# Official Journal C 319/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.319.eng |
| --- | --- |
| Official Journal
  of the European Union | C 319 |
| | |
| English edition | Information and Notices | Volume 5520 October 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.319.eng

Official Journal

of the European Union

C 319

English edition

Information and Notices

Volume 5520 October 2012

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2012/C 319/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 311, 13.10.2012 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2012/C 319/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 311, 13.10.2012

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2012/C 319/02 | Case C-243/12 P: Appeal brought on 16 May 2012 by FLS Plast A/S against the judgment of the General Court (Fourth Chamber) delivered on 6 March 2012 in Case T-64/06: FLS Plast A/S v European Commission | 2 |
| 2012/C 319/03 | Case C-375/12: Reference for a preliminary ruling from the Tribunal administratif de Grenoble (France) lodged on 6 August 2012 — Margaretha Bouanich v Direction départementale des finances publiques de la Drôme | 3 |
| 2012/C 319/04 | Case C-377/12: Action brought on 6 August 2012 — European Commission v Council of the European Union | 3 |
| 2012/C 319/05 | Case C-382/12 P: Appeal brought on 6 August 2012 by MasterCard, Inc., MasterCard International, Inc., MasterCard Europe against the judgment of the General Court (Seventh Chamber) delivered on 24 May 2012 in Case T-111/08: Mastercard, Inc. and others v European Commission | 4 |
| 2012/C 319/06 | Case C-388/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy), lodged on 16 August 2012 — Comune di Ancona v Regione Marche | 4 |
| | General Court |
| 2012/C 319/07 | Case T-394/06: Judgment of the General Court of 12 September 2012 — Italy v Commission (EAGGF — Guarantee section — Clearance of accounts — Expenditure excluded from financing — Irregularities or negligence attributable to administrations or bodies of Member States — Article 8(1) and (2) of Regulation (EEC) No 729/70 and Article 8(1) and (2) of Regulation (EC) No 1258/1999 — Excessive delay in the assessment by the Commission of the communications sent pursuant to Article 5(2) of Regulation (EEC) No 595/91 — Reasonable time-limit) | 6 |
| 2012/C 319/08 | Case T-356/08: Judgment of the General Court of 12 September 2012 — Greece v Commission (EAGGF — Guarantee Section — Expenditure excluded from financing — Arable crops — Proportionality — Increase in the correction due to recurrence of the infringement) | 6 |
| 2012/C 319/09 | Case T-119/09: Judgment of the General Court of 13 September 2012 — Protégé International Ltd v European Commission (Competition — Abuse of dominant position — Market for Irish whiskey — Decision to reject a complaint — Lack of Community interest) | 6 |
| 2012/C 319/10 | Case T-379/09: Judgment of the General Court of 13 September 2012 — Italy v Commission (State aid — Exemption from excise duty on diesel used to heat glasshouses — Decision declaring the aid scheme incompatible with the common market and ordering the recovery of the aid paid — Duty to state reasons — Selective nature — Effect on trade between Member States — Effect on competition — Directive 92/81/EEC — Directive 2003/96/EC — Community framework for State aid for the protection of the environment) | 7 |
| 2012/C 319/11 | Case T-404/10: Judgment of the General Court of 13 September 2012 — National Lottery Commission v OHIM (Community trade mark — Invalidity proceedings — Community figurative mark representing a hand — Article 53(2)(c) of Regulation (EC) No 207/2009 — Existence of earlier copyright protected by national law — Burden of proof — Application by OHIM of national law — Review) | 7 |
| 2012/C 319/12 | Case T-566/10: Judgment of the General Court of 12 September 2012 — Ertmer v OHIM (Community trade mark — Invalidity proceedings — Community word mark erkat — Earlier Community and national word and figurative marks CAT — Relative grounds for refusal — Likelihood of confusion — Damage to reputation — Article 8(1)(b) and (5) of Regulation (E) No 207/2009 — Obligation to state reasons) | 8 |
| 2012/C 319/13 | Case T-72/11: Judgment of the General Court of 13 September 2012 — Sogepi Consulting y Publicidad v OHIM (ESPETEC) (Community trade mark — Application for Community word mark ESPETEC — Absolute grounds for refusal — Descriptive nature — Lack of distinctiveness — Lack of distinctiveness acquired by use — Article 7(1)(b) and (c) and (3) of Regulation (EC) No 207/2009) | 8 |
| 2012/C 319/14 | Case T-295/11: Judgment of the General Court of 12 September 2012 — Duscholux Ibérica v OHIM — Duschprodukter i Skandinavien (duschy) (Community trade mark — Opposition proceedings — International registration designating the European Community — Application for the Community figurative mark duschy — Earlier Community figurative mark DUSCHO Harmony — Relative ground for refusal — Absence of likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Obligation to state the reasons on which the decision is based — Articles 75 and 76 of Regulation No 207/2009) | 8 |
| 2012/C 319/15 | Case T-497/11: Judgment of the General Court of 5 September 2012 — Euro-Information v OHIM (EURO AUTOMATIC PAIEMENT) (Community trade mark — Application for Community word mark EURO AUTOMATIC PAIEMENT — Absolute ground for refusal — Descriptive nature — Article 7(1)(c) of Regulation (EC) No 207/2009) | 9 |
| 2012/C 319/16 | Case T-381/08: Order of the General Court of 4 September 2012 — DAI v Commission (Agriculture — Sugar — Temporary scheme for the restructuring of the sugar industry of the Community — Regulation (EC) No 320/2006 and Regulation (EC) No 928/2006 — Decision 2008/445/EC — Retroactive restructuring aid) | 9 |
| 2012/C 319/17 | Case T-519/11 P: Order of the General Court of 6 September 2012 — Gozi v Commission (Appeal — Civil service — Officials — Request for assistance — Commission decision not to reimburse to the applicant the costs incurred in proceedings before a national criminal court — Appeal partly clearly inadmissible and partly clearly unfounded) | 10 |
| 2012/C 319/18 | Case T-657/11: Order of the General Court of 6 September 2012 — Technion and Technion Research & Development Foundation v Commission (Action for annulment — Sixth framework programme for research, technological development and demonstration activities — Letter notifying the applicant of the Commission’s intention to recover the adjusted sums pursuant to a research financing contract — Acts inseparable from the contract — Inadmissibility) | 10 |
| 2012/C 319/19 | Case T-213/12 R: Order of the President of the General Court of 4 September 2012 — Elitaliana v Eulex Kosovo (Interim measures — Public contracts — Tendering procedure — Rejection of a tender — Application for interim measures — Disregard of the procedural requirements — Inadmissibility) | 10 |
| 2012/C 319/20 | Case T-360/12: Action brought on 8 August 2012 — Vuitton Malletier v OHIM — Nanu-Nana (Device of a chequer-board pattern) | 11 |
| 2012/C 319/21 | Case T-361/12: Action brought on 6 August 2012 — Premiere Polish v OHIM — Donau Kanol (ECOFORCE) | 11 |
| 2012/C 319/22 | Case T-366/12: Action brought on 10 August 2012 — Katjes Fassin v OHIM (Yoghurt-Gums) | 12 |
| 2012/C 319/23 | Case T-367/12: Action brought on 10 August 2012 — MOL v OHIM — Banco Bilbao Vizcaya Argentaria (MOL Blue Card) | 12 |
| 2012/C 319/24 | Case T-369/12: Action brought on 20 August 2012 — American Express Marketing & Development v OHIM (EUROPE IP ZONE) | 13 |
| 2012/C 319/25 | Case T-370/12: Action brought on 20 August 2012 — American Express Marketing & Development v OHIM (IP ZONE EUROPE) | 13 |
| 2012/C 319/26 | Case T-371/12: Action brought on 20 August 2012 — American Express Marketing & Development v OHIM (EUROPEAN IP ZONE) | 14 |
| 2012/C 319/27 | Case T-373/12: Action brought on 20 August 2012 — REWE-Zentral v OHIM — Planet GDZ (PRO PLANET) | 14 |
| 2012/C 319/28 | Case T-387/12: Action brought on 4 September 2012 — Italy v Commission | 15 |
| 2012/C 319/29 | Case T-397/12: Action brought on 6 September 2012 — Diputación Foral de Bizkaia v Commission | 15 |
| | European Union Civil Service Tribunal |
| 2012/C 319/30 | Case F-69/12: Action brought on 3 July 2012 — ZZ v Europol | 17 |
| 2012/C 319/31 | Case F-71/12: Action brought on 5th July 2012 — BZ v ECB | 17 |
| 2012/C 319/32 | Case F-77/12: Action brought on 23 July 2012 — ZZ v Commission | 18 |
| 2012/C 319/33 | Case F-79/12: Action brought on 26 July 2012 — ZZ v Commission | 18 |
| 2012/C 319/34 | Case F-80/12: Action brought on 26 July 2012 — ZZ v EIT | 18 |
| 2012/C 319/35 | Case F-82/12: Action brought on 30 July 2012 — ZZ v EIB | 18 |
| 2012/C 319/36 | Case F-87/12: Action brought on 10 August 2012 — ZZ v Commission | 19 |
| 2012/C 319/37 | Case F-88/12: Action brought on 20 August 2012 — ZZ v Commission | 19 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2012/C 319/02

Case C-243/12 P: Appeal brought on 16 May 2012 by FLS Plast A/S against the judgment of the General Court (Fourth Chamber) delivered on 6 March 2012 in Case T-64/06: FLS Plast A/S v European Commission

2

2012/C 319/03

Case C-375/12: Reference for a preliminary ruling from the Tribunal administratif de Grenoble (France) lodged on 6 August 2012 — Margaretha Bouanich v Direction départementale des finances publiques de la Drôme

3

2012/C 319/04

Case C-377/12: Action brought on 6 August 2012 — European Commission v Council of the European Union

3

2012/C 319/05

Case C-382/12 P: Appeal brought on 6 August 2012 by MasterCard, Inc., MasterCard International, Inc., MasterCard Europe against the judgment of the General Court (Seventh Chamber) delivered on 24 May 2012 in Case T-111/08: Mastercard, Inc. and others v European Commission

