# Official Journal C 272/2008

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 272 |
| | |
| English edition | Information and Notices | Volume 5125 October 2008 |

ISSN 1725-2423

Official Journal

of the European Union

C 272

English edition

Information and Notices

Volume 5125 October 2008

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2008/C 272/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 260, 11.10.2008 | 1 |
| | COURT PROCEEDINGS |
| | European Union Civil Service Tribunal |
| 2008/C 272/02 | Election of the President of the Civil Service Tribunal | 2 |
| 2008/C 272/03 | Composition of the Chambers and attachment of the Judges to Chambers | 3 |
| 2008/C 272/04 | Criteria for the assignment of cases to chambers | 4 |
| 2008/C 272/05 | Designation of the judge to replace the President of the Tribunal for the purpose of dealing with applications for interim measures | 5 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2008/C 272/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 260, 11.10.2008

Official Journal of the European Union

1

COURT PROCEEDINGS

European Union Civil Service Tribunal

2008/C 272/02

Election of the President of the Civil Service Tribunal

2

2008/C 272/03

Composition of the Chambers and attachment of the Judges to Chambers

3

2008/C 272/04

Criteria for the assignment of cases to chambers

4

2008/C 272/05

Designation of the judge to replace the President of the Tribunal for the purpose of dealing with applications for interim measures

5

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2008/C 272/06 | Case C-291/08: Action brought on 1 July 2008 — Commission of the European Communities v Republic of Austria | 6 |
| 2008/C 272/07 | Case C-292/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 2 July 2008 — German Graphics Graphische Maschinen GmbH v A. van der Schee, acting as liquidator of Holland Binding BV | 6 |
| 2008/C 272/08 | Case C-299/08: Action brought on 4 July 2008 — Commission of the European Communities v French Republic | 7 |
| 2008/C 272/09 | Case C-307/08: Action brought on 9 July 2008 — Commission of the European Communities v Kingdom of Belgium | 7 |
| 2008/C 272/10 | Case C-324/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 16 July 2008 — 1. Makro Zelfbedieningsgroothandel CV, 2. Metro Cash & Carry BV and 3. Remo Zaandam BV v Diesel SpA | 8 |
| 2008/C 272/11 | Case C-329/08: Action brought on 18 July 2008 — Commission of the European Communities v Kingdom of Belgium | 8 |
| 2008/C 272/12 | Case C-330/08: Action brought on 18 July 2008 — Commission of the European Communities v French Republic | 9 |
| 2008/C 272/13 | Case C-331/08: Action brought on 18 July 2008 — Commission of the European Communities v Grand Duchy of Luxembourg | 9 |
| 2008/C 272/14 | Case C-332/08: Action brought on 18 July 2008 — Commission of the European Communities v French Republic | 9 |
| 2008/C 272/15 | Case C-337/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 21 July 2008 — X Holding BV v Staatssecretaris van Financiën | 10 |
| 2008/C 272/16 | Case C-343/08: Action brought on 23 July 2008 — Commission of the European Communities v Czech Republic | 10 |
| 2008/C 272/17 | Case C-344/08: Reference for a preliminary ruling from the Sąd Rejonowy w Kościanie (Republic of Poland) lodged on 24 July 2008 — Criminal proceedings against Tomasz Rubach | 10 |
| 2008/C 272/18 | Case C-347/08: Reference for a preliminary ruling from the Landesgericht Feldkirch (Austria) lodged on 28 July 2008 — Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG | 11 |
| 2008/C 272/19 | Case C-351/08: Reference for a preliminary ruling from the Bundessozialgericht (Germany) lodged on 4 August 2008 — Christian Grimme v Deutsche Angestellten Krankenkasse | 11 |
| 2008/C 272/20 | Case C-362/08 P: Appeal brought on 7 August 2008 by Internationaler Hilfsfonds e.V. against the judgment delivered by the Court of First Instance (Fifth Chamber) on 5 June 2008 in Case T-141/05 Internationaler Hilfsfonds e.V. v Commission | 11 |
| 2008/C 272/21 | Case C-366/08: Reference for a preliminary ruling from the Oberlandesgericht München (Germany) lodged on 11 August 2008 — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Adolf Darbo AG | 12 |
| 2008/C 272/22 | Case C-373/08: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 14 August 2008 — Hoesch Metals and Alloys GmbH v Hauptzollamt Aachen | 13 |
| 2008/C 272/23 | Case C-388/08: Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 5 September 2008 — Criminal proceedings against Artur Leymann, Aleksei Pustovarov | 13 |
| 2008/C 272/24 | Case C-392/08: Action brought on 9 September 2008 — Commission of the European Communities v Kingdom of Spain | 14 |
| 2008/C 272/25 | Case C-397/08: Action brought on 15 September 2008 — Commission of the European Communities v Portuguese Republic | 14 |
| | Court of First Instance |
| 2008/C 272/26 | Case T-212/03: Judgment of the Court of First Instance of 9 September 2008 — MyTravel v Commission (Non-contractual liability of the Community — Competition — Decision declaring a concentration incompatible with the common market — Annulment of the decision by a judgment of the Court of First Instance — Sufficiently serious breach of a rule of law intended to confer rights on individuals) | 15 |
| 2008/C 272/27 | Case T-381/04: Judgment of the Court of First Instance of 10 September 2008 — Italy v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Animal subsidies and rural development — Inadequate national management and control system) | 15 |
| 2008/C 272/28 | Case T-465/04: Judgment of the Court of First Instance of 10 September 2008 — Evropaïki Dinamiki v Commission (Public service contracts — Community tendering procedure — Provision of computer and related services linked to the information systems of the Directorate-General for Fisheries — Rejection of a submitted tender — Obligation to state the reasons on which the decision is based) | 16 |
| 2008/C 272/29 | Case T-42/05: Judgment of the Court of First Instance of 10 September 2008 — Williams v Commission (Access to documents — Regulation (EC) No 1049/2001 — Preparatory documents relating to the adoption of Directive 2001/18/EC on GMOs — Partial refusal of access — Implied refusal of access — Exceptions relating to the protection of commercial interests, protection of international relations and protection of the decision-making process — Obligation to state reasons) | 16 |
| 2008/C 272/30 | Case T-59/05: Judgment of the Court of First Instance of 10 September 2008 — Evropaïki Dinamiki v Commission (Public service contracts — Community tendering procedure — Provision of development, maintenance and support services for the financial information systems of the Directorate-General for Agriculture — Selection and award criteria — Rejection of a submitted tender — Obligation to state the reasons on which the decision is based — No manifest error of assessment — Principles of diligence and good administration) | 17 |
| 2008/C 272/31 | Case T-348/05: Judgment of the Court of First Instance of 10 September 2008 — JSC Kirovo-Chepetsky Khimichesky Kombinat v Council (Dumping — Imports of ammonium nitrate originating in Russia and Ukraine — Amendment of the definition of the product concerned — Application of existing measures to new product types) | 17 |
| 2008/C 272/32 | Case T-370/05: Judgment of the Court of First Instance of 10 September 2008 — France v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Wine sector — Restructuring aid and conversion aid — Definition of eligible area) | 18 |
| 2008/C 272/33 | Case T-403/05: Judgment of the Court of First Instance of 9 September 2008 — MyTravel v Commission (Access to documents — Regulation (EC) No 1049/2001 — Refusal to grant access — Exception relating to the protection of the decision-making process — Exception relating to the protection of investigations and audits — Exception relating to the protection of legal advice — Documents relating to decisions of the Commission in the area of concentrations) | 18 |
| 2008/C 272/34 | Case T-48/06: Judgment of the Court of First Instance of 10 September 2008 — Astex Therapeutics v OHIM — Protec Health International (astex TECHNOLOGY) (Community trade mark — Opposition proceedings — Application for the Community figurative mark astex TECHNOLOGY — Earlier Community word mark ASTEX — Ground for refusal — Likelihood of confusion — Restriction of the goods designated in the trade mark application — Article 8(1)(b) of Regulation No 40/94) | 19 |
| 2008/C 272/35 | Case T-75/06: Judgment of the Court of First Instance of 9 September 2008 — Bayer CropScience and Others v Commission (Directive 91/414/EEC — Plant protection products — Endosulfan as an active substance — Withdrawal of marketing authorisations — Evaluation procedure — Time-limits — Rights of the defence — Principle of proportionality) | 19 |
| 2008/C 272/36 | Case T-96/06: Judgment of the Court of First Instance of 10 September 2008 — Tsakiris-Mallas AE v OHIM — Late Editions (exē) (Community trade mark — Opposition proceedings — Application for Community figurative mark exē — Earlier national word mark EXE — Relative ground for refusal — Likelihood of confusion — Similarity of goods and signs — Article 8(1)(b) of Regulation (EC) No 40/94) | 20 |
| 2008/C 272/37 | Case T-181/06: Judgment of the Court of First Instance of 10 September 2008 — Italy v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Financial adjustments — Fruit and vegetables — Dairy products — Arable farming — Rural development — Non-compliance with payment deadlines) | 20 |
| 2008/C 272/38 | Case T-201/06: Judgment of the Court of First Instance of 10 September 2008 — Gerson v OHIM (Paint filter partly coloured yellow) (Community trade mark — Application for a three-dimensional Community trade mark — Paint filter partly coloured yellow — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94) | 21 |
| 2008/C 272/39 | Case T-243/06: Judgment of the Court of First Instance of 10 September 2008 — Promat v OHIM — Puertas Proma (PROMAT) (Community trade mark — Opposition procedure — Application for Community figurative mark PROMAT — Earlier Community figurative mark PROMA — Partial refusal to register — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 21 |
| 2008/C 272/40 | Case T-272/06: Judgment of the Court of First Instance of 10 September 2008 — Evropaïki Dinamiki v Court of Justice (Public service contracts — Community tendering procedure — Rejection of bid — Selection and award criteria — Obligation to state reasons) | 22 |
| 2008/C 272/41 | Case T-284/06: Judgment of the Court of First Instance of 10 September 2008 — Gualtieri v Commission (Seconded National Expert — Subsistence allowances — Place of residence at the time of secondment — Objection of illegality of Article 20(3)(b) of the decision on Seconded National Experts — Principle of equal treatment) | 22 |
| 2008/C 272/42 | Case T-300/06: Judgment of the Court of First Instance of 10 September 2008 — Promat v OHIM — Puertas Proma (PROMAT) (Community trade mark — Opposition procedure — Application for Community figurative mark PROMAT — Earlier Community figurative mark PROMA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 23 |
| 2008/C 272/43 | Case T-325/06: Judgment of the Court of First Instance of 10 September 2008 — Boston Scientific Ltd v OHIM — Terumo (CAPIO) (Community trade mark — Opposition proceedings — Application for Community word mark CAPIO — Earlier national word mark CAPIOX — Relative ground for refusal — Genuine use of the mark — Article 43(1) and (2) of Regulation (EC) No 40/94 — Likelihood of confusion — Article 8(1)(b) of Regulation No 40/94) | 23 |
| 2008/C 272/44 | Cases T-349/06, T-371/06, T-14/07, T-15/07 and in Case T-332/07: Judgment of the Court of First Instance of 9 September 2008 — Germany v Commission (ERDF — Reduction of financial assistance — Change in the financing plan without the consent of the Commission — Concept of significant change — Article 24 of Regulation (EEC) No 4253/88 — Actions for annulment) | 24 |
| 2008/C 272/45 | Case T-363/06: Judgment of the Court of First Instance of 9 September 2008 — Honda Motor Europe v OHIM — Seat (MAGIC SEAT) (Community trade mark — Opposition proceedings — Application for Community word mark MAGIC SEAT — Earlier national figurative trade mark SEAT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 24 |
| 2008/C 272/46 | Case T-413/06 P: Judgment of the Court of First Instance of 4 September 2008 — Gualtieri v Commission (Appeal — Seconded National Expert — Order for referral — Decision against which an appeal may be lodged — Inadmissibility) | 25 |
| 2008/C 272/47 | Case T-106/07: Judgment of the Court of First Instance of 10 September 2008 — Alcon v OHIM — *Acri.Tec (BioVisc) (Community trade mark — Opposition proceedings — Application for Community word mark BioVisc — Earlier international word marks PROVISC and DUOVISC — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 25 |
| 2008/C 272/48 | Case T-222/07 P: Judgment of the Court of First Instance of 8 September 2008 — Kerstens v Commission (Appeal — Civil Service — Officials — Career development report — Time limit for lodging a complaint — Lateness — Appeal not founded) | 25 |
| 2008/C 272/49 | Case T-315/05: Order of the Court of First Instance of 27 August 2008 — Adomex International v Commission (Action for annulment — Aid granted by the Netherlands authorities in the floriculture sector — Decision not to raise objections — Not individually concerned — Manifest inadmissibility) | 26 |
| 2008/C 272/50 | Case T-477/07: Order of the Court of First Instance of 3 September 2008 — Cofra v Commission (Action for annulment — Access to documents — Withdrawal of the decision refusing access — Disclosure of documents contrary to the express opinion of their author — No need to adjudicate) | 26 |
| 2008/C 272/51 | Case T-479/07: Order of the Court of First Instance of 3 September 2008 — Nuova Agricast v Commission (Action for annulment — Access to documents — Withdrawal of the decision refusing access — Disclosure of documents against the explicit opinion of the author thereof — No need to adjudicate) | 26 |
| 2008/C 272/52 | Case T-237/08: Action brought on 19 June 2008 — Abadía Retuerta v OHIM (CUVÉE PALOMAR) | 27 |
| 2008/C 272/53 | Case T-259/08: Action brought on 2 July 2008 — Global Digital Disc v Commission | 27 |
| 2008/C 272/54 | Case T-283/08 P: Appeal brought on 16 July 2008 by P. Longinidis against the judgment of the Civil Service Tribunal delivered on 24 April 2008 in Case F-74/06 Pavlos Longinidis v Cedefop | 28 |
| 2008/C 272/55 | Case T-293/08: Action brought on 24 July 2008 — BASF Plant Science and Others v Commission | 28 |
| 2008/C 272/56 | Case T-299/08: Action brought on 1 August 2008 — Elf Aquitaine v Commission | 29 |
| 2008/C 272/57 | Case T-304/08: Action brought on 5 August 2008 — Smurfit Kappa Group v Commission | 30 |
| 2008/C 272/58 | Case T-305/08: Action brought on 11 August 2008 — Italian Republic v Commission | 31 |
| 2008/C 272/59 | Case T-311/08: Action brought on 5 August 2008 — Fitoussi v OHIM — Loriot (IBIZA REPUBLIC) | 32 |
| 2008/C 272/60 | Case T-312/08: Action brought on 13 August 2008 — Ellinikos Niognomon v Commission | 33 |
| 2008/C 272/61 | Case T-313/08: Action brought on 12 August 2008 — Veromar di Tudisco Alfio & Salvatore v Commission | 33 |
| 2008/C 272/62 | Case T-314/08: Action brought on 12 August 2008 — Euromar di Ganesio Pietro v Commission | 34 |
| 2008/C 272/63 | Case T-315/08: Action brought on 12 August 2008 — Corrado v Commission | 34 |
| 2008/C 272/64 | Case T-316/08: Action brought on 12 August 2008 — Pescazzurra v Commission | 34 |
| 2008/C 272/65 | Case T-317/08: Action brought on 12 August 2008 — Società di armatori G. padre dei F.lli Incorvaia G.I. e S. v Commission | 34 |
| 2008/C 272/66 | Case T-318/08: Action brought on 12 August 2008 — Di Mercurio v Commission | 35 |
| 2008/C 272/67 | Case T-319/08: Action brought on 12 August 2008 — Grasso v Commission | 35 |
| 2008/C 272/68 | Case T-320/08: Action brought on 12 August 2008 — Margherita v Commission | 35 |
| 2008/C 272/69 | Case T-321/08: Action brought on 12 August 2008 — Cimino v Commission | 36 |
| 2008/C 272/70 | Case T-322/08: Action brought on 12 August 2008 — Musumeci v Commission | 36 |
| 2008/C 272/71 | Case T-323/08: Action brought on 12 August 2008 — Pescatori San Francesco di Paola e Sorrentino v Commission | 36 |
| 2008/C 272/72 | Case T-324/08: Action brought on 12 August 2008 — Pescatori San Francesco di Paola v Commission | 37 |
| 2008/C 272/73 | Case T-325/08: Action brought on 12 August 2008 — Pepito Pesca v Commission | 37 |
| 2008/C 272/74 | Case T-326/08: Action brought on 12 August 2008 — G. & C. v Commission | 37 |
| 2008/C 272/75 | Case T-327/08: Action brought on 12 August 2008 — Armamento Li Causi v Commission | 37 |
| 2008/C 272/76 | Case T-328/08: Action brought on 12 August 2008 — Mareggiando in Calabria — Servizi Pesca Turismo and Others v Commission | 38 |
| 2008/C 272/77 | Case T-329/08: Action brought on 12 August 2008 — AJD Tuna v Commission | 38 |
| 2008/C 272/78 | Case T-330/08: Action brought on 12 August 2008 — Ligny Pesca di Guaiana Francesco and Others v Commission | 38 |
| 2008/C 272/79 | Case T-335/08: Action brought on 14 August 2008 — BNP Paribas and BNL v Commission | 39 |
| 2008/C 272/80 | Case T-339/08: Action brought on 18 August 2008 — BVGD v Commission | 40 |
| 2008/C 272/81 | Case T-341/08: Action brought on 19 August 2008 — Hess Group v OHIM — Coloma Navarro (COLOMÉ) | 41 |
| 2008/C 272/82 | Case T-342/08: Action brought on 18 August 2008 — Batchelor v Commission | 41 |
| 2008/C 272/83 | Case T-344/08: Action brought on 25 August 2008 — EnBW Energie Baden-Württemberg v Commission | 42 |
| 2008/C 272/84 | Case T-345/08: Action brought on 22 August 2008 — Helena Rubinstein v OHIM — Allergan (BOTOLIST) | 42 |
| 2008/C 272/85 | Case T-347/08: Action brought on 20 August 2008 — iTouch International v OHIM — Touchnet Information Systems (iTouch) | 43 |
| 2008/C 272/86 | Case T-350/08: Action brought on 22 August 2008 — Papierfabrik Hamburger-Spremberg v Commission | 43 |
| 2008/C 272/87 | Case T-357/08: Action brought on 1 September 2008 — L'Oréal v OHIM — Allergan (BOTOCYL) | 44 |
| 2008/C 272/88 | Case T-358/08: Action brought on 3 September 2008 — Spain v Commission | 45 |
| 2008/C 272/89 | Case T-359/08: Action brought on 3 September 2008 — Spain v Commission | 45 |
| 2008/C 272/90 | Case T-360/08: Action brought on 3 September 2008 — Spain v Commission | 46 |
| 2008/C 272/91 | Case T-363/08: Action brought on 29 August 2008 — 2nine v OHIM — Pacific Sunwear of California (nollie) | 47 |
| 2008/C 272/92 | Case T-364/08: Action brought on 29 August 2008 — 2nine v OHIM — Pacific Sunwear of California (nollie) | 47 |
| 2008/C 272/93 | Case T-365/08: Action brought on 28 August 2008 — Hidalgo v OHIM — Bodegas Hidalgo — La Gitana (HIDALGO) | 48 |
| 2008/C 272/94 | Case T-390/08: Action brought on 18 September 2008 — Bank Melli Iran v Council | 49 |
| 2008/C 272/95 | Joined Cases T-75/07 and T-363/07: Order of the Court of First Instance of 2 September 2008 — Hamdi v Council | 49 |
| 2008/C 272/96 | Case T-466/07: Order of the Court of First Instance of 5 September 2008 — Osram v Council | 50 |
| 2008/C 272/97 | Case T-42/08: Order of the Court of First Instance of 2 September 2008 — Shetland Islands Council v Commission | 50 |
| | European Union Civil Service Tribunal |
| 2008/C 272/98 | Case F-71/08: Action brought on 22 August 2008 — N v Parliament | 51 |
| 2008/C 272/99 | Case F-72/08: Action brought on 25 August 2008 — Ketselidis v Commission | 51 |
| 2008/C 272/00 | Case F-73/08: Action brought on 25 August 2008 — Marcuccio v Commission | 51 |
| 2008/C 272/01 | Case F-74/08: Action brought on 29 August 2008 — Ramaekers-Jørgensen v Commission | 52 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2008/C 272/06

Case C-291/08: Action brought on 1 July 2008 — Commission of the European Communities v Republic of Austria

6

2008/C 272/07

Case C-292/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 2 July 2008 — German Graphics Graphische Maschinen GmbH v A. van der Schee, acting as liquidator of Holland Binding BV

6

2008/C 272/08

Case C-299/08: Action brought on 4 July 2008 — Commission of the European Communities v French Republic

7

2008/C 272/09

Case C-307/08: Action brought on 9 July 2008 — Commission of the European Communities v Kingdom of Belgium

7

2008/C 272/10

Case C-324/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 16 July 2008 — 1. Makro Zelfbedieningsgroothandel CV, 2. Metro Cash & Carry BV and 3. Remo Zaandam BV v Diesel SpA

8

2008/C 272/11

Case C-329/08: Action brought on 18 July 2008 — Commission of the European Communities v Kingdom of Belgium

8

2008/C 272/12

Case C-330/08: Action brought on 18 July 2008 — Commission of the European Communities v French Republic

9

2008/C 272/13

Case C-331/08: Action brought on 18 July 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

9

2008/C 272/14

Case C-332/08: Action brought on 18 July 2008 — Commission of the European Communities v French Republic

9

2008/C 272/15

Case C-337/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 21 July 2008 — X Holding BV v Staatssecretaris van Financiën

10

2008/C 272/16

Case C-343/08: Action brought on 23 July 2008 — Commission of the European Communities v Czech Republic

10

2008/C 272/17

Case C-344/08: Reference for a preliminary ruling from the Sąd Rejonowy w Kościanie (Republic of Poland) lodged on 24 July 2008 — Criminal proceedings against Tomasz Rubach

10

2008/C 272/18

Case C-347/08: Reference for a preliminary ruling from the Landesgericht Feldkirch (Austria) lodged on 28 July 2008 — Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG

11

2008/C 272/19

Case C-351/08: Reference for a preliminary ruling from the Bundessozialgericht (Germany) lodged on 4 August 2008 — Christian Grimme v Deutsche Angestellten Krankenkasse

11

2008/C 272/20

Case C-362/08 P: Appeal brought on 7 August 2008 by Internationaler Hilfsfonds e.V. against the judgment delivered by the Court of First Instance (Fifth Chamber) on 5 June 2008 in Case T-141/05 Internationaler Hilfsfonds e.V. v Commission

11

2008/C 272/21

Case C-366/08: Reference for a preliminary ruling from the Oberlandesgericht München (Germany) lodged on 11 August 2008 — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Adolf Darbo AG

12

2008/C 272/22

Case C-373/08: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 14 August 2008 — Hoesch Metals and Alloys GmbH v Hauptzollamt Aachen

13

2008/C 272/23

Case C-388/08: Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 5 September 2008 — Criminal proceedings against Artur Leymann, Aleksei Pustovarov

13

2008/C 272/24

Case C-392/08: Action brought on 9 September 2008 — Commission of the European Communities v Kingdom of Spain

14

2008/C 272/25

Case C-397/08: Action brought on 15 September 2008 — Commission of the European Communities v Portuguese Republic

