# Official Journal C 116/2008

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 116 |
| | |
| English edition | Information and Notices | Volume 519 May 2008 |

ISSN 1725-2423

Official Journal

of the European Union

C 116

English edition

Information and Notices

Volume 519 May 2008

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2008/C 116/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 107, 26.4.2008 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2008/C 116/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 107, 26.4.2008

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2008/C 116/02 | Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice | 2 |
| 2008/C 116/03 | Case C-446/05: Judgment of the Court (Second Chamber) of 13 March 2008 (reference for a preliminary ruling from the Tribunal de Première Instance de Bruxelles (Belgium)) — Criminal proceedings against Ioannis Doulamis (Article 81 EC, read in conjunction with Article 10 EC — National legislation prohibiting advertising of dental care services) | 2 |
| 2008/C 116/04 | Joined Cases C-14/06 and C-295/06: Judgment of the Court (Grand Chamber) of 1 April 2008 — European Parliament (C-14/06), Kingdom of Denmark (C-295/06) v Commission of the European Communities (Directive 2002/95/EC — Electrical and electronic equipment — Restriction of use of certain hazardous substances — Decabromodiphenyl ether (DecaBDE) — Commission Decision 2005/717/EC — Exemption of DecaBDE from the prohibition on use — Actions for annulment — Commission's implementing powers — Infringement of the enabling provision) | 2 |
| 2008/C 116/05 | Case C-96/06: Judgment of the Court (Third Chamber) of 13 March 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg (Germany)) — Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas (Regulation (EC) No 615/98 — Directive 91/628/EEC — Export refunds — Refusal — Non-compliance with Directive 91/628/EEC — Adverse effect on animal welfare — Burden of proof — Lack of evidence) | 3 |
| 2008/C 116/06 | Case C-125/06 P: Judgment of the Court (Fourth Chamber) of 13 March 2008 — Commission of the European Communities v Infront WM AG, formerly KirchMedia WM AG, French Republic, United Kingdom of Great Britain and Northern Ireland, European Parliament, Council of the European Union (Appeal — Directive 89/552/EEC — Television broadcasting — Action for annulment — Fourth paragraph of Article 230 EC — Meaning of decision of direct and individual concern to a natural or legal person) | 4 |
| 2008/C 116/07 | Case C-227/06: Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Articles 28 EC and 30 EC — Measures having equivalent effect — Construction products — Directive 89/106/EEC — Absence of harmonised standards — National marks of conformity — Presumption of conformity) | 4 |
| 2008/C 116/08 | Case C-248/06: Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Freedom of establishment — Freedom to provide services — Restrictions — Research and development — Rules for the deduction of costs incurred abroad) | 5 |
| 2008/C 116/09 | Case C-285/06: Judgment of the Court (Fourth Chamber) of 13 March 2008 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Heinrich Stefan Schneider v Land Rheinland-Pfalz (Agriculture — Regulations (EC) No 1493/1999 and (EC) No 753/2002 — Common organisation of the market in wine — Description, designation, presentation and protection of certain wine sector products — Protection of traditional terms — Translation into another language — Use for wines from another producing Member State) | 5 |
| 2008/C 116/10 | Case C-383/06 to C-385/06: Judgment of the Court (Third Chamber) of 13 March 2008 (reference for a preliminary ruling from the Raad van State, Netherlands) — Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening (C-383/06), Gemeente Rotterdam (C-384/06) v Minister van Sociale Zaken en Werkgelegenheid, and Sociaal Economische Samenwerking West-Brabant (C-385/06) v Algemene Directie voor de Arbeidsvoorziening (Structural Funds — Article 23(1) of Council Regulation (EEC) No 4253/88 — Withdrawal and recovery of Community financial aid — Article 249 EC — Protection of legitimate expectations and legal certainty) | 6 |
| 2008/C 116/11 | Case C-437/06: Judgment of the Court (Fourth Chamber) of 13 March 2008 (reference for a preliminary ruling from the Niedersächsisches Finanzgericht, Germany) — Securenta Göttinger Immobilienanlagen und Vermögensmanagement AG v Finanzamt Göttingen (Sixth VAT Directive — Taxable person simultaneously carrying out economic activities, taxable or exempt, and non-economic activities — Right to deduct input VAT — Expenditure connected with the issue of shares and atypical silent partnerships — Apportionment of input VAT according to the economic nature of the activity — Calculation of the deductible proportion) | 7 |
| 2008/C 116/12 | Case C-78/07: Judgment of the Court (Seventh Chamber) of 13 March 2008 (reference for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione siciliana (Italy)) — Ispettorato Provinciale dell'Agricoltura di Enna, Assessorato all'agricoltura e foreste della Regione Sicilia, Regione Sicilia v Domenico Valvo (Agriculture — Regulations (EEC) No 2328/91 and (EC) No 950/97 — Articles 17 and 18 — Compensatory allowances for permanent natural handicaps — Farmers receiving length-of-service pensions — Right to compensatory allowances — Limits) | 7 |
| 2008/C 116/13 | Case C-81/07: Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil its obligations — Environment — Directive 2000/59/EC — Waste reception and handling plans for ship-generated waste) | 8 |
| 2008/C 116/14 | Case C-417/07: Judgment of the Court (Seventh Chamber) of 1 April 2008 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure by a Member State to fulfil its obligations — Directive 2004/36/EC — Safety of third-country aircraft using Community airports — Failure to transpose within the prescribed period) | 8 |
| 2008/C 116/15 | Case C-64/08: Reference for a preliminary ruling from the Landesgericht Linz (Austria) lodged on 19 February 2008 — Criminal proceedings against Ernst Engelmann | 9 |
| 2008/C 116/16 | Case C-70/08: Action brought on 20 February 2008 — Commission of the European Communities v Grand Duchy of Luxembourg | 9 |
| 2008/C 116/17 | Case C-73/08: Reference for a preliminary ruling from the Cour constitutionnelle (formerly Cour d'arbitrage), Belgium lodged on 22 February 2008 — Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française | 10 |
| 2008/C 116/18 | Case C-74/08: Reference for a preliminary ruling from the Nógrád Megyei Bíróság (Republic of Hungary) lodged on 30 January 2008 — PARAT Automotive Cabrio Textiltetőket Gyártó Kft. v Adó- és Pénzügyi Elenőrzési Hivatal Hatósági Főosztály Észak-magyarországi Kihelyezett Hatósági Osztály | 10 |
| 2008/C 116/19 | Case C-78/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Amministrazione delle Finanze, Agenzia delle Entrate v Paint Graphos Scarl | 11 |
| 2008/C 116/20 | Case C-79/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Adige Carni Scrl, in liquidation v Ministero dell' Economia e delle Finanze, Agenzia delle Entrate | 11 |
| 2008/C 116/21 | Case C-80/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Ministero delle Finanze v Michele Franchetto | 12 |
| 2008/C 116/22 | Case C-89/08 P: Appeal brought on 27 February 2008 by the Commission of the European Communities against the judgment of the Court of First Instance (Second Chamber, Extended Composition) delivered on 12 December 2007 in Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 Ireland and Others v Commission | 12 |
| 2008/C 116/23 | Case C-92/08: Action brought on 28 February 2008 — Commission of the European Communities v Kingdom of Belgium | 13 |
| 2008/C 116/24 | Case C-95/08: Action brought on 29 February 2008 — Commission of the European Communities v Grand-Duchy of Luxembourg | 14 |
| 2008/C 116/25 | Case C-101/08: Reference for a preliminary ruling from the Cour de Cassation, Luxembourg lodged on 5 March 2008 — Audiolux S.A., BIP Investment Partners SA, Jean-Paul Felten, Joseph Weyland, Luxiprivilège SA, Foyer SA, Investas ASBL, Claudie Stein-Lambert, Christiane Worre-Lambert, Baron Antoine de Schorlemer, Jacques Funck, Marc Meyer et Jean Petitdidier v Groupe Bruxelles Lambert SA (GBL), RTL Group SA, Juan Abello Gallo, Didier Bellens, André Desmarais, Gérald Frère, Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin Taylor, Bertelsmann AG, Siegfried Luther, Thomas Middelhoff, Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ Finanzierungs-GmbH, Westdeutsche Allgemeine Zeitungsverlagsgesellschaft E. Brost & J. Funke GmbH & Co (WAZ) — Interveners: Dexia Luxpart SA e.a. | 14 |
| 2008/C 116/26 | Case C-105/08: Action brought on 6 March 2008 — Commission of the European Communities v Portuguese Republic | 15 |
| 2008/C 116/27 | Case C-109/08: Action brought on 10 March 2008 — Commission of the European Communities v Hellenic Republic | 15 |
| 2008/C 116/28 | Case C-111/08: Reference for a preliminary ruling from the Högsta Domstolen (Sweden) lodged on 12 March 2008 — SCT Industri Aktiebolag i likvidation v Alpenblume Aktiebolag | 16 |
| 2008/C 116/29 | Case C-113/08: Action brought on 13 March 2008 — Commission of the European Communities v Kingdom of Spain | 17 |
| 2008/C 116/30 | Case C-117/08: Action brought on 17 March 2008 — Commission of the European Communities v Hellenic Republic | 17 |
| 2008/C 116/31 | Case C-121/08: Action brought on 19 March 2008 — Commission of the European Communities v Hellenic Republic | 17 |
| 2008/C 116/32 | Case C-122/08: Action brought on 19 mars 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland | 18 |
| 2008/C 116/33 | Case C-123/08: Reference for a preliminary ruling from the Rechtbank Amsterdam lodged on 21 March 2008 — Dominic Wolzenburg | 18 |
| 2008/C 116/34 | Case C-127/08: Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 25 March 2008 — Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska v Minister for Justice, Equality and Law Reform | 19 |
| | Court of First Instance |
| 2008/C 116/35 | Case T-181/07: Judgment of the Court of First Instance of 2 April 2008 — Eurocopter v OHIM (STEADYCONTROL) (Community trade mark — Application for Community word mark STEADYCONTROL — Absolute grounds of refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94) | 20 |
| 2008/C 116/36 | Case T-440/07 R: Order of the President of the Court of First Instance of 14 March 2008 — Huta Buczek v Commission (Interim measures — Application for suspension of operation of a measure — Admissibility — No urgency) | 20 |
| 2008/C 116/37 | Case T-467/07 R: Order of the President of the Court of First Instance of 14 March 2008 — Du Pont de Nemours (France) and Others v Commission (Application for interim relief — Directive 91/414/EEC — Application for suspension of operation of a measure — Admissibility — No urgency) | 20 |
| 2008/C 116/38 | Case T-1/08 R: Order of the President of the Court of First Instance of 14 March 2008 — Buczek Automotive v Commission (Interim measures — Application for suspension of operation of a measure — Admissibility — No urgency) | 21 |
| 2008/C 116/39 | Case T-66/08: Action brought on 5 February 2008 — British Sky Broadcasting Group v OHIM — Vortex (SKY) | 21 |
| 2008/C 116/40 | Case T-76/08: Action brought on 15 February 2008 — E.I. du Pont de Nemours and Others v Commission | 22 |
| 2008/C 116/41 | Case T-77/08: Action brought on 18 February 2008 — Dow Chemical v Commission | 22 |
| 2008/C 116/42 | Case T-84/08: Action brought on 18 February 2008 — Intesa Sanpaolo v OHIM — MIP Metro (COMIT) | 23 |
| 2008/C 116/43 | Case T-107/08: Action brought on 28 February 2008 — TNC Kazchrome and ENRC Marketing v Council and Commission | 23 |
| 2008/C 116/44 | Case T-108/08: Action brought on 27 February 2008 — Zino Davidoff v OHIM — Clifarm i. Kleinakis & SIA (GOOD LIFE) | 24 |
| 2008/C 116/45 | Case T-109/08: Action brought on 28 February 2008 — Freixenet SA v OHIM (Shape of a frosted white bottle) | 25 |
| 2008/C 116/46 | Case T-110/08: Action brought on 28 February 2008 — Freixenet v OHIM (Shape of a frosted matt black bottle) | 25 |
| 2008/C 116/47 | Case T-111/08: Action brought on 1 March 2008 — MasterCard and others v Commission | 26 |
| 2008/C 116/48 | Case T-117/08: Action brought on 11 March 2008 — Italy v Commission and EESC | 26 |
| 2008/C 116/49 | Case T-121/08: Action brought on 10 March 2008 — PC-Ware Information Technologies BV v Commission of the European Communities | 27 |
| 2008/C 116/50 | Case T-123/08: Action brought on 14 March 2008 — Spitzer v OHIM — Homeland Housewares (Magic Butler) | 27 |
| 2008/C 116/51 | Case T-125/08: Action brought on 14 March 2008 — Atlantean v Commission | 28 |
| 2008/C 116/52 | Case T-126/08: Action brought on 20 March 2008 — Okalux v OHIM — Ondex (ONDACELL) | 28 |
| 2008/C 116/53 | Case T-130/08: Action brought on 31 March 2008 — Gres La Sagra v OHIM — Ceramicalcora (VENATTO MARBLE STONE) | 29 |
| 2008/C 116/54 | Case T-409/05: Order of the Court of First Instance of 13 March 2008 — ASTER v Commission | 29 |
| | European Union Civil Service Tribunal |
| 2008/C 116/55 | Case F-97/05: Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Buendía Sierra v Commission (Staff cases — Officials — Promotion — 2004 Promotion procedure — Award of priority points — Temporal application of provisions of the new Staff Regulations) | 30 |
| 2008/C 116/56 | Case F-98/05: Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Di Bucci v Commission (Officials — Staff cases — Promotion — 2004 promotion exercise — Allocation of priority points — Application ratione temporis of provisions of the new staff regulations) | 30 |
| 2008/C 116/57 | Case F-99/05: Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Wilms v Commission (Staff cases — Officials — Promotion — 2004 promotion exercise — Allocation of priority points — Application ratione temporis of provisions of the new staff regulations) | 31 |
| 2008/C 116/58 | Case F-104/05: Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Valero Jordana v Commission (Staff cases — Officials — Promotion — 2004 promotion exercise — Award of priority points — Temporal application of provisions of the new Staff Regulations) | 31 |
| 2008/C 116/59 | Case F-55/07: Order of the Civil Service Tribunal (First Chamber) of 6 March 2008 — Tiralongo v Commission (Staff cases — Former temporary agent — Actions — Action for damages — Non-renewal of a fixed-term contract — Manifest inadmissibility) | 32 |
| 2008/C 116/60 | Case F-105/07: Order of the Civil Service Tribunal (First Chamber) of 6 March 2008 — R bis v Commission (Staff cases — Officials — Actions — Action for damages — Conditions under which the probationary period progressed — Extension of probationary period — Establishment as an official — Manifest inadmissibility) | 32 |
| 2008/C 116/61 | Case F-16/08: Action brought on 7 February 2008 — Behmer v Parliament | 32 |
| 2008/C 116/62 | Case F-21/08: Action brought on 22 February 2008 — Gippini Fournier v Commission | 33 |
| 2008/C 116/63 | Case F-22/08: Action brought on 22 February 2008 — Miguelez Herreras v Commission | 33 |
| 2008/C 116/64 | Case F-23/08: Action brought on 18 February 2008 — Di Bucci v Commission | 33 |
| 2008/C 116/65 | Case F-24/08: Action brought on 22 February 2008 — Wilms v Commission | 34 |
| 2008/C 116/66 | Case F-25/08: Action brought on 22 February 2008 — Valero Jordana v Commission | 34 |
| 2008/C 116/67 | Case F-26/08: Action brought on 25 February 2008 — Buendía Sierra v Commission | 34 |
| 2008/C 116/68 | Case F-28/08: Action brought on 28 February 2008 — Pouzol v Court of Auditors | 35 |
| 2008/C 116/69 | Case F-29/08: Action brought on 3 March 2008 — Y v Commission | 35 |
| 2008/C 116/70 | Case F-32/08: Action brought on 3 March 2008 — Klein v Commission | 36 |
| 2008/C 116/71 | Case F-34/08: Action brought on 11 March 2008 — Simon v Commission | 36 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2008/C 116/02

Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice

2

2008/C 116/03

Case C-446/05: Judgment of the Court (Second Chamber) of 13 March 2008 (reference for a preliminary ruling from the Tribunal de Première Instance de Bruxelles (Belgium)) — Criminal proceedings against Ioannis Doulamis (Article 81 EC, read in conjunction with Article 10 EC — National legislation prohibiting advertising of dental care services)

2

2008/C 116/04

Joined Cases C-14/06 and C-295/06: Judgment of the Court (Grand Chamber) of 1 April 2008 — European Parliament (C-14/06), Kingdom of Denmark (C-295/06) v Commission of the European Communities (Directive 2002/95/EC — Electrical and electronic equipment — Restriction of use of certain hazardous substances — Decabromodiphenyl ether (DecaBDE) — Commission Decision 2005/717/EC — Exemption of DecaBDE from the prohibition on use — Actions for annulment — Commission's implementing powers — Infringement of the enabling provision)

2

2008/C 116/05

Case C-96/06: Judgment of the Court (Third Chamber) of 13 March 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg (Germany)) — Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas (Regulation (EC) No 615/98 — Directive 91/628/EEC — Export refunds — Refusal — Non-compliance with Directive 91/628/EEC — Adverse effect on animal welfare — Burden of proof — Lack of evidence)

3

2008/C 116/06

Case C-125/06 P: Judgment of the Court (Fourth Chamber) of 13 March 2008 — Commission of the European Communities v Infront WM AG, formerly KirchMedia WM AG, French Republic, United Kingdom of Great Britain and Northern Ireland, European Parliament, Council of the European Union (Appeal — Directive 89/552/EEC — Television broadcasting — Action for annulment — Fourth paragraph of Article 230 EC — Meaning of decision of direct and individual concern to a natural or legal person)

4

2008/C 116/07

Case C-227/06: Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Articles 28 EC and 30 EC — Measures having equivalent effect — Construction products — Directive 89/106/EEC — Absence of harmonised standards — National marks of conformity — Presumption of conformity)

4

2008/C 116/08

Case C-248/06: Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Freedom of establishment — Freedom to provide services — Restrictions — Research and development — Rules for the deduction of costs incurred abroad)

5

2008/C 116/09

Case C-285/06: Judgment of the Court (Fourth Chamber) of 13 March 2008 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Heinrich Stefan Schneider v Land Rheinland-Pfalz (Agriculture — Regulations (EC) No 1493/1999 and (EC) No 753/2002 — Common organisation of the market in wine — Description, designation, presentation and protection of certain wine sector products — Protection of traditional terms — Translation into another language — Use for wines from another producing Member State)

5

2008/C 116/10

Case C-383/06 to C-385/06: Judgment of the Court (Third Chamber) of 13 March 2008 (reference for a preliminary ruling from the Raad van State, Netherlands) — Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening (C-383/06), Gemeente Rotterdam (C-384/06) v Minister van Sociale Zaken en Werkgelegenheid, and Sociaal Economische Samenwerking West-Brabant (C-385/06) v Algemene Directie voor de Arbeidsvoorziening (Structural Funds — Article 23(1) of Council Regulation (EEC) No 4253/88 — Withdrawal and recovery of Community financial aid — Article 249 EC — Protection of legitimate expectations and legal certainty)

6

2008/C 116/11

Case C-437/06: Judgment of the Court (Fourth Chamber) of 13 March 2008 (reference for a preliminary ruling from the Niedersächsisches Finanzgericht, Germany) — Securenta Göttinger Immobilienanlagen und Vermögensmanagement AG v Finanzamt Göttingen (Sixth VAT Directive — Taxable person simultaneously carrying out economic activities, taxable or exempt, and non-economic activities — Right to deduct input VAT — Expenditure connected with the issue of shares and atypical silent partnerships — Apportionment of input VAT according to the economic nature of the activity — Calculation of the deductible proportion)

7

2008/C 116/12

Case C-78/07: Judgment of the Court (Seventh Chamber) of 13 March 2008 (reference for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione siciliana (Italy)) — Ispettorato Provinciale dell'Agricoltura di Enna, Assessorato all'agricoltura e foreste della Regione Sicilia, Regione Sicilia v Domenico Valvo (Agriculture — Regulations (EEC) No 2328/91 and (EC) No 950/97 — Articles 17 and 18 — Compensatory allowances for permanent natural handicaps — Farmers receiving length-of-service pensions — Right to compensatory allowances — Limits)

7

2008/C 116/13

Case C-81/07: Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil its obligations — Environment — Directive 2000/59/EC — Waste reception and handling plans for ship-generated waste)

8

2008/C 116/14

Case C-417/07: Judgment of the Court (Seventh Chamber) of 1 April 2008 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure by a Member State to fulfil its obligations — Directive 2004/36/EC — Safety of third-country aircraft using Community airports — Failure to transpose within the prescribed period)

8

2008/C 116/15

Case C-64/08: Reference for a preliminary ruling from the Landesgericht Linz (Austria) lodged on 19 February 2008 — Criminal proceedings against Ernst Engelmann

9

2008/C 116/16

Case C-70/08: Action brought on 20 February 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

9

2008/C 116/17

Case C-73/08: Reference for a preliminary ruling from the Cour constitutionnelle (formerly Cour d'arbitrage), Belgium lodged on 22 February 2008 — Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française

10

2008/C 116/18

Case C-74/08: Reference for a preliminary ruling from the Nógrád Megyei Bíróság (Republic of Hungary) lodged on 30 January 2008 — PARAT Automotive Cabrio Textiltetőket Gyártó Kft. v Adó- és Pénzügyi Elenőrzési Hivatal Hatósági Főosztály Észak-magyarországi Kihelyezett Hatósági Osztály

10

2008/C 116/19

Case C-78/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Amministrazione delle Finanze, Agenzia delle Entrate v Paint Graphos Scarl

11

2008/C 116/20

Case C-79/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Adige Carni Scrl, in liquidation v Ministero dell' Economia e delle Finanze, Agenzia delle Entrate

11

2008/C 116/21

Case C-80/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Ministero delle Finanze v Michele Franchetto

12

2008/C 116/22

Case C-89/08 P: Appeal brought on 27 February 2008 by the Commission of the European Communities against the judgment of the Court of First Instance (Second Chamber, Extended Composition) delivered on 12 December 2007 in Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 Ireland and Others v Commission

12

2008/C 116/23

Case C-92/08: Action brought on 28 February 2008 — Commission of the European Communities v Kingdom of Belgium

13

2008/C 116/24

Case C-95/08: Action brought on 29 February 2008 — Commission of the European Communities v Grand-Duchy of Luxembourg

14

2008/C 116/25

Case C-101/08: Reference for a preliminary ruling from the Cour de Cassation, Luxembourg lodged on 5 March 2008 — Audiolux S.A., BIP Investment Partners SA, Jean-Paul Felten, Joseph Weyland, Luxiprivilège SA, Foyer SA, Investas ASBL, Claudie Stein-Lambert, Christiane Worre-Lambert, Baron Antoine de Schorlemer, Jacques Funck, Marc Meyer et Jean Petitdidier v Groupe Bruxelles Lambert SA (GBL), RTL Group SA, Juan Abello Gallo, Didier Bellens, André Desmarais, Gérald Frère, Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin Taylor, Bertelsmann AG, Siegfried Luther, Thomas Middelhoff, Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ Finanzierungs-GmbH, Westdeutsche Allgemeine Zeitungsverlagsgesellschaft E. Brost & J. Funke GmbH & Co (WAZ) — Interveners: Dexia Luxpart SA e.a.