4

2012/C 319/06

Case C-388/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy), lodged on 16 August 2012 — Comune di Ancona v Regione Marche

4

General Court

2012/C 319/07

Case T-394/06: Judgment of the General Court of 12 September 2012 — Italy v Commission (EAGGF — Guarantee section — Clearance of accounts — Expenditure excluded from financing — Irregularities or negligence attributable to administrations or bodies of Member States — Article 8(1) and (2) of Regulation (EEC) No 729/70 and Article 8(1) and (2) of Regulation (EC) No 1258/1999 — Excessive delay in the assessment by the Commission of the communications sent pursuant to Article 5(2) of Regulation (EEC) No 595/91 — Reasonable time-limit)

6

2012/C 319/08

Case T-356/08: Judgment of the General Court of 12 September 2012 — Greece v Commission (EAGGF — Guarantee Section — Expenditure excluded from financing — Arable crops — Proportionality — Increase in the correction due to recurrence of the infringement)

6

2012/C 319/09

Case T-119/09: Judgment of the General Court of 13 September 2012 — Protégé International Ltd v European Commission (Competition — Abuse of dominant position — Market for Irish whiskey — Decision to reject a complaint — Lack of Community interest)

6

2012/C 319/10

Case T-379/09: Judgment of the General Court of 13 September 2012 — Italy v Commission (State aid — Exemption from excise duty on diesel used to heat glasshouses — Decision declaring the aid scheme incompatible with the common market and ordering the recovery of the aid paid — Duty to state reasons — Selective nature — Effect on trade between Member States — Effect on competition — Directive 92/81/EEC — Directive 2003/96/EC — Community framework for State aid for the protection of the environment)

7

2012/C 319/11

Case T-404/10: Judgment of the General Court of 13 September 2012 — National Lottery Commission v OHIM (Community trade mark — Invalidity proceedings — Community figurative mark representing a hand — Article 53(2)(c) of Regulation (EC) No 207/2009 — Existence of earlier copyright protected by national law — Burden of proof — Application by OHIM of national law — Review)

7

2012/C 319/12

Case T-566/10: Judgment of the General Court of 12 September 2012 — Ertmer v OHIM (Community trade mark — Invalidity proceedings — Community word mark erkat — Earlier Community and national word and figurative marks CAT — Relative grounds for refusal — Likelihood of confusion — Damage to reputation — Article 8(1)(b) and (5) of Regulation (E) No 207/2009 — Obligation to state reasons)

8

2012/C 319/13

Case T-72/11: Judgment of the General Court of 13 September 2012 — Sogepi Consulting y Publicidad v OHIM (ESPETEC) (Community trade mark — Application for Community word mark ESPETEC — Absolute grounds for refusal — Descriptive nature — Lack of distinctiveness — Lack of distinctiveness acquired by use — Article 7(1)(b) and (c) and (3) of Regulation (EC) No 207/2009)

8

2012/C 319/14

Case T-295/11: Judgment of the General Court of 12 September 2012 — Duscholux Ibérica v OHIM — Duschprodukter i Skandinavien (duschy) (Community trade mark — Opposition proceedings — International registration designating the European Community — Application for the Community figurative mark duschy — Earlier Community figurative mark DUSCHO Harmony — Relative ground for refusal — Absence of likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Obligation to state the reasons on which the decision is based — Articles 75 and 76 of Regulation No 207/2009)

8

2012/C 319/15

Case T-497/11: Judgment of the General Court of 5 September 2012 — Euro-Information v OHIM (EURO AUTOMATIC PAIEMENT) (Community trade mark — Application for Community word mark EURO AUTOMATIC PAIEMENT — Absolute ground for refusal — Descriptive nature — Article 7(1)(c) of Regulation (EC) No 207/2009)

9

2012/C 319/16

Case T-381/08: Order of the General Court of 4 September 2012 — DAI v Commission (Agriculture — Sugar — Temporary scheme for the restructuring of the sugar industry of the Community — Regulation (EC) No 320/2006 and Regulation (EC) No 928/2006 — Decision 2008/445/EC — Retroactive restructuring aid)

9

2012/C 319/17

Case T-519/11 P: Order of the General Court of 6 September 2012 — Gozi v Commission (Appeal — Civil service — Officials — Request for assistance — Commission decision not to reimburse to the applicant the costs incurred in proceedings before a national criminal court — Appeal partly clearly inadmissible and partly clearly unfounded)

10

2012/C 319/18

Case T-657/11: Order of the General Court of 6 September 2012 — Technion and Technion Research & Development Foundation v Commission (Action for annulment — Sixth framework programme for research, technological development and demonstration activities — Letter notifying the applicant of the Commission’s intention to recover the adjusted sums pursuant to a research financing contract — Acts inseparable from the contract — Inadmissibility)

10

2012/C 319/19

Case T-213/12 R: Order of the President of the General Court of 4 September 2012 — Elitaliana v Eulex Kosovo (Interim measures — Public contracts — Tendering procedure — Rejection of a tender — Application for interim measures — Disregard of the procedural requirements — Inadmissibility)

10

2012/C 319/20

Case T-360/12: Action brought on 8 August 2012 — Vuitton Malletier v OHIM — Nanu-Nana (Device of a chequer-board pattern)

11

2012/C 319/21

Case T-361/12: Action brought on 6 August 2012 — Premiere Polish v OHIM — Donau Kanol (ECOFORCE)

11

2012/C 319/22

Case T-366/12: Action brought on 10 August 2012 — Katjes Fassin v OHIM (Yoghurt-Gums)

12

2012/C 319/23

Case T-367/12: Action brought on 10 August 2012 — MOL v OHIM — Banco Bilbao Vizcaya Argentaria (MOL Blue Card)

12

2012/C 319/24

Case T-369/12: Action brought on 20 August 2012 — American Express Marketing & Development v OHIM (EUROPE IP ZONE)

13

2012/C 319/25

Case T-370/12: Action brought on 20 August 2012 — American Express Marketing & Development v OHIM (IP ZONE EUROPE)

13

2012/C 319/26

Case T-371/12: Action brought on 20 August 2012 — American Express Marketing & Development v OHIM (EUROPEAN IP ZONE)

14

2012/C 319/27

Case T-373/12: Action brought on 20 August 2012 — REWE-Zentral v OHIM — Planet GDZ (PRO PLANET)

14

2012/C 319/28

Case T-387/12: Action brought on 4 September 2012 — Italy v Commission

15

2012/C 319/29

Case T-397/12: Action brought on 6 September 2012 — Diputación Foral de Bizkaia v Commission

15

European Union Civil Service Tribunal

2012/C 319/30

Case F-69/12: Action brought on 3 July 2012 — ZZ v Europol

17

2012/C 319/31

Case F-71/12: Action brought on 5th July 2012 — BZ v ECB

17

2012/C 319/32

Case F-77/12: Action brought on 23 July 2012 — ZZ v Commission

18

2012/C 319/33

Case F-79/12: Action brought on 26 July 2012 — ZZ v Commission

18

2012/C 319/34

Case F-80/12: Action brought on 26 July 2012 — ZZ v EIT

18

2012/C 319/35

Case F-82/12: Action brought on 30 July 2012 — ZZ v EIB

18

2012/C 319/36

Case F-87/12: Action brought on 10 August 2012 — ZZ v Commission

19

2012/C 319/37

Case F-88/12: Action brought on 20 August 2012 — ZZ v Commission

19

| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 20.10.2012 | EN | Official Journal of the European Union | C 319/1 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/1

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2012/C 319/01

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

OJ C 311, 13.10.2012

Past publications

OJ C 303, 6.10.2012

OJ C 295, 29.9.2012

OJ C 287, 22.9.2012

OJ C 273, 8.9.2012

OJ C 258, 25.8.2012

OJ C 250, 18.8.2012

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 20.10.2012 | EN | Official Journal of the European Union | C 319/2 |
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20.10.2012

EN

Official Journal of the European Union

C 319/2

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Appeal brought on 16 May 2012 by FLS Plast A/S against the judgment of the General Court (Fourth Chamber) delivered on 6 March 2012 in Case T-64/06: FLS Plast A/S v European Commission

(Case C-243/12 P)

2012/C 319/02

Language of the case: English

Parties

Appellant: FLS Plast A/S (represented by: M. Thill-Tayara, avocate)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| (a) | Primarily, set aside the judgment of the General Court of the European Union of 6 March 2012 in Cases T-64/06 and, adjudicating the case, to annul Articles 1(h) and 2(f) of the decision of the Commission of the European Communities dated 30 November 2005 in Case COMP/F/38.354 — Industrial Bags (‘the Contested Decision’), insofar as they apply to the Appellant. |
| --- | --- |

(a)

Primarily, set aside the judgment of the General Court of the European Union of 6 March 2012 in Cases T-64/06 and, adjudicating the case, to annul Articles 1(h) and 2(f) of the decision of the Commission of the European Communities dated 30 November 2005 in Case COMP/F/38.354 — Industrial Bags (‘the Contested Decision’), insofar as they apply to the Appellant.

| (b) | Alternatively, set aside the judgment of the General Court of the European Union of 6 March 2012 in Case T-64/06 in so far as it rejected the Appellant's grounds seeking a reduction of the amount for which the Appellant was held jointly and severally liable in the Contested Decision and, adjudicating the case, to amend Article 2(f) of the Contested Decision and substantially reduce this amount in exercise of its unlimited jurisdiction. |
| --- | --- |

(b)

Alternatively, set aside the judgment of the General Court of the European Union of 6 March 2012 in Case T-64/06 in so far as it rejected the Appellant's grounds seeking a reduction of the amount for which the Appellant was held jointly and severally liable in the Contested Decision and, adjudicating the case, to amend Article 2(f) of the Contested Decision and substantially reduce this amount in exercise of its unlimited jurisdiction.

| (c) | In any event, grant the Appellant a 50 % reduction of the amount for which the Appellant was held jointly and severally liable in reparation of the excessive duration of the procedure. |
| --- | --- |

