie ‘Sotsialno osiguryavane’

Questions referred

| 1. | In the circumstances of the main proceedings should Article 48(1) TFEU and Article 49(1) and (2) TFEU be interpreted as permitting a provision of national legislation of a Member State such as Article 94(1) of the Kodeks na sotsialno osiguryavane (Social Security Code) in the main proceedings whereby insurance is required to have come to an end in order to grant an old age pension to a national of a Member State who at the time of applying for a pension is working as a self-employed person in another Member State and falls within the scope of application of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community? |
| --- | --- |

1.

In the circumstances of the main proceedings should Article 48(1) TFEU and Article 49(1) and (2) TFEU be interpreted as permitting a provision of national legislation of a Member State such as Article 94(1) of the Kodeks na sotsialno osiguryavane (Social Security Code) in the main proceedings whereby insurance is required to have come to an end in order to grant an old age pension to a national of a Member State who at the time of applying for a pension is working as a self-employed person in another Member State and falls within the scope of application of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community?

| 2. | Should Article 94(2) of Regulation No 1408/71 in conjunction with Article 48(1)(a) TFEU be interpreted as permitting an exception to the rule on aggregating periods of insurance in relation to periods completed in another Member State before the regulation was applied by the Member State to which the application for a pension is made, where the said provision affords the person insured the right to choose whether he or she specifies such periods for aggregation purposes and to assess the need for aggregation if, purely according to the law of the State to which the application is made, the period completed is insufficient to create entitlement to a pension and a sufficient period of time can only be achieved by paying insurance contributions?
  In these circumstances does Article 48(1)(a) TFEU permit the application of Article 46(2) of Regulation No 1408/71 on the aggregation of periods of insurance following commencement of the application of Regulation No 1408/71 to be waived at the discretion of the party insured where that party does not specify periods of insurance completed in another Member State in his or her application for a pension? |
| --- | --- |

2.

Should Article 94(2) of Regulation No 1408/71 in conjunction with Article 48(1)(a) TFEU be interpreted as permitting an exception to the rule on aggregating periods of insurance in relation to periods completed in another Member State before the regulation was applied by the Member State to which the application for a pension is made, where the said provision affords the person insured the right to choose whether he or she specifies such periods for aggregation purposes and to assess the need for aggregation if, purely according to the law of the State to which the application is made, the period completed is insufficient to create entitlement to a pension and a sufficient period of time can only be achieved by paying insurance contributions?

In these circumstances does Article 48(1)(a) TFEU permit the application of Article 46(2) of Regulation No 1408/71 on the aggregation of periods of insurance following commencement of the application of Regulation No 1408/71 to be waived at the discretion of the party insured where that party does not specify periods of insurance completed in another Member State in his or her application for a pension?

| 3. | Should Article 12(1) of Regulation No 1408/71 be interpreted as permitting recognition of periods of insurance as a result of paying insurance contributions as provided for under Bulgarian law in Paragraph 9(3) [of the transitional and final provisions of the] Kodeks za sotsialno osiguryavane (Social Security Code) where, as in the circumstances appertaining in the main proceedings, such recognised periods of insurance overlap with periods of insurance completed under the law of another Member State? |
| --- | --- |

3.

Should Article 12(1) of Regulation No 1408/71 be interpreted as permitting recognition of periods of insurance as a result of paying insurance contributions as provided for under Bulgarian law in Paragraph 9(3) [of the transitional and final provisions of the] Kodeks za sotsialno osiguryavane (Social Security Code) where, as in the circumstances appertaining in the main proceedings, such recognised periods of insurance overlap with periods of insurance completed under the law of another Member State?

| 4. | Should Article 12(2) of Regulation No 1408/71 be interpreted as permitting a Member State to stop payments and demand the refunding of all payments of an old age pension granted to a national of that Member State under national law if the conditions laid down in the regulation only existed at the time that the pension was granted and, as a result of considerations based solely on national law according to which the insurance of the party concerned in another Member State had not come to an end by the time that the pension was granted, a period of insurance was recognised under national law due to payment of insurance contributions without taking into account periods of insurance which were being completed in another Member State at the time that the pension was granted and without considering whether a different amount of pension should have been assessed?
  If the refunding of pension payments is permissible, does it then follow from the principles of equivalence and effectiveness derived from European Union law (‘EU law’) that interest is due even where the national law of the Member State does not make provision for payment of interest in the case of repayment of a pension granted pursuant to an international treaty? |
| --- | --- |

4.

Should Article 12(2) of Regulation No 1408/71 be interpreted as permitting a Member State to stop payments and demand the refunding of all payments of an old age pension granted to a national of that Member State under national law if the conditions laid down in the regulation only existed at the time that the pension was granted and, as a result of considerations based solely on national law according to which the insurance of the party concerned in another Member State had not come to an end by the time that the pension was granted, a period of insurance was recognised under national law due to payment of insurance contributions without taking into account periods of insurance which were being completed in another Member State at the time that the pension was granted and without considering whether a different amount of pension should have been assessed?

If the refunding of pension payments is permissible, does it then follow from the principles of equivalence and effectiveness derived from European Union law (‘EU law’) that interest is due even where the national law of the Member State does not make provision for payment of interest in the case of repayment of a pension granted pursuant to an international treaty?

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/11 |
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Official Journal of the European Union

C 129/11

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Request for a preliminary ruling from the Administrativen sad — Veliko Tarnovo (Bulgaria) lodged on 4 March 2013 — ‘FIRIN’ OOD v Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Veliko Tarnovo

(Case C-107/13)

2013/C 129/19

Language of the case: Bulgarian

Referring court

Administrativen sad — Veliko Tarnovo

Parties to the main proceedings

Applicant:‘FIRIN’ OOD

Defendant: Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Veliko Tarnovo

Questions referred

| 1. | In cases such as that in the main proceedings, in which value added tax connected with a payment made in advance for a future clearly defined taxable supply of goods is immediately and effectively deducted, are the provisions of Article 168(a), in conjunction with Article 65, Article 90(1) and Article 185(1), of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be consistently interpreted as meaning that, in light of a failure, for objective and/or subjective reasons, to render the principal counter-performance in accordance with the terms and conditions of supply, the right to deduct input tax at the date on which it is exercised must be refused? |
| --- | --- |

1.

In cases such as that in the main proceedings, in which value added tax connected with a payment made in advance for a future clearly defined taxable supply of goods is immediately and effectively deducted, are the provisions of Article 168(a), in conjunction with Article 65, Article 90(1) and Article 185(1), of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be consistently interpreted as meaning that, in light of a failure, for objective and/or subjective reasons, to render the principal counter-performance in accordance with the terms and conditions of supply, the right to deduct input tax at the date on which it is exercised must be refused?

| 2. | Does it follow from such a consistent interpretation, having regard to the principle of the neutrality of value added tax, that in this situation the supplier’s objective possibility of adjusting the value added tax charged and/or the basis of assessment of the tax on the invoice in the manner provided for under national law is (or is not) significant; and how might such an adjustment affect the refusal to allow the original deduction of input tax? |
| --- | --- |

2.

Does it follow from such a consistent interpretation, having regard to the principle of the neutrality of value added tax, that in this situation the supplier’s objective possibility of adjusting the value added tax charged and/or the basis of assessment of the tax on the invoice in the manner provided for under national law is (or is not) significant; and how might such an adjustment affect the refusal to allow the original deduction of input tax?

| 3. | In the light also of recital 44 in the preamble to Directive 2006/112, is Article 205, in conjunction with Article 168(a) and Article 193, to be interpreted as meaning that the Member States are permitted to refuse to allow the recipient of a supply to deduct input tax by applying only such criteria as they themselves have laid down in their national legislation, according to which a liability to tax is imposed on a person other than the taxable person where in such a case the ultimate tax outcome would differ from the outcome if the rules established by the Member State had been strictly observed? |
| --- | --- |

3.

In the light also of recital 44 in the preamble to Directive 2006/112, is Article 205, in conjunction with Article 168(a) and Article 193, to be interpreted as meaning that the Member States are permitted to refuse to allow the recipient of a supply to deduct input tax by applying only such criteria as they themselves have laid down in their national legislation, according to which a liability to tax is imposed on a person other than the taxable person where in such a case the ultimate tax outcome would differ from the outcome if the rules established by the Member State had been strictly observed?

| 4. | If the answer to the third question should be in the affirmative: are national legal provisions such as those in the main proceedings permissible in the context of the application of Article 205 of Directive 2006/112 and compatible with the principles of effectiveness and proportionality if they introduce joint and several liability for the payment of value added tax by reference to suppositions that are not based on objective facts that can be directly established but on expressed precepts of civil law, disputes in respect of which are conclusively settled on other legal grounds? |
| --- | --- |

4.

If the answer to the third question should be in the affirmative: are national legal provisions such as those in the main proceedings permissible in the context of the application of Article 205 of Directive 2006/112 and compatible with the principles of effectiveness and proportionality if they introduce joint and several liability for the payment of value added tax by reference to suppositions that are not based on objective facts that can be directly established but on expressed precepts of civil law, disputes in respect of which are conclusively settled on other legal grounds?

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

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/11 |
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4.5.2013

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Official Journal of the European Union

C 129/11

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Action brought on 11 March 2013 — European Commission v Hungary

(Case C-115/13)

2013/C 129/20

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: C. Barslev and A. Sipos, acting as Agent(s))

Defendant(s): Hungary

Form of order sought

| — | Declare that Hungary has failed to fulfill its obligations under Articles 19 to 21 of Council Directive 92/83/EEC, (1) in conjunction with Articles 22(7) of that directive and 3(1) of Council Directive 92/84/EEC, (2) by adopting and maintaining in force provisions under which, in circumstances determined by national law,






  — | the rate of the excise duty on the manufacture of ethyl alcohol in distilleries for an individual customer (‘bérfőzető’) is set at HUF 0; |
| --- | --- | --- |

—

Declare that Hungary has failed to fulfill its obligations under Articles 19 to 21 of Council Directive 92/83/EEC, (1) in conjunction with Articles 22(7) of that directive and 3(1) of Council Directive 92/84/EEC, (2) by adopting and maintaining in force provisions under which, in circumstances determined by national law,

—

the rate of the excise duty on the manufacture of ethyl alcohol in distilleries for an individual customer (‘bérfőzető’) is set at HUF 0;

| — | the manufacture of ethyl alcohol by individuals is exempt from special duty; |
| --- | --- |

—

the manufacture of ethyl alcohol by individuals is exempt from special duty;

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

—

order Hungary to pay the costs.

Pleas in law and main arguments

Under Article 19 of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages, Hungary is required to apply the rate of excise duty in accordance with the directive — and Article 22 thereof in particular — and to maintain in force the national rules in that regard, while Article 22 governs the cases in which the Member States may apply rates of excise duty which are more favourable compared with the standard national rates of duty.

Pursuant to Paragraph 64(3) of the Hungarian law CXXVII of 2003 on excise duties and the specific rules on the marketing of goods subject to excise duties (a jövedéki adóról és a jövedéki termékek forgalmazásának különös szabályairól szóló 2003. évi CXXVII. Törvény), in the case of distillation on behalf of individual customers, the duty applicable to the spirit manufactured from the raw materials of the individual customer is HUF 0 up to a maximum amount of 50 litres per year for an individual customer. However, the directive does not allow a reduction of more than 50 per cent of the normal rate of excise duty.