14

2008/C 116/26

Case C-105/08: Action brought on 6 March 2008 — Commission of the European Communities v Portuguese Republic

15

2008/C 116/27

Case C-109/08: Action brought on 10 March 2008 — Commission of the European Communities v Hellenic Republic

15

2008/C 116/28

Case C-111/08: Reference for a preliminary ruling from the Högsta Domstolen (Sweden) lodged on 12 March 2008 — SCT Industri Aktiebolag i likvidation v Alpenblume Aktiebolag

16

2008/C 116/29

Case C-113/08: Action brought on 13 March 2008 — Commission of the European Communities v Kingdom of Spain

17

2008/C 116/30

Case C-117/08: Action brought on 17 March 2008 — Commission of the European Communities v Hellenic Republic

17

2008/C 116/31

Case C-121/08: Action brought on 19 March 2008 — Commission of the European Communities v Hellenic Republic

17

2008/C 116/32

Case C-122/08: Action brought on 19 mars 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

18

2008/C 116/33

Case C-123/08: Reference for a preliminary ruling from the Rechtbank Amsterdam lodged on 21 March 2008 — Dominic Wolzenburg

18

2008/C 116/34

Case C-127/08: Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 25 March 2008 — Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska v Minister for Justice, Equality and Law Reform

19

Court of First Instance

2008/C 116/35

Case T-181/07: Judgment of the Court of First Instance of 2 April 2008 — Eurocopter v OHIM (STEADYCONTROL) (Community trade mark — Application for Community word mark STEADYCONTROL — Absolute grounds of refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94)

20

2008/C 116/36

Case T-440/07 R: Order of the President of the Court of First Instance of 14 March 2008 — Huta Buczek v Commission (Interim measures — Application for suspension of operation of a measure — Admissibility — No urgency)

20

2008/C 116/37

Case T-467/07 R: Order of the President of the Court of First Instance of 14 March 2008 — Du Pont de Nemours (France) and Others v Commission (Application for interim relief — Directive 91/414/EEC — Application for suspension of operation of a measure — Admissibility — No urgency)

20

2008/C 116/38

Case T-1/08 R: Order of the President of the Court of First Instance of 14 March 2008 — Buczek Automotive v Commission (Interim measures — Application for suspension of operation of a measure — Admissibility — No urgency)

21

2008/C 116/39

Case T-66/08: Action brought on 5 February 2008 — British Sky Broadcasting Group v OHIM — Vortex (SKY)

21

2008/C 116/40

Case T-76/08: Action brought on 15 February 2008 — E.I. du Pont de Nemours and Others v Commission

22

2008/C 116/41

Case T-77/08: Action brought on 18 February 2008 — Dow Chemical v Commission

22

2008/C 116/42

Case T-84/08: Action brought on 18 February 2008 — Intesa Sanpaolo v OHIM — MIP Metro (COMIT)

23

2008/C 116/43

Case T-107/08: Action brought on 28 February 2008 — TNC Kazchrome and ENRC Marketing v Council and Commission

23

2008/C 116/44

Case T-108/08: Action brought on 27 February 2008 — Zino Davidoff v OHIM — Clifarm i. Kleinakis & SIA (GOOD LIFE)

24

2008/C 116/45

Case T-109/08: Action brought on 28 February 2008 — Freixenet SA v OHIM (Shape of a frosted white bottle)

25

2008/C 116/46

Case T-110/08: Action brought on 28 February 2008 — Freixenet v OHIM (Shape of a frosted matt black bottle)

25

2008/C 116/47

Case T-111/08: Action brought on 1 March 2008 — MasterCard and others v Commission

26

2008/C 116/48

Case T-117/08: Action brought on 11 March 2008 — Italy v Commission and EESC

26

2008/C 116/49

Case T-121/08: Action brought on 10 March 2008 — PC-Ware Information Technologies BV v Commission of the European Communities

27

2008/C 116/50

Case T-123/08: Action brought on 14 March 2008 — Spitzer v OHIM — Homeland Housewares (Magic Butler)

27

2008/C 116/51

Case T-125/08: Action brought on 14 March 2008 — Atlantean v Commission

28

2008/C 116/52

Case T-126/08: Action brought on 20 March 2008 — Okalux v OHIM — Ondex (ONDACELL)

28

2008/C 116/53

Case T-130/08: Action brought on 31 March 2008 — Gres La Sagra v OHIM — Ceramicalcora (VENATTO MARBLE STONE)

29

2008/C 116/54

Case T-409/05: Order of the Court of First Instance of 13 March 2008 — ASTER v Commission

29

European Union Civil Service Tribunal

2008/C 116/55

Case F-97/05: Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Buendía Sierra v Commission (Staff cases — Officials — Promotion — 2004 Promotion procedure — Award of priority points — Temporal application of provisions of the new Staff Regulations)

30

2008/C 116/56

Case F-98/05: Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Di Bucci v Commission (Officials — Staff cases — Promotion — 2004 promotion exercise — Allocation of priority points — Application ratione temporis of provisions of the new staff regulations)

30

2008/C 116/57

Case F-99/05: Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Wilms v Commission (Staff cases — Officials — Promotion — 2004 promotion exercise — Allocation of priority points — Application ratione temporis of provisions of the new staff regulations)

31

2008/C 116/58

Case F-104/05: Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Valero Jordana v Commission (Staff cases — Officials — Promotion — 2004 promotion exercise — Award of priority points — Temporal application of provisions of the new Staff Regulations)

31

2008/C 116/59

Case F-55/07: Order of the Civil Service Tribunal (First Chamber) of 6 March 2008 — Tiralongo v Commission (Staff cases — Former temporary agent — Actions — Action for damages — Non-renewal of a fixed-term contract — Manifest inadmissibility)

32

2008/C 116/60

Case F-105/07: Order of the Civil Service Tribunal (First Chamber) of 6 March 2008 — R bis v Commission (Staff cases — Officials — Actions — Action for damages — Conditions under which the probationary period progressed — Extension of probationary period — Establishment as an official — Manifest inadmissibility)

32

2008/C 116/61

Case F-16/08: Action brought on 7 February 2008 — Behmer v Parliament

32

2008/C 116/62

Case F-21/08: Action brought on 22 February 2008 — Gippini Fournier v Commission

33

2008/C 116/63

Case F-22/08: Action brought on 22 February 2008 — Miguelez Herreras v Commission

33

2008/C 116/64

Case F-23/08: Action brought on 18 February 2008 — Di Bucci v Commission

33

2008/C 116/65

Case F-24/08: Action brought on 22 February 2008 — Wilms v Commission

34

2008/C 116/66

Case F-25/08: Action brought on 22 February 2008 — Valero Jordana v Commission

34

2008/C 116/67

Case F-26/08: Action brought on 25 February 2008 — Buendía Sierra v Commission

34

2008/C 116/68

Case F-28/08: Action brought on 28 February 2008 — Pouzol v Court of Auditors

35

2008/C 116/69

Case F-29/08: Action brought on 3 March 2008 — Y v Commission

35

2008/C 116/70

Case F-32/08: Action brought on 3 March 2008 — Klein v Commission

36

2008/C 116/71

Case F-34/08: Action brought on 11 March 2008 — Simon v Commission

36

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 9.5.2008 | EN | Official Journal of the European Union | C 116/1 |
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9.5.2008

EN

Official Journal of the European Union

C 116/1

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(2008/C 116/01)

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

OJ C 107, 26.4.2008

Past publications

OJ C 92, 12.4.2008

OJ C 79, 29.3.2008

OJ C 64, 8.3.2008

OJ C 51, 23.2.2008

OJ C 37, 9.2.2008

OJ C 22, 26.1.2008

These texts are available on:

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

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 9.5.2008 | EN | Official Journal of the European Union | C 116/2 |
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9.5.2008

EN

Official Journal of the European Union

C 116/2

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Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice

(2008/C 116/02)

At its meeting of 12 February 2008, the Court of Justice of the European Communities, designated, for the period from 1 March to 6 October 2008, the Third Chamber of the Court as being the Chamber which, in accordance with Article 9(1) of the Rules of Procedure of the Court of Justice, is to be responsible for cases of the kind referred to in Article 104b of the Rules.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/2 |
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9.5.2008

EN

Official Journal of the European Union

C 116/2

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Judgment of the Court (Second Chamber) of 13 March 2008 (reference for a preliminary ruling from the Tribunal de Première Instance de Bruxelles (Belgium)) — Criminal proceedings against Ioannis Doulamis

(Case C-446/05) (1)

(Article 81 EC, read in conjunction with Article 10 EC - National legislation prohibiting advertising of dental care services)

(2008/C 116/03)

Language of the case: French

Referring court

Tribunal de Première Instance de Bruxelles

Party in the main criminal proceedings

Ioannis Doulamis

Intervening parties: Union des Dentistes et Stomatologistes de Belgique (UPR), Jean Totolidis

Re:

Reference for a preliminary ruling — Tribunal de Première Instance de Bruxelles — Interpretation of Article 81 EC, the second paragraph of Article 10 EC and Article 3(1)(g) EC — National legislation prohibiting all advertising in the dental care sector

Operative part of the judgment

Article 81 EC, read in conjunction with Article 3(1)(g) EC and the second paragraph of Article 10 EC, does not preclude a national law, such as the Law of 15 April 1958, which prohibits any person or dental care providers, in the context of professional services or a dental surgery, from engaging in advertising of any kind in the dental care sector.

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(1)  OJ C 48, 25.2.2006.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/2 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/2

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Judgment of the Court (Grand Chamber) of 1 April 2008 — European Parliament (C-14/06), Kingdom of Denmark (C-295/06) v Commission of the European Communities

(Joined Cases C-14/06 and C-295/06) (1)

(Directive 2002/95/EC - Electrical and electronic equipment - Restriction of use of certain hazardous substances - Decabromodiphenyl ether (‘DecaBDE’) - Commission Decision 2005/717/EC - Exemption of DecaBDE from the prohibition on use - Actions for annulment - Commission's implementing powers - Infringement of the enabling provision)

(2008/C 116/04)

Languages of the case: English and Danish

Parties

Applicants: European Parliament, (represented by: K. Bradley, A. Neergaard and I. Klavina, Agents) (C-14/06), Kingdom of Denmark (represented by: J. Molde, B. Weis Fogh and J. Bering Liisberg, Agents) (C-295/06)

Interveners in support of the applicant: Kingdom of Denmark (Case C-14/06), (represented by: J. Molde, B. Weis Fogh and J. Bering Liisberg, Agents), Portuguese Republic, (represented by: L. Fernandes and M.J. Lois, Agents), Republic of Finland, (represented by: A. Guimaraes-Purokoski, Agent), Kingdom of Sweden, (represented by: A. Kruse, Agent), Kingdom of Norway, (represented by: I. Djupvik, K. Waage and K.B. Moen, Agent, and by E. Holmedal, advokat)

Defendant: Commission of the European Communities (represented by X. Lewis, M. Konstantinidis and H. Støvlbæk, Agents)

Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by V. Jackson, Agent, and by J. Maurici, Barrister)

Re:

Annulment of the Commission Decision of 13 October 2005 amending for the purposes of adapting to the technical progress the Annex to Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003, on the restriction of the use of certain hazardous substances in electrical and electronic equipment (notified under document number C(2005) 3754) (Text with EEA relevance) (OJ 2005 L 271, p. 48) — Exemption of decabromodiphenyl ether (‘DecaBDE’) from the marketing prohibition imposed by Article 4(1) of Directive 2002/95/EC without respecting the conditions laid down by Article 5(1) of that directive

Operative part of the judgment

The Court:

| 1. | Annuls Point 2 of the Annex to Commission Decision 2005/717/EC of 13 October 2005 amending for the purposes of adapting to technical progress the Annex to Directive 2002/95/EC of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment; |
| --- | --- |

1.

Annuls Point 2 of the Annex to Commission Decision 2005/717/EC of 13 October 2005 amending for the purposes of adapting to technical progress the Annex to Directive 2002/95/EC of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment;

| 2. | Declares that the effects of point 2 of the Annex to Decision 2005/717 are maintained until 30 June 2008 inclusive; |
| --- | --- |

2.

Declares that the effects of point 2 of the Annex to Decision 2005/717 are maintained until 30 June 2008 inclusive;

| 3. | Orders the Commission of the European Communities to pay the costs of the European Parliament and those of the Kingdom of Denmark in Case C-295/06; |
| --- | --- |

3.

Orders the Commission of the European Communities to pay the costs of the European Parliament and those of the Kingdom of Denmark in Case C-295/06;

| 4. | Orders the Kingdom of Denmark, in Case C-14/06, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Norway to bear their own costs. |
| --- | --- |

4.

Orders the Kingdom of Denmark, in Case C-14/06, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Norway to bear their own costs.

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(1)  OJ C 86, 8.4.2006.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/3 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/3

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Judgment of the Court (Third Chamber) of 13 March 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg (Germany)) — Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas

(Case C-96/06) (1)

(Regulation (EC) No 615/98 - Directive 91/628/EEC - Export refunds - Refusal - Non-compliance with Directive 91/628/EEC - Adverse effect on animal welfare - Burden of proof - Lack of evidence)

(2008/C 116/05)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Viamex Agrar Handels GmbH

Defendant: Hauptzollamt Hamburg-Jonas

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 5(3) of Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport (OJ 1998 L 82, p. 19) — Possibility for competent authority to refuse to grant export refunds where it considers, ‘in the light of ... all other elements at its disposal’, that the provisions of Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC (OJ 1991 L 340, p. 17) have not been complied with — Burden of proof — Refusal of refunds because of the use of a ship included in a list of ships not complying with the requirements of Directive 91/628/EEC (‘negative list’) in the absence of indications that the wellbeing of the animals was actually affected

Operative part of the judgment

| 1. | Despite the documents produced by the exporter in accordance with Article 5(2) of Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport, the competent authority may consider, pursuant to Article 5(3) of that regulation, that Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, as amended by Council Directive 95/29/EC of 29 June 1995, has not been complied with. However, the competent authority can arrive at that conclusion only if it bases itself on the documents referred to in Article 5 of Regulation No 615/98, on the reports referred to in Article 4 of that regulation concerning animal health, or on any other objective element with implications for the welfare of the animals such as to call into question the documents presented by the exporter, it being for the latter to show, if appropriate, that the elements relied on by the competent authority in substantiation of its finding of non compliance with Directive 91/628, as amended by Directive 95/29, are irrelevant. |
| --- | --- |

1.

Despite the documents produced by the exporter in accordance with Article 5(2) of Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport, the competent authority may consider, pursuant to Article 5(3) of that regulation, that Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, as amended by Council Directive 95/29/EC of 29 June 1995, has not been complied with. However, the competent authority can arrive at that conclusion only if it bases itself on the documents referred to in Article 5 of Regulation No 615/98, on the reports referred to in Article 4 of that regulation concerning animal health, or on any other objective element with implications for the welfare of the animals such as to call into question the documents presented by the exporter, it being for the latter to show, if appropriate, that the elements relied on by the competent authority in substantiation of its finding of non compliance with Directive 91/628, as amended by Directive 95/29, are irrelevant.

| 2. | Pursuant to Article 5(3) of Regulation No 615/98, the competent authority may refuse the export refund for failure to comply with the provisions of Directive 91/628, as amended by Directive 95/29, concerning animal health, even in the absence of evidence showing that the welfare of the animals transported was, in fact, adversely affected. |
| --- | --- |

2.

Pursuant to Article 5(3) of Regulation No 615/98, the competent authority may refuse the export refund for failure to comply with the provisions of Directive 91/628, as amended by Directive 95/29, concerning animal health, even in the absence of evidence showing that the welfare of the animals transported was, in fact, adversely affected.

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(1)  OJ C 96, 22.4.2006.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/4 |
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9.5.2008

EN

Official Journal of the European Union

C 116/4

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Judgment of the Court (Fourth Chamber) of 13 March 2008 — Commission of the European Communities v Infront WM AG, formerly KirchMedia WM AG, French Republic, United Kingdom of Great Britain and Northern Ireland, European Parliament, Council of the European Union

(Case C-125/06 P) (1)

(Appeal - Directive 89/552/EEC - Television broadcasting - Action for annulment - Fourth paragraph of Article 230 EC - Meaning of decision of ‘direct and individual’ concern to a natural or legal person)

(2008/C 116/06)

Language of the case: English

Parties

Appellant: Commission of the European Communities (represented by: K. Banks and M. Huttunen, agents)

Other parties to the proceedings: Infront WM AG, formerly KirchMedia WM AG (represented by M. Garcia, Solicitor), French Republic, United Kingdom of Great Britain and Northern Ireland, European Parliament, Council of the European Union

Re:

Appeal brought against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 15 December 2005 in Case T-33/01 Infront WM AG v Commission of the European Communities, in which the Court annulled the Commission's decision, adopted under Article 3a of Council Directive 89/552/EC of 3 October 1989, declaring compatible with the common market certain measures taken by the United Kingdom regarding restrictions on the television broadcasting of a series of sports and other events of national interest — Concept of being directly and individually concerned for the purposes of Article 230 EC

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

2.

Orders the Commission of the European Communities to pay the costs.

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(1)  OJ C 108, 6.5.2006.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/4 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/4

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Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-227/06) (1)

(Failure of a Member State to fulfil its obligations - Articles 28 EC and 30 EC - Measures having equivalent effect - Construction products - Directive 89/106/EEC - Absence of harmonised standards - National marks of conformity - Presumption of conformity)

(2008/C 116/07)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: B. Schima and B. Stromsky, acting as Agents)

Defendant: Kingdom of Belgium (represented by: M. Wimmer, A. Hubert, L. Van den Broeck, acting as Agents, and F. de Montpellier and G. Block, lawyers)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 28 EC and 30 EC — National law imposing a de facto obligation for economic operators wishing to market in Belgium construction products lawfully produced and/or marketed in another Member State to obtain Belgian marks of conformity in order to market those products in Belgium

Operative part of the judgment

The Court:

| 1. | Declares that, by encouraging economic operators wishing to market in Belgium construction products lawfully manufactured and/or marketed in another Member State to obtain Belgian marks of conformity, the Kingdom of Belgium has failed to fulfil its obligations under Articles 28 EC and 30 EC. |
| --- | --- |

1.

Declares that, by encouraging economic operators wishing to market in Belgium construction products lawfully manufactured and/or marketed in another Member State to obtain Belgian marks of conformity, the Kingdom of Belgium has failed to fulfil its obligations under Articles 28 EC and 30 EC.

| 2. | Orders the Kingdom of Belgium to pay the costs. |
| --- | --- |

2.