14

Court of First Instance

2008/C 272/26

Case T-212/03: Judgment of the Court of First Instance of 9 September 2008 — MyTravel v Commission (Non-contractual liability of the Community — Competition — Decision declaring a concentration incompatible with the common market — Annulment of the decision by a judgment of the Court of First Instance — Sufficiently serious breach of a rule of law intended to confer rights on individuals)

15

2008/C 272/27

Case T-381/04: Judgment of the Court of First Instance of 10 September 2008 — Italy v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Animal subsidies and rural development — Inadequate national management and control system)

15

2008/C 272/28

Case T-465/04: Judgment of the Court of First Instance of 10 September 2008 — Evropaïki Dinamiki v Commission (Public service contracts — Community tendering procedure — Provision of computer and related services linked to the information systems of the Directorate-General for Fisheries — Rejection of a submitted tender — Obligation to state the reasons on which the decision is based)

16

2008/C 272/29

Case T-42/05: Judgment of the Court of First Instance of 10 September 2008 — Williams v Commission (Access to documents — Regulation (EC) No 1049/2001 — Preparatory documents relating to the adoption of Directive 2001/18/EC on GMOs — Partial refusal of access — Implied refusal of access — Exceptions relating to the protection of commercial interests, protection of international relations and protection of the decision-making process — Obligation to state reasons)

16

2008/C 272/30

Case T-59/05: Judgment of the Court of First Instance of 10 September 2008 — Evropaïki Dinamiki v Commission (Public service contracts — Community tendering procedure — Provision of development, maintenance and support services for the financial information systems of the Directorate-General for Agriculture — Selection and award criteria — Rejection of a submitted tender — Obligation to state the reasons on which the decision is based — No manifest error of assessment — Principles of diligence and good administration)

17

2008/C 272/31

Case T-348/05: Judgment of the Court of First Instance of 10 September 2008 — JSC Kirovo-Chepetsky Khimichesky Kombinat v Council (Dumping — Imports of ammonium nitrate originating in Russia and Ukraine — Amendment of the definition of the product concerned — Application of existing measures to new product types)

17

2008/C 272/32

Case T-370/05: Judgment of the Court of First Instance of 10 September 2008 — France v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Wine sector — Restructuring aid and conversion aid — Definition of eligible area)

18

2008/C 272/33

Case T-403/05: Judgment of the Court of First Instance of 9 September 2008 — MyTravel v Commission (Access to documents — Regulation (EC) No 1049/2001 — Refusal to grant access — Exception relating to the protection of the decision-making process — Exception relating to the protection of investigations and audits — Exception relating to the protection of legal advice — Documents relating to decisions of the Commission in the area of concentrations)

18

2008/C 272/34

Case T-48/06: Judgment of the Court of First Instance of 10 September 2008 — Astex Therapeutics v OHIM — Protec Health International (astex TECHNOLOGY) (Community trade mark — Opposition proceedings — Application for the Community figurative mark astex TECHNOLOGY — Earlier Community word mark ASTEX — Ground for refusal — Likelihood of confusion — Restriction of the goods designated in the trade mark application — Article 8(1)(b) of Regulation No 40/94)

19

2008/C 272/35

Case T-75/06: Judgment of the Court of First Instance of 9 September 2008 — Bayer CropScience and Others v Commission (Directive 91/414/EEC — Plant protection products — Endosulfan as an active substance — Withdrawal of marketing authorisations — Evaluation procedure — Time-limits — Rights of the defence — Principle of proportionality)

19

2008/C 272/36

Case T-96/06: Judgment of the Court of First Instance of 10 September 2008 — Tsakiris-Mallas AE v OHIM — Late Editions (exē) (Community trade mark — Opposition proceedings — Application for Community figurative mark exē — Earlier national word mark EXE — Relative ground for refusal — Likelihood of confusion — Similarity of goods and signs — Article 8(1)(b) of Regulation (EC) No 40/94)

20

2008/C 272/37

Case T-181/06: Judgment of the Court of First Instance of 10 September 2008 — Italy v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Financial adjustments — Fruit and vegetables — Dairy products — Arable farming — Rural development — Non-compliance with payment deadlines)

20

2008/C 272/38

Case T-201/06: Judgment of the Court of First Instance of 10 September 2008 — Gerson v OHIM (Paint filter partly coloured yellow) (Community trade mark — Application for a three-dimensional Community trade mark — Paint filter partly coloured yellow — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

21

2008/C 272/39

Case T-243/06: Judgment of the Court of First Instance of 10 September 2008 — Promat v OHIM — Puertas Proma (PROMAT) (Community trade mark — Opposition procedure — Application for Community figurative mark PROMAT — Earlier Community figurative mark PROMA — Partial refusal to register — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

21

2008/C 272/40

Case T-272/06: Judgment of the Court of First Instance of 10 September 2008 — Evropaïki Dinamiki v Court of Justice (Public service contracts — Community tendering procedure — Rejection of bid — Selection and award criteria — Obligation to state reasons)

22

2008/C 272/41

Case T-284/06: Judgment of the Court of First Instance of 10 September 2008 — Gualtieri v Commission (Seconded National Expert — Subsistence allowances — Place of residence at the time of secondment — Objection of illegality of Article 20(3)(b) of the decision on Seconded National Experts — Principle of equal treatment)

22

2008/C 272/42

Case T-300/06: Judgment of the Court of First Instance of 10 September 2008 — Promat v OHIM — Puertas Proma (PROMAT) (Community trade mark — Opposition procedure — Application for Community figurative mark PROMAT — Earlier Community figurative mark PROMA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

23

2008/C 272/43

Case T-325/06: Judgment of the Court of First Instance of 10 September 2008 — Boston Scientific Ltd v OHIM — Terumo (CAPIO) (Community trade mark — Opposition proceedings — Application for Community word mark CAPIO — Earlier national word mark CAPIOX — Relative ground for refusal — Genuine use of the mark — Article 43(1) and (2) of Regulation (EC) No 40/94 — Likelihood of confusion — Article 8(1)(b) of Regulation No 40/94)

23

2008/C 272/44

Cases T-349/06, T-371/06, T-14/07, T-15/07 and in Case T-332/07: Judgment of the Court of First Instance of 9 September 2008 — Germany v Commission (ERDF — Reduction of financial assistance — Change in the financing plan without the consent of the Commission — Concept of significant change — Article 24 of Regulation (EEC) No 4253/88 — Actions for annulment)

24

2008/C 272/45

Case T-363/06: Judgment of the Court of First Instance of 9 September 2008 — Honda Motor Europe v OHIM — Seat (MAGIC SEAT) (Community trade mark — Opposition proceedings — Application for Community word mark MAGIC SEAT — Earlier national figurative trade mark SEAT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

24

2008/C 272/46

Case T-413/06 P: Judgment of the Court of First Instance of 4 September 2008 — Gualtieri v Commission (Appeal — Seconded National Expert — Order for referral — Decision against which an appeal may be lodged — Inadmissibility)

25

2008/C 272/47

Case T-106/07: Judgment of the Court of First Instance of 10 September 2008 — Alcon v OHIM — *Acri.Tec (BioVisc) (Community trade mark — Opposition proceedings — Application for Community word mark BioVisc — Earlier international word marks PROVISC and DUOVISC — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

25

2008/C 272/48

Case T-222/07 P: Judgment of the Court of First Instance of 8 September 2008 — Kerstens v Commission (Appeal — Civil Service — Officials — Career development report — Time limit for lodging a complaint — Lateness — Appeal not founded)

25

2008/C 272/49

Case T-315/05: Order of the Court of First Instance of 27 August 2008 — Adomex International v Commission (Action for annulment — Aid granted by the Netherlands authorities in the floriculture sector — Decision not to raise objections — Not individually concerned — Manifest inadmissibility)

26

2008/C 272/50

Case T-477/07: Order of the Court of First Instance of 3 September 2008 — Cofra v Commission (Action for annulment — Access to documents — Withdrawal of the decision refusing access — Disclosure of documents contrary to the express opinion of their author — No need to adjudicate)

26

2008/C 272/51

Case T-479/07: Order of the Court of First Instance of 3 September 2008 — Nuova Agricast v Commission (Action for annulment — Access to documents — Withdrawal of the decision refusing access — Disclosure of documents against the explicit opinion of the author thereof — No need to adjudicate)

26

2008/C 272/52

Case T-237/08: Action brought on 19 June 2008 — Abadía Retuerta v OHIM (CUVÉE PALOMAR)

27

2008/C 272/53

Case T-259/08: Action brought on 2 July 2008 — Global Digital Disc v Commission

27

2008/C 272/54

Case T-283/08 P: Appeal brought on 16 July 2008 by P. Longinidis against the judgment of the Civil Service Tribunal delivered on 24 April 2008 in Case F-74/06 Pavlos Longinidis v Cedefop

28

2008/C 272/55

Case T-293/08: Action brought on 24 July 2008 — BASF Plant Science and Others v Commission

28

2008/C 272/56

Case T-299/08: Action brought on 1 August 2008 — Elf Aquitaine v Commission

29

2008/C 272/57

Case T-304/08: Action brought on 5 August 2008 — Smurfit Kappa Group v Commission

30

2008/C 272/58

Case T-305/08: Action brought on 11 August 2008 — Italian Republic v Commission

31

2008/C 272/59

Case T-311/08: Action brought on 5 August 2008 — Fitoussi v OHIM — Loriot (IBIZA REPUBLIC)

32

2008/C 272/60

Case T-312/08: Action brought on 13 August 2008 — Ellinikos Niognomon v Commission

33

2008/C 272/61

Case T-313/08: Action brought on 12 August 2008 — Veromar di Tudisco Alfio & Salvatore v Commission

33

2008/C 272/62

Case T-314/08: Action brought on 12 August 2008 — Euromar di Ganesio Pietro v Commission

34

2008/C 272/63

Case T-315/08: Action brought on 12 August 2008 — Corrado v Commission

34

2008/C 272/64

Case T-316/08: Action brought on 12 August 2008 — Pescazzurra v Commission

34

2008/C 272/65

Case T-317/08: Action brought on 12 August 2008 — Società di armatori G. padre dei F.lli Incorvaia G.I. e S. v Commission

34

2008/C 272/66

Case T-318/08: Action brought on 12 August 2008 — Di Mercurio v Commission

35

2008/C 272/67

Case T-319/08: Action brought on 12 August 2008 — Grasso v Commission

35

2008/C 272/68

Case T-320/08: Action brought on 12 August 2008 — Margherita v Commission

35

2008/C 272/69

Case T-321/08: Action brought on 12 August 2008 — Cimino v Commission

36

2008/C 272/70

Case T-322/08: Action brought on 12 August 2008 — Musumeci v Commission

36

2008/C 272/71

Case T-323/08: Action brought on 12 August 2008 — Pescatori San Francesco di Paola e Sorrentino v Commission

36

2008/C 272/72

Case T-324/08: Action brought on 12 August 2008 — Pescatori San Francesco di Paola v Commission

37

2008/C 272/73

Case T-325/08: Action brought on 12 August 2008 — Pepito Pesca v Commission

37

2008/C 272/74

Case T-326/08: Action brought on 12 August 2008 — G. & C. v Commission

37

2008/C 272/75

Case T-327/08: Action brought on 12 August 2008 — Armamento Li Causi v Commission

37

2008/C 272/76

Case T-328/08: Action brought on 12 August 2008 — Mareggiando in Calabria — Servizi Pesca Turismo and Others v Commission

38

2008/C 272/77

Case T-329/08: Action brought on 12 August 2008 — AJD Tuna v Commission

38

2008/C 272/78

Case T-330/08: Action brought on 12 August 2008 — Ligny Pesca di Guaiana Francesco and Others v Commission

38

2008/C 272/79

Case T-335/08: Action brought on 14 August 2008 — BNP Paribas and BNL v Commission

39

2008/C 272/80

Case T-339/08: Action brought on 18 August 2008 — BVGD v Commission

40

2008/C 272/81

Case T-341/08: Action brought on 19 August 2008 — Hess Group v OHIM — Coloma Navarro (COLOMÉ)

41

2008/C 272/82

Case T-342/08: Action brought on 18 August 2008 — Batchelor v Commission

41

2008/C 272/83

Case T-344/08: Action brought on 25 August 2008 — EnBW Energie Baden-Württemberg v Commission

42

2008/C 272/84

Case T-345/08: Action brought on 22 August 2008 — Helena Rubinstein v OHIM — Allergan (BOTOLIST)

42

2008/C 272/85

Case T-347/08: Action brought on 20 August 2008 — iTouch International v OHIM — Touchnet Information Systems (iTouch)

43

2008/C 272/86

Case T-350/08: Action brought on 22 August 2008 — Papierfabrik Hamburger-Spremberg v Commission

43

2008/C 272/87

Case T-357/08: Action brought on 1 September 2008 — L'Oréal v OHIM — Allergan (BOTOCYL)

44

2008/C 272/88

Case T-358/08: Action brought on 3 September 2008 — Spain v Commission

45

2008/C 272/89

Case T-359/08: Action brought on 3 September 2008 — Spain v Commission

45

2008/C 272/90

Case T-360/08: Action brought on 3 September 2008 — Spain v Commission

46

2008/C 272/91

Case T-363/08: Action brought on 29 August 2008 — 2nine v OHIM — Pacific Sunwear of California (nollie)

47

2008/C 272/92

Case T-364/08: Action brought on 29 August 2008 — 2nine v OHIM — Pacific Sunwear of California (nollie)

47

2008/C 272/93

Case T-365/08: Action brought on 28 August 2008 — Hidalgo v OHIM — Bodegas Hidalgo — La Gitana (HIDALGO)

48

2008/C 272/94

Case T-390/08: Action brought on 18 September 2008 — Bank Melli Iran v Council

49

2008/C 272/95

Joined Cases T-75/07 and T-363/07: Order of the Court of First Instance of 2 September 2008 — Hamdi v Council

49

2008/C 272/96

Case T-466/07: Order of the Court of First Instance of 5 September 2008 — Osram v Council

50

2008/C 272/97

Case T-42/08: Order of the Court of First Instance of 2 September 2008 — Shetland Islands Council v Commission

50

European Union Civil Service Tribunal

2008/C 272/98

Case F-71/08: Action brought on 22 August 2008 — N v Parliament

51

2008/C 272/99

Case F-72/08: Action brought on 25 August 2008 — Ketselidis v Commission

51

2008/C 272/00

Case F-73/08: Action brought on 25 August 2008 — Marcuccio v Commission

51

2008/C 272/01

Case F-74/08: Action brought on 29 August 2008 — Ramaekers-Jørgensen v Commission

52

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 25.10.2008 | EN | Official Journal of the European Union | C 272/1 |
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25.10.2008

EN

Official Journal of the European Union

C 272/1

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(2008/C 272/01)

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

OJ C 260, 11.10.2008

Past publications

OJ C 247, 27.9.2008

OJ C 236, 13.9.2008

OJ C 223, 30.8.2008

OJ C 209, 15.8.2008

OJ C 197, 2.8.2008

OJ C 183, 19.7.2008

These texts are available on:

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

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

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COURT PROCEEDINGS

European Union Civil Service Tribunal

| 25.10.2008 | EN | Official Journal of the European Union | C 272/2 |
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25.10.2008

EN

Official Journal of the European Union

C 272/2

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Election of the President of the Civil Service Tribunal

(2008/C 272/02)

On 24 September 2008, in accordance with Article 4(1) of the Annex to the Statute of the Court of Justice and with Article 6(1) of the Rules of Procedure, the Judges of the Tribunal elected Mr MAHONEY President of the Tribunal for the period from 6 October 2008 to 30 September 2011.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/3 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/3

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Composition of the Chambers and attachment of the Judges to Chambers

(2008/C 272/03)

By decision of 30 November 2005 (1), the Tribunal decided to sit in three Chambers and as a full Court. By decision of 24 September 2008, for the period from 1 October 2008 to 30 September 2011, the Tribunal elected as Presidents of Chambers Judges H. KANNINEN and S. GERVASONI. By decision of 30 September 2008, for the period from 1 October 2008 to 30 September 2011, the Tribunal attached the Judges to the Chambers as follows:

First Chamber

S. GERVASONI, President of Chamber,

H. KREPPEL and H. TAGARAS, Judges,

Second Chamber

H. KANNINEN, President of Chamber,

I. BORUTA and S. VAN RAEPENBUSCH, Judges,

Third Chamber, sitting with three Judges

P. MAHONEY, President of the Tribunal;

H. KREPPEL, I. BORUTA, H. TAGARAS and S. VAN RAEPENBUSCH, Judges.

In the Third Chamber, the President will sit, alternately, either with Judges I. BORUTA and H. TAGARAS or with Judges H. KREPPEL and S. VAN RAEPENBUSCH, subject always to connections between cases.

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(1)  OJ 2005 C 322, p. 16.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/4 |
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25.10.2008

EN

Official Journal of the European Union

C 272/4

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Criteria for the assignment of cases to chambers

(2008/C 272/04)

On 30 September 2008, in accordance with Article 4(4) of Annex I to the Statute of the Court of Justice and Article 12(2) of the Rules of Procedure, the Civil Service Tribunal decided to maintain in force until 30 September 2011 the following conditions for the assignment of cases to chambers:

| — | the First Chamber shall hear all cases, with the exception of those principally concerning questions of recruitment, assessment/promotion and final termination of service, which shall be heard by the Second Chamber; |
| --- | --- |

—

the First Chamber shall hear all cases, with the exception of those principally concerning questions of recruitment, assessment/promotion and final termination of service, which shall be heard by the Second Chamber;

| — | a number of cases shall be assigned to the Third Chamber, regardless of the subject-matter involved, at regular intervals to be determined at a plenary meeting of the Tribunal; |
| --- | --- |

—

a number of cases shall be assigned to the Third Chamber, regardless of the subject-matter involved, at regular intervals to be determined at a plenary meeting of the Tribunal;

| — | derogations from the above rules on assignment may be made for reasons of connections between cases and to ensure a balanced and reasonably varied workload within the Tribunal. |
| --- | --- |

—

derogations from the above rules on assignment may be made for reasons of connections between cases and to ensure a balanced and reasonably varied workload within the Tribunal.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/5 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/5

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Designation of the judge to replace the President of the Tribunal for the purpose of dealing with applications for interim measures

(2008/C 272/05)

On 30 September 2008, in accordance with Article 103(2) of the Rules of Procedure, the Tribunal decided that, for the period from 1 October 2008 to 30 September 2009, Judge Kanninen, President of the Second Chamber, will replace the President of the Tribunal for the purpose of dealing with applications for interim measures in the event of the President's absence or his being prevented from attending.

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 25.10.2008 | EN | Official Journal of the European Union | C 272/6 |
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25.10.2008

EN

Official Journal of the European Union

C 272/6

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Action brought on 1 July 2008 — Commission of the European Communities v Republic of Austria

(Case C-291/08)

(2008/C 272/06)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and C. Egerer, Agents)

Defendant: Republic of Austria

Form of order sought

| — | Declare that, by not adopting the laws, regulations or administrative provisions necessary to transpose Council Directive 2006/100/EC of 20 November 2006 (1) adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania, or by not communicating them to the Commission, the Republic of Austria has infringed its obligations under Article 2 of that directive; |
| --- | --- |

—

Declare that, by not adopting the laws, regulations or administrative provisions necessary to transpose Council Directive 2006/100/EC of 20 November 2006 (1) adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania, or by not communicating them to the Commission, the Republic of Austria has infringed its obligations under Article 2 of that directive;

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

—

Order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The deadline for transposition of Directive 2006/100/EC expired on 1 January 2007.

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(1)  OJ 2006 L 363, p. 141.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/6 |
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25.10.2008

EN

Official Journal of the European Union

C 272/6

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 2 July 2008 — German Graphics Graphische Maschinen GmbH v A. van der Schee, acting as liquidator of Holland Binding BV

(Case C-292/08)

(2008/C 272/07)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: German Graphics Graphische Maschinen GmbH

Respondent: A. van der Schee, acting as liquidator of Holland Binding BV

Questions referred

| 1. | Must Article 25(2) of the Insolvency Regulation (1) be interpreted as meaning that the words ‘provided that that Convention [that is to say, the Brussels I Regulation (2)] is applicable’ featuring in that provision imply that, before it can be concluded that the recognition and enforcement provisions of the Brussels I Regulation are applicable to judgments other than those referred to in Article 25(1) of the Insolvency Regulation, it is first necessary to examine whether, pursuant to Article 1(2)(b) of the Brussels I Regulation, such judgments fall outside the material scope of that regulation? |
| --- | --- |

1.

Must Article 25(2) of the Insolvency Regulation (1) be interpreted as meaning that the words ‘provided that that Convention [that is to say, the Brussels I Regulation (2)] is applicable’ featuring in that provision imply that, before it can be concluded that the recognition and enforcement provisions of the Brussels I Regulation are applicable to judgments other than those referred to in Article 25(1) of the Insolvency Regulation, it is first necessary to examine whether, pursuant to Article 1(2)(b) of the Brussels I Regulation, such judgments fall outside the material scope of that regulation?

| 2. | Must Article 1(2)(b) of the Brussels I Regulation, in conjunction with Article 7(1) of the Insolvency Regulation, be interpreted as meaning that it follows from the fact that an asset to which a reservation of title applies is situated, at the time of the opening of insolvency proceedings against the purchaser, in the Member State in which those insolvency proceedings are opened, that a claim of the seller based on that reservation of title, such as that of German Graphics, must be regarded as a claim which relates to bankruptcy or the winding-up of an insolvent company, within the meaning of Article 1(2)(b) of the Brussels I Regulation, and which therefore falls outside the material scope of that regulation? |
| --- | --- |

2.

Must Article 1(2)(b) of the Brussels I Regulation, in conjunction with Article 7(1) of the Insolvency Regulation, be interpreted as meaning that it follows from the fact that an asset to which a reservation of title applies is situated, at the time of the opening of insolvency proceedings against the purchaser, in the Member State in which those insolvency proceedings are opened, that a claim of the seller based on that reservation of title, such as that of German Graphics, must be regarded as a claim which relates to bankruptcy or the winding-up of an insolvent company, within the meaning of Article 1(2)(b) of the Brussels I Regulation, and which therefore falls outside the material scope of that regulation?

| 3. | Is it relevant in the context of Question 2 that, pursuant to Article 4(2)(b) of the Insolvency Regulation, the law of the Member State in which the insolvency proceedings are opened is to determine the assets which form part of the estate? |
| --- | --- |

3.

Is it relevant in the context of Question 2 that, pursuant to Article 4(2)(b) of the Insolvency Regulation, the law of the Member State in which the insolvency proceedings are opened is to determine the assets which form part of the estate?

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(1)  Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1).