Further, on the basis of that national law, the manufacture by individual distillers of up to 50 litres of ethyl alcohol per year is exempt from excise duty. Directive 92/83/EEC does not contain any provisions concerning the exemption from duty of the home manufacture of ethyl alcohol, and, for that reason, the Commission takes the view that it is not possible — without breaching the provisions of the directive — to introduce an exemption at national level. If the Union legislature had wished to provide for such a possibility, express provision to that effect would have been included in the directive. The directive allows the exemption from duty — provided that the requirements laid down are complied with — only in the case of the manufacture by individuals of beer, wine or other still or sparkling fermented drinks.

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(1)  Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (OJ 1992 L 316, p. 21).

(2)  Council Directive 92/84/EEC of 19 October 1992 on the approximation of the rates of excise duty on alcohol and alcoholic beverages (OJ 1992 L 316, p. 29).

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/12 |
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4.5.2013

EN

Official Journal of the European Union

C 129/12

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Order of the President of the Third Chamber of the Court of 1 March 2013 (request for a preliminary ruling from the High Court of Ireland — Ireland) — Irish Bank Resolution Corp. Ltd, formerly Anglo Irish Bank Corp. Ltd v Sean Quinn and Others

(Case C-634/11) (1)

2013/C 129/21

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 73, 10.3.2012.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/12 |
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4.5.2013

EN

Official Journal of the European Union

C 129/12

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Order of the President of the Court of 6 March 2013 — European Commission v Republic of Poland

(Case C-333/12) (1)

2013/C 129/22

Language of the case: Polish

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

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(1)  OJ C 287, 22.9.2012.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/12 |
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4.5.2013

EN

Official Journal of the European Union

C 129/12

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Order of the President of the Court of 14 February 2013 (request for a preliminary ruling from the Fővárosi Törvényszék, (formerly Fővárosi Bíróság) — Hungary) — Peró Gáz Kft v János Balla

(Case C-349/12) (1)

2013/C 129/23

Language of the case: Hungarian

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

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(1)  OJ C 311, 13.10.2012.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/13 |
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4.5.2013

EN

Official Journal of the European Union

C 129/13

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Order of the President of the Court of 8 March 2013 — European Commission v Grand Duchy of Luxembourg

(Case C-532/12) (1)

2013/C 129/24

Language of the case: French

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

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(1)  OJ C 26, 26.1.2013.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/13 |
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4.5.2013

EN

Official Journal of the European Union

C 129/13

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Order of the President of the Court of 7 February 2013 (request for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle, Wien (Austria)) — Michaela Hopfgartner

(Case C-577/12) (1)

2013/C 129/25

Language of the case: German

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

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(1)  OJ C 79, 16.3.2013.

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General Court

| 4.5.2013 | EN | Official Journal of the European Union | C 129/14 |
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4.5.2013

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Official Journal of the European Union

C 129/14

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Judgment of the General Court of 19 March 2013 — in ‘t Veld v Commission

(Case T-301/10) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents relating to the draft international Anti-Counterfeiting Trade Agreement (ACTA) - Negotiating documents - Refusal to grant access - Exception relating to the protection of the public interest with regard to international relations - Manifest error of assessment - Proportionality - Obligation to state reasons)

2013/C 129/26

Language of the case: English

Parties

Applicant: Sophie in ‘t Veld (Brussels, Belgium) (represented by: O.W. Brouwer and J. Blockx, lawyers)

Defendant: European Commission (represented initially by: C. Hermes and C. ten Dam, and subsequently by: Mr Hermes and F. Clotuche-Duvieusart, acting as Agents)

Re:

Application, initially, for partial annulment of the Commission Decision of 4 May 2010, reference SG.E.3/HP/psi — Ares(2010)234950, in so far as it refused access to certain documents relating to the draft international Anti-Counterfeiting Trade Agreement (ACTA).

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision of 4 May 2010, reference SG.E.3/HP/psi — Ares(2010)234950, in so far as it refuses to grant access to documents 21 and 25 of the list annexed to that decision and to the following redactions made on other documents of that list:






  — | document 45, page 2, under the heading ‘Participants’, second paragraph, last sentence; |
| --- | --- | --- |

1.

Annuls Commission Decision of 4 May 2010, reference SG.E.3/HP/psi — Ares(2010)234950, in so far as it refuses to grant access to documents 21 and 25 of the list annexed to that decision and to the following redactions made on other documents of that list:

—

document 45, page 2, under the heading ‘Participants’, second paragraph, last sentence;

| — | document 47, page 1, under ‘Participants’ second paragraph, last sentence; |
| --- | --- |

—

document 47, page 1, under ‘Participants’ second paragraph, last sentence;

| — | document 47, page 2, under ‘1. Digital Environment (including Internet)’, second paragraph, last sentence; |
| --- | --- |

—

document 47, page 2, under ‘1. Digital Environment (including Internet)’, second paragraph, last sentence;

| — | document 48, page 2, the paragraph under Section 4, end of sentence. |
| --- | --- |

—

document 48, page 2, the paragraph under Section 4, end of sentence.

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

2.

Dismisses the remainder of the action.

| 3. | Orders Sophie in ‘t Veld to bear half of her own costs and half of the costs of the European Commission. |
| --- | --- |

3.

Orders Sophie in ‘t Veld to bear half of her own costs and half of the costs of the European Commission.

| 4. | Orders the Commission to bear half of its costs and half of Ms in ‘t Veld’s costs. |
| --- | --- |

4.

Orders the Commission to bear half of its costs and half of Ms in ‘t Veld’s costs.

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(1)  OJ C 260, 25.9.2010.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/14 |
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4.5.2013

EN

Official Journal of the European Union

C 129/14

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Judgment of the General Court of 19 March 2013 — Firma Van Parys v Commission

(Case T-324/10) (1)

(Customs union - Imports of bananas from Ecuador - Post-clearance recovery of import duties - Request for remission of import duties - Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92 - Error by the customs authorities - Obvious negligence on the part of the interested party)

2013/C 129/27

Language of the case: Dutch

Parties

Applicant: Firma Léon Van Parys (Antwerp, Belgium) (represented: initially by P. Vlaemminck and A. Hubert and subsequently by Vlaemminck, R. Verbeke and J. Auwerx, lawyers)

Defendant: European Commission (represented by: L. Keppenne and F. Wilman, acting as Agents)

Intervener in support of the applicant: Kingdom of Belgium (represented by J.-C. Halleux and M. Jacobs, Agents, and by P. Vander Schueren, lawyer)

Re:

Application for annulment, in part, of Commission Decision C(2010) 2858 of 6 May 2010 finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is justified with regard to a debtor but is not justified in the particular case of another debtor.

Operative part of the judgment

The Court:

| 1. | Annuls Article 1(3) of Commission Decision C(2010) 2858 final of 6 May 2010 finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is justified with regard to a debtor but is not justified in the particular case of another debtor; |
| --- | --- |

1.

Annuls Article 1(3) of Commission Decision C(2010) 2858 final of 6 May 2010 finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is justified with regard to a debtor but is not justified in the particular case of another debtor;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the European Commission to bear its own costs and to pay those incurred by Firma Léon Van Parys NV; |
| --- | --- |

3.

Orders the European Commission to bear its own costs and to pay those incurred by Firma Léon Van Parys NV;

| 4. | Orders the Kingdom of Belgium to bear its own costs. |
| --- | --- |

4.

Orders the Kingdom of Belgium to bear its own costs.

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(1)  OJ C 274, 9.10.2010.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/15 |
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4.5.2013

EN

Official Journal of the European Union

C 129/15

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Judgment of the General Court of 22 March 2013 — Bottega Veneta International v OHIM (Shape of a handbag)

(Case T-409/10) (1)

(Community trade mark - Application for a three-dimensional Community trade mark - Shape of a handbag - Absolute grounds for refusal - Lack of distinctive character - Lack of distinctive character acquired through use - Article 7(1)(b) and Article 7(3) of Regulation (EC) No 207/2009 - Failure to take account of an element of the trade mark applied for - Rule No 9 of Regulation (EC) No 2868/95)

2013/C 129/28

Language of the case: Italian

Parties

Applicant: Bottega Veneta International Sàrl (Luxembourg, Luxembourg) (represented by: P. Roncaglia, G. Lazzeretti, M. Boletto and E. Gavuzzi, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 16 June 2010 (Case R 1247/2009-1), concerning an application for registration of a three-dimensional sign in the shape of a handbag as a Community trade mark

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Bottega Veneta International Sàrl to pay the costs. |
| --- | --- |

2.

Orders Bottega Veneta International Sàrl to pay the costs.

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(1)  OJ C 301, 6.11.2010.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/15 |
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4.5.2013

EN

Official Journal of the European Union

C 129/15

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Judgment of the General Court of 22 March 2013 — Bottega Veneta International v OHIM (Shape of a bag)

(Case T-410/10) (1)

(Community trade mark - Application for a three-dimensional Community trade mark - Shape of a bag - Absolute grounds for refusal - Lack of distinctive character - Lack of distinctive character acquired through use - Article 7(1)(b) and Article 7(3) of Regulation (EC) No 207/2009 - Failure to take account of an element of the trade mark applied for - Rule No 9 of Regulation (EC) No 2868/95)

2013/C 129/29

Language of the case: Italian

Parties

Applicant: Bottega Veneta International Sàrl (Luxembourg, Luxembourg) (represented by: P. Roncaglia, G. Lazzeretti, M. Boletto and E. Gavuzzi, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 16 June 2010 (Case R 1539/2009-1), concerning an application for registration of a three-dimensional sign in the shape of a bag as a Community trade mark

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Bottega Veneta International Sàrl to pay the costs. |
| --- | --- |

2.

Orders Bottega Veneta International Sàrl to pay the costs.

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(1)  OJ C 301, 6.11.2010.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/16 |
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4.5.2013

EN

Official Journal of the European Union

C 129/16

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Judgment of the General Court of 20 March 2013 — Nexans France v Joint Undertaking Fusion for Energy

(Case T-415/10) (1)

(Public supply contracts - Euratom - Public procurement procedure of the Joint Undertaking Fusion for Energy - Supply of electrical equipment - Rejection of a tenderer’s bid - Open procedure - Bid containing reservations - Legal certainty - Legitimate expectation - Proportionality - Conflict of interests - Awarding decision - Action for annulment - Not directly concerned - Inadmissibility - Non-contractual liability)

2013/C 129/30

Language of the case: French

Parties

Applicant: Nexans France (Paris, France) (represented by: J.-P. Tran Thiet, J.-F. Le Corre and M. Pigeat, lawyers)

Defendant: European Joint Undertaking for ITER and the Development of Fusion Energy (Barcelona, Spain) (represented by: A. Verpont, acting as Agent, and C. Kennedy-Loest, T. Christopher, Solicitors, J. Derenne, N. Pourbaix, lawyers, and M. Farley, Solicitor)

Re:

Firstly, annulment of the decision rejecting the bid submitted by the applicant and the decision to award the contract to another tenderer and, secondly, a claim for compensation.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Nexans France to pay the costs, including those of the interim proceedings. |
| --- | --- |

2.

Orders Nexans France to pay the costs, including those of the interim proceedings.