Orders the Kingdom of Belgium to pay the costs.

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(1)  OJ C 165, 15.7.2006.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/5 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/5

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Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-248/06) (1)

(Failure of a Member State to fulfil its obligations - Freedom of establishment - Freedom to provide services - Restrictions - Research and development - Rules for the deduction of costs incurred abroad)

(2008/C 116/08)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and L. Escobar Guerrero, acting as Agents)

Defendant: Kingdom of Spain (represented by: M. Muñoz Pérez, acting as Agent)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 43 EC, 48 EC and 49 EC and Articles 31 EEA and 36 EEA — Rules for deducting costs for research and development and technological innovation incurred abroad more rigorous than those applicable to costs incurred in Spain

Operative part of the judgment

The Court:

| 1. | Declares that, by maintaining in force rules for the deduction of costs relating to research and development and technological innovation which are less favourable in respect of costs incurred abroad than costs incurred in Spain — such rules deriving from Article 35 of the Law on corporation tax, as amended by Royal Legislative Decree 4/2004 of 5 March 2004 — the Kingdom of Spain has failed to fulfil its obligations under Articles 43 EC and 49 EC on freedom of establishment and freedom to provide services, and the corresponding articles in the Agreement on the European Economic Area of 2 May 1992, namely Articles 31 and 36 of that Agreement; |
| --- | --- |

1.

Declares that, by maintaining in force rules for the deduction of costs relating to research and development and technological innovation which are less favourable in respect of costs incurred abroad than costs incurred in Spain — such rules deriving from Article 35 of the Law on corporation tax, as amended by Royal Legislative Decree 4/2004 of 5 March 2004 — the Kingdom of Spain has failed to fulfil its obligations under Articles 43 EC and 49 EC on freedom of establishment and freedom to provide services, and the corresponding articles in the Agreement on the European Economic Area of 2 May 1992, namely Articles 31 and 36 of that Agreement;

| 2. | Orders the Kingdom of Spain to pay the costs. |
| --- | --- |

2.

Orders the Kingdom of Spain to pay the costs.

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(1)  OJ C 178, 29.7.2006.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/5 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/5

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Judgment of the Court (Fourth Chamber) of 13 March 2008 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Heinrich Stefan Schneider v Land Rheinland-Pfalz

(Case C-285/06) (1)

(Agriculture - Regulations (EC) No 1493/1999 and (EC) No 753/2002 - Common organisation of the market in wine - Description, designation, presentation and protection of certain wine sector products - Protection of traditional terms - Translation into another language - Use for wines from another producing Member State)

(2008/C 116/09)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Heinrich Stefan Schneider

Defendant: Land Rheinland-Pfalz

Intervening party: Vertreterin des Bundesinteresses beim Bundesverwaltungsgericht

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht (Germany) — Interpretation of Article 47(2)(b) and (c) and the fifth indent of point (B)(1)(b) and point (B)(3) of Annex VII to Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine (OJ 1999 L 179, p. 1), as amended by Commission Regulation (EC) No 1512/2005 of 15 September 2005 amending Regulation (EC) No 753/2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products (OJ 2005 L 241, p. 15), and of Articles 23 and 24 of Commission Regulation (EC) No 753/2002 of 29 April 2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products (OJ 2002 L 118, p. 1) — Prohibition against imitation or evocation of protected additional traditional terms — Possibility of using such a term in a language other than that of the protected traditional term or for wines from a Member State other than those of the protected traditional term — Use of the French language terms ‘Réserve’ or ‘Grande réserve’ or the German language terms ‘Reserve’ or ‘Privat-Reserve’ for German wines

Operative part of the judgment

| 1. | Article 47(2)(c) of Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine, in conjunction with point (B)(3) of Annex VII thereto and Article 6(1) of Commission Regulation (EC) No 753/2002 of 29 April 2002 laying down certain rules for applying Regulation No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products, as amended by Commission Regulation (EC) No 1512/2005 of 15 September 2005, must be interpreted as meaning that the use of a particular relating to the production or ageing method or the quality of a wine may be permitted under those provisions only if there is no risk that it will mislead the persons to whom it is addressed by creating confusion between that particular and the other traditional terms referred to in the fifth indent of point (B)(1)(b) of Annex VII to Regulation No 1493/1999 and Article 23 of Regulation No 753/2002. It is for the national court to assess whether the terms in issue in the main proceedings are likely to give rise to such a risk. |
| --- | --- |

1.

Article 47(2)(c) of Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine, in conjunction with point (B)(3) of Annex VII thereto and Article 6(1) of Commission Regulation (EC) No 753/2002 of 29 April 2002 laying down certain rules for applying Regulation No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products, as amended by Commission Regulation (EC) No 1512/2005 of 15 September 2005, must be interpreted as meaning that the use of a particular relating to the production or ageing method or the quality of a wine may be permitted under those provisions only if there is no risk that it will mislead the persons to whom it is addressed by creating confusion between that particular and the other traditional terms referred to in the fifth indent of point (B)(1)(b) of Annex VII to Regulation No 1493/1999 and Article 23 of Regulation No 753/2002. It is for the national court to assess whether the terms in issue in the main proceedings are likely to give rise to such a risk.

| 2. | Article 24(2)(a) of Regulation No 753/2002, as amended by Regulation No 1512/2005, is to be interpreted as meaning that there may be imitation or evocation of a traditional term within the meaning of that provision where that term is translated into a language other than that in which that term is given in Annex III to that regulation, if that translation is likely to cause confusion or to mislead the persons to whom it is addressed. It is for the national court to examine whether that is the case in the dispute before it. |
| --- | --- |

2.

Article 24(2)(a) of Regulation No 753/2002, as amended by Regulation No 1512/2005, is to be interpreted as meaning that there may be imitation or evocation of a traditional term within the meaning of that provision where that term is translated into a language other than that in which that term is given in Annex III to that regulation, if that translation is likely to cause confusion or to mislead the persons to whom it is addressed. It is for the national court to examine whether that is the case in the dispute before it.

| 3. | Article 24(2) of Regulation No 753/2002, as amended by Regulation No 1512/2005, is to be interpreted as meaning that a traditional term listed in Annex III to that regulation is protected both with regard to wines of the same category/categories from the same producer Member State as that traditional term and with regard to wines of the same category/categories from other producer Member States. |
| --- | --- |

3.

Article 24(2) of Regulation No 753/2002, as amended by Regulation No 1512/2005, is to be interpreted as meaning that a traditional term listed in Annex III to that regulation is protected both with regard to wines of the same category/categories from the same producer Member State as that traditional term and with regard to wines of the same category/categories from other producer Member States.

---

(1)  OJ C 237, 30.9.2006.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/6 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/6

---

Judgment of the Court (Third Chamber) of 13 March 2008 (reference for a preliminary ruling from the Raad van State, Netherlands) — Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening (C-383/06), Gemeente Rotterdam (C-384/06) v Minister van Sociale Zaken en Werkgelegenheid, and Sociaal Economische Samenwerking West-Brabant (C-385/06) v Algemene Directie voor de Arbeidsvoorziening

(Case C-383/06 to C-385/06) (1)

(Structural Funds - Article 23(1) of Council Regulation (EEC) No 4253/88 - Withdrawal and recovery of Community financial aid - Article 249 EC - Protection of legitimate expectations and legal certainty)

(2008/C 116/10)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening (C-383/06), Gemeente Rotterdam (C-384/06), Sociaal Economische Samenwerking West-Brabant (C-385/06)

Defendants: Minister van Sociale Zaken en Werkgelegenheid, Algemene Directie voor de Arbeidsvoorziening

Re:

Reference for a preliminary ruling — Raad van State, Netherlands Interpretation of Article 23(1) of Council Regulation EEC No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation No 2052/88 (EEC) as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments — Withdrawal and recovery of Community financial aid — Articles 10 and 249 EC — Application of general principles of Community law

Operative part of the judgment

| 1. | Article 23(1) of Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation (EEC) No 2082/93 of 20 July 1993 requires the Member States to recover any amounts lost as a result of an irregularity or negligence without there being any need for authority to do so under national law; |
| --- | --- |

1.

Article 23(1) of Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation (EEC) No 2082/93 of 20 July 1993 requires the Member States to recover any amounts lost as a result of an irregularity or negligence without there being any need for authority to do so under national law;

| 2. | The recovery of amounts lost as a result of an irregularity or negligence must be carried out on the basis of Article 23(1) of Regulation No 4253/88, as amended by Regulation No 2082/93, and in accordance with the detailed rules laid down in national law, on condition that the application of that law does not hinder the application or the effectiveness of Community law and does not make it impossible in practice to recover the sums improperly granted. It is for the national court to ensure the full application of Community law by setting aside or, in so far as necessary, interpreting a national rule such as the General Statute on administrative law (Algemene wet bestuursrecht) which prevents such application. The national court may apply the Community law principles of legal certainty and the protection of legitimate expectations when assessing the conduct of both the recipient of the amounts lost and the administrative authority, on condition that full account is taken of the interests of the European Community. The fact that the recipient of the funds is a public-law person is irrelevant in that regard. |
| --- | --- |

2.

The recovery of amounts lost as a result of an irregularity or negligence must be carried out on the basis of Article 23(1) of Regulation No 4253/88, as amended by Regulation No 2082/93, and in accordance with the detailed rules laid down in national law, on condition that the application of that law does not hinder the application or the effectiveness of Community law and does not make it impossible in practice to recover the sums improperly granted. It is for the national court to ensure the full application of Community law by setting aside or, in so far as necessary, interpreting a national rule such as the General Statute on administrative law (Algemene wet bestuursrecht) which prevents such application. The national court may apply the Community law principles of legal certainty and the protection of legitimate expectations when assessing the conduct of both the recipient of the amounts lost and the administrative authority, on condition that full account is taken of the interests of the European Community. The fact that the recipient of the funds is a public-law person is irrelevant in that regard.

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(1)  OJ C 310, 16.12.2006.

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Judgment of the Court (Fourth Chamber) of 13 March 2008 (reference for a preliminary ruling from the Niedersächsisches Finanzgericht, Germany) — Securenta Göttinger Immobilienanlagen und Vermögensmanagement AG v Finanzamt Göttingen

(Case C-437/06) (1)

(Sixth VAT Directive - Taxable person simultaneously carrying out economic activities, taxable or exempt, and non-economic activities - Right to deduct input VAT - Expenditure connected with the issue of shares and atypical silent partnerships - Apportionment of input VAT according to the economic nature of the activity - Calculation of the deductible proportion)

(2008/C 116/11)

Language of the case: German

Referring court

Niedersächsisches Finanzgericht

Parties to the main proceedings

Applicant: Securenta Göttinger Immobilienanlagen und Vermögensmanagement AG

Defendant: Finanzamt Göttingen

Re:

Reference for a preliminary ruling — Niedersächsisches Finanzgericht — Interpretation of Articles 2, point 1, and 17(5) of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Issue of silent partnerships by a limited company on an increase in its capital — Supply for consideration within the meaning of Article 2, point 1 — Deductibility of VAT conditional on a direct and immediate link with the taxable person's business activity — Whether deductible in part under Article 17(5) of the Directive

Operative part of the judgment

| 1. | Where a taxpayer simultaneously carries out economic activities, taxed or exempt, and non-economic activities outside the scope of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, deduction of the VAT relating to expenditure connected with the issue of shares and atypical silent partnerships is allowed only to the extent that that expenditure is attributable to the taxpayer's economic activity within the meaning of Article 2(1) of that directive. |
| --- | --- |

1.

Where a taxpayer simultaneously carries out economic activities, taxed or exempt, and non-economic activities outside the scope of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, deduction of the VAT relating to expenditure connected with the issue of shares and atypical silent partnerships is allowed only to the extent that that expenditure is attributable to the taxpayer's economic activity within the meaning of Article 2(1) of that directive.

| 2. | The determination of the methods and criteria for apportioning input VAT between economic and non-economic activities within the meaning of the Sixth Directive is in the discretion of the Member States who, when exercising that discretion, must have regard to the aims and broad logic of that directive and, on that basis, provide for a method of calculation which objectively reflects the part of the input expenditure actually to be attributed, respectively, to those two types of activity. |
| --- | --- |

2.

The determination of the methods and criteria for apportioning input VAT between economic and non-economic activities within the meaning of the Sixth Directive is in the discretion of the Member States who, when exercising that discretion, must have regard to the aims and broad logic of that directive and, on that basis, provide for a method of calculation which objectively reflects the part of the input expenditure actually to be attributed, respectively, to those two types of activity.

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(1)  OJ C 326, 30.12.2006.

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Judgment of the Court (Seventh Chamber) of 13 March 2008 (reference for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione siciliana (Italy)) — Ispettorato Provinciale dell'Agricoltura di Enna, Assessorato all'agricoltura e foreste della Regione Sicilia, Regione Sicilia v Domenico Valvo

(Case C-78/07) (1)

(Agriculture - Regulations (EEC) No 2328/91 and (EC) No 950/97 - Articles 17 and 18 - Compensatory allowances for permanent natural handicaps - Farmers receiving length-of-service pensions - Right to compensatory allowances - Limits)

(2008/C 116/12)

Language of the case: Italian

Referring court

Consiglio di Giustizia Amministrativa per la Regione siciliana

Parties to the main proceedings

Applicants: Ispettorato Provinciale dell'Agricoltura di Enna, Assessorato all'agricoltura e foreste della Regione Sicilia, Regione Sicilia

Defendant: Domenico Valvo

Re:

Reference for a preliminary ruling — Consiglio di Giustizia Amministrativa per la Regione siciliana — Interpretation of Council Regulation (EC) No 950/97 of 20 May 1997 on improving the efficiency of agricultural structures — National legislation refusing to grant the compensatory allowance for permanent natural handicaps to farmers in receipt of a length-of-service pension

Operative part of the judgment

Articles 17 and 18 of Council Regulation (EC) No 950/97 of 20 May 1997 on improving the efficiency of agricultural structures confer on Member States the right to grant a compensatory allowance to a farmer who fulfils the conditions laid down in those two articles. However, those articles do not preclude a Member State from refusing payment of such an allowance where that farmer is in receipt of a pension, in particular, a length-of-service pension.

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(1)  OJ C 117, 26.5.2007.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/8 |
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Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Hellenic Republic

(Case C-81/07) (1)

(Failure of a Member State to fulfil its obligations - Environment - Directive 2000/59/EC - Waste reception and handling plans for ship-generated waste)

(2008/C 116/13)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: G. Zavvos and K. Simonsson, Agents)

Defendant: Hellenic Republic (represented by: S. Chala and I. Pouli, Agents)

Re:

Failure of a Member State to fulfil its obligations — Failure to adopt, within the period prescribed, all the provisions necessary to comply with Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues — Commission declaration (OJ 2000 L 332, p. 81)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to develop, implement and approve waste reception and handling plans for ship-generated waste and cargo residues, the Hellenic Republic has failed to fulfil its obligations under Article 5(1) and Article 16(1) of Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues. |
| --- | --- |

1.

Declares that, by failing to develop, implement and approve waste reception and handling plans for ship-generated waste and cargo residues, the Hellenic Republic has failed to fulfil its obligations under Article 5(1) and Article 16(1) of Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues.

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

2.

Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 69, 24.3.2007.

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Judgment of the Court (Seventh Chamber) of 1 April 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-417/07) (1)

(Failure by a Member State to fulfil its obligations - Directive 2004/36/EC - Safety of third-country aircraft using Community airports - Failure to transpose within the prescribed period)

(2008/C 116/14)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: R. Vidal Puig, Agent)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent)

Re:

Failure by a Member State to fulfil its obligations — Failure to adopt, within the prescribed period, the necessary measures to comply with Directive 2004/36/EC of the European Parliament and of the Council of 21 April 2004 on the safety of third-country aircraft using Community airports (OJ 2004 L 143, p. 76)

Operative part of the judgment

The Court:

| 1. | Declares that by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2004/36/EC of the European Parliament and of the Council of 21 April 2004 on the safety of third-country aircraft using Community airports, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2004/36/EC of the European Parliament and of the Council of 21 April 2004 on the safety of third-country aircraft using Community airports, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

| 2. | Orders the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

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(1)  OJ C 247, 20.10.2007.

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Reference for a preliminary ruling from the Landesgericht Linz (Austria) lodged on 19 February 2008 — Criminal proceedings against Ernst Engelmann

(Case C-64/08)

(2008/C 116/15)

Language of the case: German

Referring court

Landesgericht Linz

Party to the main proceedings

Ernst Engelmann

Questions referred

| 1. | Is Article 43 EC (Treaty establishing the European Community, in the version of 2 October 1997, most recently amended by the Treaty of 25 April 2005 concerning the accession of the Republic of Bulgaria and Romania to the European Union (OJ 2005 L 157, p. 11)) to be interpreted as precluding a provision which provides that only public limited companies established in the territory of a particular Member State may there operate games of chance in casinos, thereby necessitating the establishment or acquisition of a company limited by shares in that Member State? |
| --- | --- |

1.

Is Article 43 EC (Treaty establishing the European Community, in the version of 2 October 1997, most recently amended by the Treaty of 25 April 2005 concerning the accession of the Republic of Bulgaria and Romania to the European Union (OJ 2005 L 157, p. 11)) to be interpreted as precluding a provision which provides that only public limited companies established in the territory of a particular Member State may there operate games of chance in casinos, thereby necessitating the establishment or acquisition of a company limited by shares in that Member State?

| 2. | Are Articles 43 EC and 49 EC to be interpreted as precluding a national monopoly on certain types of gaming, such as games of chance in casinos, if there is no consistent and systematic policy whatsoever in the Member State concerned to limit gaming, inasmuch as national licensed organisers encourage participation in gaming — such as public sports betting and lotteries — and advertise such gaming (on television and in newspapers and magazines) in a manner which goes as far as offering a cash payment for a lottery ticket shortly before the lottery draw is made (‘TOI TOI TOI — Believe in luck!’)? |
| --- | --- |

2.

Are Articles 43 EC and 49 EC to be interpreted as precluding a national monopoly on certain types of gaming, such as games of chance in casinos, if there is no consistent and systematic policy whatsoever in the Member State concerned to limit gaming, inasmuch as national licensed organisers encourage participation in gaming — such as public sports betting and lotteries — and advertise such gaming (on television and in newspapers and magazines) in a manner which goes as far as offering a cash payment for a lottery ticket shortly before the lottery draw is made (‘TOI TOI TOI — Believe in luck!’)?

| 3. | Are Articles 43 EC and 49 EC to be interpreted as precluding a provision under which all licences granting the right to operate games of chance and casinos are issued for a period of 15 years on the basis of a scheme under which Community competitors (not belonging to that Member State) are excluded from the tendering procedure? |
| --- | --- |

3.

Are Articles 43 EC and 49 EC to be interpreted as precluding a provision under which all licences granting the right to operate games of chance and casinos are issued for a period of 15 years on the basis of a scheme under which Community competitors (not belonging to that Member State) are excluded from the tendering procedure?

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Action brought on 20 February 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-70/08)

(2008/C 116/16)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and J. Enegren, 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 Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees (1), or by not ensuring that management and labour introduce the required provisions by way of agreement, or, in any case, by failing to communicate those measures to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 16(1) of that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees (1), or by not ensuring that management and labour introduce the required provisions by way of agreement, or, in any case, by failing to communicate those measures to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 16(1) 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 time-limit for transposition of Directive 2003/72/EC expired on 18 August 2006.

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(1)  OJ 2003 L 207, p. 25.

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Reference for a preliminary ruling from the Cour constitutionnelle (formerly Cour d'arbitrage), Belgium lodged on 22 February 2008 — Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française

(Case C-73/08)

(2008/C 116/17)

Language of the case: French

Referring court

Cour constitutionnelle (formerly Cour d'arbitrage)

Parties to the main proceedings

Applicants: Nicolas Bressol and Others and Céline Chaverot and Others

Defendant: Gouvernement de la Communauté française

Questions referred

| 1. | Are the first paragraph of Article 12 and Article 18(1) of the Treaty Establishing the European Community, in conjunction with Article 149(1), the second indent of Article 149(2) and the third indent of Article 150(2) thereof, to be interpreted as meaning that those provisions preclude an autonomous community in a Member State with responsibility for higher education, which is faced, as a result of a restrictive policy practised by a neighbouring Member State, with an influx of students from the neighbouring Member State in a number of programmes of study of a medical nature financed principally out of public funds, from adopting measures such as those contained in the Decree of the French Community of 16 June 2006 regulating the number of students in certain programmes in the first two years of undergraduate studies in higher education, when that community relies on valid reasons for claiming that that situation could place an excessive burden on public finances and jeopardise the quality of the education provided? |
| --- | --- |

1.