(c)

In any event, grant the Appellant a 50 % reduction of the amount for which the Appellant was held jointly and severally liable in reparation of the excessive duration of the procedure.

| (d) | Order the European Commission to pay the Appellant's legal and other costs and expenses in relation to this matter. |
| --- | --- |

(d)

Order the European Commission to pay the Appellant's legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

| (a) | In support of the primary form of order sought, the Appellant raises two pleas in law








  (i) | The General Court applied the wrong legal test to the Appellant's liability. |
| --- | --- | --- |

(a)

In support of the primary form of order sought, the Appellant raises two pleas in law

(i)

The General Court applied the wrong legal test to the Appellant's liability.

| (ii) | The General Court failed to verify whether the Commission complied with its duty to state reasons when rejecting the arguments and evidence submitted by the Appellant in order to rebut the presumption of parent liability. |
| --- | --- |

(ii)

The General Court failed to verify whether the Commission complied with its duty to state reasons when rejecting the arguments and evidence submitted by the Appellant in order to rebut the presumption of parent liability.

| (b) | In support of the alternative form of order sought, the Appellant raises three pleas in law








  (i) | When reviewing the Appellant's non-contestation of the facts submitted in accordance with the Commission Notice on the non-imposition or reduction of fines in cartel cases of 1996, the General Court erred by failing to put an end to the breaches by the European Commission of the principles of legitimate expectations and equal treatment, as well as by not complying with its own obligation to state reasons. |
| --- | --- | --- |

(b)

In support of the alternative form of order sought, the Appellant raises three pleas in law

(i)

When reviewing the Appellant's non-contestation of the facts submitted in accordance with the Commission Notice on the non-imposition or reduction of fines in cartel cases of 1996, the General Court erred by failing to put an end to the breaches by the European Commission of the principles of legitimate expectations and equal treatment, as well as by not complying with its own obligation to state reasons.

| (ii) | The General Court erred in law by failing to apply the principle of proportionality and legality when reviewing the amount for which the Appellant was held jointly and severally liable in the Contested Decision, thus failing to reduce this amount accordingly. |
| --- | --- |

(ii)

The General Court erred in law by failing to apply the principle of proportionality and legality when reviewing the amount for which the Appellant was held jointly and severally liable in the Contested Decision, thus failing to reduce this amount accordingly.

| (iii) | The General Court infringed Article 6(1) of the European Convention on Human Rights and Articles 41 and 47 of the European Charter of Fundamental Rights in not handing down a judgment within a reasonable time. |
| --- | --- |

(iii)

The General Court infringed Article 6(1) of the European Convention on Human Rights and Articles 41 and 47 of the European Charter of Fundamental Rights in not handing down a judgment within a reasonable time.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/3 |
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20.10.2012

EN

Official Journal of the European Union

C 319/3

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Reference for a preliminary ruling from the Tribunal administratif de Grenoble (France) lodged on 6 August 2012 — Margaretha Bouanich v Direction départementale des finances publiques de la Drôme

(Case C-375/12)

2012/C 319/03

Language of the case: French

Referring court

Tribunal administratif de Grenoble

Parties to the main proceedings

Applicant: Margaretha Bouanich

Defendant: Direction départementale des finances publiques de la Drôme

Questions referred

| 1. | Do Articles 43, 56 and 58 of the Treaty establishing the European Community (now Articles 49, 63 and 65 of the Treaty on the Functioning of the European Union) preclude legislation, such as that at issue in the main proceedings, under which, where a resident of a Member State of the European Union who is a shareholder of a company established in another Member State of the European Union receives dividends taxed in the two Member States and the double taxation is regulated by the imputation in the Member State of residence of a tax credit for the same amount as the tax paid in the State of the distributing company, the tax capping mechanism of up to 60 % or 50 % of income received during a year does not take into account, or takes only partially into account, the tax paid in the other State; |
| --- | --- |

1.

Do Articles 43, 56 and 58 of the Treaty establishing the European Community (now Articles 49, 63 and 65 of the Treaty on the Functioning of the European Union) preclude legislation, such as that at issue in the main proceedings, under which, where a resident of a Member State of the European Union who is a shareholder of a company established in another Member State of the European Union receives dividends taxed in the two Member States and the double taxation is regulated by the imputation in the Member State of residence of a tax credit for the same amount as the tax paid in the State of the distributing company, the tax capping mechanism of up to 60 % or 50 % of income received during a year does not take into account, or takes only partially into account, the tax paid in the other State;

| 2. | If that is the case, may such a restriction be justified by the need to maintain the cohesion of the tax system, by a balanced allocation of taxing powers between the Member States, or by any other overriding reason in the public interest? |
| --- | --- |

2.

If that is the case, may such a restriction be justified by the need to maintain the cohesion of the tax system, by a balanced allocation of taxing powers between the Member States, or by any other overriding reason in the public interest?

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/3 |
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20.10.2012

EN

Official Journal of the European Union

C 319/3

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Action brought on 6 August 2012 — European Commission v Council of the European Union

(Case C-377/12)

2012/C 319/04

Language of the case: English

Parties

Applicant: European Commission (represented by: G. Valero Jordana, S. Bartelt, F. Erlbacher, Agents)

Defendant: Council of the European Union

The applicant claims that the Court should:

| — | annul the Decision of the Council of 14 May 2012 on the signing, on behalf of the Union, of the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part (2012/272/EU) (1) insofar as the Council has added the legal bases relating to transport (Articles 91 and 100 TFEU), readmission (Article 79(3) TFEU) and environment (Article 191(4) TFEU); |
| --- | --- |

—

annul the Decision of the Council of 14 May 2012 on the signing, on behalf of the Union, of the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part (2012/272/EU) (1) insofar as the Council has added the legal bases relating to transport (Articles 91 and 100 TFEU), readmission (Article 79(3) TFEU) and environment (Article 191(4) TFEU);

| — | maintain the effects of the contested decision; |
| --- | --- |

—

maintain the effects of the contested decision;

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

—

order Council of the European Union to pay the costs.

Pleas in law and main arguments

By way of the present application the Commission seeks the annulment of the Decision of the Council on the signing, on behalf of the Union, of the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part of 14 May 2012 (2012/272/EU) (hereinafter referred to as ‘the contested decision’), insofar as the Council has added the legal bases relating to transport (Articles 91 and 100 TFEU), readmission (Article 79(3) TFEU) and environment (Article 191(4) TFEU).

This application is based on a single plea of law, namely that the Council has violated the rules of the Treaties and the case-law of the Court in relation to the choice of the legal basis for the adoption of a Union measure, including a decision on the signature of an international agreement.

The Commission takes the view that the addition of the above mentioned legal bases was unnecessary and illegal. Indeed, the provisions of the PCA which have triggered the addition of these legal bases by the Council relate to cooperation on specific policy matters which form an integral part of the development cooperation policy of the EU and do not impose extensive obligations distinct from those of development cooperation. Therefore, all these provisions of the PCA are covered by Article 209 TFEU.

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(1)  OJ L 134, p. 3

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/4 |
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20.10.2012

EN

Official Journal of the European Union

C 319/4

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Appeal brought on 6 August 2012 by MasterCard, Inc., MasterCard International, Inc., MasterCard Europe against the judgment of the General Court (Seventh Chamber) delivered on 24 May 2012 in Case T-111/08: Mastercard, Inc. and others v European Commission

(Case C-382/12 P)

2012/C 319/05

Language of the case: English

Parties

Appellants: MasterCard, Inc., MasterCard International, Inc., MasterCard Europe (represented by: V. Brophy, E. Barbier de La Serre, B. Amory, avocats)

Other parties to the proceedings: European Commission, Banco Santander, SA, Royal Bank of Scotland plc, HSBC Bank plc, Bank of Scotland plc, Lloyds TSB Bank plc, MBNA Europe Bank Ltd, United Kingdom of Great Britain and Northern Ireland, British Retail Consortium, EuroCommerce AISBL

Form of order sought

The appellants claim that the Court should:

| — | set aside the judgment of the General Court of 24 May 2012 in Case T-111/08, MasterCard and others v. Commission; |
| --- | --- |

—

set aside the judgment of the General Court of 24 May 2012 in Case T-111/08, MasterCard and others v. Commission;

| — | annul the Commission Decision C(2007) 6474 final of 19 December 2007 in Cases COMP/34.579 — MasterCard, COMP/36.518 — EuroCommerce, COMP/38.580 — Commercial Cards (1); |
| --- | --- |

—

annul the Commission Decision C(2007) 6474 final of 19 December 2007 in Cases COMP/34.579 — MasterCard, COMP/36.518 — EuroCommerce, COMP/38.580 — Commercial Cards (1);

| — | order the Commission to pay the costs of the present proceedings, including the costs of the Applicants before this Court and before the General Court. |
| --- | --- |

—

order the Commission to pay the costs of the present proceedings, including the costs of the Applicants before this Court and before the General Court.