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(1)  OJ C 301, 6.11.2010.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/16 |
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4.5.2013

EN

Official Journal of the European Union

C 129/16

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Judgment of the General Court of 20 March 2013 — Bank Saderat v Council

(Case T-495/10) (1)

(Common foreign and security policy - Restrictive measures against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Entity wholly owned by an entity identified as being involved in nuclear proliferation - Plea of illegality - Obligation to state reasons - Rights of the defence - Right to effective judicial protection)

2013/C 129/31

Language of the case: English

Parties

Applicant: Bank Saderat plc (London, United Kingdom) (represented: initially by S. Gadhia and S. Ashley, Solicitors, D. Anderson QC and R. Blakeley, Barrister, and subsequently by Ashley, S. Jeffrey and A. Irvine, solicitors, D. Wyatt QC and Blakeley)

Defendant: Council of the European Union (represented by: M. Bishop and R. Liudvinaviciute-Cordeiro, Agents)

Intervener in support of the defendant: European Commission (represented by: S. Boelaert and M. Konstantinidis, Agents)

Re:

Application for annulment of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2010 L 195, p. 25), Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71), Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11) and Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1) in so far as those measures concern the applicant and, further, an application for a declaration of the inapplicability to the applicant of Article 7(2)(d) of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1), Article 16(2)(a) of Regulation No 961/2010 and Article 23(2) of Regulation No 267/2012

Operative part of the judgment

The Court:

| 1. | Annuls the following measures in so far as they concern Bank Saderat plc:






  — | point 7 of Table B of Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP; |
| --- | --- | --- |

1.

Annuls the following measures in so far as they concern Bank Saderat plc:

—

point 7 of Table B of Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP;

| — | point 5 of Table B of the Annex to Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran; |
| --- | --- |

—

point 5 of Table B of the Annex to Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran;

| — | point 7 of Table I.B of the Annex to Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413; |
| --- | --- |

—

point 7 of Table I.B of the Annex to Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413;

| — | point 7 of Table B of Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation No 423/2007. |
| --- | --- |

—

point 7 of Table B of Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation No 423/2007.

| 2. | Orders the effects of annulment of Decision 2010/413 and Decision 2010/644 to be limited to the period preceding the entry into force of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413. |
| --- | --- |

2.

Orders the effects of annulment of Decision 2010/413 and Decision 2010/644 to be limited to the period preceding the entry into force of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413.

| 3. | Declares that there is no need to adjudicate on the claim by Bank Saderat that Regulation No 961/2010 and Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011, implementing Regulation No 961/2010, should be annulled with immediate effect. |
| --- | --- |

3.

Declares that there is no need to adjudicate on the claim by Bank Saderat that Regulation No 961/2010 and Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011, implementing Regulation No 961/2010, should be annulled with immediate effect.

| 4. | Dismisses the action as to the remainder. |
| --- | --- |

4.

Dismisses the action as to the remainder.

| 5. | Orders each party to bear its own costs. |
| --- | --- |

5.

Orders each party to bear its own costs.

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(1)  OJ C 328, 4.12.2010.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/17 |
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4.5.2013

EN

Official Journal of the European Union

C 129/17

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Judgment of the General Court of 22 March 2013 — Fabryka Łożysk Tocznych-Kraśnik v OHIM (FŁT-1)

(Case T-571/10) (1)

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

2013/C 129/32

Language of the case: Polish

Parties

Applicant: Fabryka Łożysk Tocznych-Kraśnik S.A. (Kraśnik, Poland) (represented by: J. Sieklucki, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Impexmetal S.A. (Warsaw, Poland) (represented by: K. Pyszków, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 6 October 2010 (Case R 1387/2009-1) relating to opposition proceedings between Impexmetal S.A. and Fabryka Łożysk Tocznych-Kraśnik S.A.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Fabryka Łożysk Tocznych-Kraśnik S.A. to pay the costs. |
| --- | --- |

2.

Orders Fabryka Łożysk Tocznych-Kraśnik S.A. to pay the costs.

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(1)  OJ C 63, 26.2.2011.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/17 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/17

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Judgment of the General Court of 20 March 2013 — Andersen v Commission

(Case T-92/11) (1)

(State aid - Aid granted by the Danish authorities to the public undertaking DSB - Public service contracts for the supply of passenger rail transport services between Copenhagen and Ystad - Decision declaring the aid compatible with the internal market subject to conditions - Temporal application of rules of substantive law)

2013/C 129/33

Language of the case: English

Parties

Applicant: Jørgen Andersen (Ballerup, Denmark) (represented by: M. Nissen, G. van de Walle de Ghelcke and J. Rivas Andrés, lawyers)

Defendant: European Commission (represented by: T. Maxian Rusche and L. Armati, acting as Agents)

Interveners in support of the defendant: Kingdom of Denmark (represented by: C. Vang, acting as Agent, assisted by K. Lundgaard Hansen and R. Holdgaard, lawyers); and by Danske Statsbaner (DSB) (Copenhagen, Denmark) (represented by: S. Kalsmose-Hjelmborg and M. Honoré, lawyers)

Re:

Application for partial annulment of Commission Decision 2011/3/EU of 24 February 2010 concerning public transport service contracts between the Danish Ministry of Transport and Danske Statsbaner (Case C 41/08 (ex NN 35/08)) (OJ 2011 L 7, p. 1)

Operative part of the judgment

The Court:

| 1. | Annuls the second paragraph of Article 1 of Commission Decision 2011/3/EU of 24 February 2010 concerning public transport service contracts between the Danish Ministry of Transport and Danske Statsbaner (Case C 41/08 (ex NN 35/08)); |
| --- | --- |

1.

Annuls the second paragraph of Article 1 of Commission Decision 2011/3/EU of 24 February 2010 concerning public transport service contracts between the Danish Ministry of Transport and Danske Statsbaner (Case C 41/08 (ex NN 35/08));

| 2. | Orders the European Commission to bear its own costs and to pay the costs incurred by Mr Jørgen Andersen, with the exception of those arising from the interventions; |
| --- | --- |

2.

Orders the European Commission to bear its own costs and to pay the costs incurred by Mr Jørgen Andersen, with the exception of those arising from the interventions;

| 3. | Orders the Kingdom of Denmark to bear its own costs and to pay those incurred by Mr Andersen arising from its intervention; |
| --- | --- |

3.

Orders the Kingdom of Denmark to bear its own costs and to pay those incurred by Mr Andersen arising from its intervention;

| 4. | Orders Danske Statsbaner (DSB) to bear its own costs and to pay those incurred by Mr Andersen arising from its intervention. |
| --- | --- |

4.

Orders Danske Statsbaner (DSB) to bear its own costs and to pay those incurred by Mr Andersen arising from its intervention.

---

(1)  OJ C 103, 2.4.2011.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/18 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/18

---

Judgment of the General Court of 21 March 2013 — Event v OHIM — CBT Comunicación Multimedia (eventer EVENT MANAGEMENT SYSTEMS)

(Case T-353/11) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark eventer EVENT MANAGEMENT SYSTEMS - Earlier national word mark Event - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2013/C 129/34

Language of the case: English

Parties

Applicant: Event Holding GmbH & Co. KG (Cologne, Germany) (represented by: G. Schoenen and V. Töbelmann, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: CBT Comunicación Multimedia (Getxo, Spain)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 29 March 2011 (Case R 939/2010-2), relating to opposition proceedings between Event Holding GmbH & Co. KG and CBT Comunicación Multimedia, SL

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders Event Holding GmbH & Co. KG to pay the costs. |
| --- | --- |

2.

Orders Event Holding GmbH & Co. KG to pay the costs.

---

(1)  OJ C 252, 27.8.2011.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/18 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/18

---

Judgment of the General Court of 20 March 2013 — Ruse Industry v Commission

(Case T-489/11) (1)

(State aid - Aid granted by Bulgaria in the form of a debt waiver - Decision declaring that aid incompatible with the internal market and ordering its recovery - New aid - Distortion of competition - Obligation to state reasons)

2013/C 129/35

Language of the case: Bulgarian

Parties

Applicant: Ruse Industry (Ruse, Bulgaria) (represented by: A. Angelov and S. Panov, lawyers)

Defendant: European Commission (represented by: C. Urraca Caviedes and D. Stefanov, acting as Agents)

Re:

Application for annulment in part of Commission Decision 2012/706/EU of 13 July 2011 on the State aid SA.28903 (C 12/10) (ex N 389/09) implemented by Bulgaria in favour of Ruse Industry (OJ 2012 L 320, p. 27).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ruse Industry AD to bear its own costs and those incurred by the European Commission, including those relating to the application for interim relief. |
| --- | --- |

2.

Orders Ruse Industry AD to bear its own costs and those incurred by the European Commission, including those relating to the application for interim relief.

---

(1)  OJ C 347, 26.11.2011.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/18 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/18

---

Judgment of the General Court of 20 March 2013 — El Corte Inglés v OHIM — Chez Gerard (CLUB GOURMET)

(Case T-571/11) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark CLUB GOURMET - Earlier national figurative mark CLUB DEL GOURMET, EN. El Corte Inglés - Relative ground for refusal - Lack of similarity between the goods and services - Article 8(1)(b) of Regulation (EC) No 207/2009 - Arguments and evidence adduced for the first time before the General Court)

2013/C 129/36

Language of the case: Spanish

Parties

Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: E. Seijo Veiguela and J.L. Rivas Zurdo, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: Ó. Mondéjar Ortuño, Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Groupe Chez Gerard Restaurants Ltd (London, United Kingdom)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 28 July 2011 (Case R 1946/2010-1) relating to opposition proceedings between El Corte Inglés, SA and Groupe Chez Gerard Restaurants Ltd.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders El Corte Inglés, SA to pay the costs. |
| --- | --- |

2.

Orders El Corte Inglés, SA to pay the costs.

---

(1)  OJ C 13, 14.1.2012.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/19 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/19

---

Judgment of the General Court of 19 March 2013 — Yueqing Onesto Electric v OHIM — Ensto (ONESTO)

(Case T-624/11) (1)

(Community trade mark - Opposition proceedings - International registration designating the European Community - Figurative mark ONESTO - Earlier Community figurative mark ENSTO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2013/C 129/37

Language of the case: English

Parties

Applicant: Yueqing Onesto Electric Co. Ltd (Zhejiang, China) (represented by: B. Piepenbrink, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Ensto Oy (Porvoo, Finland) (represented by: F. Teixeira Baptista, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 20 September 2011 (Case R 2535/2010-2), concerning opposition proceedings between Ensto Oy and Yueqing Onesto Electric Co. Ltd.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Yueqing Onesto Electric Co. Ltd to pay the costs. |
| --- | --- |

2.

Orders Yueqing Onesto Electric Co. Ltd to pay the costs.

---

(1)  OJ C 32, 4.2.2012.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/19 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/19

---

Judgment of the General Court of 20 March 2013 — Bimbo v OHIM — Café do Brasil (Caffè KIMBO)

(Case T-277/12) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark Caffè KIMBO - Earlier national word mark BIMBO - Relative grounds for refusal - Well-known trade mark within the meaning of Article 6 bis of the Paris Convention - Article 8(1) of Regulation (EC) No 207/2009)

2013/C 129/38

Language of the case: English

Parties

Applicant: Bimbo, SA (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Café do Brasil SpA (Melito di Napoli, Italy) (represented by: M. Mostardini, G. Galimberti and F. Melluci, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 May 2012 (Case R 1017/2011-4), relating to opposition proceedings between Bimbo, SA and Café do Brasil SpA

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Bimbo, SA, to pay the costs. |
| --- | --- |

2.