(2)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/7 |
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25.10.2008

EN

Official Journal of the European Union

C 272/7

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Action brought on 4 July 2008 — Commission of the European Communities v French Republic

(Case C-299/08)

(2008/C 272/08)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and D. Kukovec, acting as Agents)

Defendant: French Republic

Form of order sought

| — | Declare that, by adopting and keeping in force Articles 73 and 74-IV of the Code des marchés publics (Public Procurement Code) adopted by Decree No 2006-975 of 1 August 2006, inasmuch as those provisions lay down a procedure for the award of marchés de definition (public contracts for designing the parameters, including the purpose, of a public works, supply or service contract) under which it is possible for the awarding authority to award a public works, supply or service contract to one of the holders of the initial marchés de definition without opening it afresh to competition or, at most, by opening it to competition limited to those holders, the French Republic has failed to fulfil its obligations under Articles 2, 28 and 31 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1); |
| --- | --- |

—

Declare that, by adopting and keeping in force Articles 73 and 74-IV of the Code des marchés publics (Public Procurement Code) adopted by Decree No 2006-975 of 1 August 2006, inasmuch as those provisions lay down a procedure for the award of marchés de definition (public contracts for designing the parameters, including the purpose, of a public works, supply or service contract) under which it is possible for the awarding authority to award a public works, supply or service contract to one of the holders of the initial marchés de definition without opening it afresh to competition or, at most, by opening it to competition limited to those holders, the French Republic has failed to fulfil its obligations under Articles 2, 28 and 31 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1);

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

—

order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission alleges that the defendant permits the award of contracts on the basis of mutual agreement — or with limited competition — in situations not provided for by Directive 2004/18/EC. By drawing a distinction between marchés de definition and public works, supply or service contracts and by allowing, in certain circumstances, the award of the latter contracts to one of the holders of the initial marchés de definition without again opening them to competition or, at the very least, by opening them to competition limited only to those holders, the French legislation disregards the fundamental principles of equality and transparency inherent to Directive 2004/18/EC. In the Commission's view, it is impossible by definition for the subject-matter and criteria for the award of a public procurement contract to be known precisely before the project itself has been defined. The marché de definition and the public works, supply or service contract are two entirely distinct types of public procurement contract, each having its own subject-matter and criteria for award and, on those grounds, they must both comply with the stipulations of Directive 2004/18/EC.

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(1)  OJ L 134, p. 114.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/7 |
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25.10.2008

EN

Official Journal of the European Union

C 272/7

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Action brought on 9 July 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-307/08)

(2008/C 272/09)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: J.-P. Keppenne and R. Lyal, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

| — | Declare that, since it does not prevent double taxation of dividends paid by undertakings domiciled in another Member State or EEA/EFTA State to natural persons, the Kingdom of Belgium has failed to fulfil its obligations under Article 56 EC and Article 40 of the European Economic Area Agreement; |
| --- | --- |

—

Declare that, since it does not prevent double taxation of dividends paid by undertakings domiciled in another Member State or EEA/EFTA State to natural persons, the Kingdom of Belgium has failed to fulfil its obligations under Article 56 EC and Article 40 of the European Economic Area Agreement;

| — | order the Kingdom of Belgium to pay the costs. |
| --- | --- |

—

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

By its action, the Commission submits that Belgian tax legislation creates an unjustified restriction on the free movement of capital inasmuch as it taxes dividends payment to natural persons by companies established in another Member State or in a State of the European Economic Area (‘incoming’ dividends) in the same way as dividends paid by companies established in Belgium (‘internal’ dividends), without taking into account taxation at source paid in the State from which the dividends originate. Such legislation penalises cross-border capital transactions since it dissuades individual taxpayers from investing in shares in foreign companies and at the same time it constitutes an obstacle to the accumulation of capital in Belgium for companies having their registered office in other Member States.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/8 |
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25.10.2008

EN

Official Journal of the European Union

C 272/8

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 16 July 2008 — 1. Makro Zelfbedieningsgroothandel CV, 2. Metro Cash & Carry BV and 3. Remo Zaandam BV v Diesel SpA

(Case C-324/08)

(2008/C 272/10)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellants: 1. Makro Zelfbedieningsgroothandel CV, 2. Metro Cash & Carry BV and 3. Remo Zaandam BV

Respondent: Diesel SpA

Questions referred

| 1. | In the case where goods bearing a trade mark proprietor's mark have previously been placed on the market within the EEA, but not by him or with his express consent, must the same criteria be applied in determining whether this has occurred with the (implicit) consent of the trade mark proprietor, within the meaning of Article 7(1) of First Council Directive 89/104/EEC (1) of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as are applied in the case where such goods have previously been placed on the market outside the EEA by the trade mark proprietor or with his consent? |
| --- | --- |

1.

In the case where goods bearing a trade mark proprietor's mark have previously been placed on the market within the EEA, but not by him or with his express consent, must the same criteria be applied in determining whether this has occurred with the (implicit) consent of the trade mark proprietor, within the meaning of Article 7(1) of First Council Directive 89/104/EEC (1) of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as are applied in the case where such goods have previously been placed on the market outside the EEA by the trade mark proprietor or with his consent?

| 2. | If the answer to Question 1 is in the negative, what criteria — whether or not derived (in part) from the judgment of the Court of Justice in Case C-9/93 IHT and Danzinger v Ideal-Standard and Wabco Standard [1994] ECR I-2789, ... — must be applied in the first case referred to in that question in order to determine whether the trade mark proprietor has given (implicit) consent within the meaning of Directive 89/104/EEC? |
| --- | --- |

2.

If the answer to Question 1 is in the negative, what criteria — whether or not derived (in part) from the judgment of the Court of Justice in Case C-9/93 IHT and Danzinger v Ideal-Standard and Wabco Standard [1994] ECR I-2789, ... — must be applied in the first case referred to in that question in order to determine whether the trade mark proprietor has given (implicit) consent within the meaning of Directive 89/104/EEC?

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(1)  OJ 1989 L 40, p. 1.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/8 |
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Action brought on 18 July 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-329/08)

(2008/C 272/11)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker and G. Rozet, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (1), the Kingdom of Belgium has failed to fulfil its obligations under Article 19 of that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (1), the Kingdom of Belgium has failed to fulfil its obligations under Article 19 of that directive;

| — | order the Kingdom of Belgium to pay the costs. |
| --- | --- |

—

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of Directive 2004/35/EC expired on 30 April 2007. At the date on which the present action was brought, the defendant had not yet adopted all the measures necessary for transposition as regards the Région de Bruxelles-Capitale.

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(1)  OJ L 143, p. 56.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/9 |
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Action brought on 18 July 2008 — Commission of the European Communities v French Republic

(Case C-330/08)

(2008/C 272/12)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker and G. Rozet, acting as Agents)

Defendant: French Republic

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (1), the French Republic has failed to fulfil its obligations under Article 19 of that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (1), the French Republic has failed to fulfil its obligations under Article 19 of that directive;

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

—

order the French Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of Directive 2004/35/EC expired on 30 April 2007. At the date on which the present action was brought, the defendant had not yet adopted the measures necessary for transposition.

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(1)  OJ L 143, p. 56.

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Action brought on 18 July 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-331/08)

(2008/C 272/13)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker and G. Rozet, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (1), or in any event by failing to notify those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 19 of that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (1), or in any event by failing to notify those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 19 of that directive;

| — | order the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

—

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of Directive 2004/35/EC expired on 30 April 2007. At the date on which the present action was brought, the defendant had not yet adopted the measures necessary for transposition.

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(1)  OJ L 143, p. 56.

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Action brought on 18 July 2008 — Commission of the European Communities v French Republic

(Case C-332/08)

(2008/C 272/14)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and A. Alcover San Pedro, acting as Agents)

Defendant: French Republic

Form of order sought

| — | Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2004/107/EC of the European Parliament and of the Council of 15 December 2004 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air (1), the French Republic has failed to fulfil its obligations under Article 10 of that directive; |
| --- | --- |

—

Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2004/107/EC of the European Parliament and of the Council of 15 December 2004 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air (1), the French Republic has failed to fulfil its obligations under Article 10 of that directive;

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

—

order the French Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of Directive 2004/107/EC expired on 15 February 2007. At the date on which the present action was brought, that directive still had not been fully transposed into national law.

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(1)  OJ 2005 L 23, p. 3.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/10 |
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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 21 July 2008 — X Holding BV v Staatssecretaris van Financiën

(Case C-337/08)

(2008/C 272/15)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: X Holding BV

Respondent: Staatssecretaris van Financiën

Question referred

Must Article 43 EC, in conjunction with Article 48 EC, be interpreted as precluding national rules of a Member State, ... which allow a parent company and its subsidiary to opt to have the tax for which they are liable levied on the parent company established in that Member State as if they were a single taxpayer, but which reserve that option to companies which, for the taxation of their profits, are subject to the fiscal jurisdiction of the Member State concerned?

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/10 |
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Action brought on 23 July 2008 — Commission of the European Communities v Czech Republic

(Case C-343/08)

(2008/C 272/16)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: M. Šimerdová, N. Yerrell, acting as Agents)

Defendant: Czech Republic

Form of order sought

The Commission asks the Court to:

| — | declare that, by failing to adopt the domestic legal provisions necessary to comply fully with Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (1), and, in particular, by failing to implement Article 8, Article 9 in its entirety, Articles 13, 15 to 18 and 20(2) to (4) thereof, the Czech Republic has failed to fulfil its obligations under that directive, in particular those under Article 22(1) thereof; |
| --- | --- |

—

declare that, by failing to adopt the domestic legal provisions necessary to comply fully with Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (1), and, in particular, by failing to implement Article 8, Article 9 in its entirety, Articles 13, 15 to 18 and 20(2) to (4) thereof, the Czech Republic has failed to fulfil its obligations under that directive, in particular those under Article 22(1) thereof;

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

—

order the Czech Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for implementing the Directive in the domestic legal order expired on 23 September 2005.

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(1)  OJ 2003 L 235, p. 10.

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Reference for a preliminary ruling from the Sąd Rejonowy w Kościanie (Republic of Poland) lodged on 24 July 2008 — Criminal proceedings against Tomasz Rubach

(Case C-344/08)

(2008/C 272/17)

Language of the case: Polish

Referring court

Sąd Rejonowy w Kościanie

Parties to the main proceedings

Prosecuting authority: Prokuratura Rejonowa w Kościanie (District Prosecutor's Office, Kościan)

Defendant: Tomasz Rubach

Question referred

How should Article 8(5) of Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (1) be properly interpreted, that is to say, how, under Community law, may a keeper of animals listed in Annex B (which are not amphibians, reptiles, birds or mammals) prove satisfactorily that his specimens were acquired or introduced into the Community in accordance with the legislation in force with regard to wild fauna and flora in the case where the provisions of national law do not govern those matters?

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(1)  OJ L 61, 3.3.1997, p. 1.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/11 |
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Reference for a preliminary ruling from the Landesgericht Feldkirch (Austria) lodged on 28 July 2008 — Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG

(Case C-347/08)

(2008/C 272/18)

Language of the case: German

Referring court

Landesgericht Feldkirch

Parties to the main proceedings

Applicant: Vorarlberger Gebietskrankenkasse

Defendant: WGV-Schwäbische Allgemeine Versicherungs AG

Questions referred

| 1. | Is the reference in Article 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to Article 9(1)(b) of that regulation to be interpreted as meaning that a social security institution, to which the claims of the directly injured party have passed by operation of law (Paragraph 332 of the Allgemeines Sozialversicherungsgesetz (General Social Insurance Law, ASVG)), may bring an action directly against the insurer in the courts for the place in a Member State where the social security institution is established, provided that such a direct action is permitted and the insurer is domiciled in a Member State? |
| --- | --- |

1.

Is the reference in Article 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to Article 9(1)(b) of that regulation to be interpreted as meaning that a social security institution, to which the claims of the directly injured party have passed by operation of law (Paragraph 332 of the Allgemeines Sozialversicherungsgesetz (General Social Insurance Law, ASVG)), may bring an action directly against the insurer in the courts for the place in a Member State where the social security institution is established, provided that such a direct action is permitted and the insurer is domiciled in a Member State?

| 2. | If the answer to Question 1 is in the affirmative: Does that jurisdiction exist even if at the time of bringing the action the directly injured party is not permanently or ordinarily resident in the Member State in which the social security institution is established? |
| --- | --- |

2.

If the answer to Question 1 is in the affirmative: Does that jurisdiction exist even if at the time of bringing the action the directly injured party is not permanently or ordinarily resident in the Member State in which the social security institution is established?

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(1)  OJ 2001 L 12, p. 1.

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Reference for a preliminary ruling from the Bundessozialgericht (Germany) lodged on 4 August 2008 — Christian Grimme v Deutsche Angestellten Krankenkasse

(Case C-351/08)

(2008/C 272/19)

Language of the case: German

Referring court

Bundessozialgericht

Parties to the main proceedings

Applicant: Christian Grimme

Defendant: Deutsche Angestellten Krankenkasse

Question referred

Are the provisions of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (OJ 2002 L 114, p. 6) (1), in particular Articles 1, 5, 7 and 16 thereof and Articles 12, 17, 18 and 19 of Annex I thereto, to be interpreted as meaning that they preclude a rule which obliges a member of a managing board of a company limited by shares governed by Swiss law who is employed in Germany to be insured in the German statutory pension insurance scheme, whereas members of managing boards of companies limited by shares governed by German law are exempt from that obligation?

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(1)  OJ 2002 L 114, p. 6.

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Appeal brought on 7 August 2008 by Internationaler Hilfsfonds e.V. against the judgment delivered by the Court of First Instance (Fifth Chamber) on 5 June 2008 in Case T-141/05 Internationaler Hilfsfonds e.V. v Commission

(Case C-362/08 P)

(2008/C 272/20)

Language of the case: German

Parties

Appellant: Internationaler Hilfsfonds e.V. (represented by: H. Kaltenecker, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | set aside the judgment of the Court of First Instance of 5 June 2008; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of 5 June 2008;

| — | give final judgment in the matter and annul the decision of the Commission of 14 February 2005 (Article 54 of the Statutes of the Court of Justice); |
| --- | --- |

—

give final judgment in the matter and annul the decision of the Commission of 14 February 2005 (Article 54 of the Statutes of the Court of Justice);

| — | in the alternative, refer the case back to the Court of First Instance; |
| --- | --- |

—

in the alternative, refer the case back to the Court of First Instance;

| — | order the Commission to pay the costs of the proceedings, including the appellant's costs. |
| --- | --- |

—

order the Commission to pay the costs of the proceedings, including the appellant's costs.

Pleas in law and main arguments

The Court of First Instance declared the action for annulment brought by the appellant against the decision of the Commission, which refused to grant the appellant access to certain documents relating to Contract LIEN 97-2011 concerning the co-financing of a medical aid programme organised in Kazakhstan, inadmissible on the following grounds: the action for annulment was brought against a decision which merely confirms a previous decision not contested within the time-limit for initiating proceedings, and even if the contested decision were not merely confirmatory, it could also not be considered to be a decision against which, for the purposes of Regulation No 1049/2001, an action for annulment can be brought.

The judgment contains both serious errors of law and of fact.

First, as regards classifying the contested decision, the Court of First Instance failed to take into consideration that the notice which the Commission had sent to the appellant earlier by way of a response to a confirmatory application within the meaning of Article 7(2) of Regulation No 1049/2001 should have been regarded as invalid, since it had not been written by the Secretary General of the Commission and did not provide grounds or instructions on legally recognised rights. Since, as a consequence, the reply had no legal effect, it would not have been possible to bring an action for annulment against it. Therefore, only the contested decision — in other words, the Commission's reply to the appellant's new application — can be considered to be a final notice, which, in contrast to the position taken by the Court of First Instance, was actually sent following a fresh and complete examination of the situation by the Commission. Consequently, the contested decision cannot ‘simply be confirmatory’, since a measure that has no legal effect cannot be confirmed. However, regrettably, the Court of First Instance failed to examine the legal validity of the earlier Commission notice, which led to the wrong classification of the contested decision of the Commission.

Second, the Court of First Instance's claim that the contested decision constitutes a reply to an initial application within the meaning of Regulation No 1049/2001 and could, for that reason, not be considered to be a decision against which an action for annulment can be brought, is based on a wrong interpretation of Article 7(2) of Regulation No 1049/2001. The Court of First Instance overlooked that it is possible, but not obligatory under that regulation to make a confirmatory application. Taking that into consideration, and in the light of the Commission's hostile attitude throughout the entire preparatory phase, the appellant was no longer under an obligation to make a confirmatory application. In the course of the proceedings, the appellant requested that a reference to the nature of the regulation be added to the minutes of the hearing, since those minutes were incomplete in this respect. By refusing that request to make a correction to the minutes of the hearing, the Court of First Instance also committed a procedural error.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/12 |
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Reference for a preliminary ruling from the Oberlandesgericht München (Germany) lodged on 11 August 2008 — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Adolf Darbo AG

(Case C-366/08)

(2008/C 272/21)

Language of the case: German

Referring court

Oberlandesgericht München

Parties to the main proceedings

Applicant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

Defendant: Adolf Darbo AG

Questions referred

| 1. | Is the term low-sugar jams in Part A of Annex III to European Parliament and Council Directive 95/2/EC of 20 February 1995 on food additives other than colours and sweeteners (1) to be interpreted as also covering jams named extra jam? |
| --- | --- |

1.

Is the term low-sugar jams in Part A of Annex III to European Parliament and Council Directive 95/2/EC of 20 February 1995 on food additives other than colours and sweeteners (1) to be interpreted as also covering jams named extra jam?

| 2. | If the answer to Question 1 is affirmative:






  a) | How is the term low-sugar jams in Part A of Annex III to Directive 95/2/EC to be interpreted otherwise? |
| --- | --- | --- |

2.

If the answer to Question 1 is affirmative:

a)

How is the term low-sugar jams in Part A of Annex III to Directive 95/2/EC to be interpreted otherwise?

| b) | In particular is it to be interpreted as also covering jams named extra jam with a soluble dry matter content of 58 %? |
| --- | --- |

b)

In particular is it to be interpreted as also covering jams named extra jam with a soluble dry matter content of 58 %?

| 3. | If the answers to Questions 1 and 2(b) are affirmative:
  Is the second paragraph of Part II of Annex I to Council Directive 2001/113/EC of 20 December 2001 relating to fruit jams, jellies and marmalades and sweetened chestnut purée intended for human consumption (2) to be interpreted as meaning that the name extra jam can be authorised also in respect of jams which have a soluble dry matter content of less than 60 % where in the case of such jams no less strict requirements are imposed on the name jam? |
| --- | --- |

3.

If the answers to Questions 1 and 2(b) are affirmative:

Is the second paragraph of Part II of Annex I to Council Directive 2001/113/EC of 20 December 2001 relating to fruit jams, jellies and marmalades and sweetened chestnut purée intended for human consumption (2) to be interpreted as meaning that the name extra jam can be authorised also in respect of jams which have a soluble dry matter content of less than 60 % where in the case of such jams no less strict requirements are imposed on the name jam?

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(1)  OJ 1995 L 61, p. 1.

(2)  OJ 2002 L 10, p. 67.

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Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 14 August 2008 — Hoesch Metals and Alloys GmbH v Hauptzollamt Aachen

(Case C-373/08)

(2008/C 272/22)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Hoesch Metals and Alloys GmbH

Defendant: Hauptzollamt Aachen

Questions referred

| 1. | Is Article 24 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1) to be interpreted as meaning that the separating, cleaning and crushing of silicon metal blocks and the subsequent sieving, sorting and packaging of the silicon grains resulting from the crushing constitutes origin-conferring processing or working? |
| --- | --- |

1.

Is Article 24 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1) to be interpreted as meaning that the separating, cleaning and crushing of silicon metal blocks and the subsequent sieving, sorting and packaging of the silicon grains resulting from the crushing constitutes origin-conferring processing or working?

| 2. | If the answer to the first question is in the negative: is Council Regulation (EC) No 398/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of silicon originating in the People's Republic of China (2) valid? |
| --- | --- |

2.

If the answer to the first question is in the negative: is Council Regulation (EC) No 398/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of silicon originating in the People's Republic of China (2) valid?

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(1)  OJ 1992 L 302, p. 1.

(2)  OJ 2004 L 66, p. 15.

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Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 5 September 2008 — Criminal proceedings against Artur Leymann, Aleksei Pustovarov

(Case C-388/08)

(2008/C 272/23)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Artur Leymann, Aleksei Pustovarov

Questions referred

| 1. | How must the expression ‘offence ... other than that for which he or she was surrendered’ used in Article 27(2) of the Framework Decision (1) be interpreted; more specifically, what criteria are decisive in assessing whether the description of the offence on which prosecution in based differs so much from the description of the offence on which the surrender was based that it must be regarded as an ‘other offence’ within the meaning of Article 27(2), so that any prosecution requires the consent referred to in Article 27(3)(g) and Article 27(4)? |
| --- | --- |

1.

How must the expression ‘offence ... other than that for which he or she was surrendered’ used in Article 27(2) of the Framework Decision (1) be interpreted; more specifically, what criteria are decisive in assessing whether the description of the offence on which prosecution in based differs so much from the description of the offence on which the surrender was based that it must be regarded as an ‘other offence’ within the meaning of Article 27(2), so that any prosecution requires the consent referred to in Article 27(3)(g) and Article 27(4)?

| 2. | Must Article 27(2) of the Framework Decision be interpreted as meaning that the consent procedure referred to in Article 27(3)(g) and Article 27(4) is to be applied in a situation where the basis of both the arrest warrant and the final prosecution was an (aggravated) narcotics offence but the description of the offence in the indictment was subsequently altered so that the prosecution related to a different narcotic from that referred to in the arrest warrant? |
| --- | --- |

2.

Must Article 27(2) of the Framework Decision be interpreted as meaning that the consent procedure referred to in Article 27(3)(g) and Article 27(4) is to be applied in a situation where the basis of both the arrest warrant and the final prosecution was an (aggravated) narcotics offence but the description of the offence in the indictment was subsequently altered so that the prosecution related to a different narcotic from that referred to in the arrest warrant?

| 3. | How must Article 27(2) of the Framework Decision be interpreted in so far as, under that provision, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for another offence, especially in relation to the consent procedure referred to in Article 27(4) and having regard to the provision in Article 27(3)(c) under which the speciality rule does not apply if the criminal proceedings do not give rise to the application of a measure restricting personal liberty?






  (a) | In cases which fall within the scope of the consent procedure, must the abovementioned provisions be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for the offence in question prior to receipt of consent, provided that the suspect is not deprived of liberty or has his or her liberty restricted as a result of being suspected of the offence in question? |
| --- | --- | --- |

3.

How must Article 27(2) of the Framework Decision be interpreted in so far as, under that provision, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for another offence, especially in relation to the consent procedure referred to in Article 27(4) and having regard to the provision in Article 27(3)(c) under which the speciality rule does not apply if the criminal proceedings do not give rise to the application of a measure restricting personal liberty?

(a)

In cases which fall within the scope of the consent procedure, must the abovementioned provisions be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for the offence in question prior to receipt of consent, provided that the suspect is not deprived of liberty or has his or her liberty restricted as a result of being suspected of the offence in question?

| (b) | Of what relevance is it that the criminal proceedings associated with the restriction on liberty relate to more than one offence, one of which falls within the scope of the consent procedure? Must the abovementioned provisions then be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for an offence subject to the consent procedure prior to receipt of consent, despite the fact that the suspect has been subject to a restriction on his or her personal liberty in connection with the proceedings, where there is a lawful basis for that restriction on liberty on grounds of other pending charges? |
| --- | --- |

(b)

Of what relevance is it that the criminal proceedings associated with the restriction on liberty relate to more than one offence, one of which falls within the scope of the consent procedure? Must the abovementioned provisions then be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for an offence subject to the consent procedure prior to receipt of consent, despite the fact that the suspect has been subject to a restriction on his or her personal liberty in connection with the proceedings, where there is a lawful basis for that restriction on liberty on grounds of other pending charges?