Pleas in law and main arguments

The appellant submits that the contested judgment should be set aside on the following grounds:-

| | First plea
  : the General Court made an error of law and/or failed to provide adequate reasoning with regard to the assessment of the objective necessity of the alleged restriction of competition. Specifically, the General Court misapplied the well-established test of objective necessity. Rather than applying the proper test under which a restriction is objectively necessary if it is either impossible or
  difficult
  to achieve the main operation without it, the General Court applied an incomplete test according to which a restriction is objectively necessary only if, without it, the main operation is
  incapable
  of functioning. In addition, the General Court; (i) failed to assess the alleged restriction, and therefore objective necessity, in its proper context; (ii) erroneously substituted its own assessment for that of the Commission; and (iii) failed to apply the right standard of review. |
| --- | --- |

First plea
  : the General Court made an error of law and/or failed to provide adequate reasoning with regard to the assessment of the objective necessity of the alleged restriction of competition. Specifically, the General Court misapplied the well-established test of objective necessity. Rather than applying the proper test under which a restriction is objectively necessary if it is either impossible or
  difficult
  to achieve the main operation without it, the General Court applied an incomplete test according to which a restriction is objectively necessary only if, without it, the main operation is
  incapable
  of functioning. In addition, the General Court; (i) failed to assess the alleged restriction, and therefore objective necessity, in its proper context; (ii) erroneously substituted its own assessment for that of the Commission; and (iii) failed to apply the right standard of review.

| | Second plea
  : the General Court made an error of law and/or failed to provide adequate reasoning with regard to the assessment of whether MasterCard is an association of undertakings. Specifically, the General Court made an error of law in considering the alleged commonality of interest between the banks and MasterCard, and the banks' residual decision-making powers post IPO, unrelated to the Multilateral Interchange Fee (‘MIF’), as sufficient to characterize MasterCard as an association of undertakings when taking decisions regarding the MIF. In any event, the banks' decision-making powers post IPO, and the alleged commonality of interests between the banks and MasterCard, are irrelevant to determine whether MasterCard is an association of undertakings when taking decisions regarding the MIF. |
| --- | --- |

Second plea
  : the General Court made an error of law and/or failed to provide adequate reasoning with regard to the assessment of whether MasterCard is an association of undertakings. Specifically, the General Court made an error of law in considering the alleged commonality of interest between the banks and MasterCard, and the banks' residual decision-making powers post IPO, unrelated to the Multilateral Interchange Fee (‘MIF’), as sufficient to characterize MasterCard as an association of undertakings when taking decisions regarding the MIF. In any event, the banks' decision-making powers post IPO, and the alleged commonality of interests between the banks and MasterCard, are irrelevant to determine whether MasterCard is an association of undertakings when taking decisions regarding the MIF.

| | Third plea
  : the General Court made errors of law concerning the admissibility of several annexes to the Application. There was no basis in law for the General Court to limit MasterCard's right of access to the court in this way. Furthermore, even if the General Court had such powers, it erred in finding that the limitation should apply in this particular case. |
| --- | --- |

Third plea
  : the General Court made errors of law concerning the admissibility of several annexes to the Application. There was no basis in law for the General Court to limit MasterCard's right of access to the court in this way. Furthermore, even if the General Court had such powers, it erred in finding that the limitation should apply in this particular case.

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(1)  Summary of Commission Decision of 19 December 2007

OJ C 264, 6.11.2009, p. 8

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/4 |
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20.10.2012

EN

Official Journal of the European Union

C 319/4

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy), lodged on 16 August 2012 — Comune di Ancona v Regione Marche

(Case C-388/12)

2012/C 319/06

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per le Marche

Parties to the main proceedings

Applicant: Comune di Ancona

Defendant: Regione Marche

Questions referred

| 1. | Must Article 30(4) of Regulation (EC) No 1260/1999 (1) be interpreted as meaning that it is not possible to undertake an assessment of whether the assignment results in substantial income for the contracting authority and undue advantages for the concession-holder without first establishing whether the project has undergone substantial modification?
  If the answer to Question 1 is in the affirmative:






  (a) | Does that provision refer only to physical modifications — in the sense that the structure set in place is not as specified in relation to the project approved for funding — or does it also include modifications in regard to function and, in the latter case, has there been substantial modification if the structure is used ‘also’ — but not predominantly — for activities other than those envisaged in the notice or in the application to participate in the notice? |
| --- | --- | --- |

1.

Must Article 30(4) of Regulation (EC) No 1260/1999 (1) be interpreted as meaning that it is not possible to undertake an assessment of whether the assignment results in substantial income for the contracting authority and undue advantages for the concession-holder without first establishing whether the project has undergone substantial modification?

If the answer to Question 1 is in the affirmative:

(a)

Does that provision refer only to physical modifications — in the sense that the structure set in place is not as specified in relation to the project approved for funding — or does it also include modifications in regard to function and, in the latter case, has there been substantial modification if the structure is used ‘also’ — but not predominantly — for activities other than those envisaged in the notice or in the application to participate in the notice?

If the answer to Question 1 is in the negative:

| (b) | Does that provision, with reference to those cases in which the public funding is used to carry out works the management of which is likely to be financially significant, apply only at the stage when the project is being carried out, or does the requirement to comply with the rules on a competitive tendering procedure also continue to apply when the project management is assigned? |
| --- | --- |

(b)

Does that provision, with reference to those cases in which the public funding is used to carry out works the management of which is likely to be financially significant, apply only at the stage when the project is being carried out, or does the requirement to comply with the rules on a competitive tendering procedure also continue to apply when the project management is assigned?

| 2. | Must Article 30(4) of Regulation (EC) No 1260/1999 be interpreted as meaning that the process of establishing whether contracting out the management to third parties actually gives rise to substantial net income or positions of undue advantage for a firm or public body constitutes a stage which, logically and legally, follows on after the preliminary question (that is to say, the question whether a competitive tendering procedure must be held), or must account also be taken, in determining the existence of the obligation to hold a competitive tendering procedure, of the actual rules governing the contractual relationship? |
| --- | --- |

2.

Must Article 30(4) of Regulation (EC) No 1260/1999 be interpreted as meaning that the process of establishing whether contracting out the management to third parties actually gives rise to substantial net income or positions of undue advantage for a firm or public body constitutes a stage which, logically and legally, follows on after the preliminary question (that is to say, the question whether a competitive tendering procedure must be held), or must account also be taken, in determining the existence of the obligation to hold a competitive tendering procedure, of the actual rules governing the contractual relationship?

---

(1)  Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1).

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General Court

| 20.10.2012 | EN | Official Journal of the European Union | C 319/6 |
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20.10.2012

EN

Official Journal of the European Union

C 319/6

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Judgment of the General Court of 12 September 2012 — Italy v Commission

(Case T-394/06) (1)

(EAGGF - ‘Guarantee’ section - Clearance of accounts - Expenditure excluded from financing - Irregularities or negligence attributable to administrations or bodies of Member States - Article 8(1) and (2) of Regulation (EEC) No 729/70 and Article 8(1) and (2) of Regulation (EC) No 1258/1999 - Excessive delay in the assessment by the Commission of the communications sent pursuant to Article 5(2) of Regulation (EEC) No 595/91 - Reasonable time-limit)

2012/C 319/07

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Aiello, avvocato dello Stato)

Defendant: Commission (represented by: C. Cattabriga, acting as Agent, and M. Moretto, lawyer)

Re:

Application for annulment in part of Commission Decision 2006/678/EC of 3 October 2006 concerning the financial treatment to be applied, in the context of clearance of expenditure financed by the European Agricultural Guidance and Guarantee Fund (EAGGF), Guarantee Section, in certain cases of irregularity by operators (OJ 2006 L 278, p. 24).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Italian Republic to bear its own costs and to pay those incurred by the European Commission. |
| --- | --- |

2.

Orders the Italian Republic to bear its own costs and to pay those incurred by the European Commission.

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(1)  OJ C 42, 24.2.2007.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/6 |
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20.10.2012

EN

Official Journal of the European Union

C 319/6

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Judgment of the General Court of 12 September 2012 — Greece v Commission

(Case T-356/08) (1)

(EAGGF - Guarantee Section - Expenditure excluded from financing - Arable crops - Proportionality - Increase in the correction due to recurrence of the infringement)

2012/C 319/08

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: I. Chalkias, E. Leftheriotou and V. Karra, Agents)

Defendant: European Commission (represented by: H. Tserepa-Lacombe and A. Markoulli, Agents)

Re:

Application for annulment of Commission Decision 2008/582/EC of 8 July 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (OJ 2008 L 186, p. 39), in so far as it excluded certain expenditure incurred by the Hellenic Republic.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 285, 8.11.2008.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/6 |
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20.10.2012

EN

Official Journal of the European Union

C 319/6

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Judgment of the General Court of 13 September 2012 — Protégé International Ltd v European Commission

(Case T-119/09) (1)

(Competition - Abuse of dominant position - Market for Irish whiskey - Decision to reject a complaint - Lack of Community interest)

2012/C 319/09

Language of the case: French

Parties

Applicant: Protégé International Ltd (London, United Kingdom) (represented by: D. Shefet, lawyer)

Defendant: European Commission (represented by: F. Castillo de la Torre, A. Biolan and A. Antoniadis, lawyers)

Intervener in support of the defendant: Pernod Ricard SA (Paris, Frace) (represented by: A. Choffel and S. Hautborg, lawyers)

Re:

Annulment of Commission decision C(2009) 505 of 23 January 2009 (Case COMP/39.414 — Protégé International/Pernod Ricard), taken pursuant to Article 7(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [81 and 82 EC] (OJ 2004 L 123, p. 18) and rejecting, for lack of Community interest, the complaint lodged by the applicant concerning infringements of Article 82 EC allegedly committed by Pernod Ricard.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Protégé International Ltd to bear its own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders Protégé International Ltd to bear its own costs and to pay those incurred by the European Commission;

| 3. | Orders Pernod Ricard SA to bear its own costs. |
| --- | --- |

3.

Orders Pernod Ricard SA to bear its own costs.