Orders Bimbo, SA, to pay the costs.

---

(1)  OJ C 273, 8.9.2012.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/19 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/19

---

Order of the General Court of 7 March 2013 — UOP v Commission

(Case T-198/09) (1)

(Action for annulment - State aid - No individual concern - Inadmissibility)

2013/C 129/39

Language of the case: English

Parties

Applicant: UOP Ltd (Guildford, United Kingdom)) (represented by: B. Hartnett and O. Geiss, lawyers)

Defendant: European Commission (represented by: K. Talabér-Ritz and T. Scharf, Agents)

Intervener in support of the defendant: IFP (Rueil Malmaison, France) (represented by: E. Morgan de Rivery and A. Noël Baron, lawyers)

Re:

Application for partial annulment of Commission Decision 2009/157/EC of 16 July 2008 on the aid measure implemented by France for the IFP Group (C 51/05 (ex NN 84/05)) (OJ 2009 L 53, p. 13).

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | UOP Ltd shall bear its own costs and pay those incurred by the European Commission and IFP. |
| --- | --- |

2.

UOP Ltd shall bear its own costs and pay those incurred by the European Commission and IFP.

---

(1)  OJ C 167, 18.7.2009.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/20 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/20

---

Order of the General Court of 7 March 2013 — Henkel and Henkel France v Commission

(Case T-607/11) (1)

(Action for annulment - Request from the French competition authority seeking to obtain the transmission of certain documents contained in the Commission’s file relating to competition proceedings concerning the European market for consumer detergents - Use in the context of national proceedings concerning the French detergents sector - Disappearance of the legal interest in bringing proceedings - No need to adjudicate - Inadmissibility)

2013/C 129/40

Language of the case: English

Parties

Applicants: Henkel AG & Co. KGaA (Düsseldorf, Germany) and Henkel France (Boulogne Billancourt, France) (represented by: R. Polley, T. Kuhn, F. Brunet and É. Paroche, lawyers)

Defendant: European Commission (represented by: N. Khan and P. J. Van Nuffel, Agents)

Intervener in support of the applicants: Kingdom of Denmark (represented by: C. Vang, Agent)

Re:

Application for: (1) annulment of the decision allegedly contained in a Commission letter of 30 September 2011 (Case COMP/39.579 — Consumer detergents — and Case 09/0007 F) whereby the latter refused a request by the French competition authority to send it, for the purposes of Case 09/0007 F concerning the French detergents sector, certain documents produced in Case COMP/39.579; and (2) an order that the Commission authorise the applicants to rely on the documents in question in proceedings before the French competition authority and any other appropriate measure.

Operative part of the order

| 1. | There is no need to adjudicate on the first head of claim of the action, seeking the annulment of the decision of the European Commission allegedly contained in its letter of 30 September 2011 to the French competition authority. |
| --- | --- |

1.

There is no need to adjudicate on the first head of claim of the action, seeking the annulment of the decision of the European Commission allegedly contained in its letter of 30 September 2011 to the French competition authority.

| 2. | The action is dismissed as to the remainder. |
| --- | --- |

2.

The action is dismissed as to the remainder.

| 3. | There is no need to adjudicate on the applications for leave to intervene of Unilever PLC and Unilever NV. |
| --- | --- |

3.

There is no need to adjudicate on the applications for leave to intervene of Unilever PLC and Unilever NV.

| 4. | The applicants, Henkel AG & Co. KGaA and Henkel France, are ordered to bear their own costs and to pay the costs incurred by the Commission, including those incurred in the application for interim measures in Case T-607/11 R. The Kingdom of Denmark is ordered to bear its own costs. |
| --- | --- |

4.

The applicants, Henkel AG & Co. KGaA and Henkel France, are ordered to bear their own costs and to pay the costs incurred by the Commission, including those incurred in the application for interim measures in Case T-607/11 R. The Kingdom of Denmark is ordered to bear its own costs.

---

(1)  OJ C 25, 28.1.2012.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/20 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/20

---

Order of the General Court of 7 March 2013 — Henkel and Henkel France v Commission

(Case T-64/12) (1)

(Action for annulment - Request seeking to obtain the transmission to the French competition authority of certain documents contained in the Commission’s file relating to competition proceedings concerning the European market for consumer detergents - Use in the context of national proceedings concerning the French detergents sector - Lack of interest in bringing proceedings - Inadmissibility)

2013/C 129/41

Language of the case: English

Parties

Applicants: Henkel AG & Co. KGaA (Düsseldorf, Germany) and Henkel France (Boulogne-Billancourt, France) (represented by: R. Polley, T. Kuhn, F. Brunet and É. Paroche, lawyers)

Defendant: European Commission (represented by: N. Khan and P. Van Nuffel, Agents)

Re:

Application, first, for annulment of the decision allegedly contained in the Commission’s letter of 7 December 2011 (Case COMP/39.579 — Consumer detergents — and Case 09/0007 F) whereby the Commission refused to act on the applicants’ request seeking the transmission to the French competition authority, in the context of Case 09/0007 F concerning the French detergents sector, of several documents produced in Case COMP/39.579, and, secondly, for an order by the General Court requiring the Commission to authorise the applicants to rely on the documents at issue in the proceedings before the French competition authority or before the competent French court in the context of an appeal against the decision of the French competition authority, and for any other measure that the Court deems appropriate.

Operative part of the order

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

1.

The action is dismissed.

| 2. | There is no need to adjudicate on the application for leave to intervene submitted by Unilever PLC and Unilever NV. |
| --- | --- |

2.

There is no need to adjudicate on the application for leave to intervene submitted by Unilever PLC and Unilever NV.

| 3. | Henkel AG & Co. KGaA and Henkel France shall bear their own costs and pay the costs incurred by the European Commission. |
| --- | --- |

3.

Henkel AG & Co. KGaA and Henkel France shall bear their own costs and pay the costs incurred by the European Commission.

---

(1)  OJ C 98, 31.3.2012.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/21 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/21

---

Order of the President of the General Court of 11 March 2013 — Elan v Commission

(Case T-27/13 R)

(Interim measures - State aid - Decision declaring the aid incompatible with the internal market and ordering its recovery from the beneficiary - Application for stay of execution - Lack of urgency)

2013/C 129/42

Language of the case: Slovene

Parties

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

Defendant: European Commission (represented by: É. Gippini Fournier, T. Maxian Rusche and M. Kocjan, acting as Agents)

Re:

Application for a stay of execution of Commission Decision C(2012) 6345 final of 19 September 2012 on the measures taken in favour of the group Elan d.o.o. (SA.26379 (C 13/2010) (ex NN 17/2010))

Operative part of the order

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

1.

The application for interim measures is rejected.

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

2.

The costs are reserved.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/21 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/21

---

Order of the President of the General Court of 11 March 2013 — Calestep v ECHA

(Case T-89/13 R)

(Application for interim measures - Fees and charges payable to ECHA - Reduced fees granted to small enterprises - Verification by ECHA of the declaration relating to the size of the enterprise - Decision ordering the recovery of the uncollected amount of the total fees payable - Application for suspension of operation of the decision - Disregard of the procedural requirements - Inadmissibility)

2013/C 129/43

Language of the case: Spanish

Parties

Applicant: Calestep (Estepa, Spain) (represented by: E. Cabezas Mateos, lawyer)

Defendant: European Chemicals Agency (ECHA) (represented by: M. Heikkilä, A. Iber and C. Jacquet, acting as Agents)

Re:

Application for suspension of operation of the payment reminders of 23 January and 8 February 2013 addressed by ECHA to the applicant on the ground that it did not meet the conditions to benefit from the reduction of fees provided for small enterprises.

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

The costs are reserved.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/21 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/21

---

Appeal brought on 19 February 2013 by European Commission against the judgment of the Civil Service Tribunal of 11 December 2012 in Case F-122/10, Cocchi and Falcione v Commission

(Case T-103/13 P)

2013/C 129/44

Language of the case: French

Parties

Appellant: European Commission (represented by G. Gattinara and D. Martin, acting as Agents)

Other parties to the proceedings: Giorgio Cocchi (Wezembeek-Oppem, Belgium) and Nicola Falcione (Brussels, Belgium)

Form of order sought by the appellant

| — | Set aside the judgment of the Civil Service Tribunal of 13 December 2012 in Case F-122/10 Cocchi and Falcione v Commission; |
| --- | --- |

—

Set aside the judgment of the Civil Service Tribunal of 13 December 2012 in Case F-122/10 Cocchi and Falcione v Commission;

| — | Dismiss the action brought by Messrs Cocchi and Falcione in Case F-122/10 as inadmissible or, in any event, as unfounded; |
| --- | --- |

—

Dismiss the action brought by Messrs Cocchi and Falcione in Case F-122/10 as inadmissible or, in any event, as unfounded;

| — | Rule that each party is to bear its own costs of the present instance; |
| --- | --- |

—

Rule that each party is to bear its own costs of the present instance;

| — | Order Messrs Cocchi and Falcione to pay the costs of the action brought before the Civil Service Tribunal. |
| --- | --- |

—

Order Messrs Cocchi and Falcione to pay the costs of the action brought before the Civil Service Tribunal.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging distortion of the notion of ‘act adversely affecting an official’ in that the CST held that the action at first instance was admissible by classifying as an act adversely affecting an official the proposal made by the Commission to the persons concerned as regards the number of annuities to be credited in the transfer of their pension rights under Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Union. |
| --- | --- |

1.

First plea in law, alleging distortion of the notion of ‘act adversely affecting an official’ in that the CST held that the action at first instance was admissible by classifying as an act adversely affecting an official the proposal made by the Commission to the persons concerned as regards the number of annuities to be credited in the transfer of their pension rights under Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Union.

| 2. | Second plea in law, alleging infringement of the principle of legitimate expectations, since the CST admitted the action, in part, while erring in law as to the interpretation of that principle. The Commission submits that the persons concerned could not claim any legitimate expectations as regards its proposals given that, firstly, those proposals also took account of the periods of service following the entry into service of the persons concerned and, secondly, those proposals did not refer to the amount actually transferred but to the amount transferable, contrary to the clear wording of Article 11(2) of Annex VIII to the Staff Regulations of Officials. |
| --- | --- |

2.

Second plea in law, alleging infringement of the principle of legitimate expectations, since the CST admitted the action, in part, while erring in law as to the interpretation of that principle. The Commission submits that the persons concerned could not claim any legitimate expectations as regards its proposals given that, firstly, those proposals also took account of the periods of service following the entry into service of the persons concerned and, secondly, those proposals did not refer to the amount actually transferred but to the amount transferable, contrary to the clear wording of Article 11(2) of Annex VIII to the Staff Regulations of Officials.