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(1)  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/14 |
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Action brought on 9 September 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-392/08)

(2008/C 272/24)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and A. Sipos, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | Declare that, by failing to draw up external emergency plans for all establishments to which Article 9 of Council Directive 96/82/EC (1) of 9 December 1996 on the control of major-accident hazards involving dangerous substances applies, the Kingdom of Spain has failed to fulfil its obligations under Article 11(1)(c) of Directive 96/82/EC. |
| --- | --- |

—

Declare that, by failing to draw up external emergency plans for all establishments to which Article 9 of Council Directive 96/82/EC (1) of 9 December 1996 on the control of major-accident hazards involving dangerous substances applies, the Kingdom of Spain has failed to fulfil its obligations under Article 11(1)(c) of Directive 96/82/EC.

| — | order the Kingdom of Spain to pay the costs. |
| --- | --- |

—

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

According to Article 2(1) of Directive 96/82/EC, Article 9 of the directive, the Directive is to apply to establishments where dangerous substances are present in quantities equal to or in excess of the quantities listed in Annex I, Parts 1 and 2, column 3.

Under Article 11(1)(c) of that directive, Member States are to ensure that, for all establishments to which Article 9 applies, the authorities designated for that purpose are to draw up an external emergency plan for the measures to be taken outside the establishment.

The objective of this application is to seek a declaration that by failing to draw up external emergency plans for all establishments to which Article 9 applies, the Kingdom of Spain has failed to fulfil its obligations under Article 11(1)(c) of Directive 96/82/EC.

---

(1)  OJ 1996 L 10, p. 13.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/14 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/14

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Action brought on 15 September 2008 — Commission of the European Communities v Portuguese Republic

(Case C-397/08)

(2008/C 272/25)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: N. Yerrell and M. Telles Romão, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

| — | declare that, by failing to adopt and publish the laws, regulations and administrative provisions necessary to comply with Directive 2003/59/EC (1) of the European Parliament and of the Council of 15 July 2003 on the initial qualification and periodic training of drivers of certain road vehicles for the carriage of goods or passengers, amending Council Regulation (EEC) No 3820/85 and Council Directive 91/439/EEC and repealing Council Directive 76/914/EEC and, in any event, by failing to notify the Commission thereof, the Portuguese Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt and publish the laws, regulations and administrative provisions necessary to comply with Directive 2003/59/EC (1) of the European Parliament and of the Council of 15 July 2003 on the initial qualification and periodic training of drivers of certain road vehicles for the carriage of goods or passengers, amending Council Regulation (EEC) No 3820/85 and Council Directive 91/439/EEC and repealing Council Directive 76/914/EEC and, in any event, by failing to notify the Commission thereof, the Portuguese Republic has failed to fulfil its obligations under that directive;

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive expired on 10 September 2006.

---

(1)  OJ 2003 L 226, p. 4.

---

Court of First Instance

| 25.10.2008 | EN | Official Journal of the European Union | C 272/15 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/15

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Judgment of the Court of First Instance of 9 September 2008 — MyTravel v Commission

(Case T-212/03) (1)

(Non-contractual liability of the Community - Competition - Decision declaring a concentration incompatible with the common market - Annulment of the decision by a judgment of the Court of First Instance - Sufficiently serious breach of a rule of law intended to confer rights on individuals)

(2008/C 272/26)

Language of the case: English

Parties

Applicant: MyTravel Group plc (Rochdale, Lancashire, United Kingdom) (represented by: D. Pannick, QC, M. Nicholson and S. Cardell, Solicitors, A. Lewis, Barrister, and R. Gillis, QC)

Defendant: Commission of the European Communities (represented by: initially by R. Lyal, A. Whelan and P. Hellström, and subsequently by R. Lyal and F. Arbault, Agents)

Intervener in support of the defendant: Federal Republic of Germany (represented by: W.-D. Plessing and M. Lumma, Agents)

Re:

APPLICATION for damages for the loss allegedly suffered by the applicant by reason of the unlawfulness of the proceedings for determining whether the concentration between the applicant and First Choice plc was compatible with the common market.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders MyTravel Group plc to bear its own costs; |
| --- | --- |

2.

Orders MyTravel Group plc to bear its own costs;

| 3. | Orders the Commission to bear its own costs; |
| --- | --- |

3.

Orders the Commission to bear its own costs;

| 4. | Orders the Federal Republic of Germany to bear its own costs. |
| --- | --- |

4.

Orders the Federal Republic of Germany to bear its own costs.

---

(1)  OJ C 200, 23.8.2003.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/15 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/15

---

Judgment of the Court of First Instance of 10 September 2008 — Italy v Commission

(Case T-381/04) (1)

(EAGGF - Guarantee Section - Expenditure excluded from Community financing - Animal subsidies and rural development - Inadequate national management and control system)

(2008/C 272/27)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: M.Fiorilli, lawyer)

Defendant: Commission of the European Communities (represented by: C.Cattabriga and L.Visaggio, acting as Agents)

Re:

Application for partial annulment of Commission Decision 2004/561/EC of 16 July excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ L 250, p. 21), in so far as it excludes certain expenditure incurred by the Italian Republic in the sectors of animal subsidies and rural development.

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 273, 6.11.2004.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/16 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/16

---

Judgment of the Court of First Instance of 10 September 2008 — Evropaïki Dinamiki v Commission

(Case T-465/04) (1)

(Public service contracts - Community tendering procedure - Provision of computer and related services linked to the information systems of the Directorate-General for Fisheries - Rejection of a submitted tender - Obligation to state the reasons on which the decision is based)

(2008/C 272/28)

Language of the case: English

Parties

Applicant: Evropaïki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis, lawyer)

Defendant: Commission of the European Communities (represented: initially by K. Banks, and subsequently by M. Wilderspin and E. Manhaeve, acting as Agents)

Re:

Application for annulment of the Commission's decision of 15 September 2004 not to accept the tender submitted by the applicant in the tendering procedure relating to the provision of computer and related services linked to the information systems of the Directorate-General for Fisheries, and to award the contract to the successful tenderer.

Operative part of the judgment

The Court:

| 1. | The Commission's decision to reject the tender submitted by Evropaïki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE and to award the contract to the successful tenderer in the tendering procedure ‘FISH/2004/02’ is annulled. |
| --- | --- |

1.

The Commission's decision to reject the tender submitted by Evropaïki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE and to award the contract to the successful tenderer in the tendering procedure ‘FISH/2004/02’ is annulled.

| 2. | The Commission is ordered to pay all of the costs. |
| --- | --- |

2.

The Commission is ordered to pay all of the costs.

---

(1)  OJ C 57, 5.3.2005.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/16 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/16

---

Judgment of the Court of First Instance of 10 September 2008 — Williams v Commission

(Case T-42/05) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Preparatory documents relating to the adoption of Directive 2001/18/EC on GMOs - Partial refusal of access - Implied refusal of access - Exceptions relating to the protection of commercial interests, protection of international relations and protection of the decision-making process - Obligation to state reasons)

(2008/C 272/29)

Language of the case: English

Parties

Applicant: Rhiannon Williams (Brussels, Belgium) (represented by: S. Crosby, C. Bryant, Solicitors, and R. Lang, lawyer)

Defendant: Commission of the European Communities (represented by: C. Docksey and P. Costa de Oliveira, acting as Agents)

Re:

Application for annulment of the Commission's decision of 19 November 2004 partially refusing the applicant access to certain preparatory documents in respect of the legislation on genetically-modified organisms.

Operative part of the judgment

The Court:

| 1. | Declares that there is no further need to rule on the lawfulness of the Commission's decision of 19 November 2004 partially refusing Ms Rhiannon Williams access to certain preparatory documents in respect of the legislation on genetically-modified organisms in so far as it may include an implied refusal of access to preparatory documents from the Commission's Directorate-General (DG) for Trade relating to the adoption of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC; |
| --- | --- |

1.

Declares that there is no further need to rule on the lawfulness of the Commission's decision of 19 November 2004 partially refusing Ms Rhiannon Williams access to certain preparatory documents in respect of the legislation on genetically-modified organisms in so far as it may include an implied refusal of access to preparatory documents from the Commission's Directorate-General (DG) for Trade relating to the adoption of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC;

| 2. | Annuls the Commission's decision of 19 November 2004 in so far as it impliedly refused access to preparatory documents relating to the adoption of Directive 2001/18/EC other than those produced by the Trade DG; |
| --- | --- |

2.

Annuls the Commission's decision of 19 November 2004 in so far as it impliedly refused access to preparatory documents relating to the adoption of Directive 2001/18/EC other than those produced by the Trade DG;

| 3. | Dismisses the action as to the remainder; |
| --- | --- |

3.

Dismisses the action as to the remainder;

| 4. | Orders the Commission to bear its own costs and to pay one half of those incurred by Ms Williams. |
| --- | --- |

4.

Orders the Commission to bear its own costs and to pay one half of those incurred by Ms Williams.

---

(1)  OJ C 93, 16.4.2005.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/17 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/17

---

Judgment of the Court of First Instance of 10 September 2008 — Evropaïki Dinamiki v Commission

(Case T-59/05) (1)

(Public service contracts - Community tendering procedure - Provision of development, maintenance and support services for the financial information systems of the Directorate-General for Agriculture - Selection and award criteria - Rejection of a submitted tender - Obligation to state the reasons on which the decision is based - No manifest error of assessment - Principles of diligence and good administration)

(2008/C 272/30)

Language of the case: English

Parties

Applicants: Evropaïki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE, (Athens, Greece) (represented by: N. Korogiannakis, lawyer)

Defendant: Commission of the European Communities (represented: initially by K. Banks and E. Manhaeve, and subsequently by E. Manhaeve and M. Wilderspin, acting as Agents)

Re:

Annulment of the decision of the Commission of 23 November 2004 rejecting the bid filed by the applicant in the tendering procedure for the provision of computer and related services linked to the information systems of the Directorate-General for Agriculture and of the decision of the Commission to award the contract to another bidder.

Operative part of the judgment

The Court:

| 1. | The action is dismissed as being unfounded. |
| --- | --- |

1.

The action is dismissed as being unfounded.

| 2. | The Commission shall bear its own costs and shall pay one fifth of the costs incurred by Evropaïki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE. |
| --- | --- |

2.

The Commission shall bear its own costs and shall pay one fifth of the costs incurred by Evropaïki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE.

| 3. | Evropaïki Dinamiki shall bear four fifths of its costs. |
| --- | --- |

3.

Evropaïki Dinamiki shall bear four fifths of its costs.

---

(1)  OJ C 106, 30.4.2005.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/17 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/17

---

Judgment of the Court of First Instance of 10 September 2008 — JSC Kirovo-Chepetsky Khimichesky Kombinat v Council

(Case T-348/05) (1)

(Dumping - Imports of ammonium nitrate originating in Russia and Ukraine - Amendment of the definition of the product concerned - Application of existing measures to new product types)

(2008/C 272/31)

Language of the case: English

Parties

Applicant: JSC Kirovo-Chepetsky Khimichesky Kombinat (Kirovo-Chepetsk, Russia) (represented: initially by B. Servais and Y. Melin, and subsequently by B. Servais, lawyers)

Defendant: Council of the European Union (represented by: J.-P. Hix, acting as Agent, assisted by G. Berrisch, lawyer)

Intervener in support of the defendant: Commission of the European Communities (represented by: E. Righini and K. Talabér-Ritz, acting as Agents)

Re:

Action for annulment of Council Regulation (EC) No 945/2005 of 21 June 2005 amending Regulation (EC) No 658/2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia and Regulation (EC) No 132/2001 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in, inter alia, Ukraine, following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (OJ 2005 L 160, p. 1)

Operative part of the judgment

The Court:

| 1. | Annuls Council Regulation (EC) No 945/2005 of 21 June 2005 amending Regulation (EC) No 658/2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia and Regulation (EC) No 132/2001 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in, inter alia, Ukraine, following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96; |
| --- | --- |

1.

Annuls Council Regulation (EC) No 945/2005 of 21 June 2005 amending Regulation (EC) No 658/2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia and Regulation (EC) No 132/2001 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in, inter alia, Ukraine, following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96;

| 2. | Orders the Council to bear its own costs and those incurred by JSC Kirovo-Chepetsky Khimichesky Kombinat; |
| --- | --- |

2.

Orders the Council to bear its own costs and those incurred by JSC Kirovo-Chepetsky Khimichesky Kombinat;

| 3. | Orders the Commission to bear its own costs. |
| --- | --- |

3.

Orders the Commission to bear its own costs.

---

(1)  OJ C 281, 12.11.2005.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/18 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/18

---

Judgment of the Court of First Instance of 10 September 2008 — France v Commission

(Case T-370/05) (1)

(EAGGF - Guarantee Section - Expenditure excluded from Community financing - Wine sector - Restructuring aid and conversion aid - Definition of eligible area)

(2008/C 272/32)

Language of the case: French

Parties

Applicant: French Republic (represented: initially by G. de Bergues and A. Colomb, and subsequently by G. de Bergues and A.-L. During, acting as Agents)

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

Re:

Action for annulment of Commission Decision 2005/579/EC of 20 July 2005 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2005 L 199, p. 84), inasmuch as it excludes from Community financing certain expenditure in respect of a correction relating to determination of the areas eligible for aid for restructuring and conversion of vineyards for the 2001-2003 accounting period.

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision 2005/579/EC of 20 July 2005, Commission Decision of 20 July 2005 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) inasmuch as it excludes from Community financing the sum of EUR 13 519 122,05 in respect of a correction relating to determination of the areas eligible for aid for restructuring and conversion of vineyards for the 2001-2003 accounting period. |
| --- | --- |

1.

Annuls Commission Decision 2005/579/EC of 20 July 2005, Commission Decision of 20 July 2005 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) inasmuch as it excludes from Community financing the sum of EUR 13 519 122,05 in respect of a correction relating to determination of the areas eligible for aid for restructuring and conversion of vineyards for the 2001-2003 accounting period.

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

2.

Orders the Commission to pay the costs.

---

(1)  OJ C 315, 10.12.2005.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/18 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/18

---

Judgment of the Court of First Instance of 9 September 2008 — MyTravel v Commission

(Case T-403/05) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Refusal to grant access - Exception relating to the protection of the decision-making process - Exception relating to the protection of investigations and audits - Exception relating to the protection of legal advice - Documents relating to decisions of the Commission in the area of concentrations)

(2008/C 272/33)

Language of the case: English

Parties

Applicant: MyTravel Group plc (Rochdale, Lancashire, United Kingdom) (represented by: D. Pannick, QC, A. Lewis, Barrister, M. Nicholson, S. Cardell and B. McKenna, Solicitors)

Defendant: Commission of the European Communities (represented by: P. Hellström and P. Costa de Oliveira, and subsequently by X. Lewis and P. Costa de Oliveira, Agents)

Re:

ACTION for the annulment of the Commission's decisions of 5 September 2005 (D(2005) 8461) and 12 October 2005 (D(2005) 9763), refusing to grant the applicant access to certain preparatory documents for the Commission Decision 2000/276/EC of 22 September 1999 declaring a concentration to be incompatible with the common market and the EEA Agreement (Case No IV/M. 1524 Airtours/First Choice), and to documents drafted by the Commission services in consequence of the annulment of that decision by judgment of the Court of First Instance of 6 June 2002 in Case T-342/99 [2002] ECR II-2585.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Commission of 5 September 2005 (D(2005) 8461) in so far as it refuses access to a working document entitled ‘Minutes from the conversation of a member of the case team in Case M.1524 Airtours/First Choice on the Airtours case conducted on 24 June 2002’; |
| --- | --- |

1.

Annuls the decision of the Commission of 5 September 2005 (D(2005) 8461) in so far as it refuses access to a working document entitled ‘Minutes from the conversation of a member of the case team in Case M.1524 Airtours/First Choice on the Airtours case conducted on 24 June 2002’;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders MyTravel Group plc to bear nine-tenths of its own costs and nine-tenths of the costs incurred by the Commission; |
| --- | --- |

3.

Orders MyTravel Group plc to bear nine-tenths of its own costs and nine-tenths of the costs incurred by the Commission;

| 4. | Orders the Commission to bear one-tenth of its own costs and one-tenth of the costs incurred by MyTravel Group. |
| --- | --- |

4.

Orders the Commission to bear one-tenth of its own costs and one-tenth of the costs incurred by MyTravel Group.

---

(1)  OJ C 10, 14.1.2006.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/19 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/19

---

Judgment of the Court of First Instance of 10 September 2008 — Astex Therapeutics v OHIM — Protec Health International (astex TECHNOLOGY)

(Case T-48/06) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark astex TECHNOLOGY - Earlier Community word mark ASTEX - Ground for refusal - Likelihood of confusion - Restriction of the goods designated in the trade mark application - Article 8(1)(b) of Regulation No 40/94)

(2008/C 272/34)

Language of the case: English

Parties

Applicant: Astex Therapeutics Ltd (Cambridge, United Kingdom) (represented by: M. Edenborough, barrister, and R. Harrison, solicitor)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Protec Health International Ltd (Cirencester, United Kingdom)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 29 November 2005 (Case R 651/2004-2) concerning opposition proceedings between Protec Health International Ltd and Astex Therapeutics Ltd.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders Astex Therapeutics Ltd to pay the costs. |
| --- | --- |

2.

Orders Astex Therapeutics Ltd to pay the costs.

---

(1)  OJ C 86, 8.4.2006.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/19 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/19

---

Judgment of the Court of First Instance of 9 September 2008 — Bayer CropScience and Others v Commission

(Case T-75/06) (1)

(Directive 91/414/EEC - Plant protection products - Endosulfan as an active substance - Withdrawal of marketing authorisations - Evaluation procedure - Time-limits - Rights of the defence - Principle of proportionality)

(2008/C 272/35)

Language of the case: English

Parties

Applicants: Bayer CropScience AG (Monheim am Rhein, Germany); Makhteshim-Agan Holding BV (Rotterdam, Netherlands); Alfa Georgika Efodia AEVE (Athens, Greece); and Aragonesas Agro, SA (Madrid, Spain) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities (represented by: B. Doherty and L. Parpala, acting as Agents)

Intervener in support of the applicants: European Crop Protection Association (ECPA) (Brussels, Belgium) (represented by: D. Waelbroeck and N. Rampal, lawyers)

Intervener in support of the defendant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo, abogado del Estado)

Re:

APPLICATION for the annulment of Commission Decision 2005/864/EC of 2 December 2005 concerning the non-inclusion of Endosulfan in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that active substance (OJ 2005 L 317, p. 25)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Bayer CropScience AG, Makhteshim-Agan Holding BV, Alfa Georgika Efodia AEVE and Aragonesas Agro, SA to bear their own costs and to pay those incurred by the Commission; |
| --- | --- |

2.

Orders Bayer CropScience AG, Makhteshim-Agan Holding BV, Alfa Georgika Efodia AEVE and Aragonesas Agro, SA to bear their own costs and to pay those incurred by the Commission;

| 3. | Orders the Kingdom of Spain and the European Crop Protection Association (ECPA) to bear their own costs. |
| --- | --- |

3.

Orders the Kingdom of Spain and the European Crop Protection Association (ECPA) to bear their own costs.

---

(1)  OJ C 96, 22.4.2006.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/20 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/20

---

Judgment of the Court of First Instance of 10 September 2008 — Tsakiris-Mallas AE v OHIM — Late Editions (exē)

(Case T-96/06) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark exē - Earlier national word mark EXE - Relative ground for refusal - Likelihood of confusion - Similarity of goods and signs - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 272/36)

Language of the case: Greek

Parties

Applicant: Tsakiris-Mallas AE (Athens, Greece) (represented by: C.Samaras, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Late Editions Ltd (Leighton Buzzard, Bedfordshire, United Kingdom)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 11 January 2006 (Case R 1127/2004-2) concerning opposition proceedings between Late Editions Ltd and Tsakiris-Mallas EPE (now Tsakiris-Mallas AE).

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders Tsakiris-Mallas AE to pay the costs. |
| --- | --- |

2.

orders Tsakiris-Mallas AE to pay the costs.

---

(1)  OJ 2006 C 108.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/20 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/20

---

Judgment of the Court of First Instance of 10 September 2008 — Italy v Commission

(Case T-181/06) (1)

(EAGGF - Guarantee Section - Expenditure excluded from Community financing - Financial adjustments - Fruit and vegetables - Dairy products - Arable farming - Rural development - Non-compliance with payment deadlines)

(2008/C 272/37)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G.Aiello, lawyer)

Defendant: Commission of the European Communities (represented by: C.Cattabriga and F.Jimeno Fernandez, acting as Agents, and A.Dal Ferro, lawyer)

Re:

Application for partial annulment of Commission Decision 2006/334/EC of 28 April 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ L 124, p. 21) in so far as it excludes certain expenditure incurred by the Italian Republic in the sectors of fruit and vegetables, milk and dairy products, arable farming, rural development as well as concerning payment deadlines.

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 212, 2.9.2006.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/21 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/21

---

Judgment of the Court of First Instance of 10 September 2008 — Gerson v OHIM (Paint filter partly coloured yellow)

(Case T-201/06) (1)

(Community trade mark - Application for a three-dimensional Community trade mark - Paint filter partly coloured yellow - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)

(2008/C 272/38)

Language of the case: English

Parties

Applicant: Louis M. Gerson Co., Inc., (Middleboro, Massachusetts, United States) (represented by: M. Edenborough, Barrister)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 15 May 2006 (Case R 1387/2005-2) concerning an application for registration as a Community trade mark of a three-dimensional sign consisting of a paint filter coloured yellow near the tip.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders Louis M. Gerson Co., Inc. to pay the costs. |
| --- | --- |

2.

Orders Louis M. Gerson Co., Inc. to pay the costs.

---

(1)  OJ C 224, 16.9.2006.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/21 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/21

---

Judgment of the Court of First Instance of 10 September 2008 — Promat v OHIM — Puertas Proma (PROMAT)

(Case T-243/06) (1)

(Community trade mark - Opposition procedure - Application for Community figurative mark PROMAT - Earlier Community figurative mark PROMA - Partial refusal to register - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 272/39)

Language of the case: German

Parties

Applicant: Promat GmbH (Ratingen, Germany) (represented by: J.Krenzel and S.Beckmann, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Puertas Proma SAL (Villacañas, Spain).

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 4 May 2006 (Case R 1059/2005-1) concerning opposition proceedings between Puertas Proma SAL and Promat GmbH.

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders Promat GmbH to pay the costs. |
| --- | --- |

2.

orders Promat GmbH to pay the costs.

---

(1)  OJ C 310, 16.12.2006.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/22 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/22

---

Judgment of the Court of First Instance of 10 September 2008 — Evropaïki Dinamiki v Court of Justice

(Case T-272/06) (1)

(Public service contracts - Community tendering procedure - Rejection of bid - Selection and award criteria - Obligation to state reasons)

(2008/C 272/40)

Language of the case: English

Parties

Applicant: Evropaïki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE (Athens (Greece) (represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: Court of Justice of the European Communities (represented: initially by M. Schauss and then by D. Guild, acting as Agents)

Re:

Application for the annulment of the decision of the Court of Justice of 20 July 2006 not to accept the tender submitted by the applicant in response to the call for tenders of 5 July 2005 for services to maintain, develop and support computer applications, and to award the contract to the successful tenderer.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Court of Justice to reject the tender submitted by Evropaïki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE, as communicated to the latter by letter of 20 July 2006. |
| --- | --- |

1.

Annuls the decision of the Court of Justice to reject the tender submitted by Evropaïki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE, as communicated to the latter by letter of 20 July 2006.

| 2. | Orders the Court of Justice to pay the costs. |
| --- | --- |

2.

Orders the Court of Justice to pay the costs.