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(1)  OJ C 113, 16.5.2009.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/7 |
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20.10.2012

EN

Official Journal of the European Union

C 319/7

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Judgment of the General Court of 13 September 2012 — Italy v Commission

(Case T-379/09) (1)

(State aid - Exemption from excise duty on diesel used to heat glasshouses - Decision declaring the aid scheme incompatible with the common market and ordering the recovery of the aid paid - Duty to state reasons - Selective nature - Effect on trade between Member States - Effect on competition - Directive 92/81/EEC - Directive 2003/96/EC - Community framework for State aid for the protection of the environment)

2012/C 319/10

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: F. Arena, G. Palmieri and F. Varrone, avvocati dello Stato)

Defendant: European Commission (represented by: B. Stromsky and D. Grespan, acting as Agents)

Re:

Application for annulment of Commission Decision 2009/944/EC of 13 July 2009 on State aid schemes C 6/04 (ex NN 70/01) and C 5/05 (ex NN 71/04) implemented by Italy in favour of glasshouse growers (exemption from excise duty on diesel used to heat glasshouses) (OJ 2009 L 327, p. 6).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Italian Republic to pay the costs. |
| --- | --- |

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ C 282, 21.11.2009.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/7 |
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20.10.2012

EN

Official Journal of the European Union

C 319/7

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Judgment of the General Court of 13 September 2012 — National Lottery Commission v OHIM

(Case T-404/10) (1)

(Community trade mark - Invalidity proceedings - Community figurative mark representing a hand - Article 53(2)(c) of Regulation (EC) No 207/2009 - Existence of earlier copyright protected by national law - Burden of proof - Application by OHIM of national law - Review)

2012/C 319/11

Language of the case: English

Parties

Applicant: National Lottery Commission (London, United Kingdom) (represented by: B. Brandreth, Barrister)

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

Other parties to the proceedings before the Board of Appeal of OHIM: Mediatek Italia Srl (Naples, Italy) and Giuseppe De Gregorio (Naples)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 9 June 2010 (Case R 1028/2009-1) relating to invalidity proceedings between, on the one hand, Mediatek Italia Srl and Giuseppe De Gregorio and, on the other, the National Lottery Commission

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 9 June 2010 (Case R 1028/2009-1); |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 9 June 2010 (Case R 1028/2009-1);

| 2. | Orders OHIM to pay the costs, including those incurred by the National Lottery Commission in the proceedings before the Board of Appeal. |
| --- | --- |

2.

Orders OHIM to pay the costs, including those incurred by the National Lottery Commission in the proceedings before the Board of Appeal.

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(1)  OJ C 328, 4.12.2010.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/8 |
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20.10.2012

EN

Official Journal of the European Union

C 319/8

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Judgment of the General Court of 12 September 2012 — Ertmer v OHIM

(Case T-566/10) (1)

(Community trade mark - Invalidity proceedings - Community word mark erkat - Earlier Community and national word and figurative marks CAT - Relative grounds for refusal - Likelihood of confusion - Damage to reputation - Article 8(1)(b) and (5) of Regulation (E) No 207/2009 - Obligation to state reasons)

2012/C 319/12

Language of the case: German

Parties

Applicant: Jutta Ertmer (Tastungen, Germany) (represented by: A. von Mühlendahl and C. Eckhartt, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court: Caterpillar, Inc. (Peoria, Illinois, United States) (represented by: A. Renck, V. von Bomhard and E. Nicolás Gómez, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 7 September 2010 (Case R 270/2010-1) relating to invalidity proceedings between Caterpillar, Inc. and Jutta Ertmer.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 7 September 2010 (Case R 270/2010-1); |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 7 September 2010 (Case R 270/2010-1);

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

2.

Dismisses the action as to the remainder;

| 3. | Orders OHIM and Caterpillar, Inc. to pay the costs |
| --- | --- |

3.

Orders OHIM and Caterpillar, Inc. to pay the costs

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(1)  OJ C 55, 19.2.2011.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/8 |
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20.10.2012

EN

Official Journal of the European Union

C 319/8

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Judgment of the General Court of 13 September 2012 — Sogepi Consulting y Publicidad v OHIM (ESPETEC)

(Case T-72/11) (1)

(Community trade mark - Application for Community word mark ESPETEC - Absolute grounds for refusal - Descriptive nature - Lack of distinctiveness - Lack of distinctiveness acquired by use - Article 7(1)(b) and (c) and (3) of Regulation (EC) No 207/2009)

2012/C 319/13

Language of the case: Spanish

Parties

Applicant: Sogepi Consulting y Publicidad, SL (Vic, Spain) (represented by: initially by: J. de Oliveira Vaz Miranda Sousa, T. Barceló Rebaque and N. Esteve Manasanch, and subsequently by: J. de Oliveira Vaz Miranda Sousa and N. Esteve Manasanch)

Defendant: OHIM (represented by: J. Crespo Carrillo, acting as Agent)

Re:

Annulment of the decision of the Second Board of Appeal of OHIM of 12 November 2010 (Case R 312/2010-2) concerning an application for registration of the word mark ESPETEC as a Community trade mark

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Sogepi Consulting y Publicidad, SL to pay the costs. |
| --- | --- |

2.

Orders Sogepi Consulting y Publicidad, SL to pay the costs.

---

(1)  OJ C 113, 9.4.2011.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/8 |
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20.10.2012

EN

Official Journal of the European Union

C 319/8

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Judgment of the General Court of 12 September 2012 — Duscholux Ibérica v OHIM — Duschprodukter i Skandinavien (duschy)

(Case T-295/11) (1)

(Community trade mark - Opposition proceedings - International registration designating the European Community - Application for the Community figurative mark duschy - Earlier Community figurative mark DUSCHO Harmony - Relative ground for refusal - Absence of likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Obligation to state the reasons on which the decision is based - Articles 75 and 76 of Regulation No 207/2009)

2012/C 319/14

Language of the case: English

Parties

Applicant: Duscholux Ibérica, SA (Barcelona, Spain) (represented by: J. Carbonnel Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Duschprodukter i Skandinavien AB (Hisings Backa, Sweden) (represented initially by M. Jonson, and subsequently by A. Kyhlhammar, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 21 March 2011 (Case R 662/2010-1), relating to opposition proceedings between Duscholux Ibérica, SA and Duschprodukter i Skandinavien AB

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Duscholux Ibérica, SA to pay the costs, including those incurred by Duschprodukter i Skandinavien AB in the course of the proceedings before the Board of Appeal. |
| --- | --- |

2.

Orders Duscholux Ibérica, SA to pay the costs, including those incurred by Duschprodukter i Skandinavien AB in the course of the proceedings before the Board of Appeal.

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(1)  OJ C 238, 13.8.2011.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/9 |
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20.10.2012

EN

Official Journal of the European Union

C 319/9

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Judgment of the General Court of 5 September 2012 — Euro-Information v OHIM (EURO AUTOMATIC PAIEMENT)

(Case T-497/11) (1)

(Community trade mark - Application for Community word mark EURO AUTOMATIC PAIEMENT - Absolute ground for refusal - Descriptive nature - Article 7(1)(c) of Regulation (EC) No 207/2009)

2012/C 319/15

Language of the case: French

Parties

Applicant: Euro-Information — Européenne de traitement de l’information (Strasbourg, France) (represented by: A. Grolée, lawyer)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 7 July 2011 (Case No R 370/2011-2), concerning an application to register the word mark EURO AUTOMATIC PAIEMENT as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Euro-Information — Européenne de traitement de l’information to pay the costs. |
| --- | --- |

2.

Orders Euro-Information — Européenne de traitement de l’information to pay the costs.

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(1)  OJ C 370, 17.12.2011.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/9 |
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20.10.2012

EN

Official Journal of the European Union

C 319/9

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Order of the General Court of 4 September 2012 — DAI v Commission

(Case T-381/08) (1)

(Agriculture - Sugar - Temporary scheme for the restructuring of the sugar industry of the Community - Regulation (EC) No 320/2006 and Regulation (EC) No 928/2006 - Decision 2008/445/EC - Retroactive restructuring aid)

2012/C 319/16

Language of the case: Portuguese

Parties

Applicant: DAI — Sociedade de Desenvolvimento Agro-Industrial, SA (Coruche, Portugal) (represented: initially by J. da Cruz Vilaça, L. Romão and A. Mestre, and subsequently by R. Oliveira, lawyers)

Defendant: European Commission (represented by: M. Alfonso and P. Rossi, Agents)

Re:

Action brought against Commission Decision 2008/445/EC of 11 June 2008 fixing the amounts per Member State of retroactive restructuring aid for growers and undertakings having restructured in the 2006/07 and 2007/08 marketing years in the framework of the temporary scheme for the restructuring of the sugar industry of the Community (OJ 2008 L 156, p. 20).

Operative part of the order

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

1.

The action is dismissed.

| 2. | DAI — Sociedade de Desenvolvimento Agro-Industrial, SA shall pay the costs. |
| --- | --- |

2.

DAI — Sociedade de Desenvolvimento Agro-Industrial, SA shall pay the costs.

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(1)  OJ C 313, 6.12.2008.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/10 |
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20.10.2012

EN

Official Journal of the European Union

C 319/10

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Order of the General Court of 6 September 2012 — Gozi v Commission

(Case T-519/11 P) (1)

(Appeal - Civil service - Officials - Request for assistance - Commission decision not to reimburse to the applicant the costs incurred in proceedings before a national criminal court - Appeal partly clearly inadmissible and partly clearly unfounded)

2012/C 319/17

Language of the case: Italian

Parties

Appellant: Sandro Gozi (Soglianó Al Rubicone, Italy) (represented by: G. Passalacqua and G. Calcerano, lawyers)

Other party to the proceedings: European Commission (represented by: J. Currall and J. Baquero Cruz, agents)

Re:

Appeal against judgment of the Civil Service Tribunal of the European Union (First Chamber) of 20 July 2011 in Case F-116/10 Gozi v Commission, not yet reported, seeking to have that judgment set aside.

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Sandro Gozi is ordered to bear his own costs and those incurred by the European Commission in the present proceedings. |
| --- | --- |

2.

Mr Sandro Gozi is ordered to bear his own costs and those incurred by the European Commission in the present proceedings.

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(1)  OJ C 347, 26.11.2011.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/10 |
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20.10.2012

EN

Official Journal of the European Union

C 319/10

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Order of the General Court of 6 September 2012 — Technion and Technion Research & Development Foundation v Commission

(Case T-657/11) (1)

(Action for annulment - Sixth framework programme for research, technological development and demonstration activities - Letter notifying the applicant of the Commission’s intention to recover the adjusted sums pursuant to a research financing contract - Acts inseparable from the contract - Inadmissibility)

2012/C 319/18

Language of the case: French

Parties

Applicants: Technion — Israel Institute of Technology (Haifa, Israel) and Technion Research & Development Foundation Ltd (Haifa) (represented by: D. Grisay and D. Piccininno, lawyers)

Defendant: European Commission (represented by: D. Calciu and F. Moro, Agents)

Re:

Application for annulment of the Commission’s letter of 19 October 2011 notifying the applicant of the issuing of a debit note for the reimbursement of the sum of EUR 97 106,72, corresponding to the amount of the adjusted sums for contract No 034984 (Mosaica), following the conclusions of the financial audit concerning, inter alia, that contract, concluded under the sixth framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European research area and to innovation (2002 — 2006)

Operative part of the order

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

1.