---

| 4.5.2013 | EN | Official Journal of the European Union | C 129/22 |
| --- | --- | --- | --- |

4.5.2013

EN

Official Journal of the European Union

C 129/22

---

Appeal brought on 21 February 2013 by Cornelia Trentea against the judgment of the Civil Service Tribunal of 11 December 2012 in Case F-112/10 Trentea v FRA

(Case T-107/13 P)

2013/C 129/45

Language of the case: English

Parties

Appellant: Cornelia Trentea (Barcelona, Spain) (represented by: L. Levi and M. Vandenbussche, lawyers)

Other party to the proceedings: European Union Agency for Fundamental Rights (FRA)

Form of order sought by the appellant

The appellant claims that the Court should:

| — | Set aside the Civil Service Tribunal’s judgment of 11 December 2012 in case F-112/10; |
| --- | --- |

—

Set aside the Civil Service Tribunal’s judgment of 11 December 2012 in case F-112/10;

| — | Consequently, annul the decision of the authority responsible for concluding contracts of employment of 5 June 2010 rejecting the appellant’s candidature for post (ref. TA-ADMIN-AST 4-2009) and the decision appointing another candidate; order the FRA to compensate the appellant’s material prejudice corresponding to the difference between her current salary and the AST 4 salary, until retirement age, including all allocations and indemnities and compensation of pension rights; and order the FRA to compensate the appellant’s moral prejudice evaluated ex aequo et bono at 10 000 Euro; and |
| --- | --- |

—

Consequently, annul the decision of the authority responsible for concluding contracts of employment of 5 June 2010 rejecting the appellant’s candidature for post (ref. TA-ADMIN-AST 4-2009) and the decision appointing another candidate; order the FRA to compensate the appellant’s material prejudice corresponding to the difference between her current salary and the AST 4 salary, until retirement age, including all allocations and indemnities and compensation of pension rights; and order the FRA to compensate the appellant’s moral prejudice evaluated ex aequo et bono at 10 000 Euro; and

| — | Order the FRA to pay the costs in the first instance and appeal. |
| --- | --- |

—

Order the FRA to pay the costs in the first instance and appeal.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging a violation of the rules concerning the admissibility of the pleas: admissibility of the submissions put forward at the hearing at first instance regarding the absence from the Selection Committee of a Staff Committee representative — violation by the first judges of the duty to state reasons. The appellant considers that the CST, first, infringed the first paragraph of Article 43 of the Rules of Procedure of the CST by failing to take account of the fact that the submissions at issue were based on documents and information which the FRA produced only in the course of the proceedings before the CST and, second, failed to recognise that the submissions at issue must be held to be admissible on the ground that they were closely connected with other pleas submitted in the written procedure. Third, and in any event, the CST erroneously concluded, without any motivation, that the plea was not among the pleas which the Tribunal may raise of its own motion. |
| --- | --- |

1.

First plea in law, alleging a violation of the rules concerning the admissibility of the pleas: admissibility of the submissions put forward at the hearing at first instance regarding the absence from the Selection Committee of a Staff Committee representative — violation by the first judges of the duty to state reasons. The appellant considers that the CST, first, infringed the first paragraph of Article 43 of the Rules of Procedure of the CST by failing to take account of the fact that the submissions at issue were based on documents and information which the FRA produced only in the course of the proceedings before the CST and, second, failed to recognise that the submissions at issue must be held to be admissible on the ground that they were closely connected with other pleas submitted in the written procedure. Third, and in any event, the CST erroneously concluded, without any motivation, that the plea was not among the pleas which the Tribunal may raise of its own motion.

| 2. | Second plea in law, alleging a factual inaccuracy regarding the written tests leading to a violation by the CST of the principle of equal treatment and a distortion of evidence. The appellant considers that the Tribunal made a mistake when it held that it had not been established or even alleged that the questions asked in the written test were identical for all the candidates, since the defendant confirmed it in his statement of defence. This inaccuracy affected the Tribunal’s conclusion in law as the principle of equal treatment requires written tests to take place at the same time for all candidates, and not on different days as it was the case in the appellant’s selection procedure. Moreover, the judges at first instance rejected the appellant’s plea regarding the lack of anonymity of the written test, based on a mere allegation by FRA which she had contested. |
| --- | --- |

2.

Second plea in law, alleging a factual inaccuracy regarding the written tests leading to a violation by the CST of the principle of equal treatment and a distortion of evidence. The appellant considers that the Tribunal made a mistake when it held that it had not been established or even alleged that the questions asked in the written test were identical for all the candidates, since the defendant confirmed it in his statement of defence. This inaccuracy affected the Tribunal’s conclusion in law as the principle of equal treatment requires written tests to take place at the same time for all candidates, and not on different days as it was the case in the appellant’s selection procedure. Moreover, the judges at first instance rejected the appellant’s plea regarding the lack of anonymity of the written test, based on a mere allegation by FRA which she had contested.

| 3. | Third plea in law, alleging the irregular composition of the selection committee, distortion of evidence and violation by the CST of its duty to state reasons. The appellant considers that the Tribunal erred in law and distorted the evidence when it considered, without any further motivation, that the Head of the Administration department of the FRA and the Financial Manager of the FRA had in depth knowledge and experience in the area of procurement, based on mere allegations of FRA contested by the appellant. This lack of expertise also affected the results of the selection. |
| --- | --- |

3.

Third plea in law, alleging the irregular composition of the selection committee, distortion of evidence and violation by the CST of its duty to state reasons. The appellant considers that the Tribunal erred in law and distorted the evidence when it considered, without any further motivation, that the Head of the Administration department of the FRA and the Financial Manager of the FRA had in depth knowledge and experience in the area of procurement, based on mere allegations of FRA contested by the appellant. This lack of expertise also affected the results of the selection.

| 4. | Fourth plea in law, alleging a violation of the duty to state reasons, unreasonable time to issue the judgment. The appellant considers that the judges at first instance erred in law when deciding the defendant had satisfied its obligation to state reasons since the appellant did not know, until the procedure at first instance, which criteria had been used for the assessment of her candidature, was not informed of which qualifications she did not fulfil and did not receive a breakdown of the global marks received until the hearing. The Tribunal also illegally relied on a document submitted by the defendant at the hearing to reach the conclusion that the defendant had satisfied its obligation to state reasons, without justifying of any exceptional circumstances. Moreover, firstly, if the appellant had received this document during the administration phase as she requested, she would have been able to better understand the reasons for her non-selection and challenge this decision more effectively. Secondly, the length of the procedure before the CST would have been more reasonable. |
| --- | --- |

4.

Fourth plea in law, alleging a violation of the duty to state reasons, unreasonable time to issue the judgment. The appellant considers that the judges at first instance erred in law when deciding the defendant had satisfied its obligation to state reasons since the appellant did not know, until the procedure at first instance, which criteria had been used for the assessment of her candidature, was not informed of which qualifications she did not fulfil and did not receive a breakdown of the global marks received until the hearing. The Tribunal also illegally relied on a document submitted by the defendant at the hearing to reach the conclusion that the defendant had satisfied its obligation to state reasons, without justifying of any exceptional circumstances. Moreover, firstly, if the appellant had received this document during the administration phase as she requested, she would have been able to better understand the reasons for her non-selection and challenge this decision more effectively. Secondly, the length of the procedure before the CST would have been more reasonable.

| 5. | Fifth plea in law, alleging a violation of Article 87(2) and 88 of the Rules of Procedure of the CST regarding the costs, violation of the duty to state reasons. The appellant considers that the Tribunal illegally ordered the appellant to bear her own costs and those of the defendant. |
| --- | --- |

5.

Fifth plea in law, alleging a violation of Article 87(2) and 88 of the Rules of Procedure of the CST regarding the costs, violation of the duty to state reasons. The appellant considers that the Tribunal illegally ordered the appellant to bear her own costs and those of the defendant.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/23 |
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4.5.2013

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Official Journal of the European Union

C 129/23

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Action brought on 21 February 2013 — Othman v Council

(Case T-109/13)

2013/C 129/46

Language of the case: French

Parties

Applicant: Razan Othman (Damascus, Syria) (represented by: E. Ruchat, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | declare the applicant’s action admissible and well-founded; |
| --- | --- |

—

declare the applicant’s action admissible and well-founded;

| — | consequently, annul Decision 2012/739/CFSP of 29 November 2012 and Regulation No 1117/2012 (EU) of 29 November 2012 and their subsequent implementing measures, in so far as they concern the applicant; |
| --- | --- |

—

consequently, annul Decision 2012/739/CFSP of 29 November 2012 and Regulation No 1117/2012 (EU) of 29 November 2012 and their subsequent implementing measures, in so far as they concern the applicant;

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

—

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

Pleas in law and main arguments

In support of her action, the applicant relies on three pleas in law which are in essence identical or similar to those raised in the context of Case T-432/11 Makhlouf v Council.
   (1)

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(1)  OJ 2011 C 290, p. 13.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/23 |
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4.5.2013

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Official Journal of the European Union

C 129/23

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Action brought on 23 February 2013 — Republic of Lithuania v European Commission

(Case T-110/13)

2013/C 129/47

Language of the case: Lithuanian

Parties

Applicant: Republic of Lithuania (represented by: D. Kriaučiūnas, R. Krasuckaitė and D. Skara)

Defendant: European Commission

Form of order sought

| — | annul Decision No FK/fa/D(2012) 1707818 of the European Commission of 10 December 2012 in so far as the debit note No 3241213460 attached to that decision relates to projects in respect of which the implementing parties have been placed in receivership, and order the Commission to return the amount of EUR 3 148 549,66; |
| --- | --- |

—

annul Decision No FK/fa/D(2012) 1707818 of the European Commission of 10 December 2012 in so far as the debit note No 3241213460 attached to that decision relates to projects in respect of which the implementing parties have been placed in receivership, and order the Commission to return the amount of EUR 3 148 549,66;

| — | annul Decision No FK/fa/D(2012) 1707818 of the European Commission of 10 December 2012 in so far as the debit note No 3241213460 attached to it relates to Project No P27010010, and order the Commission to return the amount of EUR 1 060 560,56; |
| --- | --- |

—

annul Decision No FK/fa/D(2012) 1707818 of the European Commission of 10 December 2012 in so far as the debit note No 3241213460 attached to it relates to Project No P27010010, and order the Commission to return the amount of EUR 1 060 560,56;

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

—

order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law, each relating to a breach of European Union law:

| 1. | The European Commission, in adopting the contested decision and not having shared the losses on the administration of the SAPARD funds with the Republic of Lithuania, or in any event by not having considered that matter and by not having provided any reasons for the refusal to share the losses, breached Article 8(2) of Regulation No 1258/1999, (1) read in conjunction with Article 73(2) of Regulation No 1605/2002, (2) Article 87 of Regulation No 2342/2002 (3) and the principle of sincere cooperation set out in Article 4(3) TEU. |
| --- | --- |

1.

The European Commission, in adopting the contested decision and not having shared the losses on the administration of the SAPARD funds with the Republic of Lithuania, or in any event by not having considered that matter and by not having provided any reasons for the refusal to share the losses, breached Article 8(2) of Regulation No 1258/1999, (1) read in conjunction with Article 73(2) of Regulation No 1605/2002, (2) Article 87 of Regulation No 2342/2002 (3) and the principle of sincere cooperation set out in Article 4(3) TEU.

| 2. | The European Commission, having failed to provide, in sufficient time, information as to the possibility of cancelling the debt and striking the corresponding company off the list of debtors, breached the provision on mutual consultation contained in point 7.7.4 of Part F of the multiannual financing agreement concerning the special aid programme for agriculture and rural development (SAPARD) (4) signed in 2001 by the Republic of Lithuania and the European Commission, read in conjunction with the principle of sincere cooperation set out in Article 4(3) TEU. |
| --- | --- |

2.

The European Commission, having failed to provide, in sufficient time, information as to the possibility of cancelling the debt and striking the corresponding company off the list of debtors, breached the provision on mutual consultation contained in point 7.7.4 of Part F of the multiannual financing agreement concerning the special aid programme for agriculture and rural development (SAPARD) (4) signed in 2001 by the Republic of Lithuania and the European Commission, read in conjunction with the principle of sincere cooperation set out in Article 4(3) TEU.