---

(1)  OJ C 294, 2.12.2006.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/22 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/22

---

Judgment of the Court of First Instance of 10 September 2008 — Gualtieri v Commission

(Case T-284/06) (1)

(Seconded National Expert - Subsistence allowances - Place of residence at the time of secondment - Objection of illegality of Article 20(3)(b) of the decision on Seconded National Experts - Principle of equal treatment)

(2008/C 272/41)

Language of the case: Italian

Parties

Applicant: Claudia Gualtieri (Brussels, Belgium) (represented by: P. Gualtieri and M. Gualtieri, lawyers)

Defendant: Commission of the European Communities (represented by: J. Currall, acting as Agent, and G. Faedo, lawyer)

Re:

Annulment of the decision of the Commission of 30 January 2006 dismissing the applicant's claim for adjustment, following her divorce, of the amount of the allowances payable under Article 17 of Commission Decision C(2002) 1559 of 30 April 2002 laying down the rules applicable to National Experts, as amended

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ms Claudia Gualtieri to pay the costs. |
| --- | --- |

2.

Orders Ms Claudia Gualtieri to pay the costs.

---

(1)  OJ C 154, 1.7.2006 (formerly Case F-53/06).

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/23 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/23

---

Judgment of the Court of First Instance of 10 September 2008 — Promat v OHIM — Puertas Proma (PROMAT)

(Case T-300/06) (1)

(Community trade mark - Opposition procedure - Application for Community figurative mark PROMAT - Earlier Community figurative mark PROMA - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 272/42)

Language of the case: German

Parties

Applicant: Promat GmbH (Ratingen, Germany) (represented by: J.Krenzel and S.Beckmann, lawyers).

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

Other party to the proceedings before the Board of Appeal of OHIM: Puertas Proma SAL (Villacañas, Spain).

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 4 May 2006 (Case R 1058/2005-1) concerning opposition proceedings between Puertas Proma SAL and Promat GmbH.

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders Promat GmbH to pay the costs. |
| --- | --- |

2.

orders Promat GmbH to pay the costs.

---

(1)  OJ C 310, 16.12.2006.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/23 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/23

---

Judgment of the Court of First Instance of 10 September 2008 — Boston Scientific Ltd v OHIM — Terumo (CAPIO)

(Case T-325/06) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark CAPIO - Earlier national word mark CAPIOX - Relative ground for refusal - Genuine use of the mark - Article 43(1) and (2) of Regulation (EC) No 40/94 - Likelihood of confusion - Article 8(1)(b) of Regulation No 40/94)

(2008/C 272/43)

Language of the case: English

Parties

Applicant: Boston Scientific Ltd (Hastings, Barbados) (represented by: P. Rath and W. Festl-Wietek, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM and intervener before the Court of First Instance: Terumo Kabushiki Kaisha (Tokyo, Japan) (represented by: C. Bercial Arias, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 14 September 2006 (Case R 61/2006-2), relating to opposition proceedings between Terumo Kabushiki Kaisha and Boston Scientific Ltd.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders Boston Scientific Ltd to pay the costs. |
| --- | --- |

2.

Orders Boston Scientific Ltd to pay the costs.

---

(1)  OJ C 326, 30.12.2006.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/24 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/24

---

Judgment of the Court of First Instance of 9 September 2008 — Germany v Commission

(Cases T-349/06, T-371/06, T-14/07, T-15/07 and in Case T-332/07) (1)

(ERDF - Reduction of financial assistance - Change in the financing plan without the consent of the Commission - Concept of significant change - Article 24 of Regulation (EEC) No 4253/88 - Actions for annulment)

(2008/C 272/44)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and, in Cases T-349/06, T-371/06, T-14/07 and T-15/07, also by C. Schulze-Bahr, Agents, assisted by C. von Donat, lawyer)

Defendant: Commission of the European Communities (represented by: G. Wilms and L. Flynn, Agents)

Re:

ACTION for the annulment of Decisions C(2006) 4193 final and C(2006) 4194 final of 25 September 2006, Decisions C(2006) 5163 final and C(2006) 5164 final of 3 November 2006 and Decision C(2007) 2619 final of 25 June 2007 reducing the financial assistance from the European Regional Development Fund (ERDF) for Objective 2 1997-1999 of the RESIDER — Nordrhein-Westfalen Operational Programme 1994-1999, for the Operational Programmes for Nordrhein-Westfalen in the framework of the common SME (small and medium-sized enterprises) and RECHAR II initiatives, and for the Operational Programme for Community structural assistance in the Objective 2 regions of Land Nordrhein-Westfalen for the period 1994-1996 respectively.

Operative part of the judgment

The Court:

| 1. | Joins Case T-332/07 to Cases T-349/06, T-371/06, T-14/07 and T-15/07 for the purposes of the judgment; |
| --- | --- |

1.

Joins Case T-332/07 to Cases T-349/06, T-371/06, T-14/07 and T-15/07 for the purposes of the judgment;

| 2. | Dismisses the actions; |
| --- | --- |

2.

Dismisses the actions;

| 3. | Orders the Federal Republic of Germany to pay the costs. |
| --- | --- |

3.

Orders the Federal Republic of Germany to pay the costs.

---

(1)  OJ C 20, 27.1.2007.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/24 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/24

---

Judgment of the Court of First Instance of 9 September 2008 — Honda Motor Europe v OHIM — Seat (MAGIC SEAT)

(Case T-363/06) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark MAGIC SEAT - Earlier national figurative trade mark SEAT - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 272/45)

Language of the case: English

Parties

Applicant: Honda Motor Europe Ltd (Slough, Berkshire, United Kingdom) (represented by: S. Malynicz, Barrister, and N. Cordell, Solicitor)

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

Other party to the proceedings before the Board of Appeal of OHIM: Seat SA (Barcelona, Spain)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 7 September 2006 (Case R 960/2005-1) relating to opposition proceedings between Seat SA and Honda Motor Europe Ltd.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Honda Motor Europe Ltd to pay the costs. |
| --- | --- |

2.

Orders Honda Motor Europe Ltd to pay the costs.

---

(1)  OJ C 20, 27.1.2007.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/25 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/25

---

Judgment of the Court of First Instance of 4 September 2008 — Gualtieri v Commission

(Case T-413/06 P) (1)

(Appeal - Seconded National Expert - Order for referral - Decision against which an appeal may be lodged - Inadmissibility)

(2008/C 272/46)

Language of the case: Italian

Parties

Applicant: Claudia Gualtieri (Brussels, Belgium) (represented by: P. Gualtieri and M. Gualtieri, lawyers)

Defendant: Commission of the European Communities (represented by: J. Currall, acting as Agent, and G. Faedo, lawyer)

Re:

Appeal brought against the order of the Civil Service Tribunal (First Chamber) of 9 October 2006 in Case F-53/06 Gualtieri v Commission, not yet published in the ECR, and seeking the annulment of that order

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Ms Claudia Gualtieri to bear her own costs and to pay the costs incurred by the Commission in the appeal proceedings. |
| --- | --- |

2.

Orders Ms Claudia Gualtieri to bear her own costs and to pay the costs incurred by the Commission in the appeal proceedings.

---

(1)  OJ C 42, 24.2.2007.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/25 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/25

---

Judgment of the Court of First Instance of 10 September 2008 — Alcon v OHIM — *Acri.Tec (BioVisc)

(Case T-106/07) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark BioVisc - Earlier international word marks PROVISC and DUOVISC - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 272/47)

Language of the case: English

Parties

Applicant: Alcon Inc. (Hünenberg, Switzerland) (represented by: M. Graf and R. Schulz, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: *Acri.Tec AG Gesellschaft für ophthalmologische Produkte (Hennigsdorf, Germany) (represented by: M. von Welser, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 8 February 2007 (Case R 660/2006-2) concerning opposition proceedings between Alcon Inc. and *Acri.Tec AG Gesellschaft für ophthalmologische Produkte.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders Alcon Inc. to pay the costs. |
| --- | --- |

2.

Orders Alcon Inc. to pay the costs.

---

(1)  OJ C 129, 9.6.2007.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/25 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/25

---

Judgment of the Court of First Instance of 8 September 2008 — Kerstens v Commission

(Case T-222/07 P) (1)

(Appeal - Civil Service - Officials - Career development report - Time limit for lodging a complaint - Lateness - Appeal not founded)

(2008/C 272/48)

Language of the case: French

Parties

Appellant: Petrus Kerstens (Overijse, Belgium) (represented by: C. Mourato, lawyer)

Other party to the proceedings: Commission of the European Communities (represented by: D. Martin and K. Herrmann, acting as Agents)

Re:

Appeal brought against the order of the European Union Civil Service Tribunal (Second Chamber) on 25 April 2007 in Case F-59/06 Kerstens v Commission, not yet published in the ECR, and seeking annulment of that order

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Mr Petrus Kerstens to pay the costs. |
| --- | --- |

2.

Orders Mr Petrus Kerstens to pay the costs.

---

(1)  OJ C 199, 25.8.2007.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/26 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/26

---

Order of the Court of First Instance of 27 August 2008 — Adomex International v Commission

(Case T-315/05) (1)

(Action for annulment - Aid granted by the Netherlands authorities in the floriculture sector - Decision not to raise objections - Not individually concerned - Manifest inadmissibility)

(2008/C 272/49)

Language of the case: Dutch

Parties

Applicant: Adomex International BV (Aalsmeer, Netherlands) (represented by: G. van der Wal and T. Boesman, lawyers)

Defendant: Commission of the European Communities (represented by: H. van Vliet and A. Stobiecka-Kuik, acting as Agents)

Re:

Action for annulment of Commission Decision C(2005) 592 final of 16 March 2005 not to raise objections with regard to aid N 372/2003 concerning the floriculture sector, notified by the Netherlands authorities

Operative part of the order

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

1.

The action is dismissed as manifestly inadmissible.

| 2. | Adomex International BV is ordered to pay the costs. |
| --- | --- |

2.

Adomex International BV is ordered to pay the costs.

---

(1)  OJ C 281, 12.11.2005.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/26 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/26

---

Order of the Court of First Instance of 3 September 2008 — Cofra v Commission

(Case T-477/07) (1)

(Action for annulment - Access to documents - Withdrawal of the decision refusing access - Disclosure of documents contrary to the express opinion of their author - No need to adjudicate)

(2008/C 272/50)

Language of the case: Italian

Parties

Applicant: Cofra srl (Bari, Italy) (represented by: A. Calabrese, lawyer)

Defendant: Commission of the European Communities (represented by: P. Costa de Oliveira and G. Conte, acting as Agents)

Re:

Annulment of the decision of the Commission of 17 October 2007 refusing the applicant access to certain documents sent by the Italian authorities to the Commission in proceedings concerning an aid scheme

Operative part of the order

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

1.

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

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

2.

Each party shall bear its own costs.

---

(1)  OJ C 64, 8.3.2008.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/26 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/26

---

Order of the Court of First Instance of 3 September 2008 — Nuova Agricast v Commission

(Case T-479/07) (1)

(Action for annulment - Access to documents - Withdrawal of the decision refusing access - Disclosure of documents against the explicit opinion of the author thereof - No need to adjudicate)

(2008/C 272/51)

Language of the case: Italian

Parties

Applicant: Nuova Agricast (Foggia, Italy) (represented by: A. Calabrese, lawyer)

Defendant: Commission of the European Communities (represented by: P. Costa de Oliveira and G. Conte, acting as Agents)

Re:

Application for annulment of the Commission decision of 17 October 2007, which refused the applicant access to certain documents sent to the Commission by the Italian Government in the context of the review procedure for a State aid scheme

Operative part of the order

| 1. | There is no need to adjudicate on the application and on the Kingdom of Denmark's application to intervene; |
| --- | --- |

1.

There is no need to adjudicate on the application and on the Kingdom of Denmark's application to intervene;

| 2. | Each party is to bear its own costs. |
| --- | --- |

2.

Each party is to bear its own costs.

---

(1)  OJ C 64, 8.3.2008.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/27 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/27

---

Action brought on 19 June 2008 — Abadía Retuerta v OHIM (CUVÉE PALOMAR)

(Case T-237/08)

(2008/C 272/52)

Language in which the application was lodged: Spanish

Parties

Applicant: Abadía Retuerta, S.A. (Sardón de Duero, Spain) (represented by X. Fàbrega Sabaté and Curell Aguilà, lawyers)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 2 April 2008 in Case R 1185/2007-1, and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 2 April 2008 in Case R 1185/2007-1, and

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘CUVÉE PALOMAR’ for goods in Class 33 (Application for Registration No 5.501.937).

Decision of the Examiner: Rejection of the application for registration.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: The application for the Community mark in question does not infringe Article 7(1)(j) of Council Regulation (EC) No 40/94 (1) since it does not contain or consist of a false geographic indication.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/27 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/27

---

Action brought on 2 July 2008 — Global Digital Disc v Commission

(Case T-259/08)

(2008/C 272/53)

Language of the case: German

Parties

Applicant: Global Digital Disc GmbH & Co. KG (Ottendorf-Okrilla, Germany) (represented by: D. Ehle, lawyer)

Defendant: Commission of the European Communities

Forms of order sought

| — | order the defendant to pay the applicant EUR 8 025 495,25 in damages plus 8 % interest from 1 January 2008 onwards; |
| --- | --- |

—

order the defendant to pay the applicant EUR 8 025 495,25 in damages plus 8 % interest from 1 January 2008 onwards;

| — | declare that the defendant is under an obligation to compensate the applicant for damage incurred after 1 January 2008 and in the future, plus interest; |
| --- | --- |

—

declare that the defendant is under an obligation to compensate the applicant for damage incurred after 1 January 2008 and in the future, plus interest;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks compensation for damage it incurred because the Commission failed to impose provisional and definite anti-dumping duties on imports of recordable compact discs (‘CD-R’) from the People's Republic of China, Hong Kong and Malaysia and terminated the anti-dumping proceedings concerning those imports by decision of 3 November 2006 (1).

The applicant is a company based in Germany which produces CD-Rs and DVD-Rs.

In its application, the applicant claims that the defendant's administrative and normative conduct during, prior to and following the end of the anti-dumping proceedings concerning imports of CD-Rs from the People's Republic of China, Hong Kong and Malaysia infringed — repeatedly and in a manner that was sufficiently serious — important provisions in anti-dumping law which are intended to confer rights on the applicant. Further, the applicant claims that those sufficiently serious infringements of the law on the part of the Commission caused the applicant significant damage. Finally, the applicant claims that there is a direct causal link between those serious infringements of the law and the damage that has already been caused and the damage still to be expected.

---

(1)  Commission Decision of 3 November 2006 terminating the anti-dumping proceeding concerning imports of recordable compact discs (CD+/-R) originating in the People's Republic of China, Hong Kong and Malaysia (OJ 2006 L 305, p. 15).

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/28 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/28

---

Appeal brought on 16 July 2008 by P. Longinidis against the judgment of the Civil Service Tribunal delivered on 24 April 2008 in Case F-74/06 Pavlos Longinidis v Cedefop

(Case T-283/08 P)

(2008/C 272/54)

Language of the case: Greek

Parties

Appellant: Pavlos Longinidis (represented by P. Giatagantzidis and S. Stavropoulou, lawyers)

Other party to the proceedings: Cedefop

Form of order sought by the appellant

| — | set aside the judgment of the European Union Civil Service Tribunal of 24 April 2008 in Case F-74/06 Pavlos Longinidis v Cedefop; |
| --- | --- |

—

set aside the judgment of the European Union Civil Service Tribunal of 24 April 2008 in Case F-74/06 Pavlos Longinidis v Cedefop;

| — | annul the decision of the Director of Cedefop of 30 November 2005 terminating the appellant's employment contract of indefinite duration of 4 March 2003, and any other related administrative act; |
| --- | --- |

—

annul the decision of the Director of Cedefop of 30 November 2005 terminating the appellant's employment contract of indefinite duration of 4 March 2003, and any other related administrative act;

| — | annul the decision of the Director of Cedefop of 11 November 2005 amending the composition of the Appeals Committee of Cedefop, and any other related administrative act; |
| --- | --- |

—

annul the decision of the Director of Cedefop of 11 November 2005 amending the composition of the Appeals Committee of Cedefop, and any other related administrative act;

| — | annul the decision of the Appeals Committee of Cedefop of 24 May 2006 rejecting the appellant's complaint of 28 February 2006, and any other related administrative act; |
| --- | --- |

—

annul the decision of the Appeals Committee of Cedefop of 24 May 2006 rejecting the appellant's complaint of 28 February 2006, and any other related administrative act;

| — | uphold the action brought by the appellant on 19 June 2006; |
| --- | --- |

—

uphold the action brought by the appellant on 19 June 2006;

| — | order Cedefop to pay the costs of both the case at first instance and the appeal. |
| --- | --- |

—

order Cedefop to pay the costs of both the case at first instance and the appeal.

Pleas in law and main arguments

By his action, the appellant sought, inter alia, the annulment of the decision of the Director of Cedefop terminating his employment contract of indefinite duration. That action was dismissed by judgment of the Civil Service Tribunal of 24 April 2008.

The appellant submits that the judgment under appeal was delivered in breach of the rules that govern the bringing of evidence because it was based on matters that were not proved. More specifically, when examining the appellant's argument that the reasons for dismissal were communicated to him orally at the meeting on 23 November 2005, the Civil Service Tribunal erred in law because it altered the subject of the evidence.

In addition, the appellant contends that the reasoning set out in the judgment under appeal is not adequate. In particular, he asserts that the Civil Service Tribunal's reasoning was not adequate when it decided whether the appellant was appropriately and sufficiently informed by Cedefop as to the reasons for his dismissal and that the Tribunal did not specify all the facts which in its view led to his dismissal.

Finally, the appellant submits that his complaint of 28 February 2006 challenging the decision to dismiss him was not heard by the Appeals Committee of Cedefop in an objective and impartial manner.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/28 |
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Official Journal of the European Union

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Action brought on 24 July 2008 — BASF Plant Science and Others v Commission

(Case T-293/08)

(2008/C 272/55)

Language of the case: English

Parties

Applicants: BASF Plant Science GmbH (Ludwigshafen, Germany), Plant Science Sweden AB (Svalöv, Sweden), Amylogene HB (Svalöv, Sweden) and BASF Plant Science Holding GmbH (Ludwigshafen, Germany) (represented by: D. Waelbroeck, lawyer, U. Zinsmeister, lawyer and D. Slater, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

| — | To declare the present application admissible and well founded; |
| --- | --- |

—

To declare the present application admissible and well founded;

| — | To declare that, by failing to take the necessary measures provided for in Article 18 of Directive 2001/18/EC of 12 March 2001 and in Article 5 of Council Decision 1999/468/EC of 28 June 1999 and adopt the Amflora Decision, the Commission has failed to fulfil its obligations under these articles; alternatively |
| --- | --- |

—

To declare that, by failing to take the necessary measures provided for in Article 18 of Directive 2001/18/EC of 12 March 2001 and in Article 5 of Council Decision 1999/468/EC of 28 June 1999 and adopt the Amflora Decision, the Commission has failed to fulfil its obligations under these articles; alternatively

| — | To order the annulment of the Commission decision granting a mandate to EFSA ‘for a consolidated opinion on use of antibiotic resistant marker genes (ARM) used as marker genes in genetically modified plants’, dated 14 May 2008 and the suspension of the procedure leading to the adoption of the Amflora Decision, notified to the applicants by letter dated 19 May 2008; |
| --- | --- |

—

To order the annulment of the Commission decision granting a mandate to EFSA ‘for a consolidated opinion on use of antibiotic resistant marker genes (ARM) used as marker genes in genetically modified plants’, dated 14 May 2008 and the suspension of the procedure leading to the adoption of the Amflora Decision, notified to the applicants by letter dated 19 May 2008;

| — | To grant the requested measures of instruction; |
| --- | --- |

—

To grant the requested measures of instruction;

| — | To order the defendant to pay all costs and expenses incurred in these proceedings. |
| --- | --- |

—

To order the defendant to pay all costs and expenses incurred in these proceedings.

Pleas in law and main arguments

The applicants claim that the Commission, by failing to adopt a decision on the request for authorisation to place a genetically modified potato (‘Amflora potato’) on the market for industrial uses under Directive 2001/18/EC (1), has disregarded its obligations under Article 18(1) of the said directive and Article 5(6) of Council Decision 1999/468/EC (‘the Comitology decision’) (2) and has thereby failed to act within the meaning on Article 232 EC.

The applicants submit that the Commission's obligation to adopt such a decision within the timeframe laid down in Directive 2001/18/EC is further confirmed by a number of factors, namely (a) the need to preserve institutional balance, (b) further consideration of the legal basis for the Commission's request and (c) general principles of EC law.

However, the applicants contend that, in the event that the Court found that the Commission's letter of 19 May 2008 constitutes a definition of the Commission's position, and that the applicants' action for failure to act is therefore inadmissible, the applicants request in the alternative the Court to annul the Commission decision of 14 May 2008 granting a mandate to EFSA for a consolidated opinion, and the suspension of the procedure pending a fifth scientific assessment, leading to the adoption of the contested decision.

The applicants claim that in adopting the contested decision, and thus, further delaying the adoption of the Amflora Decision, the Commission infringed Article 18(1) of Directive 2001/18 and Article 5(6) subparagraph 3 of the Comitology decision, which required the Amflora Decision to be adopted within 120 days following the commencement of the Community procedure, as well as fundamental EC law principles of proportionality, sound administration, legitimate expectations, legal certainty and non-discrimination.

---

(1)  Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1).

(2)  Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 C 184, p. 23).

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/29 |
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C 272/29

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Action brought on 1 August 2008 — Elf Aquitaine v Commission

(Case T-299/08)

(2008/C 272/56)

Language of the case: French

Parties

Applicant: Elf Aquitaine SA (Courbevoie, France) (represented by: E.Morgan de Rivery, S.Thibault-Liger, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul, pursuant to Article 230 EC, the Decision of the Commission of the European Communities No C(2008) 2626 final of 11 June 2008 in so far as it concerns Elf Aquitaine; |
| --- | --- |

—

annul, pursuant to Article 230 EC, the Decision of the Commission of the European Communities No C(2008) 2626 final of 11 June 2008 in so far as it concerns Elf Aquitaine;

| — | in the alternative:






  — | annul or reduce, pursuant to Article 229 EC, the fine of EUR 22 700 000 imposed jointly and severally on Arkema France SA and Elf Aquitaine by Article 2(c) of the Decision of the Commission of the European Communities No C(2008) 2626 final of 11 June 2008; |
| --- | --- | --- |

—

in the alternative:

—

annul or reduce, pursuant to Article 229 EC, the fine of EUR 22 700 000 imposed jointly and severally on Arkema France SA and Elf Aquitaine by Article 2(c) of the Decision of the Commission of the European Communities No C(2008) 2626 final of 11 June 2008;

| — | annul or reduce, pursuant to Article 229 EC, the fine of EUR 15 890 000 imposed on Elf Aquitaine by Article 2(e) of the Decision of the European Communities No C(2008) 2626 final of 11 June 2008; |
| --- | --- |

—

annul or reduce, pursuant to Article 229 EC, the fine of EUR 15 890 000 imposed on Elf Aquitaine by Article 2(e) of the Decision of the European Communities No C(2008) 2626 final of 11 June 2008;

| — | in any event, order the Commission of the European Communities to pay all the costs. |
| --- | --- |

—

in any event, order the Commission of the European Communities to pay all the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the partial annulment of Commission Decision C(2008) 2626 final of 11 June 2008 in Case COMP/38.695 — Sodium chlorate, in which the Commission declared that certain undertakings, including the applicant, had infringed Article 81(1) EC and Article 53(1) of the European Economic Area Agreement by allocating sales volumes, fixing prices, exchanging sensitive commercial information about prices and sales volumes and by monitoring the implementation of those anti-competitive agreements in the market for sodium chlorate in the European Economic Area.