The action is dismissed as inadmissible;

| 2. | Technion — Israel Institute of Technology and Technion Research & Development Foundation Ltd are ordered to pay the costs. |
| --- | --- |

2.

Technion — Israel Institute of Technology and Technion Research & Development Foundation Ltd are ordered to pay the costs.

---

(1)  OJ C 73, 10.3.2012.

---

| 20.10.2012 | EN | Official Journal of the European Union | C 319/10 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/10

---

Order of the President of the General Court of 4 September 2012 — Elitaliana v Eulex Kosovo

(Case T-213/12 R)

(Interim measures - Public contracts - Tendering procedure - Rejection of a tender - Application for interim measures - Disregard of the procedural requirements - Inadmissibility)

2012/C 319/19

Language of the case: Italian

Parties

Applicant: Elitaliana SpA (Rome, Italy) (represented by: R. Colagrande, lawyer)

Defendant: Eulex Kosovo (Pristina, Republic of Kosovo) (represented by: G. Brosadola Pontotti, solicitor)

Re:

Action brought, in essence, to suspend the execution of the Eulex Kosovo decision rejecting the tender that the applicant had submitted in the public contract award procedure ‘EuropeAid/131516/D/SER/XK — Helicopter Support to the EULEX Mission in Kosovo (PROC/272/11)’ and awarding that contract to another tenderer.

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.

---

| 20.10.2012 | EN | Official Journal of the European Union | C 319/11 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/11

---

Action brought on 8 August 2012 — Vuitton Malletier v OHIM — Nanu-Nana (Device of a chequer-board pattern)

(Case T-360/12)

2012/C 319/20

Language in which the application was lodged: English

Parties

Applicant: Louis Vuitton Malletier (Paris, France) (represented by: P. Roncaglia, G. Lazzaretti and N. Parrotta, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nanu-Nana Handelsgesellschaft mbH für Geschenkartikel & Co. KG (Berlin, Germany)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 May 2012 in case R 1854/2011-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 May 2012 in case R 1854/2011-1;

| — | Order OHIM to pay the costs incurred by the applicant during these proceedings; and |
| --- | --- |

—

Order OHIM to pay the costs incurred by the applicant during these proceedings; and

| — | Order Nanu-Nana Handelsgesellschaft mbH für Geschenkartikel & Co. KG to pay the costs incurred by the applicant in the proceedings before the OHIM Cancellation Division and Boards of Appeal. |
| --- | --- |

—

Order Nanu-Nana Handelsgesellschaft mbH für Geschenkartikel & Co. KG to pay the costs incurred by the applicant in the proceedings before the OHIM Cancellation Division and Boards of Appeal.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark representing a device of a checked pattern for goods in class 18 — Community trade mark application No 6587851

Proprietor of the Community trade mark: The applicant

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

Grounds for the application for a declaration of invalidity: The other party to the proceedings before the Board of Appeal filed its request for declaration of invalidity against the CTM on the basis of absolute grounds, namely Article 52(1)(a) in connection with Article 7(1)(b), (c), (d), (e)(iii) and (f) of Council Regulation No 207/2009, and on absolute grounds under Article 52(1)(b) of Council Regulation No 207/2009

Decision of the Cancellation Division: Upheld the request for invalidity in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

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

—

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

| — | Infringement of Article 7(3) and Article 52(2) of Council Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 7(3) and Article 52(2) of Council Regulation No 207/2009.

---

| 20.10.2012 | EN | Official Journal of the European Union | C 319/11 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/11

---

Action brought on 6 August 2012 — Premiere Polish v OHIM — Donau Kanol (ECOFORCE)

(Case T-361/12)

2012/C 319/21

Language in which the application was lodged: English

Parties

Applicant: Premiere Polish Co., Ltd (Cheltenham, United Kingdom) (represented by: C. Jones and M. Carter, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Donau Kanol GmbH & Co KG (Ried im Traunkreis, Austria)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 June 2012 in case R 851/2011-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 June 2012 in case R 851/2011-4;

| — | Allow the applicant’s Community trade mark application No 8777005 in its entirety or in the alternative, the proceedings be remitted to the Board of Appeal; and |
| --- | --- |

—

Allow the applicant’s Community trade mark application No 8777005 in its entirety or in the alternative, the proceedings be remitted to the Board of Appeal; and

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

—

Order the Office to pay the applicant’s costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ECOFORCE’ for goods in class 3 — Community trade mark application No 8777005

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

Mark or sign cited in opposition: Community trade mark registration No 7243173 of the figurative mark ‘ECO FORTE’ for goods in classes 1, 3 and 5

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

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

---

| 20.10.2012 | EN | Official Journal of the European Union | C 319/12 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/12

---

Action brought on 10 August 2012 — Katjes Fassin v OHIM (Yoghurt-Gums)

(Case T-366/12)

2012/C 319/22

Language of the case: German

Parties

Applicant: Katjes Fassin GmbH & Co. KG (Emmerich am Rhein, Germany) (represented by T. Schmitz, 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 11 June 2012 in Case R 523/2012-4 and amend it in such a way that the appeal is dismissed in its entirety; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 June 2012 in Case R 523/2012-4 and amend it in such a way that the appeal is dismissed in its entirety;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the figurative mark including the word element ‘Yoghurt-Gums’ for goods in Classes 6, 24 and 30 — Community trade mark application No 9 455 197

Decision of the Examiner: partial rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

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

---

| 20.10.2012 | EN | Official Journal of the European Union | C 319/12 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/12

---

Action brought on 10 August 2012 — MOL v OHIM — Banco Bilbao Vizcaya Argentaria (MOL Blue Card)

(Case T-367/12)

2012/C 319/23

Language in which the application was lodged: English

Parties

Applicant: MOL Magyar Olaj- és Gázipari Nyrt. (Budapest, Hungary) (represented by: K. Szamosi, lawyer)

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

Other party to the proceedings before the Board of Appeal: Banco Bilbao Vizcaya Argentaria, SA (Bilbao, Spain)

Form of order sought

| — | Alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 May 2012 in case R 2532/2011-2, and render the registration of the contested trade mark application as a Community trade mark with regard to all goods and services concerned; and |
| --- | --- |

—

Alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 May 2012 in case R 2532/2011-2, and render the registration of the contested trade mark application as a Community trade mark with regard to all goods and services concerned; and

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

—

Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘MOL Blue Card’ for among other goods and services in classes 35 and 36 — Community trade mark application No W01030440

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

Mark or sign cited in opposition: Community trade mark registration No 8549172 of the word mark ‘BLUE’ for among others services in class 35; Community trade mark registration No 2065621 of the word mark ‘BLUE BBVA’ for among others services in classes 35 and 36; Community trade mark registration No 2277291 of the word mark ‘TARJETA BLUE BBVA’ for among others services in class 36

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

Decision of the Board of Appeal: Upheld the appeal and refused the application for all services in classes 35 and 36

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

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/13 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/13

---

Action brought on 20 August 2012 — American Express Marketing & Development v OHIM (EUROPE IP ZONE)

(Case T-369/12)

2012/C 319/24

Language of the case: English

Parties

Applicant: American Express Marketing & Development Corp. (New York, United States) (represented by: V. Spitz, A. Gaul, T. Golda, and S. Kirschstein-Freund, lawyers)

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

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1451/2011-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1451/2011-2;

| — | In the alternative, amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1451/2011-2, and rule that the appeal is justified; and |
| --- | --- |

—

In the alternative, amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1451/2011-2, and rule that the appeal is justified; and

| — | Order the defendant to pay the costs of the appeal proceedings and of the proceedings before the Court. |
| --- | --- |

—

Order the defendant to pay the costs of the appeal proceedings and of the proceedings before the Court.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘EUROPE IP ZONE’ for services in class 42 — Community trade mark application No 9488032

Decision of the Examiner: Rejected the CTM application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009.

---

| 20.10.2012 | EN | Official Journal of the European Union | C 319/13 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/13

---

Action brought on 20 August 2012 — American Express Marketing & Development v OHIM (IP ZONE EUROPE)

(Case T-370/12)

2012/C 319/25

Language of the case: English

Parties

Applicant: American Express Marketing & Development Corp. (New York, United States) (represented by: V. Spitz, A. Gaul, T. Golda, and S. Kirschstein-Freund, lawyers)

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

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1452/2011-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1452/2011-2;

| — | In the alternative, amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1452/2011-2, and rule that the appeal is justified; and |
| --- | --- |

—

In the alternative, amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1452/2011-2, and rule that the appeal is justified; and

| — | Order the defendant to pay the costs of the appeal proceedings and of the proceedings before the Court. |
| --- | --- |

—

Order the defendant to pay the costs of the appeal proceedings and of the proceedings before the Court.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘IP ZONE EUROPE’ for services in class 42 — Community trade mark application No 9488057

Decision of the Examiner: Rejected the CTM application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/14 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/14

---

Action brought on 20 August 2012 — American Express Marketing & Development v OHIM (EUROPEAN IP ZONE)

(Case T-371/12)

2012/C 319/26

Language of the case: English

Parties

Applicant: American Express Marketing & Development Corp. (New York, United States) (represented by: V. Spitz, A. Gaul, T. Golda, and S. Kirschstein-Freund, lawyers)

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

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1453/2011-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1453/2011-2;

| — | In the alternative, amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1453/2011-2, and rule that the appeal is justified; and |
| --- | --- |

—

In the alternative, amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1453/2011-2, and rule that the appeal is justified; and

| — | Order the defendant to pay the costs of the appeal proceedings and of the proceedings before the Court. |
| --- | --- |

—

Order the defendant to pay the costs of the appeal proceedings and of the proceedings before the Court.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘EUROPEAN IP ZONE’ for services in class 42 — Community trade mark application No 9488041

Decision of the Examiner: Rejected the CTM application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009.