---

(1)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160 of 26.6.1999, p. 103).

(2)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248 of 16.9.2002, p. 1; corrigendum at OJ 2007 L 99 of 14.4.2007, p. 18).

(3)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357 of 31.12.2002, p. 1; corrigendum at OJ 2005 L 345 of 28.12.2005, p. 35).

(4)  Valstybės žinios, 29.8.2001, No 74-2589.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/24 |
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4.5.2013

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Official Journal of the European Union

C 129/24

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Action brought on 28 February 2013 — Oil Pension Fund Investment Company v Council

(Case T-121/13)

2013/C 129/48

Language of the case: German

Parties

Applicant: Oil Pension Fund Investment Company (Tehran, Iran) (represented by: K. Kleinschmidt, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | Annul, with immediate effect, Council Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran, and also Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 as regards inclusion in Regulation No 267/2012, in so far as those legal acts concern the applicant; |
| --- | --- |

—

Annul, with immediate effect, Council Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran, and also Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 as regards inclusion in Regulation No 267/2012, in so far as those legal acts concern the applicant;

| — | adopt a measure of organisation of procedure pursuant to Article 64 of the Rules of Procedure of the General Court, requiring the defendant to produce all documents relating to the contested decision, in so far as they concern the applicant; |
| --- | --- |

—

adopt a measure of organisation of procedure pursuant to Article 64 of the Rules of Procedure of the General Court, requiring the defendant to produce all documents relating to the contested decision, in so far as they concern the applicant;

| — | 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 applicant relies on three pleas in law.

| 1. | First plea in law, alleging breach of the obligation to state reasons, of the rights of the defence and of the right to effective legal protection
  In this context it is claimed, inter alia, that the statement of reasons in the contested acts is incomprehensible to the applicant, and comprehensible reasons were not communicated separately to the applicant by the defendant. As a result the applicant’s rights of defence and its right to effective legal protection have been breached. There has also been a breach of the principle of the right to be heard. The applicant claims that the contested acts were not served on it by the defendant and that there was no hearing of the applicant. Further, it is submitted that the defendant did not correctly assess the circumstances relating to the applicant. The applicant takes the view that it was deprived of a fair trial based on the rule of law, having been unable, in the absence of adequate knowledge, to comment specifically on the relevant allegations and alleged evidence of the Council, or to put forward any contrary evidence in the proceedings. |
| --- | --- |

1.

First plea in law, alleging breach of the obligation to state reasons, of the rights of the defence and of the right to effective legal protection

In this context it is claimed, inter alia, that the statement of reasons in the contested acts is incomprehensible to the applicant, and comprehensible reasons were not communicated separately to the applicant by the defendant. As a result the applicant’s rights of defence and its right to effective legal protection have been breached. There has also been a breach of the principle of the right to be heard. The applicant claims that the contested acts were not served on it by the defendant and that there was no hearing of the applicant. Further, it is submitted that the defendant did not correctly assess the circumstances relating to the applicant. The applicant takes the view that it was deprived of a fair trial based on the rule of law, having been unable, in the absence of adequate knowledge, to comment specifically on the relevant allegations and alleged evidence of the Council, or to put forward any contrary evidence in the proceedings.

| 2. | Second plea in law, alleging manifest errors of assessment and breach of the principle of proportionality
  In the applicant’s view the Council made a manifest error of assessment when it adopted the contested acts. The Council failed adequately and/or correctly to investigate the facts underlying the contested acts. In that context, it is submitted, inter alia, that, so far as concerns the applicant, the grounds for adoption of the restrictive measures that are stated in the contested acts are inapplicable. The contested acts also breach the principle of proportionality. |
| --- | --- |

2.

Second plea in law, alleging manifest errors of assessment and breach of the principle of proportionality

In the applicant’s view the Council made a manifest error of assessment when it adopted the contested acts. The Council failed adequately and/or correctly to investigate the facts underlying the contested acts. In that context, it is submitted, inter alia, that, so far as concerns the applicant, the grounds for adoption of the restrictive measures that are stated in the contested acts are inapplicable. The contested acts also breach the principle of proportionality.

| 3. | Third plea in law, alleging infringement of the rights guaranteed under the Charter of Fundamental Rights of the European Union
  Here, the applicant claims that its fundamental rights as guaranteed by the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389) (‘the Charter’) have been infringed by the contested acts. It invokes, in that regard, breach of the freedom to conduct a business in the European Union (Article 16 of the Charter) and of the right to use its lawfully acquired possessions in the European Union and, in particular, to dispose of them freely (Article 17 of the Charter). Furthermore, the applicant claims breach of the principle of equal treatment (Article 20 of the Charter) and of the principle of non-discrimination (Article 21 of the Charter). |
| --- | --- |

3.

Third plea in law, alleging infringement of the rights guaranteed under the Charter of Fundamental Rights of the European Union

Here, the applicant claims that its fundamental rights as guaranteed by the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389) (‘the Charter’) have been infringed by the contested acts. It invokes, in that regard, breach of the freedom to conduct a business in the European Union (Article 16 of the Charter) and of the right to use its lawfully acquired possessions in the European Union and, in particular, to dispose of them freely (Article 17 of the Charter). Furthermore, the applicant claims breach of the principle of equal treatment (Article 20 of the Charter) and of the principle of non-discrimination (Article 21 of the Charter).

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/25 |
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Official Journal of the European Union

C 129/25

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Action brought on 4 March 2013 — El Corte Inglés v OHIM — Baumarkt Praktiker Deutschland (PRO OUTDOOR)

(Case T-127/13)

2013/C 129/49

Language in which the application was lodged: Spanish

Parties

Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: E. Seijo Veiguela and J. Rivas Zurdo, lawyers)

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

Other party to the proceedings before the Board of Appeal: Baumarkt Praktiker Deutschland GmbH (Hamburg, Germany)

Form of order sought

The applicant claims that the General Court should:

| — | annul the decision of the Second Board of Appeal of the OHIM of 11 December 2012 in Case R 1900/2011-2, in so far as, by dismissing the action brought by the applicant, it confirmed the decision of the Opposition Division to grant in part the Community word mark No 4 782 215‘PRO OUTDOOR’; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the OHIM of 11 December 2012 in Case R 1900/2011-2, in so far as, by dismissing the action brought by the applicant, it confirmed the decision of the Opposition Division to grant in part the Community word mark No 4 782 215‘PRO OUTDOOR’;

| — | order the party or parties opposing this action to pay the costs. |
| --- | --- |

—

order the party or parties opposing this action to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Applicant

Community trade mark concerned: Word mark ‘PRO OUTDOOR’ for goods and services in Classes 9, 12, 14, 18, 22, 24, 25, 28 and 35

Proprietor of the mark or sign cited in the opposition proceedings: Baumarkt Praktiker Deutschland GmbH.

Mark or sign cited in opposition: Figurative mark with word elements ‘OUTDOOR GARDEN BARBECUE CAMPING’ for goods and services in Classes 12, 18, 22, 24, 25 and 28

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Appeal dismissed

Pleas in law:

| — | Infringement of Article 60 of Regulation No 207/2009, and Rules 48 and 49 of Regulation No 2868/95 |
| --- | --- |

—

Infringement of Article 60 of Regulation No 207/2009, and Rules 48 and 49 of Regulation No 2868/95

| — | Infringement of Article 8(1)(b) of Regulation No 207/2009 |
| --- | --- |

—

Infringement of Article 8(1)(b) of Regulation No 207/2009

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/26 |
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4.5.2013

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Official Journal of the European Union

C 129/26

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Action brought on 28 February 2013 — Polynt and Sitre v ECHA

(Case T-134/13)

2013/C 129/50

Language of the case: English

Parties

Applicants: Polynt SpA (Scanzorosciate, Italy); and Sitre Srl (Milan, Italy) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

The applicants claim that the Court should:

| — | Declare the application admissible and well-founded; |
| --- | --- |

—

Declare the application admissible and well-founded;

| — | Partially annul Decision ED/169/2012 of the ECHA concerning the inclusion of cyclohexane-1,2-dicarboxylic anhydride, cis-cyclohexane-1,2-dicarboxylic anhydride and trans-cyclohexane-1,2-dicarboxylic anhydride (collectively referred to as ‘HHPA’) as Substances meeting the criteria set out in Article 57(f) of Regulation (EC) No 1907/2006 (1) (‘REACH’), in accordance with Article 59 of REACH, as it relates to HHPA and its monomers; and |
| --- | --- |

—

Partially annul Decision ED/169/2012 of the ECHA concerning the inclusion of cyclohexane-1,2-dicarboxylic anhydride, cis-cyclohexane-1,2-dicarboxylic anhydride and trans-cyclohexane-1,2-dicarboxylic anhydride (collectively referred to as ‘HHPA’) as Substances meeting the criteria set out in Article 57(f) of Regulation (EC) No 1907/2006 (1) (‘REACH’), in accordance with Article 59 of REACH, as it relates to HHPA and its monomers; and

| — | Order the defendant to pay the costs of these proceedings. |
| --- | --- |

—

Order the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging manifest error of assessment/law: (i) respiratory sensitisers are not covered by Article 57(f) of REACH and (ii) the ECHA did not provide sufficient justification and evidence in order to demonstrate that HHPA was of ‘equivalent concern’ to a carcinogen, mutagen or toxicant for reproduction (‘CMR’), category 1, since:






  — | CMR substances trigger irreversible effects whereas, in the case of HHPA, the effects of respiratory sensitisation are not irreversible; |
| --- | --- | --- |

1.

First plea in law, alleging manifest error of assessment/law: (i) respiratory sensitisers are not covered by Article 57(f) of REACH and (ii) the ECHA did not provide sufficient justification and evidence in order to demonstrate that HHPA was of ‘equivalent concern’ to a carcinogen, mutagen or toxicant for reproduction (‘CMR’), category 1, since:

—

CMR substances trigger irreversible effects whereas, in the case of HHPA, the effects of respiratory sensitisation are not irreversible;

| — | there is no consumer or worker exposure to HHPA; |
| --- | --- |

—

there is no consumer or worker exposure to HHPA;

| — | the assessment of HHPA is based on data which is old and outdated; and |
| --- | --- |

—

the assessment of HHPA is based on data which is old and outdated; and

| — | the assessment did not take into account all relevant data. |
| --- | --- |

—

the assessment did not take into account all relevant data.

| 2. | Second plea in law, alleging breach of the rights of defence, as the applicants did not have the opportunity to fully defend their case because of the lack of objective criteria for considering whether a substance is of equivalent concern according to Article 57(f) REACH, especially in the case of a respiratory sensitiser such as HHPA, and because ECHA did not take into account all information available or provided by the industry during the commenting period. |
| --- | --- |

2.

Second plea in law, alleging breach of the rights of defence, as the applicants did not have the opportunity to fully defend their case because of the lack of objective criteria for considering whether a substance is of equivalent concern according to Article 57(f) REACH, especially in the case of a respiratory sensitiser such as HHPA, and because ECHA did not take into account all information available or provided by the industry during the commenting period.

| 3. | Third plea in law, alleging infringement of the principle of proportionality, as the ECHA had a choice of measures with respect to HHPA and by identifying HPPA as Substance of Very High Concern (‘SVHC’) caused the applicants disadvantages which are disproportionate in relation to the aims pursued. |
| --- | --- |

3.