In support of its claims, the applicant relies on eleven pleas in law based on:

| — | infringement of the rules governing the responsibility for offences within corporate groups in so far as (i) the Commission incorrectly stated that it was not obliged to adduce evidence supporting the presumption that a holding company which owns 100 % of a subsidiary has a decisive influence over the latter; (ii) the evidence actually relied upon by the Commission did not such support this presumption and (iii) the Commission rejected the body of evidence presented by the applicant with a view to overturning that presumption; |
| --- | --- |

—

infringement of the rules governing the responsibility for offences within corporate groups in so far as (i) the Commission incorrectly stated that it was not obliged to adduce evidence supporting the presumption that a holding company which owns 100 % of a subsidiary has a decisive influence over the latter; (ii) the evidence actually relied upon by the Commission did not such support this presumption and (iii) the Commission rejected the body of evidence presented by the applicant with a view to overturning that presumption;

| — | infringement of the applicant's right to a fair hearing and the principles of equality of arms, the presumption of innocence, individual responsibility and appropriateness of the punishment, of legality and equal treatment as regards the imputation of liability; |
| --- | --- |

—

infringement of the applicant's right to a fair hearing and the principles of equality of arms, the presumption of innocence, individual responsibility and appropriateness of the punishment, of legality and equal treatment as regards the imputation of liability;

| — | distortion of the body of evidence adduced by the applicant; |
| --- | --- |

—

distortion of the body of evidence adduced by the applicant;

| — | conflicting reasons with regard to the concept of an undertaking for the purposes of Article 81(1) EC, with regard to the independence of the subsidiary Arkema France vis-à-vis the applicant and to the degree and nature of control that must be exercised by a holding company over its subsidiary for it to be held responsible for the breaches of the latter; |
| --- | --- |

—

conflicting reasons with regard to the concept of an undertaking for the purposes of Article 81(1) EC, with regard to the independence of the subsidiary Arkema France vis-à-vis the applicant and to the degree and nature of control that must be exercised by a holding company over its subsidiary for it to be held responsible for the breaches of the latter;

| — | infringement of the principle of sound administration in so far as the Commission (i) did not carefully and impartially examine all the relevant evidence, (ii) did not apply the same rules to itself as it applied to the parties and (iii) did not suspend the proceedings initiated against the applicant pending the passing of judgment in relevant cases pending before the Court of First Instance; |
| --- | --- |

—

infringement of the principle of sound administration in so far as the Commission (i) did not carefully and impartially examine all the relevant evidence, (ii) did not apply the same rules to itself as it applied to the parties and (iii) did not suspend the proceedings initiated against the applicant pending the passing of judgment in relevant cases pending before the Court of First Instance;

| — | infringement of the principle of legal certainty, since the Commission did not follow criteria applied in previous decisions with respect to the responsibility of a holding company for the breaches a subsidiary; |
| --- | --- |

—

infringement of the principle of legal certainty, since the Commission did not follow criteria applied in previous decisions with respect to the responsibility of a holding company for the breaches a subsidiary;

| — | an abuse of power, since the penalties imposed deviated from their legitimate purpose, that being to punish an undertaking for having committed an infringement; |
| --- | --- |

—

an abuse of power, since the penalties imposed deviated from their legitimate purpose, that being to punish an undertaking for having committed an infringement;

| — | the unfounded nature of the imposition of a fine specific to the applicant in infringement of the principle of the autonomy of a legal person and the taking of the deterrent effect into account twice whilst fixing the level of the fine; |
| --- | --- |

—

the unfounded nature of the imposition of a fine specific to the applicant in infringement of the principle of the autonomy of a legal person and the taking of the deterrent effect into account twice whilst fixing the level of the fine;

| — | infringement of the principles and rules concerning the calculation of fines; |
| --- | --- |

—

infringement of the principles and rules concerning the calculation of fines;

| — | infringement of the leniency notice (1) by alleging that the evidence adduced by the subsidiary Arkema France was insufficient; and |
| --- | --- |

—

infringement of the leniency notice (1) by alleging that the evidence adduced by the subsidiary Arkema France was insufficient; and

| — | the fact that it is inequitable to impose the heaviest penalty on the applicant by means of two separate fines when the responsibility of the subsidiary Arkema France was significantly less than that of EKA and Finnish Chemicals. |
| --- | --- |

—

the fact that it is inequitable to impose the heaviest penalty on the applicant by means of two separate fines when the responsibility of the subsidiary Arkema France was significantly less than that of EKA and Finnish Chemicals.

---

(1)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/30 |
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Action brought on 5 August 2008 — Smurfit Kappa Group v Commission

(Case T-304/08)

(2008/C 272/57)

Language of the case: English

Parties

Applicant: Smurfit Kappa Group plc (Dublin, Ireland) (represented by: T. R. Ottervanger, E. V. A. Henny, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | To annul the decision of the Commission in accordance with Article 230 EC; |
| --- | --- |

—

To annul the decision of the Commission in accordance with Article 230 EC;

| — | To order the Commission to pay the costs incurred by the applicants in the proceedings. |
| --- | --- |

—

To order the Commission to pay the costs incurred by the applicants in the proceedings.

Pleas in law and main arguments

The applicant seeks pursuant to Article 230 EC annulment of Commission decision N 582/2007 of 2 April 2008 (Case ‘Aid to Propapier PM2 GmbH & Co. KG-LIP’ C(2008) 1107) in which the Commission approved the State aid notified by the German State to Propapier PM2 GmbH & Co. KG.

The applicant, an Irish based international packaging company, lodged an informal complaint to the Commission against the grant of a substantial subsidy for the construction (in the Region of Brandenburg-Nordost in Germany) of what would be, according to the applicant, the largest paper mill in the European Union. The applicant submits that although there were clear indications that the subsidised investment would have serious and disproportionate effects on it and on the sector as a whole, the Commission considered that no formal investigation was necessary as the regional aid did not meet the market share and capacity increase thresholds laid down in paragraph 68 under (a) and (b) of the Guidelines on national aid for 2007-2013 (1) (‘The Regional Aid Guidelines’) and, consequently declared the aid compatible with the Treaty.

The applicant, being a direct competitor of the aid beneficiary, challenges the Commission's decision not to open the formal procedure provided for in Article 88(2) EC on the basis of the following grounds:

First, according to the applicant, the Commission should have initiated the formal procedure under Article 88(2) EC and Article 4(4) of Council Regulation No 659/1999 (2) and examined the aid more thoroughly in light of the doubts arising in connection with the structural difficulties of the market and in accordance with a more appropriate assessment of the market. The applicant claims that the Commission mistakenly confined itself to applying the rigid thresholds of paragraph 68 of the Regional Aid Guidelines and made a manifest error of assessment when calculating the capacity increase.

Second, the applicant submits that the Commission infringed Article 87(3) EC and the Regional Aid Guidelines in as much as the contested decision (i) does not contain any analysis of the adverse effect of the aid on trading conditions and (ii) misinterprets the Regional Aid Guidelines. On that basis, it is submitted that, rather than balancing the benefits of the region against the repercussions of substantial aid for the sector as a whole, the Commission simply applied a per se 5 % capacity increase test while refraining from an economic analysis. Also, it is submitted that the application of the test laid down in paragraph 68 of the Regional Aid Guidelines is contrary to the EC Treaty since the said provision does not require the Commission to automatically approve all aid measures that follow below the thresholds set therein.

Third, according to the applicant, the contested decision is vitiated by errors of fact and manifest errors of assessment in respect of market definition and capacity increase.

Fourth, it is submitted that the Commission infringed Article 87(3) EC and the Regional Aid Guidelines in so far as the contested decision contains a manifest error of assessment as to the qualification of the aid measure.

Fifth, the decision is also vitiated, allegedly, by serious errors of law in so far as it considers the Regional aid Map 2007-2013 of Germany to be compatible with the EC treaty, allowing the Region Brandenburg-Nordost to be eligible for regional aid pursuant to the derogation laid down in Article 87(3)(a) EC for the whole period of 2007-2013. In addition the contested decision is flawed since it ignores other aid concerning the same project.

Finally, the applicants argue that the Commission infringed its obligations in relation to the preliminary investigation to state adequate reasons on which it based its decision.

---

(1)  OJ 2006 C 54, p. 13.

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

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/31 |
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Action brought on 11 August 2008 — Italian Republic v Commission

(Case T-305/08)

(2008/C 272/58)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: F. Arena, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Article 1 of Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 48° W, and in the Mediterranean Sea, published in Official Journal L 155 of 13 June 2008, in so far as it bans, as from 16 June 2008, fishing for bluefin tuna in the Atlantic Ocean, east of longitude 48° W, and in the Mediterranean Sea by vessels flying the Italian flag and prohibits those vessels from retaining on board, placing in cages for fattening or farming, transhipping, transferring or landing bluefin tuna stock. |
| --- | --- |

—

Annul Article 1 of Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 48° W, and in the Mediterranean Sea, published in Official Journal L 155 of 13 June 2008, in so far as it bans, as from 16 June 2008, fishing for bluefin tuna in the Atlantic Ocean, east of longitude 48° W, and in the Mediterranean Sea by vessels flying the Italian flag and prohibits those vessels from retaining on board, placing in cages for fattening or farming, transhipping, transferring or landing bluefin tuna stock.

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The Italian Government challenges before the Court of First Instance of the European Communities Article 1 of Commission Regulation (EC) No 530/2008 of 12 June 2008, published in Official Journal L 155 of 13 June 2008, which establishes emergency measures as regards fishing for bluefin tuna by purse seiners in the Atlantic Ocean, east of longitude 48° W, and in the Mediterranean Sea.

The challenge is based on five grounds:

By its first ground, the applicant submits that no adequate reasons whatsoever are given for the contested regulation, in so far as the statement that fishing opportunities for the Italian fleet would be exhausted on 16 June 2008 is not supported any argument other than a simple reference to a number of unspecified data in the Commission's possession and to the content (equally unknown) of reports by its own inspectors.

By its second ground, the applicant alleges misuse of power, contending that the Commission adopted the emergency measure provided for in Article 7 of Council Regulation (EC) No 2371/2002, not because the conditions set out in that provision were satisfied but for the different purpose of taking action in relation to an alleged failure on the part of the Member State to fulfil a number of its obligations under Council Regulation (EC) No 1559/2007.

The third ground alleges infringement of Articles 7 and 26 of Regulation No 2371/2002 in so far as, according to the applicant, the facts as alleged by the Commission would have permitted, at most, measures to be adopted pursuant to Article 26 of that regulation (in compliance with the procedure laid down in that provision) but not Article 7.

By its fourth ground, the applicant submits that the contested measure is vitiated on account of a distortion of the facts in that it is apparent from information forwarded by the Italian authorities to the Commission that, even after the date on which the contested regulation was adopted, the quantity of bluefin tuna fished by vessels flying the Italian flag was less than 50 % of the quota allocated, so that the alleged factual circumstances on which the disputed measure is based (the fishing opportunities for the Italian fishing fleet had been exhausted) have no basis.

By its fifth and final ground, the applicant complains of failure to state the reasons for the alleged infringements of Regulation No 1559/2007, which are also stated to have occurred in general terms in the contested measure, without any indication being given as to the precise nature of those infringements or any evidence on the basis of which it is claimed that the applicant Member State failed to fulfil its obligations under that regulation.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/32 |
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Official Journal of the European Union

C 272/32

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Action brought on 5 August 2008 — Fitoussi v OHIM — Loriot (IBIZA REPUBLIC)

(Case T-311/08)

(2008/C 272/59)

Language in which the application was lodged: French

Parties

Applicant: Paul Fitoussi (Vincennes, France) (represented by: K. Manhaeve, T. van Innis and G. Glas, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bernadette Nicole J. Loriot (Ibiza, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 7 May 2008 in Case R 1135/2007-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 7 May 2008 in Case R 1135/2007-2;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bernadette Nicole J. Loriot

Community trade mark concerned: Figurative mark ‘IBIZA REPUBLIC’ for goods in Classes 25, 41 and 43 — application No 3 868 072

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

Mark or sign cited in opposition: National figurative mark in the form of a five-pointed star surrounded by a circle, for goods in Class 25

Decision of the Opposition Division: Dismissal of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Breach of Article 8(1)(b) of Council Regulation No 40/94 in as much as i) the earlier mark consists of a representation of a five-pointed star surrounded by a circle and not only a star; ii) the earlier mark is an intrinsically strong mark and not a mark with little distinctive character; and iii) the graphic element of the earlier mark dominates the word element and not vice versa.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/33 |
| --- | --- | --- | --- |

25.10.2008

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Official Journal of the European Union

C 272/33

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Action brought on 13 August 2008 — Ellinikos Niognomon v Commission

(Case T-312/08)

(2008/C 272/60)

Language of the case: English

Parties

Applicant: Ellinikos Niognomon AE (Piraeus, Greece) (represented by: S. Pappas)

Defendant: Commission of the European Communities

Form of order sought

| — | Declare the contested decision null and void; |
| --- | --- |

—

Declare the contested decision null and void;

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

—

Condemn the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

By way of its application pursuant to Article 230 EC, the applicant seeks the annulment of the Commission's decision of 24 July 2008, by which it decided not to extend the applicant's limited recognition which it was granted under Directive 94/57/EC (1) by Commission Decision 2001/890/EC (2) and which was further extended by Commission Decision 2005/623/EC (3) of 3 August 2005.

The applicant, first, claims that the contested decision infringes an essential procedural requirement by not having followed the comitology procedure provided for in Articles 4 and 9 of Directive 94/57/EC.

Second, the applicant submits that the refusal to grant extension of the limited recognition is based on assessments carried out exclusively by the Commission and not jointly with the respective Member States according to Articles 4, 9 and 11 of Directive 94/57/EC.

Third, the applicant argues that the contested decision does not respect the applicant's rights of defence and is contrary to its legal expectations.

Fourth, the applicant contends that the contested decision infringes the Directive by misinterpreting it in so far as the applicable criteria are concerned (safety and prevention performance records), by omitting the gradual steps that the Commission should have undertaken before reaching a negative decision and by not having taken into account the inspections and reports produced by the Member States concerned, thus adopting unlawful reasoning.

Finally, the applicant claims that the contested decision infringes the principles of proportionality as well as the principle of good administration.

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(1)  Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organizations and for the relevant activities of maritime administrations (OJ 1994 L 319, p. 20).

(2)  Commission Decision of 13 December 2001 on the recognition of the ‘Hellenic Register of Shipping’ in accordance with Article 4(3) of Council Directive 94/57/EC (notified under document number C(2001) 4218) (OJ 2001 L 329, p. 72).

(3)  Commission Decision of 3 August 2005 on the extension of the limited recognition of the Hellenic Register of Shipping (notified under document number C(2005) 2940) (OJ 2005 L 219, p. 43).

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/33 |
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Official Journal of the European Union

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Action brought on 12 August 2008 — Veromar di Tudisco Alfio & Salvatore v Commission

(Case T-313/08)

(2008/C 272/61)

Language of the case: Italian

Parties

Applicant: Veromar di Tudisco Alfio & Salvatore Snc (Catania, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in Official Journal L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in Official Journal L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied on in Case T-305/08 Italian Republic v Commission. In particular, infringement of Article 12 of the EC Treaty is alleged. In that regard, the applicant submits that the contested regulation discriminates in favour of the Kingdom of Spain, the quota for which was deemed to be exhausted on 23 June 2008 and not 16 June 2008.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/34 |
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25.10.2008

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Action brought on 12 August 2008 — Euromar di Ganesio Pietro v Commission

(Case T-314/08)

(2008/C 272/62)

Language of the case: Italian

Parties

Applicant: Euromar di Ganesio Pietro & C. Snc (Aci Castello, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/34 |
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Official Journal of the European Union

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Action brought on 12 August 2008 — Corrado v Commission

(Case T-315/08)

(2008/C 272/63)

Language of the case: Italian

Parties

Applicant: Corrado Signorello (Portopalo di Capo Passero, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/34 |
| --- | --- | --- | --- |

25.10.2008

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Official Journal of the European Union

C 272/34

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Action brought on 12 August 2008 — Pescazzurra v Commission

(Case T-316/08)

(2008/C 272/64)

Language of the case: Italian

Parties

Applicant: Pescazzurra Srl (Messina, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/34 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/34

---

Action brought on 12 August 2008 — Società di armatori G. padre dei F.lli Incorvaia G.I. e S. v Commission

(Case T-317/08)

(2008/C 272/65)

Language of the case: Italian

Parties

Applicant: Società di armamento Gaetano padre dei fratelli Incorvaia Giuseppe, Ignazio e Salvatore Snc (Licata, Italy) (represented by: A. Maiorana, A. de Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/35 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/35

---

Action brought on 12 August 2008 — Di Mercurio v Commission

(Case T-318/08)

(2008/C 272/66)

Language of the case: Italian

Parties

Applicant: Salvatore Di Mercurio (Pachino, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/35 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/35

---

Action brought on 12 August 2008 — Grasso v Commission

(Case T-319/08)

(2008/C 272/67)

Language of the case: Italian

Parties

Applicant: Salvatore Grasso (Catania, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/35 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/35

---

Action brought on 12 August 2008 — Margherita v Commission

(Case T-320/08)

(2008/C 272/68)

Language of the case: Italian

Parties

Applicant: Margherita Soc. coop. rl (Cariati, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/36 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/36

---

Action brought on 12 August 2008 — Cimino v Commission

(Case T-321/08)

(2008/C 272/69)

Language of the case: Italian

Parties

Applicant: Riccardo Cimino (Castelsardo, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/36 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/36

---

Action brought on 12 August 2008 — Musumeci v Commission

(Case T-322/08)

(2008/C 272/70)

Language of the case: Italian

Parties

Applicant: Antonio Musumeci (Bagnara Calabra, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/36 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/36

---

Action brought on 12 August 2008 — Pescatori San Francesco di Paola e Sorrentino v Commission

(Case T-323/08)

(2008/C 272/71)

Language of the case: Italian

Parties

Applicants: Società Cooperativa Pescatori San Francesco di Paola and Filippo Sorrentino (Vibo Valentia, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/37 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/37

---

Action brought on 12 August 2008 — Pescatori San Francesco di Paola v Commission

(Case T-324/08)

(2008/C 272/72)

Language of the case: Italian

Parties

Applicant: Società Cooperativa Pescatori San Francesco di Paola (Vibo Valentia, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/37 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/37

---

Action brought on 12 August 2008 — Pepito Pesca v Commission

(Case T-325/08)

(2008/C 272/73)

Language of the case: Italian

Parties

Applicant: Pepito Pesca Srl (Vibo Valentia, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/37 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/37

---

Action brought on 12 August 2008 — G. & C. v Commission

(Case T-326/08)

(2008/C 272/74)

Language of the case: Italian

Parties

Applicant: G. & C. Srl (Licata, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/37 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/37

---

Action brought on 12 August 2008 — Armamento Li Causi v Commission

(Case T-327/08)

(2008/C 272/75)

Language of the case: Italian

Parties

Applicant: Armamento Li Causi Snc (Marsala, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/38 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/38

---

Action brought on 12 August 2008 — Mareggiando in Calabria — Servizi Pesca Turismo and Others v Commission

(Case T-328/08)

(2008/C 272/76)

Language of the case: Italian

Parties

Applicants: Mareggiando in Calabria — Servizi Pesca Turismo Soc. coop. (Vibo Valentia, Italy), De Leonardo (Vibo Valentia, Italy), Finelli (Vibo Valentia, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008. |
| --- | --- |

—

Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/38 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/38

---

Action brought on 12 August 2008 — AJD Tuna v Commission

(Case T-329/08)

(2008/C 272/77)

Language of the case: Italian

Parties

Applicant: AJD Tuna (Mosta Road, Malta) (represented by: M. Annoni, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Regulation No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longtitude 45° W, and in the Mediterranean Sea, with reference, in particular, to Article 3 of that regulation. |
| --- | --- |

—

Annul Commission Regulation No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longtitude 45° W, and in the Mediterranean Sea, with reference, in particular, to Article 3 of that regulation.

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied on in Case T-305/08 Italian Republic v Commission and Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c. v Commission. In particular, it is submitted that the principle of legitimate expectation has been infringed, in so far as the Community legislation on fishing for bluefin tuna gave rise to a reasonably founded expectation on the part of the applicant that its fish farming and fattening activities were lawful.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/38 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/38

---

Action brought on 12 August 2008 — Ligny Pesca di Guaiana Francesco and Others v Commission

(Case T-330/08)

(2008/C 272/78)

Language of the case: Italian

Parties

Applicants: Ligny Pesca di Guaiana Francesco e C. Snc (Trapani, Italy), Macaluso Gaetano (Palermo, Italy), Gallo (Salerno, Italy), Severino Pesca (Salerno, Italy), Gallo Pesca (Salerno, Italy), Fulvia di Pappalardo Luigi Matteo (Cetara, Italy), Federazione Nazionale delle Imprese di Pesca (Rome, Italy) (represented by: A. Clarizia and P. Ziotti, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Allow the claims set out in the introduction to the application and, consequently, annul the Regulation which has imposed a ban, as from 16 June 2008, on fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea by purse seiners flying the Italian flag (Article 1 of the Regulation) and has prohibited Community operators, as from 16 June 2008, from accepting landings, placing in cages for fattening or farming, or transhipments in Community waters or ports of bluefin tuna caught in the Atlantic Ocean, east of longitude 45° W, and the Mediterranean Sea by such vessels (Article 3(1) of the Regulation). |
| --- | --- |

—

Allow the claims set out in the introduction to the application and, consequently, annul the Regulation which has imposed a ban, as from 16 June 2008, on fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea by purse seiners flying the Italian flag (Article 1 of the Regulation) and has prohibited Community operators, as from 16 June 2008, from accepting landings, placing in cages for fattening or farming, or transhipments in Community waters or ports of bluefin tuna caught in the Atlantic Ocean, east of longitude 45° W, and the Mediterranean Sea by such vessels (Article 3(1) of the Regulation).

| — | Order the Commission to pay the costs of the proceedings, pursuant to Article 87 of the Rules of Procedure of the Court of First Instance, including the applicants' legal assistance costs |
| --- | --- |

—

Order the Commission to pay the costs of the proceedings, pursuant to Article 87 of the Rules of Procedure of the Court of First Instance, including the applicants' legal assistance costs

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied on in Cast T-305/08 Italian Republic v Commission and Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c. v Commission. In particular, it is submitted that the legal basis of the contested regulation is incorrect, in so far as Article 7 of Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59) is not appropriate for the purpose of adopting the measures in the contested regulation, for which recourse should have been had to Article 26(2) and (3) of Regulation No 2371/2002.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/39 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/39

---

Action brought on 14 August 2008 — BNP Paribas and BNL v Commission

(Case T-335/08)

(2008/C 272/79)

Language of the case: Italian

Parties

Applicants: BNP Paribas and Banca Nazionale del Lavoro SpA (BNL) (represented by: R. Silvestri, G. Escalar and M. Todino, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment in its entirety of Commission Decision C(2008) 869 final of 11 March 2008 on state aid C-15/2007 (ex NN 20/2007), implemented by Italy ‘concerning tax incentives in favour of certain credit institutions undergoing company reorganisation’ |
| --- | --- |

—

Annulment in its entirety of Commission Decision C(2008) 869 final of 11 March 2008 on state aid C-15/2007 (ex NN 20/2007), implemented by Italy ‘concerning tax incentives in favour of certain credit institutions undergoing company reorganisation’

Pleas in law and main arguments

The applicants challenge the provision whereby Italian Law No 350/2003, in the part instituting a special system of tax realignment (the ‘special system’) for the assets of certain credit institutions resulting from reorganisations carried out under Law No 218 of 30 July 1990 (‘the Amato law’) was declared incompatible with Article 87 of the EC Treaty on state aid. According to the Commission, the unlawfulness on the special system under Article 87 of the Treaty is based on the assumption that, by that system, the Italian legislature granted a ‘selective’ tax advantage solely to banking institutions concerned by the reorganisations referred to in the Amato law, without providing similar benefits for other institutions and other undertakings in general.