Are the first paragraph of Article 12 and Article 18(1) of the Treaty Establishing the European Community, in conjunction with Article 149(1), the second indent of Article 149(2) and the third indent of Article 150(2) thereof, to be interpreted as meaning that those provisions preclude an autonomous community in a Member State with responsibility for higher education, which is faced, as a result of a restrictive policy practised by a neighbouring Member State, with an influx of students from the neighbouring Member State in a number of programmes of study of a medical nature financed principally out of public funds, from adopting measures such as those contained in the Decree of the French Community of 16 June 2006 regulating the number of students in certain programmes in the first two years of undergraduate studies in higher education, when that community relies on valid reasons for claiming that that situation could place an excessive burden on public finances and jeopardise the quality of the education provided?

| 2. | Would the answer to the first question be different if that community could show that the effect of that situation is that too few students residing in the community in question obtain diplomas for there to be, over a long period, a sufficient number of qualified medical personnel to ensure the quality of the public health system in that community? |
| --- | --- |

2.

Would the answer to the first question be different if that community could show that the effect of that situation is that too few students residing in the community in question obtain diplomas for there to be, over a long period, a sufficient number of qualified medical personnel to ensure the quality of the public health system in that community?

| 3. | Would the answer to the first question be different if that community, having regard to the last part of Article 149(1) of the Treaty and Article 13(2)(c) of the International Covenant on Economic, Social and Cultural Rights, which contains a standstill obligation, chooses to maintain wide and democratic access to quality higher education for the population of that community? |
| --- | --- |

3.

Would the answer to the first question be different if that community, having regard to the last part of Article 149(1) of the Treaty and Article 13(2)(c) of the International Covenant on Economic, Social and Cultural Rights, which contains a standstill obligation, chooses to maintain wide and democratic access to quality higher education for the population of that community?

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Reference for a preliminary ruling from the Nógrád Megyei Bíróság (Republic of Hungary) lodged on 30 January 2008 — PARAT Automotive Cabrio Textiltetőket Gyártó Kft. v Adó- és Pénzügyi Elenőrzési Hivatal Hatósági Főosztály Észak-magyarországi Kihelyezett Hatósági Osztály

(Case C-74/08)

(2008/C 116/18)

Language of the case: Hungarian

Referring court

Nógrád Megyei Bíróság

Parties to the main proceedings

Applicant: PARAT Automotive Cabrio Textiltetőket Gyártó Kft.

Defendant: Adó- és Pénzügyi Elenőrzési Hivatal Hatósági Főosztály Észak-magyarországi Kihelyezett Hatósági Osztály

Questions referred

| 1. | On 1 May 2004, the date of accession of the Republic of Hungary to the European Union, were the rules laid down in Article 38(1)(a) of the általános forgalmi adóról szóló 1992. évi LXXIV. Törvény (Law LXXIV of 1992 concerning turnover tax; ‘the Áfa.tv’) compatible with Article 17 of Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (‘the Sixth Directive’)? |
| --- | --- |

1.

On 1 May 2004, the date of accession of the Republic of Hungary to the European Union, were the rules laid down in Article 38(1)(a) of the általános forgalmi adóról szóló 1992. évi LXXIV. Törvény (Law LXXIV of 1992 concerning turnover tax; ‘the Áfa.tv’) compatible with Article 17 of Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (‘the Sixth Directive’)?

| 2. | If the answer is in the negative, may the applicant rely directly on Article 17 of the Sixth Directive when exercising the right to deduct, rather than on Article 38(1)(a) of the Áfa.tv? |
| --- | --- |

2.

If the answer is in the negative, may the applicant rely directly on Article 17 of the Sixth Directive when exercising the right to deduct, rather than on Article 38(1)(a) of the Áfa.tv?

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(1)  OJ L 145, 13.6.1977, p. 1.

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Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Amministrazione delle Finanze, Agenzia delle Entrate v Paint Graphos Scarl

(Case C-78/08)

(2008/C 116/19)

Language of the case: Italian

Referring court

The Corte Suprema di Cassazione

Parties to the main proceedings

Appellants: Amministrazione delle Finanze, Agenzia delle Entrate

Respondent: Paint Graphos Scarl

Questions referred

| 1. | Are the tax relief measures for cooperative societies, pursuant to Articles 10, 11, 12, 13 and 14 of Presidential Decree No 601 of 1973, compatible with the rules on competition and, in particular, are they classifiable as state aid within the meaning of Article 87 EC, especially given that the system of monitoring and for the prevention of abuse provided for under Legislative Decree No 1577 of 1947 is inadequate? |
| --- | --- |

1.

Are the tax relief measures for cooperative societies, pursuant to Articles 10, 11, 12, 13 and 14 of Presidential Decree No 601 of 1973, compatible with the rules on competition and, in particular, are they classifiable as state aid within the meaning of Article 87 EC, especially given that the system of monitoring and for the prevention of abuse provided for under Legislative Decree No 1577 of 1947 is inadequate?

| 2. | In particular, for the purposes of determining whether the tax relief measures at issue are classifiable as state aid, can those measures be regarded as proportionate in relation to the objectives of cooperative undertakings; can the decision on proportionality take into consideration not only the individual measure but also the advantage conferred by the measures as a whole, with the resulting distortion of competition? |
| --- | --- |

2.

In particular, for the purposes of determining whether the tax relief measures at issue are classifiable as state aid, can those measures be regarded as proportionate in relation to the objectives of cooperative undertakings; can the decision on proportionality take into consideration not only the individual measure but also the advantage conferred by the measures as a whole, with the resulting distortion of competition?

| 3. | For the purposes of the answer to the preceding questions, taking account of the fact that the system of monitoring has been seriously and further undermined by the reform of company law, above all in relation to cooperatives that are predominantly rather than fully mutual, under Law No 311 of 2004, and regardless of whether the tax relief measures in question can be classified as state aid, can the use of the legal form of a cooperative society, even in cases not involving fraud or deception, be regarded as an abuse of law, where that form is used solely or predominantly in order to achieve a tax saving? |
| --- | --- |

3.

For the purposes of the answer to the preceding questions, taking account of the fact that the system of monitoring has been seriously and further undermined by the reform of company law, above all in relation to cooperatives that are predominantly rather than fully mutual, under Law No 311 of 2004, and regardless of whether the tax relief measures in question can be classified as state aid, can the use of the legal form of a cooperative society, even in cases not involving fraud or deception, be regarded as an abuse of law, where that form is used solely or predominantly in order to achieve a tax saving?

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Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Adige Carni Scrl, in liquidation v Ministero dell' Economia e delle Finanze, Agenzia delle Entrate

(Case C-79/08)

(2008/C 116/20)

Language of the case: Italian

Referring court

The Corte Suprema di Cassazione

Parties to the main proceedings

Appellant: Adige Carni Scrl, in liquidation

Respondents: Ministero dell' Economia e delle Finanze, Agenzia delle Entrate

Questions referred

| 1. | Are the tax relief measures for cooperative societies, pursuant to Articles 10, 11, 12, 13 and 14 of Presidential Decree No 601 of 1973, compatible with the rules on competition and, in particular, are they classifiable as state aid within the meaning of Article 87 EC, especially given that the system of monitoring and for the prevention of abuse provided for under Legislative Decree No 1577 of 1947 is inadequate? |
| --- | --- |

1.

Are the tax relief measures for cooperative societies, pursuant to Articles 10, 11, 12, 13 and 14 of Presidential Decree No 601 of 1973, compatible with the rules on competition and, in particular, are they classifiable as state aid within the meaning of Article 87 EC, especially given that the system of monitoring and for the prevention of abuse provided for under Legislative Decree No 1577 of 1947 is inadequate?

| 2. | In particular, for the purposes of determining whether the tax relief measures at issue are classifiable as state aid, can those measures be regarded as proportionate in relation to the objectives of cooperative undertakings; can the decision on proportionality take into consideration not only the individual measure but also the advantage conferred by the measures as a whole, with the resulting distortion of competition? |
| --- | --- |

2.

In particular, for the purposes of determining whether the tax relief measures at issue are classifiable as state aid, can those measures be regarded as proportionate in relation to the objectives of cooperative undertakings; can the decision on proportionality take into consideration not only the individual measure but also the advantage conferred by the measures as a whole, with the resulting distortion of competition?

| 3. | For the purposes of the answer to the preceding questions, taking account of the fact that the system of monitoring has been seriously and further undermined by the reform of company law, above all in relation to cooperatives that are predominantly rather than fully mutual, under Law No 311 of 2004, and regardless of whether the tax relief measures in question can be classified as state aid, can the use of the legal form of a cooperative society, even in cases not involving fraud or deception, be regarded as an abuse of law, where that form is used solely or predominantly in order to achieve a tax saving? |
| --- | --- |

3.

For the purposes of the answer to the preceding questions, taking account of the fact that the system of monitoring has been seriously and further undermined by the reform of company law, above all in relation to cooperatives that are predominantly rather than fully mutual, under Law No 311 of 2004, and regardless of whether the tax relief measures in question can be classified as state aid, can the use of the legal form of a cooperative society, even in cases not involving fraud or deception, be regarded as an abuse of law, where that form is used solely or predominantly in order to achieve a tax saving?

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/12 |
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Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Ministero delle Finanze v Michele Franchetto

(Case C-80/08)

(2008/C 116/21)

Language of the case: Italian

Referring court

La Corte Suprema di Cassazione

Parties to the main proceedings

Appellant: Ministero delle Finanze

Respondent: Michele Franchetto

Questions referred

| 1. | Are the tax relief measures for cooperative societies, pursuant to Articles 10, 11, 12, 13 and 14 of Presidential Decree No 601 of 1973, compatible with the rules on competition and, in particular, are they classifiable as state aid within the meaning of Article 87 EC, especially given that the system of monitoring and for the prevention of abuse provided for under Legislative Decree No 1577 of 1947 is inadequate? |
| --- | --- |

1.

Are the tax relief measures for cooperative societies, pursuant to Articles 10, 11, 12, 13 and 14 of Presidential Decree No 601 of 1973, compatible with the rules on competition and, in particular, are they classifiable as state aid within the meaning of Article 87 EC, especially given that the system of monitoring and for the prevention of abuse provided for under Legislative Decree No 1577 of 1947 is inadequate?

| 2. | In particular, for the purposes of determining whether the tax relief measures at issue are classifiable as state aid, can those measures be regarded as proportionate in relation to the objectives of cooperative undertakings; can the decision on proportionality take into consideration not only the individual measure but also the advantage conferred by the measures as a whole, with the resulting distortion of competition? |
| --- | --- |

2.

In particular, for the purposes of determining whether the tax relief measures at issue are classifiable as state aid, can those measures be regarded as proportionate in relation to the objectives of cooperative undertakings; can the decision on proportionality take into consideration not only the individual measure but also the advantage conferred by the measures as a whole, with the resulting distortion of competition?

| 3. | For the purposes of the answer to the preceding questions, taking account of the fact that the system of monitoring has been seriously and further undermined by the reform of company law, above all in relation to cooperatives that are predominantly rather than fully mutual, under Law No 311 of 2004, and regardless of whether the tax relief measures in question can be classified as state aid, can the use of the legal form of a cooperative society, even in cases not involving fraud or deception, be regarded as an abuse of law, where that form is used solely or predominantly in order to achieve a tax saving? |
| --- | --- |

3.

For the purposes of the answer to the preceding questions, taking account of the fact that the system of monitoring has been seriously and further undermined by the reform of company law, above all in relation to cooperatives that are predominantly rather than fully mutual, under Law No 311 of 2004, and regardless of whether the tax relief measures in question can be classified as state aid, can the use of the legal form of a cooperative society, even in cases not involving fraud or deception, be regarded as an abuse of law, where that form is used solely or predominantly in order to achieve a tax saving?

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/12 |
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9.5.2008

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Official Journal of the European Union

C 116/12

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Appeal brought on 27 February 2008 by the Commission of the European Communities against the judgment of the Court of First Instance (Second Chamber, Extended Composition) delivered on 12 December 2007 in Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 Ireland and Others v Commission

(Case C-89/08 P)

(2008/C 116/22)

Languages of the case: French, English and Italian

Parties

Appellant: Commission of the European Communities (represented by: V. Di Bucci and N. Khan, Agents)

Other parties to the proceedings: Ireland, French Republic, Italian Republic, Eurallumina SpA, Aughinish Alumina Ltd

Form of order sought

| — | set aside the judgment of the Court of First Instance of the European Communities (Second Chamber, Extended Composition) of 12 December 2007 in Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 Ireland and Others v Commission; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities (Second Chamber, Extended Composition) of 12 December 2007 in Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 Ireland and Others v Commission;

| — | refer the cases back to the Court of First Instance for re-examination; |
| --- | --- |

—

refer the cases back to the Court of First Instance for re-examination;

| — | reserve the costs at both instances. |
| --- | --- |

—

reserve the costs at both instances.

Pleas in law and main arguments

The appellant relies on six pleas in law in support of its appeal, alleging, on the one hand, the lack of jurisdiction of the Court of First Instance and procedural irregularities adversely affecting the interests of the Commission (first two pleas in law) and, on the other, breach of Community law in the area of State aid (third to sixth pleas).

By its first plea, which has two parts, the appellant alleges the the Court of First Instance breached the principle that the subject-matter of an action is delimited in the application initiating proceedings and that it ruled ultra petita in so far as, at first instance, none of the appellants raised a plea in law alleging infringement of Article 1(b)(v) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (1). In addition, the plea raised of its own motion by the Court of First Instance is not a plea alleging failure to state reasons, which the Court may raise of its own motion, but a plea going to the substance, which is not based on the factual material included in the case-file.

By its second plea, the appellant alleges that the Court of First Instance breached the general principles of audi alteram partem and respect for the rights of the defence, since it raised of its own motion a plea which had never been argued, nor even touched upon, in the course of the proceedings at first instance.

By its third plea, which is comprised of three parts, the appellant claims that the Court of First Instance infringed Articles 230 EC and 253 EC in conjunction with Article 88 EC and the rules governing procedure for State aid cases.

In that regard, the appellant claims, first, that the classification of the disputed measures as ‘new’ aid cannot be called into question in an action brought against the final decision of the Commission, as the Member States and the other interested parties could have contested, in relation to that point, the decision to open the formal investigation procedure. As the decision to open that procedure was not contested, it became definitive and, the final decision therefore constitutes, on that point, a merely confirmatory act which is not actionable.

The appellant maintains, second, that the legality of an act should be assessed by reference to the factual and legal situation existing at the date on which the act was adopted. In the present case, nothing in the case-file suggests that the disputed national measures did not constitute aid at the time when they were introduced.

Third, the appellant claims that, in any case, it is for the Member State and, where appropriate, for interested third parties — and not for the Commission — to prove that the aid is existing. In the absence of such proof, the Commission cannot be required to provide a statement of reasons in that regard.

By its fourth plea, the appellant alleges infringement of Article 253 EC, in conjunction with Articles 87(1) EC and 88(1) EC, in so far as the Court of First Instance found a failure to state reasons in respect of the applicability of Article 1(b)(v) of Regulation No 659/1999, even though that article can apply only to measures which did not constitute aid at the time of their coming into force and that the Commission, in the decision which was contested at first instance, showed that the disputed measures have constituted aid ever since they were introduced. Moreover, none of the parties had shown that the common market had evolved so that measures which did not constitute aid at the time they came into force would become aid thereafter.

By its fifth plea, the appellant alleges infringement of the same rules, and of Article 1(b)(v) of Regulation No 659/1999, in so far as the Court of First Instance imposed a specific obligation on the Commission to state reasons as regards the application of that article on account of statements made by the Council and the Commission. However, the appellant has shown, unequivocally, that in the light of the settled case-law of the Court, such statements cannot have any impact on the assessment of national measures regarding Community rules on State aid, the concepts of aid and existing aid being strictly objective concepts.

By its sixth plea, the appellant claims, finally, that the Court of First Instance infringed Articles 88(1) and (2), and 253 EC, and Articles 4(4) and 6(1) of Regulation 659/1999 in so far as it annulled the decision of the Commission in its entirety, including that part of the decision which extended the formal investigation period beyond 31 December 2003. However, the Court of First Instance in no way explained how the alleged lack of reasoning in relation to the application of Article 1(b)(v) of Regulation No 659/1999 was sufficient to invalidate that aspect of the decision. Moreover, the Court of First Instance failed to have regard to the principle that, where a Member State does not provide any evidence to suggest that the disputed measures constitute existing aid, the Commission must treat those measures as new aid, within the procedural context laid down in Article 88(2) and (3) EC.

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(1)  OJ 1999 L 83, p. 1.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/13 |
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Official Journal of the European Union

C 116/13

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Action brought on 28 February 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-92/08)

(2008/C 116/23)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and J. Enegren, Agents)

Defendant: Kingdom of Belgium (represented by: D. Haven, Agent)

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees (1), or by not ensuring that management and labour introduce the required provisions by way of agreement, or, in any case, by failing to communicate those measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under Article 16(1) of that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees (1), or by not ensuring that management and labour introduce the required provisions by way of agreement, or, in any case, by failing to communicate those measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under Article 16(1) 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 time-limit for transposition of Directive 2003/72/EC expired on 18 August 2006.

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(1)  OJ 2003 L 207, p. 25.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/14 |
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Official Journal of the European Union

C 116/14

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Action brought on 29 February 2008 — Commission of the European Communities v Grand-Duchy of Luxembourg

(Case C-95/08)

(2008/C 116/24)

Language of the case: French

Parties

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

Defendant: Grand-Duchy of Luxembourg

Form of order sought

| — | Declare that, by not putting in place the authorities able to verify the implementation of the principles of good laboratory practice (GLP), the Grand-Duchy of Luxembourg has failed to fulfil its obligations under Article 3 of Directive 2004/9/EC of the European Parliament and of the Council of 11 February 2004 on the inspection and verification of good laboratory practice (GLP) (1); |
| --- | --- |

—

Declare that, by not putting in place the authorities able to verify the implementation of the principles of good laboratory practice (GLP), the Grand-Duchy of Luxembourg has failed to fulfil its obligations under Article 3 of Directive 2004/9/EC of the European Parliament and of the Council of 11 February 2004 on the inspection and verification of good laboratory practice (GLP) (1);

| — | 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 time-limit for the implementation of Directive 2004/9/EC expired on 12 March 2004. The defendant is still not equipped with authorities having the competences necessary to inspect the laboratories and to audit the studies carried out by those laboratories to assess compliance with good laboratory practice.

---

(1)  Directive 2004/9/EC of the European Parliament and of the Council of 11 February 2004 on the inspection and verification of good laboratory practice (GLP) (OJ 2004 L 50, p. 28).

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/14 |
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C 116/14

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Reference for a preliminary ruling from the Cour de Cassation, Luxembourg lodged on 5 March 2008 — Audiolux S.A., BIP Investment Partners SA, Jean-Paul Felten, Joseph Weyland, Luxiprivilège SA, Foyer SA, Investas ASBL, Claudie Stein-Lambert, Christiane Worre-Lambert, Baron Antoine de Schorlemer, Jacques Funck, Marc Meyer et Jean Petitdidier v Groupe Bruxelles Lambert SA (GBL), RTL Group SA, Juan Abello Gallo, Didier Bellens, André Desmarais, Gérald Frère, Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin Taylor, Bertelsmann AG, Siegfried Luther, Thomas Middelhoff, Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ Finanzierungs-GmbH, Westdeutsche Allgemeine Zeitungsverlagsgesellschaft E. Brost & J. Funke GmbH & Co (WAZ) — Interveners: Dexia Luxpart SA e.a.

(Case C-101/08)

(2008/C 116/25)

Language of the case: French

Referring court

Cour de Cassation

Parties to the main proceedings

Applicants: Audiolux S.A., BIP Investment Partners SA, Jean-Paul Felten, Joseph Weyland, Luxiprivilège SA, Foyer SA, Investas ASBL, Claudie Stein-Lambert, Christiane Worre-Lambert, Baron Antoine de Schorlemer, Jacques Funck, Marc Meyer et Jean Petitdidier

Defendants: Groupe Bruxelles Lambert (GBL), RTL Group SA, Juan Abello Gallo, Didier Bellens, André Desmarais, Gérald Frère, Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin Taylor, Bertelsmann AG, Siegfried Luther, Thomas Middelhoff, Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ Finanzierungs-GmbH, Westdeutsche Allgemeine Zeitungsverlagsgesellschaft E. Brost & J. Funke GmbH & Co (WAZ)

Questions referred

| 1. | Are the references to the equality of shareholders, and more specifically, to the protection of minorities






  (a) | in Articles 20 and 42 of the Second Company Directive 77/91/EC of 13 December 1976 (1); |
| --- | --- | --- |

1.