Third plea in law, alleging infringement of the principle of proportionality, as the ECHA had a choice of measures with respect to HHPA and by identifying HPPA as Substance of Very High Concern (‘SVHC’) caused the applicants disadvantages which are disproportionate in relation to the aims pursued.

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(1)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1)

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/26 |
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4.5.2013

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Official Journal of the European Union

C 129/26

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Action brought on 28 February 2013 — Hitachi Chemical Europe and Others v ECHA

(Case T-135/13)

2013/C 129/51

Language of the case: English

Parties

Applicants: Hitachi Chemical Europe GmbH (Düsseldorf, Germany); Polynt SpA (Scanzorosciate, Italy); and Sitre Srl (Milan, Italy) (represented by: K. Van Maldegem and C. Mereu, lawyers)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

The applicants claim that the Court should:

| — | Declare the application admissible and well-founded; |
| --- | --- |

—

Declare the application admissible and well-founded;

| — | Partially annul Decision ED/169/2012 of the ECHA concerning the inclusion of Hexahydromethylphthalic anhydride, Hexahydro-4-methylphthalic anhydride, Hexahydro-1-methylphthalic anhydride and Hexahydro-3-methylphthalic anhydride (collectively referred to as ‘MHHPA’) as Substances meeting the criteria set out in Article 57(f) of Regulation (EC) No 1907/2006 (1) (‘REACH’), in accordance with Article 59 of REACH, as it relates to MHHPA and its monomers; and |
| --- | --- |

—

Partially annul Decision ED/169/2012 of the ECHA concerning the inclusion of Hexahydromethylphthalic anhydride, Hexahydro-4-methylphthalic anhydride, Hexahydro-1-methylphthalic anhydride and Hexahydro-3-methylphthalic anhydride (collectively referred to as ‘MHHPA’) as Substances meeting the criteria set out in Article 57(f) of Regulation (EC) No 1907/2006 (1) (‘REACH’), in accordance with Article 59 of REACH, as it relates to MHHPA and its monomers; and

| — | Order the defendant to pay the costs of these proceedings. |
| --- | --- |

—

Order the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging manifest error of assessment/law: (i) respiratory sensitisers are not covered by Article 57(f) of REACH and (ii) the ECHA did not provide sufficient justification and evidence in order to demonstrate that MHHPA was of ‘equivalent concern’ to a carcinogen, mutagen or toxicant for reproduction (‘CMR’), category 1, since:






  — | CMR substances trigger irreversible effects whereas, in the case of MHHPA, the effects of respiratory sensitisation are not irreversible; |
| --- | --- | --- |

1.

First plea in law, alleging manifest error of assessment/law: (i) respiratory sensitisers are not covered by Article 57(f) of REACH and (ii) the ECHA did not provide sufficient justification and evidence in order to demonstrate that MHHPA was of ‘equivalent concern’ to a carcinogen, mutagen or toxicant for reproduction (‘CMR’), category 1, since:

—

CMR substances trigger irreversible effects whereas, in the case of MHHPA, the effects of respiratory sensitisation are not irreversible;

| — | there is no consumer or worker exposure to MHHPA; |
| --- | --- |

—

there is no consumer or worker exposure to MHHPA;

| — | the assessment of MHHPA is based on data which is old and outdated; |
| --- | --- |

—

the assessment of MHHPA is based on data which is old and outdated;

| — | the assessment did not take into account all relevant data; and |
| --- | --- |

—

the assessment did not take into account all relevant data; and

| — | the assessment is mainly based on read across with another substance which is scientifically questionable and which demonstrates the poor and limited data used for the assessment of MHHPA. |
| --- | --- |

—

the assessment is mainly based on read across with another substance which is scientifically questionable and which demonstrates the poor and limited data used for the assessment of MHHPA.

| 2. | Second plea in law, alleging breach of the rights of defence, as the applicants did not have the opportunity to fully defend their case because of the lack of objective criteria for considering whether a substance is of equivalent concern according to Article 57(f) REACH, especially in the case of a respiratory sensitiser such as MHHPA, and because ECHA did not take into account all information available or provided by the industry during the commenting period. |
| --- | --- |

2.

Second plea in law, alleging breach of the rights of defence, as the applicants did not have the opportunity to fully defend their case because of the lack of objective criteria for considering whether a substance is of equivalent concern according to Article 57(f) REACH, especially in the case of a respiratory sensitiser such as MHHPA, and because ECHA did not take into account all information available or provided by the industry during the commenting period.

| 3. | Third plea in law, alleging infringement of the principle of proportionality, as the ECHA had a choice of measures with respect to MHHPA and by identifying MHHPA as Substance of Very High Concern (‘SVHC’) caused the applicants disadvantages which are disproportionate in relation to the aims pursued. |
| --- | --- |

3.

Third plea in law, alleging infringement of the principle of proportionality, as the ECHA had a choice of measures with respect to MHHPA and by identifying MHHPA as Substance of Very High Concern (‘SVHC’) caused the applicants disadvantages which are disproportionate in relation to the aims pursued.

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(1)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1)

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/27 |
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4.5.2013

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Official Journal of the European Union

C 129/27

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Action brought on 7 March 2013 — Saferoad RRS v OHIM (MEGARAIL)

(Case T-137/13)

2013/C 129/52

Language of the case: German

Parties

Applicant: Saferoad RRS GmbH (Weroth, Germany) (represented by C. Czychowski, 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 Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 January 2013 in Case R 2536/2011-4 and the Examiner’s decision of 23 November 2011 in so far as the mark was rejected; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 January 2013 in Case R 2536/2011-4 and the Examiner’s decision of 23 November 2011 in so far as the mark was rejected;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘MEGARAIL’ for goods and services in Classes 6, 19 and 37

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

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/28 |
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4.5.2013

EN

Official Journal of the European Union

C 129/28

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Action brought on 15 March 2013 — Sea Handling v Commission

(Case T-152/13)

2013/C 129/53

Language of the case: Italian

Parties

Applicant: Sea Handling SpA (Somma Lombardo, Italy) (represented by: B. Nascimbene, F. Rossi dal Pozzo, M. Merla and L. Cappelletti, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul the contested decision, by which the Commission declared that the measures adopted by SEA, in the form of capital injections in favour of SEA Handling, constituted State aid incompatible with the common market and ordered its recovery; |
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Annul the contested decision, by which the Commission declared that the measures adopted by SEA, in the form of capital injections in favour of SEA Handling, constituted State aid incompatible with the common market and ordered its recovery;

| — | in the alternative, annul Article 3 of the contested decision, by which the Commission ordered the recovery of the alleged State aid; |
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in the alternative, annul Article 3 of the contested decision, by which the Commission ordered the recovery of the alleged State aid;

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

Pleas in law and main arguments

The decision contested in the present case is the same as that contested in Case T-125/13 Italian Republic v Commission.

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

| 1. | First plea in law: infringement of procedural rules.






  — | It is submitted in that regard that Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1) has been infringed, that SEA Handling’s procedural rights have been breached, and also that there has been a failure to undertake adequate preliminary inquiries in the light of the scope of the period under investigation, because of the lack of preliminary investigation and assessment in relation to the period 2006-2010. |
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1.

First plea in law: infringement of procedural rules.

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It is submitted in that regard that Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1) has been infringed, that SEA Handling’s procedural rights have been breached, and also that there has been a failure to undertake adequate preliminary inquiries in the light of the scope of the period under investigation, because of the lack of preliminary investigation and assessment in relation to the period 2006-2010.

| — | It is further submitted that the principles of legal certainty and good administration have not been observed in relation to the duration of the procedure and, in particular, the unjustifiably lengthy preliminary investigation. |
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It is further submitted that the principles of legal certainty and good administration have not been observed in relation to the duration of the procedure and, in particular, the unjustifiably lengthy preliminary investigation.

| 2. | Second plea in law: infringement of Article 107(1) TFEU as regards the involvement of public resources.






  — | On this point, it is submitted that there has been a failure to state the reasons and a failure to undertake adequate preliminary inquiries concerning the lack of a burden on the State finances; nor has it been shown that the resources were in fact available to the State. |
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2.

Second plea in law: infringement of Article 107(1) TFEU as regards the involvement of public resources.

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On this point, it is submitted that there has been a failure to state the reasons and a failure to undertake adequate preliminary inquiries concerning the lack of a burden on the State finances; nor has it been shown that the resources were in fact available to the State.

| 3. | Third plea in law: infringement of Article 107(1) TFEU as regards imputability.






  — | The applicant submits that the contested decision is not based on an individual examination of the separate decisions to inject capital and the Commission has not provided an explanation as to why there was an overall scheme of State aid in favour of SEA Handling during the period 2002-2010. |
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3.

Third plea in law: infringement of Article 107(1) TFEU as regards imputability.

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The applicant submits that the contested decision is not based on an individual examination of the separate decisions to inject capital and the Commission has not provided an explanation as to why there was an overall scheme of State aid in favour of SEA Handling during the period 2002-2010.

| — | In that connection, it is added that the evidence relied on by the Commission is not capable of showing that the measures may be imputed to the State and the Commission has failed to consider the evidence adduced by the parties to show that the measures cannot in fact be imputed to the State. |
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In that connection, it is added that the evidence relied on by the Commission is not capable of showing that the measures may be imputed to the State and the Commission has failed to consider the evidence adduced by the parties to show that the measures cannot in fact be imputed to the State.

| 4. | Fourth plea in law: infringement of Article 107(1) TFEU as regards the private investor principle.






  — | In the applicant’s submission, the Commission has not proved that in actual fact a private investor comparable to SEA would not have opted for the recapitalisation of its subsidiary, and the Commission has merely disputed in general terms the correctness of the parameters used by SEA for the purposes of its business choices. |
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4.

Fourth plea in law: infringement of Article 107(1) TFEU as regards the private investor principle.

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In the applicant’s submission, the Commission has not proved that in actual fact a private investor comparable to SEA would not have opted for the recapitalisation of its subsidiary, and the Commission has merely disputed in general terms the correctness of the parameters used by SEA for the purposes of its business choices.

| — | It should also be found that there was a failure to place in context the measures within the SEA Group, that the facts were incorrectly evaluated in terms of the comparison between SEA Handling and the other market operators and that the private investor principle has been misapplied due to a failure to analyse the individual injections of capital. |
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It should also be found that there was a failure to place in context the measures within the SEA Group, that the facts were incorrectly evaluated in terms of the comparison between SEA Handling and the other market operators and that the private investor principle has been misapplied due to a failure to analyse the individual injections of capital.

| 5. | Fifth plea in law: infringement of Article 107(3) TFEU.






  — | The applicant submits on that point that the Commission erred in law with regard to the scope of the guidelines for the airport sector, inasmuch as those guidelines were not applicable to the present case. |
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5.

Fifth plea in law: infringement of Article 107(3) TFEU.