In support of its arguments, the applicants maintain that the Commission erroneously held that the special system of realignment granted an economic advantage to the beneficiary companies and thus a form of unlawful aid. In reality, the system did not confer a tax advantage, but merely constituted an optional system for which companies might opt in anticipation of the payment of tax on the basis of a replacement rate.

Even if the system in question did confer on the undertakings some form of advantage, it did not constitute a state aid because it was not selective in character. The tax system in question constituted a coherent solution in relation to the general taxation system and was based on objective criteria, namely to allow those credit institutions concerned by the privatisations to realign the contributions pursuant to the Amato law through the imposition of a rate taking account of both the previous partial taxation on increases in value already recorded and the other inelasticities in connection with those contributions; inconveniences not affecting all other undertakings — unlike banks concerned by the contributions pursuant to Law No 350/2003 — which had received contributions in a context different from that law, and for which a differently-functioning realignment system was fully justified.

Secondly, the Commission's decision is vitiated by a glaring defect of reasoning arising from the erroneous conviction that Law No 350/2003 did not provide for any general realignment system. Incorrectly holding that there was no general realignment system to be compared with the special system complained of, the Commission failed to make any comparison between the two systems in order to assess all the factors capable of having an impact on the overall tax burdens proper to each system.

According to the applicants, even where a comparison between the two systems was made on the basis of such factors, it is obvious that, in comparison with the general system, the special system confers practically no tax advantage in terms of the applicable rate.

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/40 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/40

---

Action brought on 18 August 2008 — BVGD v Commission

(Case T-339/08)

(2008/C 272/80)

Language of the case: English

Parties

Applicant: Belgische Vereniging van handelaars in- en uitvoerders geslepen diamant (BVGD) (Antwerp, Belgium) (represented by: L. Levi and C. Ronzi, lawyers)

Defendant: Commission of the European Communities

Form of order sought

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

—

To declare the present action admissible;

| — | To annul the Commission decision dated 5 June 2008 by which the Commission rejected the complaint lodged by the applicant, in relation to the issue of input foreclosure, for the reason that there are insufficient grounds for acting on it (Case COMP/39.221/E-2-De Beers/DTC Supplier of Choice) |
| --- | --- |

—

To annul the Commission decision dated 5 June 2008 by which the Commission rejected the complaint lodged by the applicant, in relation to the issue of input foreclosure, for the reason that there are insufficient grounds for acting on it (Case COMP/39.221/E-2-De Beers/DTC Supplier of Choice)

| — | To order the Commission to provide:






  — | a proper and meaningful version of the replies provided by De Beers and Alrosa to the Commission in the framework of the so-called ‘supplementary procedure’; |
| --- | --- | --- |

—

To order the Commission to provide:

—

a proper and meaningful version of the replies provided by De Beers and Alrosa to the Commission in the framework of the so-called ‘supplementary procedure’;

| — | all non-confidential versions of the complaints and related documents submitted to the Commission concerning the SOC and the Trade Administrative Agreement between De Beers and Alrosa; |
| --- | --- |

—

all non-confidential versions of the complaints and related documents submitted to the Commission concerning the SOC and the Trade Administrative Agreement between De Beers and Alrosa;

| — | all non-confidential versions of the investigation documents concerning the SOC and the Trade Administrative Agreement between De Beers and Alrosa; |
| --- | --- |

—

all non-confidential versions of the investigation documents concerning the SOC and the Trade Administrative Agreement between De Beers and Alrosa;

| — | the request filed by Alrosa in Case T-170/06; |
| --- | --- |

—

the request filed by Alrosa in Case T-170/06;

| — | the statements of objections to which it refers in the ‘supplementary rejection decision’; |
| --- | --- |

—

the statements of objections to which it refers in the ‘supplementary rejection decision’;

| — | the annual reports on De Beers' commitments drafted by the Trustee; |
| --- | --- |

—

the annual reports on De Beers' commitments drafted by the Trustee;

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

—

To order the Commission to pay all the costs.

Pleas in law and main arguments

Following the annulment by the Court of First Instance, on 11 July 2007, of the Commission decision of 22 February 2006 (Case T -170/06 Alrosa v Commission), the Commission decided to open a supplementary procedure based on Article 7 of Regulation (EC) No 773/2004, in order to assess the possible impact of the annulment to the commitment decision on the overall conclusion on input foreclosure as set out in the decision of 26 January 2007 (2007)D/200338 (Case COMP/39.221/E-2-De Beers/DTC Supplier of Choice) rejecting the applicant's complaint filed with the Commission on 14 July 2005 alleging violations of Articles 81 and 82 EC, in connection with the Supplier of Choice system for distribution of rough diamonds applied by the De Beers group (‘the rejection decision’). The legality of this decision was challenged by the applicant by action lodged at the Court on 6 April 2007, which is currently subject to proceedings in Case T-104/07 (1).

By means of the present action the applicant seeks annulment of Commission's supplementary decision of 5 June 2008 (2008)D/203543 made pursuant to Regulation (EC) No 773/2004 (2) by which the Commission concluded that there were no grounds to reconsider the rejection decision in so far as, in relation to input foreclosure, there was an insufficient degree of Community interest for conducting a further investigation into the alleged infringements.

The applicant raises three main pleas in law in support of its claims:

First, the applicant claims that Article 7 of Regulation (EC) No 773/2004 is not the correct legal basis for the supplementary procedure and the impugned decision. In fact, it submits that the said provision does not empower the Commission to re-examine a situation but only deals with the rejection of complaints and allows the Commission thereby to inform the complainant about insufficient grounds to act on a complaint, setting a time-limit within which the complainant may express its views in writing. Moreover, the applicant submits that the Commission misapplied the general legal principles on the retroactive revocation of administrative acts.

Second, the applicant contends that its procedural rights deriving from Articles 7 and 8 of Regulation (EC) No 773/2994 were breached since the applicant was prevented from exercising its right of access to documents on which the Commission based its provisional assessment. On this point the applicant argues that the Commission did not show that the limited access to the file could be justified by the necessity to guarantee the protection of confidentiality understood under commercial secrets.

Third, the applicant claims that the contested decision infringes Articles 2 and 3 EC and the notion of Community interest, as well as the duty to state reasons.

---

(1)  OJ 2007 C 129, p. 18.

(2)  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 of the EC Treaty (Text with EEA relevance) (OJ 2004 L 123, p. 18).

---

| 25.10.2008 | EN | Official Journal of the European Union | C 272/41 |
| --- | --- | --- | --- |

25.10.2008

EN

Official Journal of the European Union

C 272/41

---

Action brought on 19 August 2008 — Hess Group v OHIM — Coloma Navarro (COLOMÉ)

(Case T-341/08)

(2008/C 272/81)

Language in which the application was lodged: Spanish

Parties

Applicant: Hess Group AG (Berna, Switzerland) (represented by: E. Armijo Chávarri, A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: José Félix Coloma Navarro (Badajoz, Spain)

Form of order sought

| — | Declare the action against the Decision of the First Board of Appeal of OHIM of 21 May 2008 lodged in time and in the required form and, via the appropriate procedure, order the annulment of that decision and order expressly that OHIM pay the costs. |
| --- | --- |

—

Declare the action against the Decision of the First Board of Appeal of OHIM of 21 May 2008 lodged in time and in the required form and, via the appropriate procedure, order the annulment of that decision and order expressly that OHIM pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘COLOMÉ’ for goods in Class 33 (wines) (Application for Registration No 2.140.283).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: D. José Félix Coloma Navarro.

Trade mark right of applicant for the declaration: Spanish figurative marks ‘COLOMA’ for goods in Class 33 (wines).

Decision of the Cancellation Division: Application for declaration of invalidity upheld.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/41 |
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Action brought on 18 August 2008 — Batchelor v Commission

(Case T-342/08)

(2008/C 272/82)

Language of the case: English

Parties

Applicant: Edward William Batchelor (Brussels, Belgium) (represented by: F. Young, Solicitor, A. Barav, Barrister and D. Reymond, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the implied negative decision deemed, pursuant to Article 8(3) of the Access Regulation, to have been made by the European Commission on 11 June 2008, the express negative decision SG/E/3/HP/cr D(2008)5545, made by the Commission on 3 July 2008, and the express negative decision SG/E/3/EV/psi D(2008)6636, made by the Commission on 7 August 2008, relating to a request for access to documents presented pursuant to Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43); |
| --- | --- |

—

Annul the implied negative decision deemed, pursuant to Article 8(3) of the Access Regulation, to have been made by the European Commission on 11 June 2008, the express negative decision SG/E/3/HP/cr D(2008)5545, made by the Commission on 3 July 2008, and the express negative decision SG/E/3/EV/psi D(2008)6636, made by the Commission on 7 August 2008, relating to a request for access to documents presented pursuant to Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43);

| — | Order the Commission to pay its own costs and the applicant's costs in relation to these proceedings. |
| --- | --- |

—

Order the Commission to pay its own costs and the applicant's costs in relation to these proceedings.

Pleas in law and main arguments

This application for annulment, pursuant to Article 230(4), is brought against the Commission's implied negative decision of 11 June 2008 and express negative decisions, SG/E/3/HP/cr D(2008)5545 of 3 July 2008 and SG/E/3/EV/psi D(2008)6636 of 7 August 2008, made pursuant to Regulation (EC) No 1049/2001 (1) (‘the Access Regulation’) by which the Commission rejected the applicant's request for access to documents the Commission sent to, and received from, the Belgian authorities, relating to the notification of measures taken under Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (2), as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (3).

The applicant claims that the Commission's failure to provide adequate and sufficient reasons for denying access to the documents requested, amounts to a violation of Article 253 EC and Article 8(1) of the Access Regulation and that, consequently, the contested decision is vitiated by an infringement of an essential procedural requirement, as envisaged in Article 230(2) EC.

The applicant further submits that, in wrongly relying on the permissible exceptions for denying access to the documents requested, the Commission has violated Article 255 EC and Articles 1(a), 2(1) and (3), 4(1) to (6) of the Access Regulation and that, consequently, the contested decision is vitiated by an infringement of the Treaty and of any rule of law relating to its application, as envisaged in Article 230(2) EC.

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

(2)  OJ 1989 L 298, p. 23.

(3)  OJ 1997 L 202, p. 60.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/42 |
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Action brought on 25 August 2008 — EnBW Energie Baden-Württemberg v Commission

(Case T-344/08)

(2008/C 272/83)

Language of the case: German

Parties

Applicant: EnBW Energie Baden-Württemberg AG (Karlsruhe, Germany) (represented by: A. Bach and A. Hahn, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision D(2008) 4931 of 16 June 2008 concerning a request for access to the administrative files in Case COMP/F/38.899 (Gas insulated switchgear); |
| --- | --- |

—

Annul Commission Decision D(2008) 4931 of 16 June 2008 concerning a request for access to the administrative files in Case COMP/F/38.899 (Gas insulated switchgear);

| — | in the alternative, annul Commission Decision D(2008) 4931 of 16 June 2008 concerning a request for access to the administrative files in Case COMP/F/38.899 (Gas insulated switchgear) in so far as the Commission also refused the applicant partial access to the documents on the file; |
| --- | --- |

—

in the alternative, annul Commission Decision D(2008) 4931 of 16 June 2008 concerning a request for access to the administrative files in Case COMP/F/38.899 (Gas insulated switchgear) in so far as the Commission also refused the applicant partial access to the documents on the file;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant objects to the Commission's decision of 16 June 2008 rejecting the applicant's second request for access to documents on the Commission's file in Case COMP/F/38.899 — Gas insulated switchgear.

The applicant advances three pleas in support of its application.

First of all, the applicant alleges an infringement of the first and third indents of Article 4(2) of Regulation (EC) No 1049/2001 (1), since the exceptions laid down in those provisions were misinterpreted or misapplied. Further, the applicant claims that the Commission infringed the last clause of Article 4(2) of Regulation No 1049/2001, since it wrongly denied that the applicant has an overriding public interest in access to the file in Case COMP/F/38.899. Finally, the applicant submits that there was an infringement of Article 4(6) of Regulation No 1049/2001, since the applicant ought to have been allowed to consult at least part of the documentation included in the file in Case COMP/F/38.899.

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

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/42 |
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Action brought on 22 August 2008 — Helena Rubinstein v OHIM — Allergan (BOTOLIST)

(Case T-345/08)

(2008/C 272/84)

Language in which the application was lodged: English

Parties

Applicant: Helena Rubinstein, SNC (Paris, France) (represented by: A. von Mühlendahl and J. Pagenberg, lawyers)

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

Other party to the proceedings before the Board of Appeal: Allergan, Inc. (Irvine, United States)

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 28 May 2008 in case R 863/2007-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 May 2008 in case R 863/2007-1;

| — | Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of the Cancellation Division of the defendant taken on 28 March 2007 in case 1118 C; |
| --- | --- |

—

Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of the Cancellation Division of the defendant taken on 28 March 2007 in case 1118 C;

| — | Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and |
| --- | --- |

—

Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and

| — | Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it become an intervening party in this case. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it become an intervening party in this case.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘BOTOLIST’ for goods in class 3 — Community trade mark registration No 2 686 392

Proprietor of the Community trade mark: The applicant

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

Trade mark right of the party requesting the declaration of invalidity: Community trade mark registration No 2 015 832 of the figurative mark ‘BOTOX’ for goods in class 5; Community trade mark registration No 2 575 371 of the figurative mark ‘BOTOX’ for goods in class 5; Community trade mark registration No 1 923 986 of the figurative mark ‘BOTOX’ for goods in class 5 and 16; Community trade mark registration No 1 999 481 of the word mark ‘BOTOX’ for goods in class 5; various registrations of the trade mark ‘BOTOX’ in the Member States of the European Communities.

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: Infringement of Article 8(5) of Council Regulation No 40/94 as there is no proof that the earlier trade marks had reputation in the relevant point in time, as the conflicting trade marks are not sufficiently similar, as there is further no proof that the use of the registered Community trade mark subject of the application for a declaration of invalidity would be detrimental to the distinctiveness and reputation of the earlier trade marks and that there is no proof that the applicant acted without due cause when adopting the registered Community trade mark subject of the application for a declaration of invalidity; infringement of Article 73 of Council Regulation No 40/94 as the contested decision does not state the reasons on which it is based.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/43 |
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Action brought on 20 August 2008 — iTouch International v OHIM — Touchnet Information Systems (iTouch)

(Case T-347/08)

(2008/C 272/85)

Language in which the application was lodged: English

Parties

Applicant: iTouch International plc (London, United Kingdom) (represented by: T. Alkin, Barrister)

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

Other party to the proceedings before the Board of Appeal: Touchnet Information Systems, Inc. (Lenexa, United States)

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 28 May 2008 in case R 493/2007-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 May 2008 in case R 493/2007-2;

| — | In the alternative, annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 May 2008 in case R 493/2007-2 to such extent as the court may deem fit; and |
| --- | --- |

—

In the alternative, annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 May 2008 in case R 493/2007-2 to such extent as the court may deem fit; and

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘iTouch’ for services in classes 38 and 42

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: Community trade mark registration No 1 449 503 of the word mark ‘TOUCHNET’ for goods and services in classes 9, 37 and 42

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there exists a likelihood of confusion between the conflicting trade marks.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/43 |
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Action brought on 22 August 2008 — Papierfabrik Hamburger-Spremberg v Commission

(Case T-350/08)

(2008/C 272/86)

Language of the case: German

Parties

Applicant: Papierfabrik Hamburger-Spremberg GmbH & Co. KG (Spremberg, Germany) (represented by: S. Polster, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the contested Commission Decision C(2008) 1107 final of 2 April 2008 in State aid case N 582/2007 — Germany, according to which the regional aid in favour of Propapier PM 2 GmbH & Co. KG is compatible with the EC Treaty; |
| --- | --- |

—

Annul the contested Commission Decision C(2008) 1107 final of 2 April 2008 in State aid case N 582/2007 — Germany, according to which the regional aid in favour of Propapier PM 2 GmbH & Co. KG is compatible with the EC Treaty;

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

—

Order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2008) 1107 final of 2 April 2008, by which the Commission declared that the regional aid which the Federal Republic of Germany approved for Propapier PM 2 is compatible with the EC Treaty.

The applicant relies on the following three pleas in law in support of its action.

First, the applicant alleges that, by not opening the formal investigation procedure, the Commission infringed Article 88(2) EC, Article 4 of Regulation (EC) No 659/1999 (1) and paragraph 68 et seq. of the Guidelines on national regional aid for 2007-2013 (2).

By its second plea in law the applicant complains that the obligation to provide reasons was infringed in relation to the nature of the regional aid Guidelines as the exclusive basis for the decision; it also complains of infringements in relation to the need to take into account the market for recycled fibre as the upstream market for corrugated case material and regarding the assessment of the competitive position on those markets and on the downstream corrugated board market of the recipient of State aid Propapier PM 2.

Finally the applicant claims with reference to the distortion of competition associated with the investment project affecting a total of three product markets that the regional aid approved for Propapier PM 2 is incompatible with the common market.

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

(2)  OJ 2006 C 54, p. 13.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/44 |
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Action brought on 1 September 2008 — L'Oréal v OHIM — Allergan (BOTOCYL)

(Case T-357/08)

(2008/C 272/87)

Language in which the application was lodged: English

Parties

Applicant: L'Oréal SA (Clichy, France) (represented by: A. von Mühlendahl and J. Pagenberg, lawyers)

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

Other party to the proceedings before the Board of Appeal: Allergan, Inc. (Irvine, United States)

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 5 June 2008 in case R 865/2007-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 June 2008 in case R 865/2007-1;

| — | Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of the Cancellation Division of the defendant taken on 4 April 2007 in case 1120 C; |
| --- | --- |

—

Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of the Cancellation Division of the defendant taken on 4 April 2007 in case 1120 C;

| — | Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and |
| --- | --- |

—

Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and

| — | Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it become an intervening party in this case. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it become an intervening party in this case.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘BOTOCYL’ for goods in class 3 — Community trade mark registration No 2 782 282

Proprietor of the Community trade mark: The applicant

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

Trade mark right of the party requesting the declaration of invalidity: Community trade mark registration No 2 015 832 of the figurative mark ‘BOTOX’ for goods in class 5; Community trade mark registration No 2 575 371 of the figurative mark ‘BOTOX’ for goods in class 5; Community trade mark registration No 1 923 986 of the figurative mark ‘BOTOX’ for goods in class 5 and 16; Community trade mark registration No 1 999 481 of the word mark ‘BOTOX’ for goods in class 5; various registrations of the trade mark ‘BOTOX’ in the Member States of the European Communities.

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: Infringement of Article 8(5) of Council Regulation No 40/94 as there is no proof that the earlier trade marks had reputation in the relevant point in time, as the conflicting trade marks are not sufficiently similar, as there is further no proof that the use of the registered Community trade mark subject of the application for a declaration of invalidity would be detrimental to the distinctiveness and reputation of the earlier trade marks and that there is no proof that the applicant acted without due cause when adopting the registered Community trade mark subject of the application for a declaration of invalidity; infringement of Article 73 of Council Regulation No 40/94 as the contested decision does not state the reasons on which it is based.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/45 |
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Action brought on 3 September 2008 — Spain v Commission

(Case T-358/08)

(2008/C 272/88)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: J. Rodríquez Cárcamo)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Decision C(2008) 3249 of 25 June 2008 relating to the reduction of assistance granted the Cohesion Fund to Project No 96/11/61/018 — ‘Saneamiento de Zaragoza’. |
| --- | --- |

—

annul Decision C(2008) 3249 of 25 June 2008 relating to the reduction of assistance granted the Cohesion Fund to Project No 96/11/61/018 — ‘Saneamiento de Zaragoza’.

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against the decision to reduce the financial assistance initially granted by the Commission to various projects in the three phases of the ‘Proyecto de saneamiento de Zaragoza’. That decision results in a financial correction of 25 % of the co-financed expenditure with respect to the second and third phases of the project, which gives rise to an obligation to repay EUR 3 106 966. The Commission take the view that the Municipality of Zaragoza failed to comply with Community rules on public contracts by artificially splitting the works and failing to publish the contracts in the O.J.E.C, in accordance with the provisions of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, publishing it only in the Boletín Oficial de Aragón.

In support of its form of order the applicant claims:

| — | infringement of Article H of Annex II to Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund and Article 14(13) of Directive 93/38/EEC. In that connection, the applicant takes the view that the defendant has committed a manifest error of assessment with respect to the basic definition of ‘works’ by denying the existence of technical or economic differences between the various projects since, it argues, the description of the works to be undertaken was similar and pursued the same economic function: the overall improvement of the network for the benefit of its users. To the contrary, the contracts concerned are technically distinct works, with clearly distinct functions and which require the performance of a variety of tasks. |
| --- | --- |

—

infringement of Article H of Annex II to Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund and Article 14(13) of Directive 93/38/EEC. In that connection, the applicant takes the view that the defendant has committed a manifest error of assessment with respect to the basic definition of ‘works’ by denying the existence of technical or economic differences between the various projects since, it argues, the description of the works to be undertaken was similar and pursued the same economic function: the overall improvement of the network for the benefit of its users. To the contrary, the contracts concerned are technically distinct works, with clearly distinct functions and which require the performance of a variety of tasks.

| — | infringement of the principle of the protection of legitimate expectations and the principle patere quam ipse legem fecisti, in so far as the Commission approved the projects as they were submitted and that, both the original application in 1996 and the subsequent application in 1997 contain a description of each and every one of the projects included in each phase, together with the express mention of the fact that it was no necessary to publish the tender notices in the O.J.E.C. |
| --- | --- |

—

infringement of the principle of the protection of legitimate expectations and the principle patere quam ipse legem fecisti, in so far as the Commission approved the projects as they were submitted and that, both the original application in 1996 and the subsequent application in 1997 contain a description of each and every one of the projects included in each phase, together with the express mention of the fact that it was no necessary to publish the tender notices in the O.J.E.C.

| — | inadequacy of the reasons set out in the contested decision. |
| --- | --- |

—

inadequacy of the reasons set out in the contested decision.

| — | expiry of the limitation period for the Commission to bring proceedings in accordance with the provisions of Article 3 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests |
| --- | --- |

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expiry of the limitation period for the Commission to bring proceedings in accordance with the provisions of Article 3 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests

| — | expiry of the period prescribed, in accordance with the provisions in Article H.2 of Annex II to Regulation 1164/94 and Article 18 of Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying down detailed rules for the implementation of Council Regulation (EC) No 1164/94 as regards the management and control systems for assistance granted from the Cohesion Fund and the procedure for making financial corrections. |
| --- | --- |

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expiry of the period prescribed, in accordance with the provisions in Article H.2 of Annex II to Regulation 1164/94 and Article 18 of Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying down detailed rules for the implementation of Council Regulation (EC) No 1164/94 as regards the management and control systems for assistance granted from the Cohesion Fund and the procedure for making financial corrections.