---

| 20.10.2012 | EN | Official Journal of the European Union | C 319/14 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/14

---

Action brought on 20 August 2012 — REWE-Zentral v OHIM — Planet GDZ (PRO PLANET)

(Case T-373/12)

2012/C 319/27

Language in which the application was lodged: German

Parties

Applicant: REWE-Zentral AG (Cologne, Germany) (represented by: M. Kinkeldey and A. Bognár, lawyers)

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

Other party to the proceedings before the Board of Appeal: Planet GDZ AG (Tagelswangen, Switzerland)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 June 2012 in Case R 1350/2011-1; |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 June 2012 in Case R 1350/2011-1;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the figurative mark including the word element ‘PRO PLANET’ for goods in Classes 6, 17 and 19

Proprietor of the mark or sign cited in the opposition proceedings: Planet GDZ AG

Mark or sign cited in opposition: the international registration of the word mark ‘PLANET’ for goods in Classes 6 and 19

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

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

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/15 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/15

---

Action brought on 4 September 2012 — Italy v Commission

(Case T-387/12)

2012/C 319/28

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: S. Fiorentino, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the European Commission implementing decision 2012/336/EU of 22 June 2012 (notified under document C(2012) 3838), excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as that decision is the object of the present action; |
| --- | --- |

—

annul the European Commission implementing decision 2012/336/EU of 22 June 2012 (notified under document C(2012) 3838), excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as that decision is the object of the present action;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The scope of the present action is limited to the flat-rate financial corrections applied to the Italian Republic in relation to the aid scheme for growers of processing tomatoes, for the years 2006, 2007 and 2008.

In support of its action, the applicant relies on a single plea alleging infringement of Article 7(4) of Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103) and of Article 31 of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (2005 L 209, p. 1).

By that plea, the applicant challenges the application of the financial corrections made by the contested decision, equal to 2 % of expenditure, submitting that those corrections were applied notwithstanding the proof, acknowledged by the Commission, that no significant financial damage was caused.

In addition, the applicant disputes the quantification of the corrections themselves in so far as their actual determination is disproportionate and manifestly illogical, since they are considerably higher than the potential damage resulting from the conduct attributed to the Italian authorities.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/15 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/15

---

Action brought on 6 September 2012 — Diputación Foral de Bizkaia v Commission

(Case T-397/12)

2012/C 319/29

Language of the case: Spanish

Parties

Applicant: Diputación Foral de Bizkaia (Spain) (represented by: I. Sáenz-Cortabarría Fernández, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Article 2 of the contested decision, in so far as it declares unlawful the aid provided for in the agreements notified on 15 April 2009 or, in the alternative, in so far as it declares unlawful the aid provided for in the notified agreement on land; |
| --- | --- |

—

annul Article 2 of the contested decision, in so far as it declares unlawful the aid provided for in the agreements notified on 15 April 2009 or, in the alternative, in so far as it declares unlawful the aid provided for in the notified agreement on land;

| — | annul Articles 5 and 6 of the contested decision, in so far as the Commission based its examination of the compatibility with the Treaty, provided for in Article 108(2) TFEU, on the premiss that the aid was unlawful; |
| --- | --- |

—

annul Articles 5 and 6 of the contested decision, in so far as the Commission based its examination of the compatibility with the Treaty, provided for in Article 108(2) TFEU, on the premiss that the aid was unlawful;

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

—

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

Pleas in law and main arguments

The contested decision (1) qualifies as unlawful aid compatible and incompatible with the internal market, respectively, the ‘land’ agreement (Convenio sobre suelo) and the ‘housing’ agreement (Convenio sobre viviendas) entered into on 15 December 2006 between Bizkailur S.A. (public company, wholly owned by the Diputación (Regional Council)), on the one hand, and Habidite Technologies Pais Vasgo S.A., the Grupo Empresarial Afer S.L. and the Grupo Habidite, on the other, relating to the construction of a Habidite factory in Alonsótegui.

In supports of its action, the applicant raises four pleas in law.

| 1. | By its first plea in law, it alleges an error of law in that the decision classifies the aid granted in the 2006 agreements as unlawful, in finding that, on that date, a legally binding and unconditional agreement to grant aid to Habidite existed. The Commission takes no account of the legal consequences resulting from an interpretation of the contracts in accordance with the provisions of domestic law which govern them (in particular, Article 1258 of the Spanish Civil Code). |
| --- | --- |

1.

By its first plea in law, it alleges an error of law in that the decision classifies the aid granted in the 2006 agreements as unlawful, in finding that, on that date, a legally binding and unconditional agreement to grant aid to Habidite existed. The Commission takes no account of the legal consequences resulting from an interpretation of the contracts in accordance with the provisions of domestic law which govern them (in particular, Article 1258 of the Spanish Civil Code).

| 2. | The second plea in law, which is subsidiary to the first one, is based on an error of law in the contested decision in that it declares as unlawful the aid included in the so-called ‘land agreement’, in so far as it fails to take account of the fact that the said agreement explicitly establishes that its implementation is dependent on its being lawful (‘if lawful its possible’), thereby infringing — by a misinterpretation and a misapplication — Article 108(3) TFEU and Article 1(f) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty. (2) |
| --- | --- |

2.

The second plea in law, which is subsidiary to the first one, is based on an error of law in the contested decision in that it declares as unlawful the aid included in the so-called ‘land agreement’, in so far as it fails to take account of the fact that the said agreement explicitly establishes that its implementation is dependent on its being lawful (‘if lawful its possible’), thereby infringing — by a misinterpretation and a misapplication — Article 108(3) TFEU and Article 1(f) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty. (2)

| 3. | By its third plea, the applicant alleges an infringement of Article 6(1) of Regulation No 659/1999 and of the general principle of good administration and, in particular, of the Diputación’s procedural rights and guarantees as an interested party in the procedure laid down in Article 108(2) TFEU, in de facto having unduly made difficult or limited its ability to participate adequately in the administrative procedure carried out by the Commission and to express, in an effective and useful manner, its point of view on the issue that the aid concerned is lawful, in any event. |
| --- | --- |

3.

By its third plea, the applicant alleges an infringement of Article 6(1) of Regulation No 659/1999 and of the general principle of good administration and, in particular, of the Diputación’s procedural rights and guarantees as an interested party in the procedure laid down in Article 108(2) TFEU, in de facto having unduly made difficult or limited its ability to participate adequately in the administrative procedure carried out by the Commission and to express, in an effective and useful manner, its point of view on the issue that the aid concerned is lawful, in any event.

| 4. | The fourth plea is based on a lack of, or invalid, grounds, since the Commission carried out its examination of compatibility, as established in Article 108(2) TFEU, on the premiss that unlawful aid was at issue, not notified aid. |
| --- | --- |

4.

The fourth plea is based on a lack of, or invalid, grounds, since the Commission carried out its examination of compatibility, as established in Article 108(2) TFEU, on the premiss that unlawful aid was at issue, not notified aid.

---

(1)  Decision of the European Commission of 27 June 2012 on State aid No SA.28356 (C 37/2009) (ex N 226/2009), Habidite Alonsotegui [COM (2012) 4194 final].

(2)  OJ 1999 L 83, p. 1

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European Union Civil Service Tribunal

| 20.10.2012 | EN | Official Journal of the European Union | C 319/17 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/17

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Action brought on 3 July 2012 — ZZ v Europol

(Case F-69/12)

2012/C 319/30

Language of the case: Dutch

Parties

Applicant: ZZ (represented by: N.D. Dane, lawyer)

Defendant: Europol

Subject-matter and description of the proceedings

Annulment of the defendant’s implicit decision rejecting the applicant’s claim and his complaint seeking payment of the sums agreed in the amicable out-of-court settlement entered into by the parties in the context of earlier proceedings before the Court.

Form of order sought

| — | Annul the implicit decision to reject the claim of 26 May 2011 and annul the implicit decision to reject the complaint of 9 December 2011 against the implicit decision rejecting the aforementioned claim; |
| --- | --- |

—

Annul the implicit decision to reject the claim of 26 May 2011 and annul the implicit decision to reject the complaint of 9 December 2011 against the implicit decision rejecting the aforementioned claim;

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

—

Order Europol to pay the costs.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/17 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/17

---

Action brought on 5th July 2012 — BZ v ECB

(Case F-71/12)

2012/C 319/31

Language of the case: English

Parties

Applicant: BZ (represented by: N. Lhöest, lawyer)

Defendant: European Central Bank

Subject-matter and description of the proceedings

The annulment of the decision of the ECB rejecting the Applicant’s request for recognition of the occupational origin of her illness.