Are the references to the equality of shareholders, and more specifically, to the protection of minorities

(a)

in Articles 20 and 42 of the Second Company Directive 77/91/EC of 13 December 1976 (1);

| (b) | in the Third General Principle and Supplementary Principle 17 of the Commission Recommendation of 25 July 1977 concerning a European code of conduct relating to transactions in transferable securities (2); |
| --- | --- |

(b)

in the Third General Principle and Supplementary Principle 17 of the Commission Recommendation of 25 July 1977 concerning a European code of conduct relating to transactions in transferable securities (2);

| (c) | in Schedule C, point 2(A) annexed to Council Directive 79/279/EEC of 5 March 1979 coordinating the conditions for the admission of securities to official stock exchange listing and carried over in the consolidating directive of 28 May 2001 (3); |
| --- | --- |

(c)

in Schedule C, point 2(A) annexed to Council Directive 79/279/EEC of 5 March 1979 coordinating the conditions for the admission of securities to official stock exchange listing and carried over in the consolidating directive of 28 May 2001 (3);

| (d) | in Article 3(1)(a) of Directive 2004/25/EC of 21 April 2004 on takeover bids, read together with the eight recital in the preamble thereto (4) |
| --- | --- |

(d)

in Article 3(1)(a) of Directive 2004/25/EC of 21 April 2004 on takeover bids, read together with the eight recital in the preamble thereto (4)

manifestations of a general principle of Community law and did that general principle exist as such before the adoption of Directive 2004/25/EC?

| 2. | Does that general principle of Community law apply only to the relations between a company and its shareholders or, on the contrary, does it also apply to the relations between majority shareholders exercising or acquiring control of a company and the minority shareholders of that company? |
| --- | --- |

2.

Does that general principle of Community law apply only to the relations between a company and its shareholders or, on the contrary, does it also apply to the relations between majority shareholders exercising or acquiring control of a company and the minority shareholders of that company?

| 3. | If the answer to the foregoing two questions is in the affirmative, must that general principle of Community law be regarded, having regard to the development in time of the references referred to in Question 1, as having existed and being binding on the relations between majority and minority shareholders within the meaning of Question 2 before the entry into force of the abovementioned Directive 2004/25/EC and before the facts at issue, which occurred during the first half of 2001? |
| --- | --- |

3.

If the answer to the foregoing two questions is in the affirmative, must that general principle of Community law be regarded, having regard to the development in time of the references referred to in Question 1, as having existed and being binding on the relations between majority and minority shareholders within the meaning of Question 2 before the entry into force of the abovementioned Directive 2004/25/EC and before the facts at issue, which occurred during the first half of 2001?

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(1)  Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (OJ 1977 L 26, p. 1).

(2)  OJ 1977 L 212 p. 37.

(3)  OJ 1979 L 66, p. 21.

(4)  OJ 2004 L 142, p. 12.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/15 |
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Action brought on 6 March 2008 — Commission of the European Communities v Portuguese Republic

(Case C-105/08)

(2008/C 116/26)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by R. Lyal and M. Afonso, Agents)

Defendant: Portuguese Republic

Form of order sought

| — | A declaration that, by taxing payment of interest abroad more heavily than payment of interest to entities resident in Portuguese territory, the Portuguese Republic imposes restrictions on the provision of mortgage and other loan services by financial institutions resident in other Member States and in States party to the EEA Agreement, and it has therefore failed to fulfil its obligations under Articles 49 EC and 56 EC and Articles 36 and 40 of the EEA Agreement; |
| --- | --- |

—

A declaration that, by taxing payment of interest abroad more heavily than payment of interest to entities resident in Portuguese territory, the Portuguese Republic imposes restrictions on the provision of mortgage and other loan services by financial institutions resident in other Member States and in States party to the EEA Agreement, and it has therefore failed to fulfil its obligations under Articles 49 EC and 56 EC and Articles 36 and 40 of the EEA Agreement;

| — | an order that the Portuguese Republic should pay the costs. |
| --- | --- |

—

an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The Código do Imposto sobre o Rendimento das Pessoas Colectivas (CIRC) (the Corporation Tax Code) provides for different tax treatment of income relating to interest paid to financial institutions, depending on whether they are resident or not in Portuguese territory.

The taxation applicable in Portugal to interest paid to non-resident financial institutions leads to a far heavier real tax burden than that borne by resident taxpayers in respect of similar income. The national legislation thus dissuades non-resident financial institutions from offering their services on the Portuguese market, in particular mortgage loan services, and prevents persons resident in Portugal from gaining access to the loan services that might be offered them by those institutions. Such legislation therefore constitutes a restriction of the fundamental freedoms enshrined in Articles 49 EC and 56 EC and in the corresponding provisions of the EEA Agreement.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/15 |
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C 116/15

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Action brought on 10 March 2008 — Commission of the European Communities v Hellenic Republic

(Case C-109/08)

(2008/C 116/27)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: Maria Patakia)

Defendant: Hellenic Republic

Form of order sought

| — | declare that, by failing to take the necessary measures to comply with the judgment delivered by the Court of Justice on 26 October 2006 in Case C-65/05, the Hellenic Republic has failed to fulfil its obligations under Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive 98/34/EC (1); |
| --- | --- |

—

declare that, by failing to take the necessary measures to comply with the judgment delivered by the Court of Justice on 26 October 2006 in Case C-65/05, the Hellenic Republic has failed to fulfil its obligations under Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive 98/34/EC (1);

| — | order the Hellenic Republic to pay to the Commission a proposed penalty payment of EUR 31 798,80 for each day of delay in complying with the judgment which was delivered in Case C-65/05, from the day when judgment is delivered in the present case until the day when the judgment delivered in Case C-65/05 has been complied with; |
| --- | --- |

—

order the Hellenic Republic to pay to the Commission a proposed penalty payment of EUR 31 798,80 for each day of delay in complying with the judgment which was delivered in Case C-65/05, from the day when judgment is delivered in the present case until the day when the judgment delivered in Case C-65/05 has been complied with;

| — | order the Hellenic Republic to pay to the Commission a daily lump sum of EUR 9 636, from the day when judgment was delivered in Case C-65/05 until the date on which judgment is delivered in the present case or, if earlier, the date on which the judgment in Case C-65/05 is complied with; |
| --- | --- |

—

order the Hellenic Republic to pay to the Commission a daily lump sum of EUR 9 636, from the day when judgment was delivered in Case C-65/05 until the date on which judgment is delivered in the present case or, if earlier, the date on which the judgment in Case C-65/05 is complied with;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

| 1. | On 26 October 2006 the Court of Justice of the European Communities delivered a judgment in which it declared as follows: | by inserting into Articles 2(1) and 3 of Law No 3037/2002 the prohibition, subject to the criminal and administrative penalties set out in Articles 4 and 5 of the same law, on the installation and operation of all electrical, electromechanical and electronic games, including all computer games, on all public or private premises apart from casinos, the Hellenic Republic had failed to fulfil its obligations under Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive 98/34/CE of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998. |
| --- | --- | --- |

1.

On 26 October 2006 the Court of Justice of the European Communities delivered a judgment in which it declared as follows:

by inserting into Articles 2(1) and 3 of Law No 3037/2002 the prohibition, subject to the criminal and administrative penalties set out in Articles 4 and 5 of the same law, on the installation and operation of all electrical, electromechanical and electronic games, including all computer games, on all public or private premises apart from casinos, the Hellenic Republic had failed to fulfil its obligations under Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive 98/34/CE of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998.

| 2. | After calling upon the Hellenic Republic to inform it of any regulatory measures to comply with the Court's judgment, the Commission sent it a letter of formal notice and a reasoned opinion, in accordance with Article 228 EC. The Hellenic Republic replied to neither. |
| --- | --- |

2.

After calling upon the Hellenic Republic to inform it of any regulatory measures to comply with the Court's judgment, the Commission sent it a letter of formal notice and a reasoned opinion, in accordance with Article 228 EC. The Hellenic Republic replied to neither.

| 3. | Consequently, the Commission recorded that the Hellenic Republic had failed to take the necessary measures to comply with the Court's judgment and decided to bring proceedings against it before the Court in accordance with Article 228 EC. |
| --- | --- |

3.

Consequently, the Commission recorded that the Hellenic Republic had failed to take the necessary measures to comply with the Court's judgment and decided to bring proceedings against it before the Court in accordance with Article 228 EC.

| 4. | By its action the Commission, first, asks the Court to declare that the Hellenic Republic has not complied with the judgment delivered by the Court on 26 October 2006 in Case C-65/05 and has therefore failed to fulfil its obligations under Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive 98/34/EC and, second, proposes that the Court order the Hellenic Republic to pay to the Commission:






  — | a penalty payment of EUR 31 798,80 for each day of delay in complying with the judgment which was delivered in Case C-65/05, from the day when judgment is delivered in the present case until the day when the judgment delivered in Case C-65/05 has been complied with; |
| --- | --- | --- |

4.

By its action the Commission, first, asks the Court to declare that the Hellenic Republic has not complied with the judgment delivered by the Court on 26 October 2006 in Case C-65/05 and has therefore failed to fulfil its obligations under Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive 98/34/EC and, second, proposes that the Court order the Hellenic Republic to pay to the Commission:

—

a penalty payment of EUR 31 798,80 for each day of delay in complying with the judgment which was delivered in Case C-65/05, from the day when judgment is delivered in the present case until the day when the judgment delivered in Case C-65/05 has been complied with;

| — | a daily lump sum of EUR 9 636, from the day when judgment was delivered in Case C-65/05 until the date on which judgment is delivered in the present case or, if earlier, the date on which the judgment in Case C-65/05 is complied with. |
| --- | --- |

—

a daily lump sum of EUR 9 636, from the day when judgment was delivered in Case C-65/05 until the date on which judgment is delivered in the present case or, if earlier, the date on which the judgment in Case C-65/05 is complied with.

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(1)  Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ L 204, 21.7.1998, p. 37).

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/16 |
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Reference for a preliminary ruling from the Högsta Domstolen (Sweden) lodged on 12 March 2008 — SCT Industri Aktiebolag i likvidation v Alpenblume Aktiebolag

(Case C-111/08)

(2008/C 116/28)

Language of the case: Swedish

Referring court

Högsta Domstolen

Parties to the main proceedings

Applicant: SCT Industri Aktiebolag i likvidation

Defendant: Alpenblume Aktiebolag

Question referred

Is the exception in the Brussels I Regulation regarding insolvency, compositions and analogous proceedings to be interpreted as meaning that it covers a decision given by a court in one Member State (A) regarding registration of ownership of shares in a company having its registered office in Member State A, which ownership is transferred by the liquidator to a company in another Member State (B), where the court based its decision on the fact that Member State A, in the absence of an agreement between the States regarding mutual recognition of insolvency proceedings, does not recognise the liquidator's powers of disposal over property in Member State A?

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/17 |
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Action brought on 13 March 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-113/08)

(2008/C 116/29)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: M.A. Rabinal Suárez and P. Dejmek, Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/49/EC (1) of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions and in particular the following: Article 17, Article 72, Article 22 to 25, Article 30, Article 33, Article 35, Article 40, Article 41, Article 43, Article 44, Article 50, Annexes I and II, Annex VII, and, in any event, by failing to communicate those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under the directive. |
| --- | --- |

—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/49/EC (1) of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions and in particular the following: Article 17, Article 72, Article 22 to 25, Article 30, Article 33, Article 35, Article 40, Article 41, Article 43, Article 44, Article 50, Annexes I and II, Annex VII, and, in any event, by failing to communicate those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under the directive.

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

—

order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2006/49/EC into national law expired on 31 December 2006.

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(1)  OJ 2006 L 177, p. 201.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/17 |
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Action brought on 17 March 2008 — Commission of the European Communities v Hellenic Republic

(Case C-117/08)

(2008/C 116/30)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Kontou-Durande and L. Pignataro)

Defendant: Hellenic Republic

Form of order sought

| — | declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/62/EC (1) of 30 September 2005 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards Community standards and specifications relating to a quality system for blood establishments, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/62/EC (1) of 30 September 2005 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards Community standards and specifications relating to a quality system for blood establishments, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of Directive 2005/62 into domestic law expired on 31 August 2006.

---

(1)  OJ L 256, 1.10.2005, p. 41.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/17 |
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Action brought on 19 March 2008 — Commission of the European Communities v Hellenic Republic

(Case C-121/08)

(2008/C 116/31)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Kontou-Durande and L. Pignataro)

Defendant: Hellenic Republic

Form of order sought

| — | declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/61/EC (1) of 30 September 2005 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards traceability requirements and notification of serious adverse reactions and events, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/61/EC (1) of 30 September 2005 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards traceability requirements and notification of serious adverse reactions and events, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of Directive 2005/61 into domestic law expired on 31 August 2006.

---

(1)  OJ L 256, 1.10.2005, p. 32.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/18 |
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Action brought on 19 mars 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-122/08)

(2008/C 116/32)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: Mr M. Wilderspin, Agent)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claim that the Court should:

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (1) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, or in any event by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (1) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, or in any event by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive;

| — | order United Kingdom of Great Britain and Northern Ireland to pay the costs. |
| --- | --- |

—

order United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 30 April 2006.

---

(1)  OJ L 158, p. 77.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/18 |
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Reference for a preliminary ruling from the Rechtbank Amsterdam lodged on 21 March 2008 — Dominic Wolzenburg

(Case C-123/08)

(2008/C 116/33)

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Party to the main proceedings

Applicant: Dominic Wolzenburg

Questions referred

| 1. | Should persons who are staying in or are residents of the executing Member State, as referred to in Article 4(6) of the Framework Decision (1), be taken to mean persons who do not have the nationality of the executing Member State, but do have the nationality of another Member State and are lawfully resident in the executing Member State pursuant to Article 18(1) EC, regardless of the duration of that lawful residence? |
| --- | --- |

1.

Should persons who are staying in or are residents of the executing Member State, as referred to in Article 4(6) of the Framework Decision (1), be taken to mean persons who do not have the nationality of the executing Member State, but do have the nationality of another Member State and are lawfully resident in the executing Member State pursuant to Article 18(1) EC, regardless of the duration of that lawful residence?

| 2a. | If the answer to question 1 is negative, should the terms referred to in that question be interpreted as meaning that they concern persons who do not have the nationality of the executing Member State, but do have the nationality of another Member State and, prior to their arrest under a European arrest warrant, have been lawfully resident in the executing Member State pursuant to Article 18(1) EC for at least a certain period? |
| --- | --- |

2a.

If the answer to question 1 is negative, should the terms referred to in that question be interpreted as meaning that they concern persons who do not have the nationality of the executing Member State, but do have the nationality of another Member State and, prior to their arrest under a European arrest warrant, have been lawfully resident in the executing Member State pursuant to Article 18(1) EC for at least a certain period?

| 2b. | If the answer to question 2a is affirmative, what requirements must lawful residence meet? |
| --- | --- |

2b.

If the answer to question 2a is affirmative, what requirements must lawful residence meet?

| 3. | If the answer to question 2a is affirmative, may the executing Member State lay down, in addition to a requirement concerning the duration of lawful residence, supplementary administrative requirements, such as possession of a permanent residence permit? |
| --- | --- |

3.

If the answer to question 2a is affirmative, may the executing Member State lay down, in addition to a requirement concerning the duration of lawful residence, supplementary administrative requirements, such as possession of a permanent residence permit?

| 4. | Does a national measure specifying the conditions under which a European arrest warrant issued with a view to the enforcement of a custodial sentence is rejected by the judicial authority of the executing Member State come within the (material) scope of the EC Treaty? |
| --- | --- |

4.

Does a national measure specifying the conditions under which a European arrest warrant issued with a view to the enforcement of a custodial sentence is rejected by the judicial authority of the executing Member State come within the (material) scope of the EC Treaty?

| 5. | Given that:






  — | Article 6(2) and (5) OLW (2) lays down rules affording persons who do not have Netherlands nationality, but are in possession of a permanent Netherlands residence permit, equal treatment with Netherlands nationals
  and |
| --- | --- | --- |

5.

Given that:

—

Article 6(2) and (5) OLW (2) lays down rules affording persons who do not have Netherlands nationality, but are in possession of a permanent Netherlands residence permit, equal treatment with Netherlands nationals

and

| — | those rules require refusal to surrender such classes of persons if the EAW concerns the enforcement of an irreversible custodial sentence, |
| --- | --- |

—

those rules require refusal to surrender such classes of persons if the EAW concerns the enforcement of an irreversible custodial sentence,

does Article 6(2) and (5) OLW result in discrimination prohibited by Article 12 EC, in that the aforementioned equal treatment does not apply equally to nationals of other Member States with a right of residence under Article 18(1) EC who will not forfeit that right of residence as a result of the imposition on them of an irreversible custodial sentence, but who are not in possession of a permanent Netherlands residence permit?

---

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

(2)  Overleveringswet (Staatsblad 2004, 195, as subsequently amended).

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/19 |
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Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 25 March 2008 — Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska v Minister for Justice, Equality and Law Reform

(Case C-127/08)

(2008/C 116/34)

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicants: Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska

Defendant: Minister for Justice, Equality and Law Reform

Questions referred

| 1. | Does Directive 2004/38/EC (1) permit a Member State to have a general requirement that a non-EU national spouse of a Union citizen must have been lawfully resident in another Member State prior to coming to the host Member State in order that he or she be entitled to benefit from the provisions of Directive 2004/38/EC. |
| --- | --- |

1.

Does Directive 2004/38/EC (1) permit a Member State to have a general requirement that a non-EU national spouse of a Union citizen must have been lawfully resident in another Member State prior to coming to the host Member State in order that he or she be entitled to benefit from the provisions of Directive 2004/38/EC.

| 2. | Does article 3(1) of Directive 2004/38/EC include within its scope of application a non-EU national who is:






  (i) | a spouse of a Union citizen who resides in the host Member State and satisfies a condition in article 7(1)(a), (b) or (c) and |
| --- | --- | --- |

2.

Does article 3(1) of Directive 2004/38/EC include within its scope of application a non-EU national who is:

(i)

a spouse of a Union citizen who resides in the host Member State and satisfies a condition in article 7(1)(a), (b) or (c) and

| (ii) | is then residing in the host Member State with the Union citizen as his/her spouse |
| --- | --- |

(ii)

is then residing in the host Member State with the Union citizen as his/her spouse

irrespective of when or where their marriage took place or when or how the non-EU national entered the host Member State.

| 3. | If the answer to the preceding question is in the negative does article 3(1) of Directive 2004/38/EC include within its scope of application a non-EU national spouse of a Union citizen who is:






  (i) | a spouse of a Union citizen who resides in the host Member State and satisfies a condition in article 7(1)(a), (b) or (c); and |
| --- | --- | --- |

3.

If the answer to the preceding question is in the negative does article 3(1) of Directive 2004/38/EC include within its scope of application a non-EU national spouse of a Union citizen who is:

(i)

a spouse of a Union citizen who resides in the host Member State and satisfies a condition in article 7(1)(a), (b) or (c); and

| (ii) | resides in the host Member State with the Union citizen as his/her spouse; and |
| --- | --- |

(ii)

resides in the host Member State with the Union citizen as his/her spouse; and

| (iii) | has entered the host Member State independently of the Union citizen; and |
| --- | --- |

(iii)

has entered the host Member State independently of the Union citizen; and

| (iv) | subsequently married the Union citizen in the host Member State. |
| --- | --- |

(iv)

subsequently married the Union citizen in the host Member State.

---

(1)  OJ L 158, p. 77.

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Court of First Instance

| 9.5.2008 | EN | Official Journal of the European Union | C 116/20 |
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Judgment of the Court of First Instance of 2 April 2008 — Eurocopter v OHIM (STEADYCONTROL)

(Case T-181/07) (1)

(Community trade mark - Application for Community word mark STEADYCONTROL - Absolute grounds of refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94)

(2008/C 116/35)

Language of the case: French

Parties

Applicant: Eurocopter SAS (Marignane, France) (represented by: initially E. Soler Borda, subsequently R. Zeineh, lawyers)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 12 March 2007 (Case R 8/2006-4) concerning an application for registration of the word mark STEADYCONTROL as a Community trade mark.

Operative part of the judgment

The Court:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

| 2. | Orders Eurocopter SAS to pay the costs. |
| --- | --- |

2.

Orders Eurocopter SAS to pay the costs.

---

(1)  OJ C 170, 21.7.2007.

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Order of the President of the Court of First Instance of 14 March 2008 — Huta Buczek v Commission

(Case T-440/07 R)

(Interim measures - Application for suspension of operation of a measure - Admissibility - No urgency)

(2008/C 116/36)

Language of the case: Polish

Parties

Applicant: Huta Buczek sp. z o.o. (Sosnowiec, Poland) (represented by: D. Szlachetko-Reiter, lawyer)

Defendant: Commission of the European Communities (represented by: K. Gross, M. Kaduczak and A. Styobiecka-Kuik, Agents)

Re:

Application for suspension of operation of Commission Decision C(2007) 5087 final of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek

Operative part of the order

| 1. | The application is dismissed. |
| --- | --- |

1.

The application is dismissed.