In the alternative, the applicant alleges infringement of the principle of proportionality.

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Action brought on 3 September 2008 — Spain v Commission

(Case T-359/08)

(2008/C 272/89)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo)

Defendant: Commission of the European Communities

Form of order sought

| — | disapply the Guidelines for the assessment of financial corrections to be applied to expenditure co-financed by the Structural Funds and the Cohesion Fund in cases of non-compliance with the rules on public contracts, final version of 29 November 2007 COCOF 07/0037/03-ES; |
| --- | --- |

—

disapply the Guidelines for the assessment of financial corrections to be applied to expenditure co-financed by the Structural Funds and the Cohesion Fund in cases of non-compliance with the rules on public contracts, final version of 29 November 2007 COCOF 07/0037/03-ES;

| — | annul Commission Decision C(2008) 3243 of 25 June 2008 reducing the assistance from the Cohesion Fund to the group of projects No 2001.ES.16.C.P.E.045 (Waste Management in Galicia — 2001) (Group II); and |
| --- | --- |

—

annul Commission Decision C(2008) 3243 of 25 June 2008 reducing the assistance from the Cohesion Fund to the group of projects No 2001.ES.16.C.P.E.045 (Waste Management in Galicia — 2001) (Group II); and

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

—

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

Pleas in law and main arguments

This dispute concerns four sub-groups of projects relating to the Solid Urban Waste Management Plan for Galicia. The Community financing initially granted for the whole group of projects was 80 % of the costs eligible for public funding.

In a letter sent by the Commission to the applicant in April 2006, the Commission proposed corrections in respect of irregularities discovered in an earlier audit. In the concluding part of that document contained two proposals for financial corrections. The first, relating to an irregularity penalised by the decision concerned arises from a difference in the criteria for classifying certain contracts. The proposed financial correction with respect to that ground is EUR 59 652,48.

The entry into force at the end of 2007 of the new ‘Guidelines for the assessment of financial corrections to be applied to expenditure co-financed by the Structural Funds and the Cohesion Fund in cases of non-compliance with the rules on public contracts’ provides for an increase in the corrections finally imposed, since the criteria contained in it require corrections which are more substantial than those resulting from the application of the Guidelines in force at the material time.

In support of its claims the applicant submits, first and in accordance with the provisions of Article 241 of the EC Treaty, that the 2007 Guidelines are unlawful on the ground that they are contrary to Article 7(1) of Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund and Article 17 of Regulation (EC) No 1386/2002 laying down detailed rules for the implementation of Council Regulation (EC) No 1164/94, in so far as, first, they fail to set accurate financial corrections, that is to say financial corrections which reflect the amount of expenditure wrongly charged to the Fund and, second, because by setting the corrections at that amount they take the base for calculating the correction as the contract tender value and not the certified expenditure or, failing that, the price of the contract.

The 2007 Guidelines also infringe:

| — | the general principle of transparency in Article 255 of the EC Treaty and Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission: the Guidelines were not widely publicised on account of the form in which they were adopted and their limited access. |
| --- | --- |

—

the general principle of transparency in Article 255 of the EC Treaty and Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission: the Guidelines were not widely publicised on account of the form in which they were adopted and their limited access.

| — | the general principle of legal certainty on account of the fact that it applies retroactively to projects approved from 2000, and |
| --- | --- |

—

the general principle of legal certainty on account of the fact that it applies retroactively to projects approved from 2000, and

| — | the duty to give a statement of reasons. |
| --- | --- |

—

the duty to give a statement of reasons.

As regards Decision C(2008) 3243 of 25 June 2008, the applicant submits that, as well as being based on illegal rules, it infringes Article 7(1) of Regulation No 1164/94 and Article 17 of Regulation No 1386/2002 in so far as the basic amount for calculating the correction is the contract tender value and not the certified expenditure or, failing that, the value of the contract.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/46 |
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Action brought on 3 September 2008 — Spain v Commission

(Case T-360/08)

(2008/C 272/90)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo)

Defendant: Commission of the European Communities

Form of order sought

| — | Disapply the Guidelines for determining the financial corrections applicable to expenses co-financed by the Structural Funds and the Cohesion Fund in the event of failure to comply with the public procurement rules, final version of 29 November 2007, COCOF 07/0037/03-ES, |
| --- | --- |

—

Disapply the Guidelines for determining the financial corrections applicable to expenses co-financed by the Structural Funds and the Cohesion Fund in the event of failure to comply with the public procurement rules, final version of 29 November 2007, COCOF 07/0037/03-ES,

| — | annul the Decision of the Commission of the European Communities of 25 June 2008, C(2008) 3247, in so far as it reduces financial assistance from the Cohesion Fund to project group No 2001.ES.16.C.P.E.036 (cleaning of the Hydrographic Basin of the North — Galicia-2001), and |
| --- | --- |

—

annul the Decision of the Commission of the European Communities of 25 June 2008, C(2008) 3247, in so far as it reduces financial assistance from the Cohesion Fund to project group No 2001.ES.16.C.P.E.036 (cleaning of the Hydrographic Basin of the North — Galicia-2001), and

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

—

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

Pleas in law and main arguments

This dispute concerns a group of projects for the improvement of existing and newly-constructed pumping stations, the expansion, conditioning and improvement of the drainage network and cleaning, situated in various parts of Galicia. The Community co-financing initially granted by the Commission amounted to 80 % of the public cost eligible for subsidy.

In July 2007, the Commission sent a letter to the applicant suggesting corrections to remedy the irregularities that came to light during an earlier audit. The conclusions of the letter specified the two irregularities which together provided the reason for the contested decision and the corresponding proposals for financial corrections: the incorrect use of the emergency procedure in relation to a procurement contract and the wrong use of experience as an award criterion for various contracts. The proposals for financial correction amount to EUR 697 901 and EUR 354 591 respectively.

The pleas in law and main arguments are those put forward in Case T-359/08 Spain v Commission.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/47 |
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Action brought on 29 August 2008 — 2nine v OHIM — Pacific Sunwear of California (nollie)

(Case T-363/08)

(2008/C 272/91)

Language in which the application was lodged: English

Parties

Applicant: 2nine Ltd (London, United Kingdom) (represented by: S. Palmer, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Pacific Sunwear of California, Inc. (Anaheim, United States)

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 16 June 2008 in case R 1590/2007-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 June 2008 in case R 1590/2007-2;

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

—

Order the defendant to pay the costs; and

| — | Take any further action as the Court may deem appropriate. |
| --- | --- |

—

Take any further action as the Court may deem appropriate.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘nollie’ for goods and services in classes 3, 9, 11, 14, 18, 20, 25 and 26 — application No 4 602 017

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

Mark or sign cited: International trade mark registration No 839 740 of the word mark ‘NOLI’ for goods in classes 3, 18, 24 and 25; United Kingdom trade mark registration No 2 361 525 of the word mark ‘NOLI’ for goods in classes 3, 18, 24 and 25.

Decision of the Opposition Division: Allowed the opposition and rejected the application in its entirety

Decision of the Board of Appeal: Partial annulment of the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal failed to find that there is a likelihood of confusion between the conflicting trade marks with respect to all the contested goods; infringement of Article 74(1) of Council Regulation No 40/94 as the Board of Appeal failed or neglected to take into account properly the facts, evidence and arguments submitted.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/47 |
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Action brought on 29 August 2008 — 2nine v OHIM — Pacific Sunwear of California (nollie)

(Case T-364/08)

(2008/C 272/92)

Language in which the application was lodged: English

Parties

Applicant: 2nine Ltd (London, United Kingdom) (represented by: S. Palmer, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Pacific Sunwear of California, Inc. (Anaheim, United States)

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 16 June 2008 in case R 1591/2007-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 June 2008 in case R 1591/2007-2;

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

—

Order the defendant to pay the costs; and

| — | Take any further action as the Court may deem appropriate. |
| --- | --- |

—

Take any further action as the Court may deem appropriate.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘nollie’ for goods and services in classes 3, 9, 11, 14, 18, 20, 25 and 26 — application No 4 601 621

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

Mark or sign cited: International trade mark registration No 839 740 of the word mark ‘NOLI’ for goods in classes 3, 18, 24 and 25; United Kingdom trade mark registration No 2 361 525 of the word mark ‘NOLI’ for goods in classes 3, 18, 24 and 25.

Decision of the Opposition Division: Allowed the opposition and rejected the application in its entirety

Decision of the Board of Appeal: Partial annulment of the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal failed to find that there is a likelihood of confusion between the conflicting trade marks with respect to all the contested goods; infringement of Article 74(1) of Council Regulation No 40/94 as the Board of Appeal failed or neglected to take into account properly the facts, evidence and arguments submitted.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/48 |
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Action brought on 28 August 2008 — Hidalgo v OHIM — Bodegas Hidalgo — La Gitana (HIDALGO)

(Case T-365/08)

(2008/C 272/93)

Language in which the application was lodged: Spanish

Parties

Applicant: Emilio Hidalgo, SA (Jerez de la Frontera, Spain) (represented by: Esteve Sanz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bodegas Hidalgo — La Gitana, SA (Sanlucar de Barrameda,Cadiz, Spain)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of OHIM, of 11 June 2008, in Case R 1329/2007-4, notified to the applicant on 18 June 2008; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of OHIM, of 11 June 2008, in Case R 1329/2007-4, notified to the applicant on 18 June 2008;

| — | Order the defendant and, where appropriate, the intervening party, to pay the costs of the proceedings before the Court of First Instance and those of the proceedings before the Board of Appeal. |
| --- | --- |

—

Order the defendant and, where appropriate, the intervening party, to pay the costs of the proceedings before the Court of First Instance and those of the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Emilio Hidalgo, SA.

Community trade mark concerned: Verbal mark ‘HIDALGO’ (Application No 4.032.108) for goods in Class 33 ‘alcoholic beverages (except beers)’.

Proprietor of the mark or sign cited in the opposition proceedings: Bodegas Hidalgo — La Gitana, SA.

Mark or sign cited in opposition: Spanish verbal mark ‘HIDALGO’ for goods in Class 33 (‘Wines in general and especially those covered by the DDOO Jerez and Manzanilla’).

Decision of the Opposition Division: Opposition upheld and application for registration rejected.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Articles 73 and 61(2) of Regulation (EC) No 40/94 on the Community trade mark (CTM) and the applicant's rights of the defence, by basing the contested decision on a document on which the applicant was unable to comment.

The applicant also alleges breach of:

| — | Article 8(1)(a) of the CTM, in so far as the contested decision considers that wines are identical to other alcoholic beverages in Class 33, other than wines. |
| --- | --- |

—

Article 8(1)(a) of the CTM, in so far as the contested decision considers that wines are identical to other alcoholic beverages in Class 33, other than wines.

| — | Articles 4(1) and 5(1) of Directive EC/89/104 to approximate the laws of the Member States relating to trade marks and infringement of the principle of coexistence and equivalence between national and Community marks. |
| --- | --- |

—

Articles 4(1) and 5(1) of Directive EC/89/104 to approximate the laws of the Member States relating to trade marks and infringement of the principle of coexistence and equivalence between national and Community marks.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/49 |
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Action brought on 18 September 2008 — Bank Melli Iran v Council

(Case T-390/08)

(2008/C 272/94)

Language of the case: French

Parties

Applicant: Bank Melli Iran (Tehran, Iran) (represented by: L. Defalque, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | annul paragraph 4, section B, of the Annex to Council Decision 2008/475/EC of 23 June 2008 concerning restrictive measures against Iran, in so far as it relates to Bank Melli Iran, its subsidiaries and branches; |
| --- | --- |

—

annul paragraph 4, section B, of the Annex to Council Decision 2008/475/EC of 23 June 2008 concerning restrictive measures against Iran, in so far as it relates to Bank Melli Iran, its subsidiaries and branches;

| — | in the alternative, declare the present action to be inapplicable under Article 241 EC and Articles 15(2) and 7(2) of Council Regulation No 423/2007 of 19 April 2007; |
| --- | --- |

—

in the alternative, declare the present action to be inapplicable under Article 241 EC and Articles 15(2) and 7(2) of Council Regulation No 423/2007 of 19 April 2007;

| — | in any event, order the Council to pay all of the costs in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance. |
| --- | --- |

—

in any event, order the Council to pay all of the costs in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

In this case, the applicant seeks the annulment of Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (1) in so far as it is included in the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen pursuant to that provision.

In support of its action, the applicant relies on seven pleas in law alleging:

| — | infringement of the essential procedural requirements of the EC Treaty and the rules of law relating to its application, misuse of powers and failure to comply with Article 7(2) of Common Position 2007/140/CFSP (2), as the contested decision was adopted in disregard of the rule of unanimity set out in Article 7(2) of Common Position 2007/140/CFSP; |
| --- | --- |

—

infringement of the essential procedural requirements of the EC Treaty and the rules of law relating to its application, misuse of powers and failure to comply with Article 7(2) of Common Position 2007/140/CFSP (2), as the contested decision was adopted in disregard of the rule of unanimity set out in Article 7(2) of Common Position 2007/140/CFSP;

| — | in the alternative, that Article 15(2) of Regulation No 423/2007 (3) providing for qualified majority voting is unlawful; |
| --- | --- |

—

in the alternative, that Article 15(2) of Regulation No 423/2007 (3) providing for qualified majority voting is unlawful;

| — | infringement of the principle of equal treatment in so far as the Council imposed the freeze on the applicant's funds and economic resources without having applied that measure to other Iranian banks in the same situation; |
| --- | --- |

—

infringement of the principle of equal treatment in so far as the Council imposed the freeze on the applicant's funds and economic resources without having applied that measure to other Iranian banks in the same situation;

| — | infringement of the principle of proportionality as the Council imposed the freeze on the applicant's funds and economic resources although Resolution 1803 (2008) of the United Nations Security Council merely called upon States to exercise vigilance over the activities of financial institutions in their territories with all banks domiciled in Iran, including the applicant; |
| --- | --- |

—

infringement of the principle of proportionality as the Council imposed the freeze on the applicant's funds and economic resources although Resolution 1803 (2008) of the United Nations Security Council merely called upon States to exercise vigilance over the activities of financial institutions in their territories with all banks domiciled in Iran, including the applicant;

| — | infringement of the rights of defence, the right to a fair hearing and the right to an effective legal remedy in so far as (i) States were merely called upon, in Resolution 1803 (2008), to exercise vigilance and (ii) the applicant had not been mentioned by the previous resolutions of the United Nations Security Council (Resolutions 1737 (2006) and 1747 (2007)); furthermore, the applicant was not informed of the evidence adduced against it; |
| --- | --- |

—

infringement of the rights of defence, the right to a fair hearing and the right to an effective legal remedy in so far as (i) States were merely called upon, in Resolution 1803 (2008), to exercise vigilance and (ii) the applicant had not been mentioned by the previous resolutions of the United Nations Security Council (Resolutions 1737 (2006) and 1747 (2007)); furthermore, the applicant was not informed of the evidence adduced against it;

| — | infringement of the fundamental right to respect for property; |
| --- | --- |

—

infringement of the fundamental right to respect for property;

| — | infringement of Article 15(3) of Regulation No 423/2007 in so far as the Council should have stated individual and specific reasons for its decision in view of the mere obligation of vigilance in Resolution 1803 (2008) and the treatment reserved for other Iranian banks; |
| --- | --- |

—

infringement of Article 15(3) of Regulation No 423/2007 in so far as the Council should have stated individual and specific reasons for its decision in view of the mere obligation of vigilance in Resolution 1803 (2008) and the treatment reserved for other Iranian banks;

| — | infringement of the competences of the Community as the freeze on the applicant's funds and economic resources constitutes a quasi-penal sanction, particularly since the present case does not involve the transposition of a resolution of the United Nations Security Council inasmuch as Resolution 1803 (2008) does not envisage that freeze measure. |
| --- | --- |

—

infringement of the competences of the Community as the freeze on the applicant's funds and economic resources constitutes a quasi-penal sanction, particularly since the present case does not involve the transposition of a resolution of the United Nations Security Council inasmuch as Resolution 1803 (2008) does not envisage that freeze measure.

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(1)  OJ 2008 L 163, p. 29.

(2)  Council Common Position 2007/140/CFSP of 27 February 2007 concerning restrictive measures against Iran (OJ 2007 L 61, p. 49).

(3)  Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/49 |
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Order of the Court of First Instance of 2 September 2008 — Hamdi v Council

(Joined Cases T-75/07 and T-363/07) (1)

(2008/C 272/95)

Language of the case: Dutch

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

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(1)  OJ C 117, 26.5.2007.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/50 |
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Order of the Court of First Instance of 5 September 2008 — Osram v Council

(Case T-466/07) (1)

(2008/C 272/96)

Language of the case: English

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

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(1)  OJ C 51, 23.2.2008.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/50 |
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Order of the Court of First Instance of 2 September 2008 — Shetland Islands Council v Commission

(Case T-42/08) (1)

(2008/C 272/97)

Language of the case: English

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

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(1)  OJ C 92, 12.4.2008.

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European Union Civil Service Tribunal

| 25.10.2008 | EN | Official Journal of the European Union | C 272/51 |
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Action brought on 22 August 2008 — N v Parliament

(Case F-71/08)

(2008/C 272/98)

Language of the case: French

Parties

Applicant: N (Brussels, Belgium) (represented by: E. Boigelot, lawyer)

Defendant: European Parliament

Subject-matter and description of the proceedings

Annulment of the staff report on the applicant for the period from 16 August 2006 to 31 December 2006.

Form of order sought

| — | Annul the decision of 12 September 2007 confirming and definitively approving the staff report on the applicant for the period from 16 August 2006 to 31 December 2006; |
| --- | --- |

—

Annul the decision of 12 September 2007 confirming and definitively approving the staff report on the applicant for the period from 16 August 2006 to 31 December 2006;

| — | annul that contested report; |
| --- | --- |

—

annul that contested report;

| — | annul the decision of the President of the Parliament of 22 May 2008 rejecting the applicant's claim for annulment of the contested decision; |
| --- | --- |

—

annul the decision of the President of the Parliament of 22 May 2008 rejecting the applicant's claim for annulment of the contested decision;

| — | order the European Parliament to pay the costs. |
| --- | --- |

—

order the European Parliament to pay the costs.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/51 |
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Action brought on 25 August 2008 — Ketselidis v Commission

(Case F-72/08)

(2008/C 272/99)

Language of the case: French

Parties

Applicant: Michalis Ketselidis (Brussels, Belgium) (represented by: S. Pappas, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the implicit decision rejecting the claim made by the applicant for revision of the calculation of pension annuities to be taken into account for transfer of his pension rights acquired in Greece to the Community scheme

Form of order sought

| — | Annul the implicit decision rejecting the claim for revision of the calculation of pension annuities to be taken into account for transfer of his pension rights to the Community scheme; |
| --- | --- |

—

Annul the implicit decision rejecting the claim for revision of the calculation of pension annuities to be taken into account for transfer of his pension rights to the Community scheme;

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

—

Order the defendant to pay the costs.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/51 |
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Action brought on 25 August 2008 — Marcuccio v Commission

(Case F-73/08)

(2008/C 272/100)

Language of the case: Italian

Parties

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

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of various Commission decisions refusing the applicant 100 % reimbursement of medical expenses, and payment by the Commission of the relevant amount

Form of order sought

| — | Annulment of the decision refusing the application dated 27 June 2007 and sent on 28 June 2007; |
| --- | --- |

—

Annulment of the decision refusing the application dated 27 June 2007 and sent on 28 June 2007;

| — | Annulment of the decision refusing the application dated 29 June 2007 and sent the same day; |
| --- | --- |

—

Annulment of the decision refusing the application dated 29 June 2007 and sent the same day;

| — | Annulment of the decision refusing the application dated 30 June 2007 and sent on 2 July 2007; |
| --- | --- |

—

Annulment of the decision refusing the application dated 30 June 2007 and sent on 2 July 2007;

| — | Annulment of the decision refusing the application dated 2 July 2007 and sent the same day; |
| --- | --- |

—

Annulment of the decision refusing the application dated 2 July 2007 and sent the same day;

| — | Annulment, in so far as necessary, of the memorandum dated 29 April 2008; |
| --- | --- |

—

Annulment, in so far as necessary, of the memorandum dated 29 April 2008;

| — | Order that the Commission pay the applicant, by way of 100 % reimbursement of the medical expenses, the sum of EUR 4 747,29 or such lesser sum as the Court may consider appropriate, plus interest at the rate of 10 % per annum with annual capitalisation, or at such rate, with such capitalisation and from such date as the Court considers appropriate; |
| --- | --- |

—

Order that the Commission pay the applicant, by way of 100 % reimbursement of the medical expenses, the sum of EUR 4 747,29 or such lesser sum as the Court may consider appropriate, plus interest at the rate of 10 % per annum with annual capitalisation, or at such rate, with such capitalisation and from such date as the Court considers appropriate;

| — | Order that the Commission pay the costs. |
| --- | --- |

—

Order that the Commission pay the costs.

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| 25.10.2008 | EN | Official Journal of the European Union | C 272/52 |
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Action brought on 29 August 2008 — Ramaekers-Jørgensen v Commission

(Case F-74/08)

(2008/C 272/101)

Language of the case: French

Parties

Applicant: Dominique Ramaekers-Jørgensen (Genval, Belgium) (represented by: L. Vogel, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

On the one hand, annulment of the decision of the Appointing Authority to calculate the applicant's Community tax by combining the amount of personal remuneration and the survivor's pension, and of the decision rejecting the application for the Community tax on her survivor's pension not to be deducted in advance, prior to payment of that pension, from her remuneration. On the other, a finding that Articles 3 and 4 of Council Regulation No 260/68, as most recently amended by Council Regulation No 2182/2003, are unlawful.

Form of order sought

| — | Annul the decision adopted by the Appointing Authority on 20 May 2008 rejecting the claim brought on 16 January 2008 seeking annulment in part of the decision of 16 October 2007 insofar as that decision laid down the methods for calculation and payment of the Community tax on the survivor's pension awarded to the applicant; |
| --- | --- |

—

Annul the decision adopted by the Appointing Authority on 20 May 2008 rejecting the claim brought on 16 January 2008 seeking annulment in part of the decision of 16 October 2007 insofar as that decision laid down the methods for calculation and payment of the Community tax on the survivor's pension awarded to the applicant;

| — | insofar as necessary, annul in addition, in part, the decision of 16 October 2007 in as much as it laid down the methods for calculation and payment of the Community tax on the survivor's pension awarded to the applicant; |
| --- | --- |

—

insofar as necessary, annul in addition, in part, the decision of 16 October 2007 in as much as it laid down the methods for calculation and payment of the Community tax on the survivor's pension awarded to the applicant;

| — | by application of Article 241 of the Treaty, find that Articles 3 and 4 of Council Regulation No 260/68, as most recently amended by Council Regulation No 2182/2003, are unlawful since those provisions stipulate that the survivor's pension awarded to an official is to be added to his pay for the purposes of calculation of the Community tax thereon; |
| --- | --- |

—

by application of Article 241 of the Treaty, find that Articles 3 and 4 of Council Regulation No 260/68, as most recently amended by Council Regulation No 2182/2003, are unlawful since those provisions stipulate that the survivor's pension awarded to an official is to be added to his pay for the purposes of calculation of the Community tax thereon;

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

—

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

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