Form of order sought

| — | Annul the decision of the ECB dated 25 April 2012 rejecting the Applicant’s requests submitted on 28 June 2011 and in the following review letters of 24 October 2011 and of 20 February 2012; |
| --- | --- |

—

Annul the decision of the ECB dated 25 April 2012 rejecting the Applicant’s requests submitted on 28 June 2011 and in the following review letters of 24 October 2011 and of 20 February 2012;

| — | by consequence, give the Appellant the benefit of her requests as stated in her request and review letters, notably a proper investigation is to be conducted and a proper report drafted so as to list all facts related to her working situation that are useful for producing a doctor’s assessment; |
| --- | --- |

—

by consequence, give the Appellant the benefit of her requests as stated in her request and review letters, notably a proper investigation is to be conducted and a proper report drafted so as to list all facts related to her working situation that are useful for producing a doctor’s assessment;

| — | order ECB to communicate to the Appellant all data collected and stored by DG-H on her medical situation and medical procedures, included the data collected so far (included the response to the questionnaire in a non anonymised form as well as the other data collected (e.g. the notes of the interviews organized by DG-H to be provided in a non-anonymous form) as well as future data, which may be collected in the scope of the new procedure. Should this data contain medical information, the data can be sent to her doctor); |
| --- | --- |

—

order ECB to communicate to the Appellant all data collected and stored by DG-H on her medical situation and medical procedures, included the data collected so far (included the response to the questionnaire in a non anonymised form as well as the other data collected (e.g. the notes of the interviews organized by DG-H to be provided in a non-anonymous form) as well as future data, which may be collected in the scope of the new procedure. Should this data contain medical information, the data can be sent to her doctor);

| — | order ECB to pay the appellant the sum of 50 000 euro for the unreasonable delay in the conduct of the procedure; |
| --- | --- |

—

order ECB to pay the appellant the sum of 50 000 euro for the unreasonable delay in the conduct of the procedure;

| — | order ECB to pay the appellant the sum of 5 000 euro for the legal fees for handling the illegal medical procedures; |
| --- | --- |

—

order ECB to pay the appellant the sum of 5 000 euro for the legal fees for handling the illegal medical procedures;

| — | order ECB to pay the appellant the sum of 50 000 euro for the moral damages created by the illegalities and the additional unnecessary burden for the occupational procedure and the disability procedure; |
| --- | --- |

—

order ECB to pay the appellant the sum of 50 000 euro for the moral damages created by the illegalities and the additional unnecessary burden for the occupational procedure and the disability procedure;

| — | order ECB to pay the appellant the sum of 25 000 euro for attempt to the appellant’s reputation and good name and the illegal attempt to terminate her contract; |
| --- | --- |

—

order ECB to pay the appellant the sum of 25 000 euro for attempt to the appellant’s reputation and good name and the illegal attempt to terminate her contract;

| — | order ECB to pay the Appellant the difference between her disability allowance and her full salary since January 2009; |
| --- | --- |

—

order ECB to pay the Appellant the difference between her disability allowance and her full salary since January 2009;

| — | order ECB to pay the Appellant the sum of 100 000 euro for the loss of career perspective; |
| --- | --- |

—

order ECB to pay the Appellant the sum of 100 000 euro for the loss of career perspective;

| — | order ECB to pay the loss of salary increase on a basis of 7 salary steps increase per year (3.5 %) since 2009; |
| --- | --- |

—

order ECB to pay the loss of salary increase on a basis of 7 salary steps increase per year (3.5 %) since 2009;

| — | order ECB to pay the appellant 100 % reimbursement of medical costs sustained since 2006 in relation to her sickness; |
| --- | --- |

—

order ECB to pay the appellant 100 % reimbursement of medical costs sustained since 2006 in relation to her sickness;

| — | order ECB to pay the appellant the default interest at a rate of 8 % of the amount awarded; |
| --- | --- |

—

order ECB to pay the appellant the default interest at a rate of 8 % of the amount awarded;

| — | order ECB to pay all costs. |
| --- | --- |

—

order ECB to pay all costs.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/18 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/18

---

Action brought on 23 July 2012 — ZZ v Commission

(Case F-77/12)

2012/C 319/32

Language of the case: Bulgarian

Parties

Applicant: ZZ (represented by: R. Nedin, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision not to admit the applicant to the assessment tests in the context of the EPSO/AD/208/11 competition.

Form of order sought

| — | Annulment of the implicit decision to reject the complaint of 18 January 2012 and of the decision of the competition jury of 10 May 2012, because they infringe the principles of equal treatment and equal opportunities, and the removal of the legal consequences of the contested decisions. |
| --- | --- |

—

Annulment of the implicit decision to reject the complaint of 18 January 2012 and of the decision of the competition jury of 10 May 2012, because they infringe the principles of equal treatment and equal opportunities, and the removal of the legal consequences of the contested decisions.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/18 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/18

---

Action brought on 26 July 2012 — ZZ v Commission

(Case F-79/12)

2012/C 319/33

Language of the case: Dutch

Parties

Applicant: ZZ (represented by: J. Duvekot, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the Commission’s decisions to dismiss the applicant from his functions and to reduce the amount of his pension following disciplinary proceedings brought finding an infringement of Article 11 of the Staff Regulations

Form of order sought

| — | Annul the decisions of 29 September 2011; |
| --- | --- |

—

Annul the decisions of 29 September 2011;

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

—

order the Commission to pay the costs.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/18 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/18

---

Action brought on 26 July 2012 — ZZ v EIT

(Case F-80/12)

2012/C 319/34

Language of the case: English

Parties

Applicant: ZZ (represented by: L. Levi, A. Blot, lawyers)

Defendant: European Institute of Innovation and Technology (EIT)

Subject-matter and description of the proceedings

The annulment of the decision assigning the Applicant to a different job position.

Form of order sought

| — | Annul the decision appointing the Appellant as adviser as announced to him on 16 September 2011, and confirmed by his updated job description as communicated to him on 6 October 2011; |
| --- | --- |

—

Annul the decision appointing the Appellant as adviser as announced to him on 16 September 2011, and confirmed by his updated job description as communicated to him on 6 October 2011;

| — | if needed, annul the implicit decision rejecting the Appellant’s complaint, which he lodged on 16 December 2011; |
| --- | --- |

—

if needed, annul the implicit decision rejecting the Appellant’s complaint, which he lodged on 16 December 2011;

| — | order the Defendant to pay all costs. |
| --- | --- |

—

order the Defendant to pay all costs.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/18 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/18

---

Action brought on 30 July 2012 — ZZ v EIB

(Case F-82/12)

2012/C 319/35

Language of the case: Italian

Parties

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

Defendant: European Investment Bank

Subject-matter and description of the proceedings

Annulment of the Adjudication Panel’s decision dismissing the applicant’s appeal against the result of the second overall appraisal of his work for 2007.

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision adopted on 15 February 2012, in so far as the Adjudication Panel:






  — | dismissed the applicant’s appeal against the 2007 staff report drawn up in 2011 following the annulment of that report as drafted in 2008 ordered by the Civil Service Tribunal by judgment of 8 March 2011, which determined Case F-59/09; |
| --- | --- | --- |

—

Annul the decision adopted on 15 February 2012, in so far as the Adjudication Panel:

—

dismissed the applicant’s appeal against the 2007 staff report drawn up in 2011 following the annulment of that report as drafted in 2008 ordered by the Civil Service Tribunal by judgment of 8 March 2011, which determined Case F-59/09;

| — | dismissed the applicant’s appeal against the refusal to recommend that he be promoted, following the annulment ordered by the Civil Service Tribunal by that judgment in Case F-59/09; |
| --- | --- |

—

dismissed the applicant’s appeal against the refusal to recommend that he be promoted, following the annulment ordered by the Civil Service Tribunal by that judgment in Case F-59/09;

| — | refused to conduct proceedings on the substance and, in reviewing only the issue of lawfulness, denied the applicant the right to obtain a second, effective appraisal of his work; |
| --- | --- |

—

refused to conduct proceedings on the substance and, in reviewing only the issue of lawfulness, denied the applicant the right to obtain a second, effective appraisal of his work;

| — | annul the promotion decisions of 29 April 2008 given that, in view of the appraisal made by his superiors, the EIB failed to take the applicant into consideration in the point ‘Promotions from Function E to D’; |
| --- | --- |

—

annul the promotion decisions of 29 April 2008 given that, in view of the appraisal made by his superiors, the EIB failed to take the applicant into consideration in the point ‘Promotions from Function E to D’;

| — | annul all the related, consequent and previous measures, including the entire staff report for 2007 and the appraisal by the applicant’s superiors in so far as it fails to propose that he be given a mark A or B+ and promotion to Function D and, if appropriate, declare unlawful, and disapply, the guidelines, at least to the extent to which they unlawfully restrict the number of employees who may receive an overall mark of A or B+; |
| --- | --- |

—

annul all the related, consequent and previous measures, including the entire staff report for 2007 and the appraisal by the applicant’s superiors in so far as it fails to propose that he be given a mark A or B+ and promotion to Function D and, if appropriate, declare unlawful, and disapply, the guidelines, at least to the extent to which they unlawfully restrict the number of employees who may receive an overall mark of A or B+;

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

—

order the defendant to pay the costs.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/19 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/19

---

Action brought on 10 August 2012 — ZZ v Commission

(Case F-87/12)

2012/C 319/36

Language of the case: French

Parties

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

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the Commission’s decision to limit the extension period of the applicant’s contract

Form of order sought

| — | Annul the Commission’s decision of 18 November 2011 in so far as it limits the extension period of the applicant’s contract as a member of the temporary staff to 31 March 2012; |
| --- | --- |

—

Annul the Commission’s decision of 18 November 2011 in so far as it limits the extension period of the applicant’s contract as a member of the temporary staff to 31 March 2012;

| — | order the defendant to pay one euro provisionally for the damage suffered by the applicant; |
| --- | --- |

—

order the defendant to pay one euro provisionally for the damage suffered by the applicant;

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

—

order the Commission to pay the costs.

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| 20.10.2012 | EN | Official Journal of the European Union | C 319/19 |
| --- | --- | --- | --- |

20.10.2012

EN

Official Journal of the European Union

C 319/19

---

Action brought on 20 August 2012 — ZZ v Commission

(Case F-88/12)

2012/C 319/37

Language of the case: French

Parties

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

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision to calculate accredited pension rights acquired before entry into service on the basis of the new General Implementing Provisions

Form of order sought

| — | Annul the decision of 16 January 2012 concerning the calculation of accredited pension rights acquired by the applicant before his entry into service with the Commission; |
| --- | --- |

—

Annul the decision of 16 January 2012 concerning the calculation of accredited pension rights acquired by the applicant before his entry into service with the Commission;

| — | in so far as necessary, annul the decision rejecting his complaint of 15 June 2012 requesting application of the General Implementing Provisions and the actuarial rates in force at the time of his request to transfer his pension rights; |
| --- | --- |

—

in so far as necessary, annul the decision rejecting his complaint of 15 June 2012 requesting application of the General Implementing Provisions and the actuarial rates in force at the time of his request to transfer his pension rights;

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

—

order the Commission to pay the costs.

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