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/20 |
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Order of the President of the Court of First Instance of 14 March 2008 — Du Pont de Nemours (France) and Others v Commission

(Case T-467/07 R)

(Application for interim relief - Directive 91/414/EEC - Application for suspension of operation of a measure - Admissibility - No urgency)

(2008/C 116/37)

Language of the case: English

Parties

Applicants: Du Pont de Nemours (France) SAS (Puteaux, France); Du Pont Portugal — Serviços, Sociedada Unipessoal, Lda (Lisbon, Portugal); Du Pont Ibérica, SL (Barcelona, Spain); E. I. du Pont de Nemours & Co. USA (Wilmington, Delaware, United States); Du Pont de Nemours Italiana Srl (Milan, Italy); Du Pont De Nemours (Nederland) BV (Dordrecht, Netherlands); Du Pont de Nemours (Deutschland) GmbH (Bad Homburg von der Höhe, Germany); DuPont Poland sp. z o.o. (Warsaw, Poland); DuPont Romania Srl (Bucharest, Romania); DuPont International Operations SARL (Le Grand-Saconnex, Switzerland); Du Pont de Nemours International SA (Le Grand-Saconnex); DuPont Solutions (France) SAS (Puteaux); Du Pont Agro Hellas AE (Khalandri, Greece) (represented by: D. Waelbroeck and I. Antypas, lawyers)

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

Re:

Application for suspension of the operation of Commission Decision 2007/628/EC of 19 September 2007 concerning the non-inclusion of methomyl in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 255, p. 40), until delivery of the judgment in the main proceedings

Operative part of the order

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

1.

The application for interim measures is dismissed.

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/21 |
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Order of the President of the Court of First Instance of 14 March 2008 — Buczek Automotive v Commission

(Case T-1/08 R)

(Interim measures - Application for suspension of operation of a measure - Admissibility - No urgency)

(2008/C 116/38)

Language of the case: Polish

Parties

Applicant: Buczek Automotive sp. z o.o. (Sosnowiec, Poland) (represented initially by: T. Gackowski and subsequently by D. Szlachetko-Reiter, lawyers)

Defendant: Commission of the European Communities (represented by: K. Gross, M. Kaduczak and A. Stobiecka-Kuik, Agents)

Re:

Application for suspension of operation of Commission Decision C(2007) 5087 final of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek

Operative part of the order

| 1. | The application is dismissed. |
| --- | --- |

1.

The application is dismissed.

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/21 |
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Action brought on 5 February 2008 — British Sky Broadcasting Group v OHIM — Vortex (SKY)

(Case T-66/08)

(2008/C 116/39)

Language in which the application was lodged: English

Parties

Applicant: British Sky Broadcasting Group plc (Isleworth, United Kingdom) (represented by: J. Barry, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Vortex SA (Paris, France)

Form of order sought

| — | Order, on the basis that the First Board of Appeal has infringed Council Regulation (EC) No 40/94 and/or rules of law relating to its application, that:






  — | in the decision of the First Board of Appeal, while the ultimate conclusion of the First Board of Appeal to reject the opposition should not be disturbed, that part of the contested decision (in particular paragraphs 18 and 19 thereof) which reject the applicant's arguments relating to the Agreement, should be annulled; |
| --- | --- | --- |

—

Order, on the basis that the First Board of Appeal has infringed Council Regulation (EC) No 40/94 and/or rules of law relating to its application, that:

—

in the decision of the First Board of Appeal, while the ultimate conclusion of the First Board of Appeal to reject the opposition should not be disturbed, that part of the contested decision (in particular paragraphs 18 and 19 thereof) which reject the applicant's arguments relating to the Agreement, should be annulled;

| — | the contested decision be altered to hold that the Agreement; applies to trade marks other than the particular registrations identified in the Agreement and extends to future marks; precludes the opponent from opposing or objecting in any manner whatsoever to any use or registration by BSkyB of trade marks containing ‘SKY’ other than ‘SKYROCK’ and ‘SKYZIN’ both of which were as determined by the French courts; and is a final and binding settlement agreement between BSkyB and the opponent as determined by the French courts (including to the highest level in France); |
| --- | --- |

—

the contested decision be altered to hold that the Agreement; applies to trade marks other than the particular registrations identified in the Agreement and extends to future marks; precludes the opponent from opposing or objecting in any manner whatsoever to any use or registration by BSkyB of trade marks containing ‘SKY’ other than ‘SKYROCK’ and ‘SKYZIN’ both of which were as determined by the French courts; and is a final and binding settlement agreement between BSkyB and the opponent as determined by the French courts (including to the highest level in France);

| — | the contested decision be altered and revisited so as to deal with and address all of the grounds raised by BSkyB in its response to the opposition; |
| --- | --- |

—

the contested decision be altered and revisited so as to deal with and address all of the grounds raised by BSkyB in its response to the opposition;

| — | OHIM pay the costs and fees of BSkyB. |
| --- | --- |

—

OHIM pay the costs and fees of BSkyB.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘SKY’ for goods and services in classes 9, 16, 18, 25, 28, 35, 38, 41 and 42 — application No 3 166 378

Proprietor of the mark or sign cited in the opposition proceedings: Vortex SA

Mark or sign cited: The Community and national word marks ‘SKYROCK’ for goods and services classes 9, 16, 18, 25, 28, 35, 38, 41 and 42

Decision of the Opposition Division: Opposition upheld for all the goods and services in classes 9, 38 and 41, as well as for ‘advertising’ in class 35

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the opposition in its entirety

Pleas in law: Without contesting the operative part of the contested decision, the applicant contends that the reasoning of the Board of Appeal infringes Council Regulation No 40/94 and the rules of law relating to its application.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/22 |
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Action brought on 15 February 2008 — E.I. du Pont de Nemours and Others v Commission

(Case T-76/08)

(2008/C 116/40)

Language of the case: English

Parties

Applicants: E.I. du Pont de Nemours and Company (Wilmington, United States), DuPont Performance Elastomers LLC (Wilmington, United States), DuPont Performance Elastomers SA (Geneva, Switzerland) (represented by: J. Boyce and A. Lyle-Smythe, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Article 1(b) of the decision insofar as it finds that E.I. DuPont was a party to the infringement; |
| --- | --- |

—

Annul Article 1(b) of the decision insofar as it finds that E.I. DuPont was a party to the infringement;

| — | annul Article 2(b) of the decision insofar as it finds E.I. DuPont liable to pay a fine; |
| --- | --- |

—

annul Article 2(b) of the decision insofar as it finds E.I. DuPont liable to pay a fine;

| — | reduce the fines imposed on the applicants pursuant to Article 2(b) of the decision; and |
| --- | --- |

—

reduce the fines imposed on the applicants pursuant to Article 2(b) of the decision; and

| — | order the Commission to bear its own costs and those incurred by the applicants. |
| --- | --- |

—

order the Commission to bear its own costs and those incurred by the applicants.

Pleas in law and main arguments

The applicants seek partial annulment of Commission Decision C(2007) 5910 final of 5 December 2007 (Case COMP/F/38.629 — Chloroprene Rubber), by which the Commission found that the applicants, together with other undertakings, had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by participating in a single and continuing agreement and/or concerted practice in the chloroprene rubber sector.

In support of their application, the applicants submit that the Commission committed manifest errors of assessment of the facts, erred in law and failed to provide adequate reasoning for its decision:

| — | in holding the applicant E.I. DuPont liable for the involvement of the joint venture DuPont Dow Elastomers in the cartel for the period after the applicant E.I. DuPont had transferred its entire elastomers business, including chloroprene rubber, to DuPont Dow Elastomers; |
| --- | --- |

—

in holding the applicant E.I. DuPont liable for the involvement of the joint venture DuPont Dow Elastomers in the cartel for the period after the applicant E.I. DuPont had transferred its entire elastomers business, including chloroprene rubber, to DuPont Dow Elastomers;

| — | in imposing a fine on E.I. DuPont for the period prior to the transfer of its elastomer activities to DuPont Dow Elastomers, when the Commission was in fact time-barred from doing so; |
| --- | --- |

—

in imposing a fine on E.I. DuPont for the period prior to the transfer of its elastomer activities to DuPont Dow Elastomers, when the Commission was in fact time-barred from doing so;

| — | in not having demonstrated a legitimate interest in issuing a decision against E.I. DuPont in this case; |
| --- | --- |

—

in not having demonstrated a legitimate interest in issuing a decision against E.I. DuPont in this case;

| — | in not having shown that Bayer and DuPont Dow Elastomers had reached an agreement or an understanding over the closures of plants; |
| --- | --- |

—

in not having shown that Bayer and DuPont Dow Elastomers had reached an agreement or an understanding over the closures of plants;

| — | in using a multiplier for duration of 6.5 equating six years and six full months, when the duration of the involvement of DuPont Dow Elastomers was only of six years and one full month; |
| --- | --- |

—

in using a multiplier for duration of 6.5 equating six years and six full months, when the duration of the involvement of DuPont Dow Elastomers was only of six years and one full month;

| — | in not granting the applicants the maximum available leniency reduction of 30 %; and |
| --- | --- |

—

in not granting the applicants the maximum available leniency reduction of 30 %; and

| — | in finding that an employee of DuPont Dow Elastomers participated in the cartel. |
| --- | --- |

—

in finding that an employee of DuPont Dow Elastomers participated in the cartel.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/22 |
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Action brought on 18 February 2008 — Dow Chemical v Commission

(Case T-77/08)

(2008/C 116/41)

Language of the case: English

Parties

Applicant: The Dow Chemical Company (Midland, United States) (represented by: D. Schroeder and T. Graf, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the decision insofar as it relates to the applicant; |
| --- | --- |

—

Annul the decision insofar as it relates to the applicant;

| — | in the alternative, substantially reduce its fine; and |
| --- | --- |

—

in the alternative, substantially reduce its fine; and

| — | order the Commission to pay the applicant's legal and other costs and expenses in relation to this matter. |
| --- | --- |

—

order the Commission to pay the applicant's legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

The applicant seeks partial annulment of Commission Decision C(2007) 5910 final of 5 December 2007 (Case COMP/F/38.629 — Chloroprene Rubber), by which the Commission found that the applicant, together with other undertakings, had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by participating in a single and continuing agreement and/or concerted practice in the chloroprene rubber sector.

In support of its application, the applicant submits that the Commission committed manifest errors of assessment of the facts and erred in law in holding the applicant liable for the infringement of the joint venture DuPont Dow Elastomers. According to the applicant, the Commission failed to establish that the applicant had a decisive influence over DuPont Dow Elastomers. Furthermore, the applicant contends that it did not form a single economic unit with DuPont Dow Elastomers.

Moreover, the applicant alleges that the Commission committed a manifest error of assessment of the facts, erred in law and failed to provide adequate reasoning for its decision:

| — | in using a multiplier for duration of 6.5 even though the duration of the infringement was only six years and one month; |
| --- | --- |

—

in using a multiplier for duration of 6.5 even though the duration of the infringement was only six years and one month;

| — | in increasing the fine to be imposed on the applicant by 10 % for sufficient deterrent effect; and |
| --- | --- |

—

in increasing the fine to be imposed on the applicant by 10 % for sufficient deterrent effect; and

| — | in not granting the applicant the maximum available leniency reduction of 30 %. |
| --- | --- |

—

in not granting the applicant the maximum available leniency reduction of 30 %.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/23 |
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C 116/23

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Action brought on 18 February 2008 — Intesa Sanpaolo v OHIM — MIP Metro (COMIT)

(Case T-84/08)

(2008/C 116/42)

Language in which the application was lodged: English

Parties

Applicant: Intesa Sanpaolo SpA (Torino, Italy) (represented by: A. Perani and P. Pozzi, lawyers)

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

Other party to the proceedings before the Board of Appeal: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany)

Form of order sought

| — | Totally alter the decision of the OHIM Fourth Board of Appeal, Case R 138/2006-4, rendered on 19 December 2007 and notified on 27 December 2007; |
| --- | --- |

—

Totally alter the decision of the OHIM Fourth Board of Appeal, Case R 138/2006-4, rendered on 19 December 2007 and notified on 27 December 2007;

| — | confirm the OHIM Opposition Division's decision dated 12 January 2006, ruling on opposition No B 675 803, as far as it allows application No 3 104 155 COMIT to proceed to registration for classes 35, 36, 41 and 42; |
| --- | --- |

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confirm the OHIM Opposition Division's decision dated 12 January 2006, ruling on opposition No B 675 803, as far as it allows application No 3 104 155 COMIT to proceed to registration for classes 35, 36, 41 and 42;

| — | alter the OHIM Opposition Division's decision dated 12 January 2006, ruling on opposition No B 675 803, as far as it accepts opposition No B 675 803, in part, for the goods in class 16; |
| --- | --- |

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alter the OHIM Opposition Division's decision dated 12 January 2006, ruling on opposition No B 675 803, as far as it accepts opposition No B 675 803, in part, for the goods in class 16;

| — | as a consequence, reject opposition No B 675 803 in its entirety and allow application No 3 104 155 COMIT to proceed to registration for all the goods and services of classes 16, 35, 36, 41 and 42; |
| --- | --- |

—

as a consequence, reject opposition No B 675 803 in its entirety and allow application No 3 104 155 COMIT to proceed to registration for all the goods and services of classes 16, 35, 36, 41 and 42;

| — | order the defendants to bear the costs of the present proceeding, as well as those of the OHIM opposition and appeal proceedings. |
| --- | --- |

—

order the defendants to bear the costs of the present proceeding, as well as those of the OHIM opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘COMIT’ for goods and services in classes 16, 35, 36, 41 and 42 — application No 3 104 155

Proprietor of the mark or sign cited in the opposition proceedings: MIP Metro Group Intellectual Property GmbH & Co. KG

Mark or sign cited: The national figurative mark ‘Comet’ for goods and services in classes 9, 16, 35, 36, 41 and 42

Decision of the Opposition Division: Opposition partially upheld

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the trade mark application in its entirety

Pleas in law: According to the applicant, there is no likelihood of confusion between the conflicting trade marks.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/23 |
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9.5.2008

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Official Journal of the European Union

C 116/23

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Action brought on 28 February 2008 — TNC Kazchrome and ENRC Marketing v Council and Commission

(Case T-107/08)

(2008/C 116/43)

Language of the case: English

Parties

Applicants: Joint stock company ‘Transnational Company Kazchrome’ (TNC Kazchrome) (Actobe, Kazakhstan), ENRC Marketing AG (Kloten, Switzerland) (represented by: L. Ruessmann and A. Willems, lawyers)

Defendants: Council of the European Union and Commission of the European Communities

Form of order sought

| — | Annul the contested regulation to the extent it imposes anti-dumping measures on imports of SiMn that is produced and/or sold by the applicants; |
| --- | --- |

—

Annul the contested regulation to the extent it imposes anti-dumping measures on imports of SiMn that is produced and/or sold by the applicants;

| — | order the Council and Commission jointly and severally to pay the applicants damages including interest for harm, that resulted from the wrongful initiation of the case, errors of facts, and erroneous assessment, including the Commission's violations of fundamental principles of Community law, and the wrongful adoption of Council Regulation (EC) No 1420/2007; |
| --- | --- |

—

order the Council and Commission jointly and severally to pay the applicants damages including interest for harm, that resulted from the wrongful initiation of the case, errors of facts, and erroneous assessment, including the Commission's violations of fundamental principles of Community law, and the wrongful adoption of Council Regulation (EC) No 1420/2007;

| — | order the Commission and Council to bear their own costs and those incurred by the applicants; |
| --- | --- |

—

order the Commission and Council to bear their own costs and those incurred by the applicants;

| — | order the Commission to bear its own costs and jointly and severally to bear those incurred by the applicants insofar as they are not covered by the Council. |
| --- | --- |

—

order the Commission to bear its own costs and jointly and severally to bear those incurred by the applicants insofar as they are not covered by the Council.

Pleas in law and main arguments

The applicants, who are respectively producers and exporters of silico-manganese to the European Union, seek the annulment of Council Regulation (EC) No 1420/2007 of 4 December 2007 imposing a definitive anti-dumping duty on imports of silico-manganese originating in the People's Republic of China and Kazakhstan and terminating the proceedings on imports of silico-manganese originating in Ukraine (1).

In support of their application, the applicants submit that the defendants committed manifest errors of assessment, breached the Basic Regulation (2) and failed to state reasons in accordance with Article 253 EC by including Kazakhstan and excluding India from the anti-dumping investigation; by rejecting the applicants' claim that they operate as a single economic entity; when determining the applicants' export price; when assessing whether and to what extend the imports of silico-manganese from Kazakhstan caused injury to the Community industry; by cumulating the imports from Kazakhstan with the imports from China for the purposes of this assessment and when assessing the Community interest.

The applicants furthermore submit that the Community institutions breached their right to be heard and the principles of good administration, protection of the applicants legitimate expectations, non-discrimination and proportionality as, among others, the applicants were not given access to information that was relevant to the findings of the Community institutions and as the undertaking offered by the applicants was rejected.

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(1)  OJ 2007 L 317, p. 5.

(2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/24 |
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9.5.2008

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Official Journal of the European Union

C 116/24

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Action brought on 27 February 2008 — Zino Davidoff v OHIM — Clifarm i. Kleinakis & SIA (GOOD LIFE)

(Case T-108/08)

(2008/C 116/44)

Language in which the application was lodged: English

Parties

Applicant: Zino Davidoff SA (Fribourg, Switzerland) (represented by: H. Kunz-Hallstein and R. Kunz-Hallstein, lawyers)

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

Other party to the proceedings before the Board of Appeal: Clifarm i. Kleinakis & SIA OE (Glyfada, Greece)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the OHIM in Case R 298/2007-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the OHIM in Case R 298/2007-2;

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

—

order the OHIM or the intervener 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 ‘GOOD LIFE’ for goods in class 3 — application No 1 709 641

Proprietor of the mark or sign cited in the opposition proceedings: Clifarm i. Kleinakis & SIA OE

Mark or sign cited: The Community and national word marks ‘GOOD LIFE’ for goods in classes 3, 5 and 16

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

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and remittal of the case to the Opposition Division for further consideration

Pleas in law: Infringement of Articles 43, 73 and 74 of Council Regulation No 40/94 and of Rule 22 of Commission Regulation No 2868/95, among others as the Board of Appeal has taken into account goods for which the trade mark applied for does not claim protection and on which the opposition was not based; as the Board of Appeal should not have taken into consideration the evidence presented by Clifarm i. Kleinakis & SIA OE for use of its trade marks; and as the Board of Appeal has considered evidence that the applicant could not evaluate.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/25 |
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9.5.2008

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Official Journal of the European Union

C 116/25

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Action brought on 28 February 2008 — Freixenet SA v OHIM (Shape of a frosted white bottle)

(Case T-109/08)

(2008/C 116/45)

Language in which the application was lodged: French

Parties

Applicant: Freixenet SA (Sant Sadurní d'Anoia, Spain) (represented by F. de Visscher, E. Cornu and D. Moreau, 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 of 30 October 2007 and, doing what that Board of Appeal should have done, decide that the application for Community trade mark No 32 532 satisfies the conditions for publication in accordance with Article 40 of the Regulation on the Community trade mark; |
| --- | --- |

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Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 30 October 2007 and, doing what that Board of Appeal should have done, decide that the application for Community trade mark No 32 532 satisfies the conditions for publication in accordance with Article 40 of the Regulation on the Community trade mark;

| — | In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 30 October 2007; |
| --- | --- |

—

In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 30 October 2007;

| — | In any case, order the Office for Harmonisation in the Internal Market to pay the costs. |
| --- | --- |

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In any case, order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark in the shape of a frosted white bottle for goods in class 33 (application No 32 532)

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal; decision taken following the judgment of the Court of First Instance in Case T-190/04 Freixenet v OHIM (shape of a frosted white bottle)

Pleas in law: Infringement of Article 7(1) and (3) and Article 73 of Regulation No 40/94 and of the obligation to state reasons, to the extent that:

| — | The Board of Appeal failed to hear the applicant's observations with regard to the Board's different factual assessment; |
| --- | --- |

—

The Board of Appeal failed to hear the applicant's observations with regard to the Board's different factual assessment;

| — | The Board of Appeal failed to specify the documents on which it bases its decision; |
| --- | --- |

—

The Board of Appeal failed to specify the documents on which it bases its decision;

| — | The type of appearance of the bottle in question is original and differs from the usual types existing on 1 April 1996; and |
| --- | --- |

—

The type of appearance of the bottle in question is original and differs from the usual types existing on 1 April 1996; and

| — | In any case, the trade mark in question has acquired a distinctive character in the Community by usage. |
| --- | --- |

—

In any case, the trade mark in question has acquired a distinctive character in the Community by usage.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/25 |
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Action brought on 28 February 2008 — Freixenet v OHIM (Shape of a frosted matt black bottle)

(Case T-110/08)

(2008/C 116/46)

Language in which the application was lodged: French

Parties

Applicant: Freixenet SA (Sant Sadurní d'Anoia, Spain) (represented by F. de Visscher, E. Cornu and D. Moreau, 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 of 20 November 2007 and, doing what that Board of Appeal should have done, decide that the application for Community trade mark No 32 540 satisfies the conditions for publication in accordance with Article 40 of the Regulation on the Community trade mark; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 20 November 2007 and, doing what that Board of Appeal should have done, decide that the application for Community trade mark No 32 540 satisfies the conditions for publication in accordance with Article 40 of the Regulation on the Community trade mark;

| — | In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 20 November 2007; |
| --- | --- |

—

In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 20 November 2007;

| — | In any case, order the Office for Harmonisation in the Internal Market to pay the costs. |
| --- | --- |

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In any case, order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark in the shape of a frosted matt black bottle for goods in class 33 (application No 32 540)

Decision of the Examiner: Reject the application

Decision of the Board of Appeal: Dismissal of the appeal; decision taken following the judgment of the Court of First Instance in Case T-188/04 Freixenet v OHIM (shape of a frosted matt black bottle)

Pleas in law: Infringement of Article 7(1) and (3) and Article 73 of Regulation No 40/94 and of the obligation to state reasons, to the extent that:

| — | The Board of Appeal failed to hear the applicant's observations with regard to the Board's different factual assessment; |
| --- | --- |

—

The Board of Appeal failed to hear the applicant's observations with regard to the Board's different factual assessment;

| — | The Board of Appeal failed to specify the documents on which it bases its decision; |
| --- | --- |

—

The Board of Appeal failed to specify the documents on which it bases its decision;

| — | The type of appearance of the bottle in question is original and differs from the usual types existing on 1 April 1996; |
| --- | --- |

—

The type of appearance of the bottle in question is original and differs from the usual types existing on 1 April 1996;

| — | In any case, the trade mark in question has acquired a distinctive character in the Community by usage. |
| --- | --- |

—

In any case, the trade mark in question has acquired a distinctive character in the Community by usage.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/26 |
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9.5.2008

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Official Journal of the European Union

C 116/26

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Action brought on 1 March 2008 — MasterCard and others v Commission

(Case T-111/08)

(2008/C 116/47)

Language of the case: English

Parties

Applicants: MasterCard Inc. (Purchase, United States), Mastercard International Inc. (Purchase, United States) and MasterCard Europe SPRL (Waterloo, Belgium) (represented by: B. Amory, V. Brophy and S. McInnes, lawyers, and T. Sharpe, QC)

Defendant: Commission of the European Communities

Form of order sought

| — | Declare the present application admissible; |
| --- | --- |

—

Declare the present application admissible;

| — | annul the decision in its entirety; or, in the alternative, annul Articles 3,4,5 and 7 of the decision; |
| --- | --- |

—

annul the decision in its entirety; or, in the alternative, annul Articles 3,4,5 and 7 of the decision;

| — | order the Commission to pay the costs of the present proceedings, including the costs of the applicants. |
| --- | --- |

—

order the Commission to pay the costs of the present proceedings, including the costs of the applicants.