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The applicant submits on that point that the Commission erred in law with regard to the scope of the guidelines for the airport sector, inasmuch as those guidelines were not applicable to the present case.

| — | It should also be found that there has been a manifest error of assessment and a failure to state the reasons in applying the rescuing and restructuring guidelines, in so far as the Commission (i) distorted the meaning of the requirement that the company’s long-term viability must be restored, (ii) erred in rejecting the compensatory measures offered by SEA in the context of the restructuring of its subsidiary and (iii) failed to have due regard to the fact that the disputed capital injections were at all times carried out strictly on the basis of what was necessary for the restructuring of the company. |
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It should also be found that there has been a manifest error of assessment and a failure to state the reasons in applying the rescuing and restructuring guidelines, in so far as the Commission (i) distorted the meaning of the requirement that the company’s long-term viability must be restored, (ii) erred in rejecting the compensatory measures offered by SEA in the context of the restructuring of its subsidiary and (iii) failed to have due regard to the fact that the disputed capital injections were at all times carried out strictly on the basis of what was necessary for the restructuring of the company.

| 6. | Sixth plea in law: unlawfulness of the order for recovery.






  — | The applicant submits that the order for recovery is unlawful in that it infringes the principle of the protection of legitimate expectations and the obligation to state reasons. |
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6.

Sixth plea in law: unlawfulness of the order for recovery.

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The applicant submits that the order for recovery is unlawful in that it infringes the principle of the protection of legitimate expectations and the obligation to state reasons.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/29 |
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4.5.2013

EN

Official Journal of the European Union

C 129/29

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Action brought on 18 March 2013 — Comune di Milano v Commission

(Case T-167/13)

2013/C 129/54

Language of the case: Italian

Parties

Applicant: Comune di Milano (Italy) (represented by: S. Grassani and A. Franchi, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision C(2012) 9448 of 19 December 2012 concerning the capital injections made by SEA S.p.A. to SEA Handling S.p.A.; |
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annul Commission Decision C(2012) 9448 of 19 December 2012 concerning the capital injections made by SEA S.p.A. to SEA Handling S.p.A.;

| — | in the alternative, having investigated the existence of specific exceptional circumstances which gave rise to a legitimate expectation on the part of the applicant that the capital injections would not constitute State aid within the meaning of Article 107(1) [TFEU], annul Articles 3, 4 and 5 of the Decision which oblige Italy to recover the aid; |
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in the alternative, having investigated the existence of specific exceptional circumstances which gave rise to a legitimate expectation on the part of the applicant that the capital injections would not constitute State aid within the meaning of Article 107(1) [TFEU], annul Articles 3, 4 and 5 of the Decision which oblige Italy to recover the aid;

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

Pleas in law and main arguments

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

| 1. | By the first plea in law, alleging infringement and misapplication of Article 107(1) TFEU, the Comune di Milano claims that the Decision is flawed in so far as the Commission found the measures at issue to be attributable to the Comune (and accordingly to the State). According to the Comune, the Commission has not provided any evidence of this, with the result that the measures at issue cannot be categorised as State aid. |
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1.

By the first plea in law, alleging infringement and misapplication of Article 107(1) TFEU, the Comune di Milano claims that the Decision is flawed in so far as the Commission found the measures at issue to be attributable to the Comune (and accordingly to the State). According to the Comune, the Commission has not provided any evidence of this, with the result that the measures at issue cannot be categorised as State aid.

| 2. | By the second plea in law, also alleging infringement and misapplication of Article 107(1) TFEU, the Comune di Milano claims that the Decision is incorrect in so far as the Commission found that, in the circumstances, the ‘private market-economy investor’ test had not been satisfied. On the contrary, that test was fully satisfied, and the beneficiary of the measures did not derive any advantage from those measures, which means that the measures at issue cannot be categorised as State aid. |
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2.

By the second plea in law, also alleging infringement and misapplication of Article 107(1) TFEU, the Comune di Milano claims that the Decision is incorrect in so far as the Commission found that, in the circumstances, the ‘private market-economy investor’ test had not been satisfied. On the contrary, that test was fully satisfied, and the beneficiary of the measures did not derive any advantage from those measures, which means that the measures at issue cannot be categorised as State aid.

| 3. | By the third plea in law, the Comune di Milano alleges breach and misapplication of the Guidelines for rescuing and restructuring firms in difficulty and of the Guidelines for the airport sector and, consequently, that the conclusions reached by the Commission concerning the alleged incompatibility of the measures at issue are unlawful. |
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3.

By the third plea in law, the Comune di Milano alleges breach and misapplication of the Guidelines for rescuing and restructuring firms in difficulty and of the Guidelines for the airport sector and, consequently, that the conclusions reached by the Commission concerning the alleged incompatibility of the measures at issue are unlawful.

| 4. | By the fourth plea in law, divided into two limbs, the Comune alleges, with reference to the Commission’s conduct during the investigation procedure, breach of (i) the principle of sound administration, the right to be heard and the rights of the defence and (ii) the principle of legitimate expectations — and claims that, in consequence, the recovery order is unlawful. |
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4.

By the fourth plea in law, divided into two limbs, the Comune alleges, with reference to the Commission’s conduct during the investigation procedure, breach of (i) the principle of sound administration, the right to be heard and the rights of the defence and (ii) the principle of legitimate expectations — and claims that, in consequence, the recovery order is unlawful.

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European Union Civil Service Tribunal

| 4.5.2013 | EN | Official Journal of the European Union | C 129/30 |
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4.5.2013

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Official Journal of the European Union

C 129/30

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Judgment of the Civil Service Tribunal (2nd Chamber) of 21 March 2013 — Brune v Commission

(Case F-94/11) (1)

(Civil service - Open competition - Annulment of a decision not to include the applicant on the reserve list - Implementation of a judgment - Principle of legality - Plea of illegality directed against the decision to reopen the competition procedure)

2013/C 129/55

Language of the case: German

Parties

Applicant: Markus Brune (Bonn, Germany) (represented by: H. Mannes, lawyer)

Defendant: European Commission (represented by: J. Currall and B. Eggers, Agents)

Re:

Application to annul EPSO’s decision to reopen the procedure for open competition EPSO/AD/26/05 and to invite the applicant to participate again in the oral test and to annul the decision to exclude him from that competition following his absence from that test.

Operative part of the judgment

The Tribunal:

| 1. | Dismisses the action; |
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1.

Dismisses the action;

| 2. | Orders Mr Brune to bear his own costs and to pay the costs incurred by the European Commission. |
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2.

Orders Mr Brune to bear his own costs and to pay the costs incurred by the European Commission.

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(1)  OJ C 355, 3.12.2011, p. 30.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/30 |
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4.5.2013

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Official Journal of the European Union

C 129/30

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Action brought on 7 January 2013 — ZZ v Commission

(Case F-2/13)

2013/C 129/56

Language of the case: Italian

Parties

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

Defendant: European Commission

Subject-matter and description of the proceedings

Application for annulment of the implied decision rejecting the applicant’s request to apply to the salary received by him from May 2001 until the end of his mission in Angola the correction coefficient referred to in Articles 12 and 13 of Annex X to the Staff Regulations.

Form of order sought

| — | Annul the decision, whatever the form in which it was adopted, by which the Commission rejected the request of 24 October 2011; |
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Annul the decision, whatever the form in which it was adopted, by which the Commission rejected the request of 24 October 2011;

| — | in so far as necessary, annul the measure, whatever the form in which it was adopted, by which the Commission rejected the complaint of 21 May 2012 sent by the applicant to the appointing authority against the decision rejecting the request of 24 October 2011 and seeking the annulment of that decision and the granting of the request of 24 October 2011; |
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in so far as necessary, annul the measure, whatever the form in which it was adopted, by which the Commission rejected the complaint of 21 May 2012 sent by the applicant to the appointing authority against the decision rejecting the request of 24 October 2011 and seeking the annulment of that decision and the granting of the request of 24 October 2011;

| — | in so far as necessary, annul the note of 14 August 2012; |
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in so far as necessary, annul the note of 14 August 2012;

| — | order the Commission to pay to the applicant, for each month from March 2001 until the last month of his mission, if only de jure, carrying out duties in the EC Delegation in Angola, the sum arising from the difference (‘the difference in remuneration’) between what the applicant should have received if the correction coefficient for Angola, as referred to in Article 64 of the Staff Regulations and Articles 12 and 13 in Annex X to the regulations, had been applied de jure to his monthly salary, and what the applicant actually received by way of remuneration pursuant to Article 62 of the regulations; |
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order the Commission to pay to the applicant, for each month from March 2001 until the last month of his mission, if only de jure, carrying out duties in the EC Delegation in Angola, the sum arising from the difference (‘the difference in remuneration’) between what the applicant should have received if the correction coefficient for Angola, as referred to in Article 64 of the Staff Regulations and Articles 12 and 13 in Annex X to the regulations, had been applied de jure to his monthly salary, and what the applicant actually received by way of remuneration pursuant to Article 62 of the regulations;

| — | order the Commission to pay to the applicant, in respect of every difference in remuneration, interest by way of compensation for the delay on its part in paying the sums in question, at the rate of 10 per annum, with annual capitalisation, with effect from the date on which each monthly instalment of his remuneration was paid, or should have been paid to the applicant, until actual payment of the differences in remuneration; |
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order the Commission to pay to the applicant, in respect of every difference in remuneration, interest by way of compensation for the delay on its part in paying the sums in question, at the rate of 10 per annum, with annual capitalisation, with effect from the date on which each monthly instalment of his remuneration was paid, or should have been paid to the applicant, until actual payment of the differences in remuneration;

| — | order the Commission to pay to the applicant, in respect of each difference in remuneration, compensation for the erosion of purchasing power, by reference to the annual variations in the cost of living index for Brussels, referred to in Article 1 of Annex XI to the Staff Regulation as the ‘Brussels International Index’, or any other such index which the Court may deem it fair and equitable to apply in the present case, with annual capitalisation, with effect from the date on which each monthly instalment of the applicant’s remuneration was paid or should have been paid until actual payment of the compensation in question; |
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order the Commission to pay to the applicant, in respect of each difference in remuneration, compensation for the erosion of purchasing power, by reference to the annual variations in the cost of living index for Brussels, referred to in Article 1 of Annex XI to the Staff Regulation as the ‘Brussels International Index’, or any other such index which the Court may deem it fair and equitable to apply in the present case, with annual capitalisation, with effect from the date on which each monthly instalment of the applicant’s remuneration was paid or should have been paid until actual payment of the compensation in question;

| — | order the Commission to pay the cost. |
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order the Commission to pay the cost.

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/31 |
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4.5.2013

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Official Journal of the European Union

C 129/31

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Action brought on 14 January 2013 — CK v Commission

(Case F-3/13)

2013/C 129/57

Language of the case: French

Parties

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

Defendant: European Commission

Subject-matter and description of the proceedings

The annulment of the applicant’s career development report.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the career development report for 2011 drawn up on 14 February 2012 and definitively adopted on 9 March 2012; |
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annul the career development report for 2011 drawn up on 14 February 2012 and definitively adopted on 9 March 2012;

| — | order the Commission to pay EUR 5 000 by way of compensation for the non-material harm which resulted from that report; |
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order the Commission to pay EUR 5 000 by way of compensation for the non-material harm which resulted from that report;

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

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| 4.5.2013 | EN | Official Journal of the European Union | C 129/31 |
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4.5.2013

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Official Journal of the European Union

C 129/31

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Action brought on 11 February 2013 — ZZ v Commission

(Case F-15/13)

2013/C 129/58

Language of the case: French

Parties

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

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision to close the procedures for the transfer of the applicant’s pension rights, without a transfer.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision of 17 April 2012 to close the files on the transfer of the applicant’s pension rights; |
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annul the decision of 17 April 2012 to close the files on the transfer of the applicant’s pension rights;

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

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