Pleas in law and main arguments

By means of this application, the applicants seek the annulment of Commission Decision C(2007) 6474 final of 19 December 2007 in Cases COMP/34.579 — MasterCard, COMP/36.518 — EuroCommerce, COMP/38.580 — Commercial Cards (MasterCard) and, in the alternative, of the specific provisions of the decision concerning the imposed remedy, on the grounds that the decision is vitiated by errors of law, insufficient or lack of reasoning and manifest errors of fact. In addition, the application is based on the violation of the applicants' rights of defence during the Commission's investigation. Specifically, the applicants invoke the following grounds, variously based on Articles 229 EC, 230 EC and 253 EC, as well as the principles of EC law.

First, according to the applicants, the Commission misdirected itself in law and in fact, a) by failing to properly identify a restriction of competition in the sense of Article 81(1) EC and Article 53(1) EEA, b) as to the proper standard to be applied in assessing an objective necessity under the above-mentioned provisions.

Second, the applicants submit that the Commission misdirected itself in law and in fact in holding that the 'MasterCard Payment Organisation' constitutes an association of undertakings within the meaning of Articles 81(1) EC and 53(1) EEA, and that the cross-border interchange fee and related rules constitute a decision thereof.

Third, the applicants claim that the Commission is guilty of several infringements of essential procedural requirements and that the remedy and enforcement measures it imposed are disproportionate.

In addition, the applicants claim that the Commission demands an unlawfully high standard of proof in order to fulfil the conditions of Article 81(3) EC.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/26 |
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C 116/26

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Action brought on 11 March 2008 — Italy v Commission and EESC

(Case T-117/08)

(2008/C 116/48)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato)

Defendants: Commission of the European Communities, European Economic and Social Committee

Form of order sought

| — | The Italian Republic challenges before the Court of First Instance of the European Communities the following acts published by the EESC:






  (1) | vacancy notice No 73/07 concerning a post of Secretary-general in the Secretariat of the European Economic and Social Committee, published only in the English, French and German versions of the
  Official Journal of the European Union C 316 A of 28 December 2007; |
| --- | --- | --- |

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The Italian Republic challenges before the Court of First Instance of the European Communities the following acts published by the EESC:

(1)

vacancy notice No 73/07 concerning a post of Secretary-general in the Secretariat of the European Economic and Social Committee, published only in the English, French and German versions of the
  Official Journal of the European Union C 316 A of 28 December 2007;

| (2) | corrigendum to the vacancy notice published only in the English, French and German versions of the
  Official Journal of the European Union C 25 A of 30 January 2008. |
| --- | --- |

(2)

corrigendum to the vacancy notice published only in the English, French and German versions of the
  Official Journal of the European Union C 25 A of 30 January 2008.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied on in Case T-156/07 Spain v Commission
   (1).

In addition to infringement of Regulation No 1/58 and Article 290 EC, the applicant submits in particular, on the ground of lack of the requisite competence, infringement of Article 12 EC, Article 22 of the Charter of Fundamental Rights of the European Union, Article 6 of the Treaty on European Union and a number of provisions of the Staff Regulations of the European Civil Service, as well as a failure to state adequate reasons and misuse of power in the present case.

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(1)  OJ C 140, 23.6.2007, p. 42.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/27 |
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C 116/27

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Action brought on 10 March 2008 — PC-Ware Information Technologies BV v Commission of the European Communities

(Case T-121/08)

(2008/C 116/49)

Language of the case: Dutch

Parties

Applicant: PC-Ware Information Technologies BV (Amsterdam, Netherlands) (represented by: L. Devillé, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Declare the action for annulment admissible; |
| --- | --- |

—

Declare the action for annulment admissible;

| — | Annul the decision of the Directorate-General of the European Commission, communicated to the applicant by letter of 11 January 2008, which rejected the applicant's tender for public procurement contract DIGIT/R2/2007/022 — LAR 2007 and awarded the contract to the successful tender; |
| --- | --- |

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Annul the decision of the Directorate-General of the European Commission, communicated to the applicant by letter of 11 January 2008, which rejected the applicant's tender for public procurement contract DIGIT/R2/2007/022 — LAR 2007 and awarded the contract to the successful tender;

| — | Declare that the Commission's action was unlawful and gives rise to the Commission's liability; |
| --- | --- |

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Declare that the Commission's action was unlawful and gives rise to the Commission's liability;

| — | In the alternative, if the contract has already been carried out when the Court gives judgment or the decision can no longer be declared void, order the Commission to pay damages of EUR 654 962,38 as compensation for the loss suffered by the applicant in regard to that procedure; |
| --- | --- |

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In the alternative, if the contract has already been carried out when the Court gives judgment or the decision can no longer be declared void, order the Commission to pay damages of EUR 654 962,38 as compensation for the loss suffered by the applicant in regard to that procedure;

| — | Order the Commission to pay the costs of the proceedings and other costs even if the action is dismissed. |
| --- | --- |

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Order the Commission to pay the costs of the proceedings and other costs even if the action is dismissed.

Pleas in law and main arguments

The applicant took part in public procurement procedure DIGIT/R2/2007/022 — LAR 2007 — Large account reseller Microsoft products (LAR 2007) (OJ 2007 S 183-223062), whose objective was to establish a framework contract for a single source purchase channel, covering the acquisition of Microsoft software products and licences. The applicant contests the Commission's decision to award that contract to another undertaking.

In support of its application, the applicant submits, first, that insufficient reasons are given for the decision. The applicant states that upon the submission of its offer it stated expressly that it gave the highest possible reduction on the basis of Article 40 of the Belgian Law of 14 July 1991 on trade practices and consumer information and protection, which prohibits sales at a loss. The Commission failed to give sufficient reasons in the decision with regard to the application of that prohibition and compliance with the principle of equal treatment.

Secondly, the applicant submits that it is apparent that the successful offer infringes Article 40 of the abovementioned Belgian Law of 14 July 1991. According to the applicant, the Commission should have refused the successful offer pursuant to Article 55 of Directive 2004/18/EC (1), Article 139(1) and Article 146(4) of Regulation No 2342/2002 (2) and the principles of good administration.

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

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

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/27 |
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Action brought on 14 March 2008 — Spitzer v OHIM — Homeland Housewares (Magic Butler)

(Case T-123/08)

(2008/C 116/50)

Language in which the application was lodged: German

Parties

Applicant: Harald Spitzer (Hörsching, Austria) (represented by: T. Schmitz, Rechtsanwalt)

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

Other party to the proceedings before the Board of Appeal of OHIM: Homeland Housewares, LLC (Los Angeles, United States of America)

Form of order sought

| — | Annul the decision of the First Board of Appeal of OHIM of 7 January 2008 (Case R 1508/2006-1); |
| --- | --- |

—

Annul the decision of the First Board of Appeal of OHIM of 7 January 2008 (Case R 1508/2006-1);

| — | reject the opposition entered by Homeland Housewares, LLC, against the word mark for which registration is sought, ‘Magic Butler’ No 4 109 906; |
| --- | --- |

—

reject the opposition entered by Homeland Housewares, LLC, against the word mark for which registration is sought, ‘Magic Butler’ No 4 109 906;

| — | 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

Applicant for a Community trade mark: Harald Spitzer.

Community trade mark concerned: The word mark ‘Magic Butler’ for goods in Classes 7 and 21 (application No 4 109 906)

Proprietor of the mark or sign cited in the opposition proceedings: Homeland Housewares, LLC

Mark or sign cited in opposition: The word mark ‘MAGIC BULLET’ for goods in Class 7 (Community trade mark 4 100 483) and the word mark ‘THE MAGIC BULLET’ for goods in Class 7 (Community trade mark 3 584 885)

Decision of the Opposition Division: Opposition upheld in part.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EG) No 40/94 (1), because there is no likelihood of confusion between the marks in conflict.

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

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/28 |
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Action brought on 14 March 2008 — Atlantean v Commission

(Case T-125/08)

(2008/C 116/51)

Language of the case: English

Parties

Applicant: Atlantean Ltd (Killybegs, Ireland) (represented by: M. Fraser, Solicitor, G. Hogan, E. Regan and C. Toland, Barristers)

Defendant: Commission of the European Communities

Form of order sought

| — | order the defendant to make good to the applicant damages caused to it by Commission Decision 2003/245/EC of 4 April 2003 insofar as it unlawfully rejected the request by Ireland to increase the capacity of the vessel MFV Atlantean, the said damages amounting to EUR 7 419 522, subject to updating in the course of proceedings, together with interest from the 4 April 2003 until the final settlement and default interest in the event of delay, after delivery of the judgment, in payment of the sums awarded; |
| --- | --- |

—

order the defendant to make good to the applicant damages caused to it by Commission Decision 2003/245/EC of 4 April 2003 insofar as it unlawfully rejected the request by Ireland to increase the capacity of the vessel MFV Atlantean, the said damages amounting to EUR 7 419 522, subject to updating in the course of proceedings, together with interest from the 4 April 2003 until the final settlement and default interest in the event of delay, after delivery of the judgment, in payment of the sums awarded;

| — | order the defendant to pay the applicant's costs. |
| --- | --- |

—

order the defendant to pay the applicant's costs.

Pleas in law and main arguments

In the present case, the applicant is bringing an action for non-contractual liability arising from the losses it claims to have suffered as a result of Commission Decision 2003/245/EC of 4 April 2003 which provided for the rejection of the request by Ireland in respect of the applicant's vessel Atlantean to increase capacity under the fourth multi-annual guidance programme (MAGP IV) applicable for the reasons of improvements in safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall (1). This decision was annulled by the Court's judgment of 13 June 2006 in so far as it applied to the applicant's vessel Atlantean (2).

The applicant states in support of its contentions that in adopting the annulled decision the Commission breached a number of superior rules of law: it not only lacked the competence to make the decision, as found by the Court in its judgment, but it also infringed the principle of legal certainty, the principle of protection of legitimate expectations, the principle of non-retroactivity, the principle of non-discrimination, the principle of proportionality, its obligation to state reasons laid down in Article 253 EC, the right of the applicant to be heard and it misused its powers. The applicant also states that the Commission was manifestly and gravely in disregard of the limits of its discretion. It claims that in such circumstances, the mere infringement of Community law establishes a sufficiently serious breach of law.

Furthermore, the applicant claims that it has suffered and continues to suffer substantial loss and damage as a direct consequence of the Commission adopting the annulled decision as it was required to purchase additional polyvalent replacement capacity. Therefore, the applicant claims that its damage is actual and certain.

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(1)  OJ 2003 L 90, p. 48.

(2)  Case T-192/03, Atlantean Ltd v Commission [2006] ECR II-42.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/28 |
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Action brought on 20 March 2008 — Okalux v OHIM — Ondex (ONDACELL)

(Case T-126/08)

(2008/C 116/52)

Language in which the application was lodged: German

Parties

Applicant: Okalux GmbH (Marktheidenfeld, Germany) (represented by: M. Beckensträter, Rechtsanwältin)

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

Other party to the proceedings before the Board of Appeal of OHIM: Ondex S.A.S.

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of 22 January 2008, received on 24 January 2008, and declare that the opposition of 29 August 2006 is admissible; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of 22 January 2008, received on 24 January 2008, and declare that the opposition of 29 August 2006 is admissible;

| — | order the defendant to pay the allowable costs, including the costs of the original proceedings (including the costs of the intervener). |
| --- | --- |

—

order the defendant to pay the allowable costs, including the costs of the original proceedings (including the costs of the intervener).

Pleas in law and main arguments

Applicant for a Community trade mark: Ondex S.A.S.

Community trade mark concerned: The trade mark ‘ONDACELL’ for goods and services in Classes 6, 17 and 19 (application No 4 755 971).

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

Decision of the Opposition Division: The notice of opposition is deemed not to have been entered.

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

Pleas in law: Infringement of Articles 5 and 8 of Regulation (EC) No 2869/95 (1), Decision No EX-96-1 (2) and Communication No 5/96 (3).

---

(1)  Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 1995 L 303, p. 33).

(2)  Decision No EX-96-1 of the President of the Office of 11 January 1996 concerning the conditions for opening current accounts at the Office (OHIM OJ 1996, 48).

(3)  Communication No 5/96 of the President of the Office, of 8 August 1996, concerning current accounts (OHIM OJ 1996, 1461).

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/29 |
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Official Journal of the European Union

C 116/29

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Action brought on 31 March 2008 — Gres La Sagra v OHIM — Ceramicalcora (VENATTO MARBLE STONE)

(Case T-130/08)

(2008/C 116/53)

Language in which the application was lodged: Spanish

Parties

Applicant: Gres La Sagra, SL (Alameda de la Sagra, Spain) (represented by: T. Villate Consonni, lawyer, and J. Calderón Chavero, 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: Ceramicalcora, SA (Alcora, Spain)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 January 2008 in Case R-1609/2006-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 January 2008 in Case R-1609/2006-4;

| — | As a consequence of that annulment, grant trade mark application 3109006, not only for the services in Class 39 (already granted upon the dismissal of the opposition B690695 as regards those services, which has now become res judicata), but also for the remaining goods and services covered by the application in Classes 19, 21 and 40, and |
| --- | --- |

—

As a consequence of that annulment, grant trade mark application 3109006, not only for the services in Class 39 (already granted upon the dismissal of the opposition B690695 as regards those services, which has now become res judicata), but also for the remaining goods and services covered by the application in Classes 19, 21 and 40, and

| — | Order OHIM, and the other parties before the Court, to pay the costs of the present proceedings should they be contested, and reject the claims of OHIM and the other parties before the Court. |
| --- | --- |

—

Order OHIM, and the other parties before the Court, to pay the costs of the present proceedings should they be contested, and reject the claims of OHIM and the other parties before the Court.

Pleas in law and main arguments

Applicant for a Community trade mark: Gres La Sagra, SL.

Community trade mark concerned: Figurative mark ‘VENATTO (marble stone)’ (Application No 3 109 066) for goods and services in Classes 19, 21, 39 and 40.

Proprietor of the mark or sign cited in the opposition proceedings: CERAMICALCORA, SA.

Mark or sign cited in opposition: Spanish trade mark for the sign ‘VENETO (céramicas)’ (No 2 115 543; 2 056 688; 2 056 689 and 2 056 699) for goods and services in Classes 27, 19, 21 and 39 respectively.

Decision of the Opposition Division: Opposition upheld in part. The Opposition Division held that there was a likelihood of confusion in the relevant territory for the goods and services at issue in Classes 19, 21 and 40, but that there was no such likelihood of confusion in relation to those services at issue in Class 39.

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

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/29 |
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9.5.2008

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Official Journal of the European Union

C 116/29

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Order of the Court of First Instance of 13 March 2008 — ASTER v Commission

(Case T-409/05) (1)

(2008/C 116/54)

Language of the case: Italian

The President of the Court of First Instance (Fifth Chamber) has ordered that the case be removed from the register.

---

(1)  OJ C 22, 28.1.2006.

---

European Union Civil Service Tribunal

| 9.5.2008 | EN | Official Journal of the European Union | C 116/30 |
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9.5.2008

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Official Journal of the European Union

C 116/30

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Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Buendía Sierra v Commission

(Case F-97/05) (1)

(Staff cases - Officials - Promotion - 2004 Promotion procedure - Award of priority points - Temporal application of provisions of the new Staff Regulations)

(2008/C 116/55)

Language of the case: French

Parties

Applicant: José Luis Buendía Sierra (Brussels, Belgium) (represented by: M. van der Woude and V. Landes, lawyers)

Defendant: Commission of the European Communities (represented by: G. Berscheid and V. Joris, Agents, assisted by D. Slater, lawyer)

Re:

First, annulment of the decisions awarding priority points to the applicant in the 2004 Promotion procedure and, secondly, annulment of the merit list of officials in Grade A*11 promoted to Grade A*12 in the 2004 Promotion procedure

Operative part of the judgment

The Tribunal:

| 1. | annuls the decision fixing Mr Buendía Sierra's total number of points at the end of the 2004 Promotion procedure and the decision not to promote him in that procedure; |
| --- | --- |

1.

annuls the decision fixing Mr Buendía Sierra's total number of points at the end of the 2004 Promotion procedure and the decision not to promote him in that procedure;

| 2. | dismisses the remainder of the claims in the action; |
| --- | --- |

2.

dismisses the remainder of the claims in the action;

| 3. | orders the Commission of the European Communities to pay all the costs. |
| --- | --- |

3.

orders the Commission of the European Communities to pay all the costs.

---

(1)  OJ C 10, 14.1.2006, p. 24 (case initially registered before the Court of First Instance of the European Communities under No T-380/05 and transferred to the European Civil Service Tribunal by order of 15 December 2005).

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/30 |
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9.5.2008

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Official Journal of the European Union

C 116/30

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Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Di Bucci v Commission

(Case F-98/05) (1)

(Officials - Staff cases - Promotion - 2004 promotion exercise - Allocation of priority points - Application ratione temporis of provisions of the new staff regulations)

(2008/C 116/56)

Language of the case: French

Parties

Applicant: Vittorio Di Bucci (Brussels, Belgium) (represented by: M. van der Woude and V. Landes, lawyers)

Defendant: Commission of the European Communities (represented by: G. Berscheid and V. Joris, agents, and D. Slater, lawyer)

Re:

First, annulment of the decisions awarding promotion points to the applicant in respect of the 2004 promotion exercise and, second, annulment of the merit list of Grade A*11 officials promoted to Grade A*12 in the 2004 promotion exercise

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision fixing the total of Mr Di Bucci's promotion points in the 2004 promotion exercise and the decision refusing him promotion in that exercise. |
| --- | --- |

1.

Annuls the decision fixing the total of Mr Di Bucci's promotion points in the 2004 promotion exercise and the decision refusing him promotion in that exercise.

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

2.

Dismisses the remainder of the action.

| 3. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

3.

Orders the Commission of the European Communities to pay the costs.

---

(1)  OJ C 10, 14.1.2006, p. 24 (Case originally registered at the Court of First Instance of the European Communities under T-381/05 and transferred to the European Union Civil Service Tribunal by order of 15 December 2005).

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/31 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/31

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Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Wilms v Commission

(Case F-99/05) (1)

(Staff cases - Officials - Promotion - 2004 promotion exercise - Allocation of priority points - Application ratione temporis of provisions of the new staff regulations)

(2008/C 116/57)

Language of the case: French

Parties

Applicant: Günter Wilms (Brussels, Belgium) (represented by: M. van der Woude and V. Landes, lawyers)

Defendant: Commission of the European Communities (represented by: G. Berscheid and V. Joris, agents, and D. Slater, lawyer)

Re:

First, annulment of the decisions awarding promotion points to the applicant in respect of the 2004 promotion exercise and, second, annulment of the merit list of Grade A*10 officials promoted to Grade A*11 in the 2004 promotion exercise

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision fixing the total of Mr Wilms' promotion points in the 2004 promotion exercise and the decision refusing him promotion in that exercise. |
| --- | --- |

1.

Annuls the decision fixing the total of Mr Wilms' promotion points in the 2004 promotion exercise and the decision refusing him promotion in that exercise.

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

2.

Dismisses the remainder of the action.

| 3. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

3.

Orders the Commission of the European Communities to pay the costs.

---

(1)  OJ C 10, 14.1.2006, p. 25 (Case originally registered at the Court of First Instance of the European Communities under T-386/05 and transferred to the European Union Civil Service Tribunal by order of 15 December 2005).

---

| 9.5.2008 | EN | Official Journal of the European Union | C 116/31 |
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9.5.2008

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Official Journal of the European Union

C 116/31

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Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Valero Jordana v Commission

(Case F-104/05) (1)

(Staff cases - Officials - Promotion - 2004 promotion exercise - Award of priority points - Temporal application of provisions of the new Staff Regulations)

(2008/C 116/58)

Language of the case: French

Parties

Applicant: Gregorio Valero Jordana (Brussels, Belgium) (represented by: M. Merola and I. van Schendel, lawyers)

Defendant: Commission of the European Communities (represented by: G. Berscheid and V. Joris, Agents, assisted by D. Slater, lawyer)

Re:

Annulment of the Commission's decision awarding priority points to the applicant under the 2004 promotion exercise and of the decision not to promote him to Grade A*12 under that exercise

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision setting Mr Valero Jordana's total number of points at the end of the 2004 promotion exercise and the decision not to promote him under that exercise; |
| --- | --- |

1.

Annuls the decision setting Mr Valero Jordana's total number of points at the end of the 2004 promotion exercise and the decision not to promote him under that exercise;

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

2.

Dismisses the remainder of the action;

| 3. | Orders the Commission of the European Communities to bear all the costs. |
| --- | --- |

3.

Orders the Commission of the European Communities to bear all the costs.

---

(1)  OJ C 10, 14.1.2006, p. 27 (Case initially registered at the Court of First Instance of the European Communities under T-394/05 and transferred to the European Union Civil Service Tribunal by order of 15 December 2005).

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/32 |
| --- | --- | --- | --- |

9.5.2008

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Official Journal of the European Union

C 116/32

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Order of the Civil Service Tribunal (First Chamber) of 6 March 2008 — Tiralongo v Commission

(Case F-55/07) (1)

(Staff cases - Former temporary agent - Actions - Action for damages - Non-renewal of a fixed-term contract - Manifest inadmissibility)

(2008/C 116/59)

Language of the case: French

Parties

Applicant: Giuseppe Tiralongo (Ladispoli, Italy) (represented by: F. and R. Sciaudone and S. Frazzani, lawyers)

Defendant: Commission of the European Communities

Re:

Order requiring the Commission of the European Communities to compensate the material and non-material damage allegedly suffered by the applicant on account of the unlawful conduct of the European Anti-Fraud Office in particular in connection with the extension of his temporary staff contract

Operative part of the order

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

1.

The action is dismissed as manifestly inadmissible;

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

2.

Each party is to bear its own costs.

---

(1)  OJ C 183, 4.8.2007, p. 43.

---

| 9.5.2008 | EN | Official Journal of the European Union | C 116/32 |
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9.5.2008

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Official Journal of the European Union

C 116/32

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Order of the Civil Service Tribunal (First Chamber) of 6 March 2008 — R bis v Commission

(Case F-105/07)

(Staff cases - Officials - Actions - Action for damages - Conditions under which the probationary period progressed - Extension of probationary period - Establishment as an official - Manifest inadmissibility)

(2008/C 116/60)

Language of the case: French

Parties

Applicant: R bis (Brussels, Belgium) (represented by: O. Martins, lawyer)

Defendant: Commission of the European Communities

Re:

Annulment of the Appointing Authority's decision of 13 February 2007 rejecting the applicant's complaint and claim concerning the compensation for the damage that the applicant suffered as a result of the wrongful conduct of the Commission, in particular in connection with the applicant's probationary period — Claim for damages

Operative part of the order

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

1.

The action is dismissed as manifestly inadmissible;

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

2.

Each party is to bear its own costs.

---

| 9.5.2008 | EN | Official Journal of the European Union | C 116/32 |
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9.5.2008

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Official Journal of the European Union

C 116/32

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Action brought on 7 February 2008 — Behmer v Parliament

(Case F-16/08)

(2008/C 116/61)

Language of the case: French

Parties

Applicant: Joachim Behmer (Brussels, Belgium) (represented by: S. Orlandi, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Parliament

Subject-matter and description of the proceedings

Annulment of the decisions of the appointing authority to award the applicant two merit points for the years 2004 and 2006.

Form of order sought

| — | Annul the decisions of the appointing authority to award the applicant two merit points for the years 2004 and 2006; |
| --- | --- |

—

Annul the decisions of the appointing authority to award the applicant two merit points for the years 2004 and 2006;

| — | Order the European Parliament to pay the costs. |
| --- | --- |

—

Order the European Parliament to pay the costs.

---

| 9.5.2008 | EN | Official Journal of the European Union | C 116/33 |
| --- | --- | --- | --- |

9.5.2008

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Official Journal of the European Union

C 116/33

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Action brought on 22 February 2008 — Gippini Fournier v Commission

(Case F-21/08)

(2008/C 116/62)

Language of the case: French

Parties

Applicant: Eric Gippini Fournier (Brussels, Belgium) (represented by: F. Ruggeri Laderchi)

Defendant: Commission of the European Communities

The subject-matter and description of the proceedings

First, annulment of the Commission's decision to award no priority points to the applicant in the 2003 Promotion procedure, refusing to award ‘DG priority points’ and refusing to award points for work in the interest of the institution pursuant to Article 9 of the General provisions for implementing Article 45 of the Staff Regulations. Secondly, an order that the defendant compensate the applicant for the economic loss which he has suffered and will suffer throughout his career because of the delays in his promotions arising from the contested decision and pay him the sum of EUR 2 500 as compensation for non-material damage.

Form of order sought

| — | Annul the decision to award no priority points to the applicant in the 2003 Promotion procedure, refusing to award ‘DG priority points’ and refusing to award points for work in the interest of the institution pursuant to Article 9 of the General provisions for implementing Article 45 of the Staff Regulations; |
| --- | --- |

—

Annul the decision to award no priority points to the applicant in the 2003 Promotion procedure, refusing to award ‘DG priority points’ and refusing to award points for work in the interest of the institution pursuant to Article 9 of the General provisions for implementing Article 45 of the Staff Regulations;

| — | order the defendant to compensate the applicant for the economic loss which he has suffered and will suffer throughout his career because of the delays in his promotions arising from the contested decision; |
| --- | --- |

—

order the defendant to compensate the applicant for the economic loss which he has suffered and will suffer throughout his career because of the delays in his promotions arising from the contested decision;

| — | order the defendant to pay the applicant the sum of EUR 2 500 as compensation for the non-material damage suffered; |
| --- | --- |

—

order the defendant to pay the applicant the sum of EUR 2 500 as compensation for the non-material damage suffered;

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

—

order the Commission to pay the costs.

---

| 9.5.2008 | EN | Official Journal of the European Union | C 116/33 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/33

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Action brought on 22 February 2008 — Miguelez Herreras v Commission

(Case F-22/08)

(2008/C 116/63)

Language of the case: French

Parties

Applicant: Benedicta Miguelez Herreras (Brussels, Belgium) (represented by: M. van der Woude, lawyer)

Defendant: Commission of the European Communities

The subject-matter and description of the proceedings

Annulment of the decision of 17 April 2007 in so far as it awards the applicant no additional priority points and therefore upholds the award of two priority points and a total of 23 points in the 2003 Promotion procedure, and an order that the defendant pay compensation.

Form of order sought

| — | Annul the decision of 17 April 2007 in so far as it awards the applicant no additional priority points and therefore upholds the award of two priority points and a total of 23 points in the 2003 Promotion procedure; |
| --- | --- |

—

Annul the decision of 17 April 2007 in so far as it awards the applicant no additional priority points and therefore upholds the award of two priority points and a total of 23 points in the 2003 Promotion procedure;

| — | order the defendant to pay compensation of EUR 5 000; |
| --- | --- |

—

order the defendant to pay compensation of EUR 5 000;

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

—

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

---

| 9.5.2008 | EN | Official Journal of the European Union | C 116/33 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/33

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Action brought on 18 February 2008 — Di Bucci v Commission

(Case F-23/08)

(2008/C 116/64)

Language of the case: French

Parties

Applicant: Vittorio Di Bucci (Brussels, Belgium) (represented by: M. van der Woude, lawyer)

Defendant: Commission of the European Communities

The subject-matter and description of the proceedings

Annulment of the decision of 11 April 2007 in so far as it awards the applicant a single additional priority point in the 2003 Promotion procedure, making a total of 2 priority points and a grand total of 21 points, and an order that the defendant pay compensation.

Form of order sought

| — | Annul the decision of 11 April 2007 in so far as it awards the applicant a single additional priority point in the 2003 Promotion procedure, making a total of 2 priority points and a grand total of 21 points, and order that the defendant pay compensation; |
| --- | --- |

—

Annul the decision of 11 April 2007 in so far as it awards the applicant a single additional priority point in the 2003 Promotion procedure, making a total of 2 priority points and a grand total of 21 points, and order that the defendant pay compensation;

| — | order the defendant to pay damages of EUR 5 000; |
| --- | --- |

—

order the defendant to pay damages of EUR 5 000;

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

—

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

---

| 9.5.2008 | EN | Official Journal of the European Union | C 116/34 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/34

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Action brought on 22 February 2008 — Wilms v Commission

(Case F-24/08)

(2008/C 116/65)

Language of the case: French

Parties

Applicant: Günter Wilms (Brussels, Belgium) (represented by: M. van der Woude, lawyer)

Defendant: Commission of the European Communities

The subject-matter and description of the proceedings

Annulment of the decision of 17 April 2007 in so far as it awards the applicant no additional priority points in the 2003 Promotion procedure, making a total of 1 priority point and a grand total of 19 points, and an order that the defendant pay compensation.

Form of order sought

| — | Annul the decision of 17 April 2007 in so far as it awards the applicant no additional priority points in the 2003 Promotion procedure, making a total of 1 priority point and a grand total of 19 points; |
| --- | --- |

—

Annul the decision of 17 April 2007 in so far as it awards the applicant no additional priority points in the 2003 Promotion procedure, making a total of 1 priority point and a grand total of 19 points;

| — | order the defendant to pay compensation of at least EUR 5 000; |
| --- | --- |

—

order the defendant to pay compensation of at least EUR 5 000;

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

—

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

---

| 9.5.2008 | EN | Official Journal of the European Union | C 116/34 |
| --- | --- | --- | --- |

9.5.2008

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Official Journal of the European Union

C 116/34

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Action brought on 22 February 2008 — Valero Jordana v Commission

(Case F-25/08)

(2008/C 116/66)

Language of the case: French

Parties

Applicant: Gregorio Valero Jordana (Brussels, Belgium) (represented by: M. van der Woude, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the decision of 17 April 2007 inasmuch as does not award the applicant any additional priority points for the promotion year 2003.

Form of order sought

| — | Annul the decision of 17 April 2007 inasmuch as does not award the applicant any additional priority points for the promotion year 2003 |
| --- | --- |

—

Annul the decision of 17 April 2007 inasmuch as does not award the applicant any additional priority points for the promotion year 2003

| — | Order the defendant to pay damages of EUR 5 000; |
| --- | --- |

—

Order the defendant to pay damages of EUR 5 000;

| — | Order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

Order the Commission of the European Communities to pay the costs.

---

| 9.5.2008 | EN | Official Journal of the European Union | C 116/34 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/34

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Action brought on 25 February 2008 — Buendía Sierra v Commission

(Case F-26/08)

(2008/C 116/67)

Language of the case: French

Parties

Applicant: José Luis Buendía Sierra (Brussels, Belgium) (represented by: M. van der Woude, lawyer)

Defendant: Commission of the European Communities

The subject-matter and description of the proceedings

Annulment of the decision of 11 April 2007 in so far as it awards the applicant a single additional priority point in the 2003 Promotion procedure, making a total of two priority points and a grand total of 21 points and implicitly refusing his promotion in the 2003 Promotion procedure, and an order that the defendant pay compensation.

Form of order sought

| — | Annul the decision of 11 April 2007 in so far as it awards the applicant a single additional priority point in the 2003 Promotion procedure, making a total of two priority points and a grand total of 21 points and implicitly refusing his promotion in the 2003 Promotion procedure, and order the defendant to pay compensation; |
| --- | --- |

—

Annul the decision of 11 April 2007 in so far as it awards the applicant a single additional priority point in the 2003 Promotion procedure, making a total of two priority points and a grand total of 21 points and implicitly refusing his promotion in the 2003 Promotion procedure, and order the defendant to pay compensation;

| — | order the defendant to pay damages of EUR 5 000; |
| --- | --- |

—

order the defendant to pay damages of EUR 5 000;

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

—

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

---

| 9.5.2008 | EN | Official Journal of the European Union | C 116/35 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/35

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Action brought on 28 February 2008 — Pouzol v Court of Auditors

(Case F-28/08)

(2008/C 116/68)

Language of the case: French

Parties

Applicant: Michel Pouzol (Combaillaux, France) (represented by: D. Grisay, I. Andoulsi and D. Piccininno, lawyers)

Defendant: European Court of Auditors

The subject-matter and description of the proceedings

First, annulment of the Court of Auditors' decision of 29 November 2007, as well as the proposals made to the applicant on 10 May 2007 concerning the transfer of his pension rights acquired in France and, consequently, recognition of the applicant's entitlement to an additional 6 years, 10 months and 1 day of pensionable service, making an overall entitlement of 10 years, 3 months and 24 days of pensionable service, to be reflected in an addition to his pension. Secondly, an order that the defendant pay compensation for the financial and non-material loss suffered by the applicant.

Form of order sought

| — | Annul the Court of Auditors' decision of 29 November 2007 and the proposals made to the applicant on 10 May 2007; |
| --- | --- |

—

Annul the Court of Auditors' decision of 29 November 2007 and the proposals made to the applicant on 10 May 2007;

| — | recognise the applicant's entitlement to an additional 6 years, 10 months and 1 day of pensionable service, making an overall entitlement of 10 years, 3 months and 24 days of pensionable service; |
| --- | --- |

—

recognise the applicant's entitlement to an additional 6 years, 10 months and 1 day of pensionable service, making an overall entitlement of 10 years, 3 months and 24 days of pensionable service;

| — | order the Court of Auditors to reflect that entitlement to years of pensionable service by an addition to the applicant's pension of EUR 1 232,32 per month; |
| --- | --- |

—

order the Court of Auditors to reflect that entitlement to years of pensionable service by an addition to the applicant's pension of EUR 1 232,32 per month;

| — | order the Court of Auditors to pay compensation for the financial loss suffered by the applicant, assessed to the date of lodgement of the present application at the sum of EUR 32 040,32 (that is the applicant's loss of income of EUR 1 232,32 per month from the date of his being compulsorily retired on 1 January 2006 to 1 March 2008); |
| --- | --- |

—

order the Court of Auditors to pay compensation for the financial loss suffered by the applicant, assessed to the date of lodgement of the present application at the sum of EUR 32 040,32 (that is the applicant's loss of income of EUR 1 232,32 per month from the date of his being compulsorily retired on 1 January 2006 to 1 March 2008);

| — | order the Court of auditors to pay compensation for the non-material loss suffered by the applicant during more than 14 years, the quantum of damages to be determined later by agreement between the parties; |
| --- | --- |

—

order the Court of auditors to pay compensation for the non-material loss suffered by the applicant during more than 14 years, the quantum of damages to be determined later by agreement between the parties;

| — | order the European Court of Auditors to pay the costs. |
| --- | --- |

—

order the European Court of Auditors to pay the costs.

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| 9.5.2008 | EN | Official Journal of the European Union | C 116/35 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/35

---

Action brought on 3 March 2008 — Y v Commission

(Case F-29/08)

(2008/C 116/69)

Language of the case: French

Parties

Applicant: Y (Brussels, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities

The subject-matter and description of the proceedings

Annulment of the decision of the authority authorised to conclude contracts of employment of 24 May 2007 to dismiss the applicant as a contractual agent as a result of alleged insufficient conduct in the service and compensation for the material and non-material damage suffered.

Form of order sought

| — | Annulment of the decision of the authority authorised to conclude contracts of employment of 24 May 2007 dismissing the applicant as a contractual agent; |
| --- | --- |

—

Annulment of the decision of the authority authorised to conclude contracts of employment of 24 May 2007 dismissing the applicant as a contractual agent;

| — | in as far as necessary, annul the Commission's express decision of 16 November 2007 rejecting the complaint lodged by the applicant pursuant to Article 90(2) of the Staff Regulations on 31 August 2007; |
| --- | --- |

—

in as far as necessary, annul the Commission's express decision of 16 November 2007 rejecting the complaint lodged by the applicant pursuant to Article 90(2) of the Staff Regulations on 31 August 2007;

| — | order the Commission to pay the remuneration which the applicant would have continued to receive if the authority authorised to conclude contracts of employment had not terminated the contract of employment prematurely and unlawfully, and all the benefits to which the applicant is entitled; |
| --- | --- |

—

order the Commission to pay the remuneration which the applicant would have continued to receive if the authority authorised to conclude contracts of employment had not terminated the contract of employment prematurely and unlawfully, and all the benefits to which the applicant is entitled;

| — | order the Commission to pay the applicant compensation in the value of EUR 500 000 for non-material harm suffered, subject to an increase during the proceedings; |
| --- | --- |

—

order the Commission to pay the applicant compensation in the value of EUR 500 000 for non-material harm suffered, subject to an increase during the proceedings;

| — | 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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| 9.5.2008 | EN | Official Journal of the European Union | C 116/36 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/36

---

Action brought on 3 March 2008 — Klein v Commission

(Case F-32/08)

(2008/C 116/70)

Language of the case: French

Parties

Applicant: Marie-Claude Klein (Grasse, France) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities

The subject-matter and description of the proceedings

Annulment of the decision of the appointing authority of 4 May 2007 refusing to recognise the applicant as the beneficiary of a death grant, death allowance and an orphan pension.

Form of order sought

| — | Annul the decision adopted by the Director of the Office for the Administration and Payment of Individual Entitlements of the European Commission of 4 May 2007; |
| --- | --- |

—

Annul the decision adopted by the Director of the Office for the Administration and Payment of Individual Entitlements of the European Commission of 4 May 2007;

| — | annul as necessary the decision of the appointing authority rejecting the applicant's complaint; |
| --- | --- |

—

annul as necessary the decision of the appointing authority rejecting the applicant's complaint;

| — | state to the appointing authority the consequences of the annulment of the contested decisions and, in particular, reconsider the applicant's right to death allowance, a death grant and an orphan pension (calculated on the basis of the pension for a first orphan); |
| --- | --- |

—

state to the appointing authority the consequences of the annulment of the contested decisions and, in particular, reconsider the applicant's right to death allowance, a death grant and an orphan pension (calculated on the basis of the pension for a first orphan);

| — | 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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| 9.5.2008 | EN | Official Journal of the European Union | C 116/36 |
| --- | --- | --- | --- |

9.5.2008

EN

Official Journal of the European Union

C 116/36

---

Action brought on 11 March 2008 — Simon v Commission

(Case F-34/08)

(2008/C 116/71)

Language of the case: French

Parties

Applicant: Anne Simon (Nouackhott, Mauritania) (represented by: S. Orlandi, A. Coolen, J.N. Louis and É. Marchal, lawyers)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the decision of 25 October 2007 of the European Personnel Selection Office inasmuch as it did not include the applicant's name on the list of successful candidates and in the CAST 27/Relex database.

Form of order sought

| — | Annul the decision of 25 October 2007 of the European Personnel Selection Office inasmuch as it did not include the applicant's name on the list of successful candidates and in the CAST 27/Relex database; |
| --- | --- |

—

Annul the decision of 25 October 2007 of the European Personnel Selection Office inasmuch as it did not include the applicant's name on the list of successful candidates and in the CAST 27/Relex database;

| — | 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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