# Official Journal C 197/2008

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 197 |
| | |
| English edition | Information and Notices | Volume 512 August 2008 |

ISSN 1725-2423

Official Journal

of the European Union

C 197

English edition

Information and Notices

Volume 512 August 2008

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2008/C 197/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 183, 19.7.2008 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2008/C 197/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 183, 19.7.2008

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2008/C 197/02 | Case C-120/08: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 20 March 2008 — Bayerischer Brauerbund e.V. v Bavaria N.V. | 2 |
| 2008/C 197/03 | Case C-170/08: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) lodged on 23 April 2008 — H.J. Nijemeisland v Minister van Landbouw, Natuur en Voedselkwaliteit | 2 |
| 2008/C 197/04 | Case C-175/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Aydin Salahadin Abdulla v Federal Republic of Germany | 3 |
| 2008/C 197/05 | Case C-176/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Kamil Hasan v Federal Republic of Germany | 3 |
| 2008/C 197/06 | Case C-177/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Khoshnaw Abdullah v Federal Republic of Germany | 4 |
| 2008/C 197/07 | Case C-178/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Ahmed Adem and Hamrin Mosa Rashi v Federal Republic of Germany | 5 |
| 2008/C 197/08 | Case C-179/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Dler Jamal v Federal Republic of Germany | 5 |
| 2008/C 197/09 | Case C-182/08: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 30 April 2008 — Glaxco Wellcome GmbH & Co v Finanzamt München II | 6 |
| 2008/C 197/10 | Case C-185/08: Reference for a preliminary ruling from the Rechtbank 's-Gravenhage lodged on 29 April 2008 — Latchways plc and Eurosafe Solutions BV v Kedge Safety Systems BV and Consolidated Nederland BV | 6 |
| 2008/C 197/11 | Case C-188/08: Action brought on 6 May 2008 — Commission of the European Communities v Ireland | 7 |
| 2008/C 197/12 | Case C-192/08: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 8 May 2008 — TeliaSonera Finland Oyj | 8 |
| 2008/C 197/13 | Case C-194/08: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 9 May 2005 — Dr. Susanne Gassmayr v Bundesministerin für Wissenschaft und Forschung | 9 |
| 2008/C 197/14 | Case C-196/08: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale della Sicilia (Italy) lodged on 14 May 2008 — Acoset SpA v Conferenza Sindaci e Presidenza Prov.Reg.ATO Idrico Ragusa and Others | 9 |
| 2008/C 197/15 | Case C-198/08: Action brought on 14 May 2008 — Commission of the European Communities v Republic of Austria | 10 |
| 2008/C 197/16 | Case C-199/08: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 15 May 2008 — Dr. Erhard Eschig v UNIQA Sachversicherung AG | 10 |
| 2008/C 197/17 | Case C-203/08: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 16 May 2008 — The Sporting Exchange Ltd, trading under the name Betfair; other parties: Minister for Justice, Stichting de Nationale Sporttotalisator and Scientific Games Racing | 11 |
| 2008/C 197/18 | Case C-204/08: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 19 May 2008 — Peter Rehder v Air Baltic Corporation | 11 |
| 2008/C 197/19 | Case C-211/08: Action brought on 20 May 2008 — Commission of the European Communities v Kingdom of Spain | 12 |
| 2008/C 197/20 | Case C-212/08: Reference for a preliminary ruling from the Conseil d'État (France) lodged on 21 May 2008 — Société Zeturf Limited v Premier ministre, Ministre de l'Agriculture et de la Pêche, Ministre de l'Intérieur, de l'Outre-mer et des Collectivités territoriales, Ministre de l'Économie, de l'Industrie et de l'Emploi — Intervening party: G.I.E. Pari Mutuel Urbain (PMU) | 12 |
| 2008/C 197/21 | Case C-213/08: Action brought on 21 May 2008 — Commission of the European Communities v Kingdom of Spain | 13 |
| 2008/C 197/22 | Case C-217/08: Reference for a preliminary ruling from the Tribunale Ordinario di Milano (Italy) lodged on 22 May 2008 — Rita Mariano v Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro (INAIL) | 13 |
| 2008/C 197/23 | Case C-218/08: Action brought on 22 May 2008 — Commission of the European Communities v Italian Republic | 13 |
| 2008/C 197/24 | Case C-230/08: Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 May 2008 — Dansk Transport og Logistik v Skatteministeriet | 14 |
| 2008/C 197/25 | Case C-241/08: Action brought on 2 June 2008 — Commission of the European Communities v French Republic | 15 |
| 2008/C 197/26 | Case C-252/08: Action brought on 12 June 2008 — Commission of the European Communities v Republic of Malta | 15 |
| 2008/C 197/27 | Case C-256/08: Action brought on 16 June 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland | 16 |
| 2008/C 197/28 | Case C-269/08: Action brought on 20 June 2008 — Commission of the European Communities v Republic of Malta | 16 |
| | Court of First Instance |
| 2008/C 197/29 | Assigning of Judges to Chambers | 17 |
| 2008/C 197/30 | Case T-94/98: Judgment of the Court of First Instance of 26 June 2008 — Alferink and Others v Commission (Actions for damages — Non-contractual liability — Milk — Additional levy — Reference quantity — Producers who entered into non-marketing undertakings — Requirement that production be on the initial SLOM holding — Article 3a of Regulation (EEC) No 1546/88, as amended by Regulation (EEC) No 1033/89 — Allegedly ambiguous wording of the applicable provision — Principle of legal certainty) | 18 |
| 2008/C 197/31 | Case T-410/03: Judgment of the Court of First Instance of 18 June 2008 — Hoechst v Commission (Competition — Agreements, decisions and concerted practices — Market in sorbates — Decision finding an infringement of Article 81 EC — Calculation of the amount of the fines — Obligation to state the reasons on which the decision is based — Gravity and duration of the infringement — Aggravating circumstances — Principle non bis in idem — Cooperation during the administrative procedure — Access to the file — Duration of the procedure) | 19 |
| 2008/C 197/32 | Case T-420/03: Judgment of the Court of First Instance of 17 June 2008 — El Corte Inglés v OHIM — Abril Sánchez and Ricote Saugar (BoomerangTV) (Community trade mark — Opposition proceedings — Application for registration of the Community figurative mark BoomerangTV — Earlier national and Community word and figurative marks BOOMERANG and Boomerang — Relative grounds for refusal — No likelihood of confusion — No well-known trade mark within the meaning of Article 6bis of the Paris Convention — No damage to reputation — Failure to produce evidence before the Opposition Division of the existence of certain earlier trade marks or translations thereof — Production of evidence for the first time before the Board of Appeal — Article 8(1)(b) and (2)(c), Article 8(5) and Article 74(2) of Regulation EC No 40/94 — Rule 16(2) and (3), Rule 17(2) and Rule 20(2) of Regulation (EC) No 2868/95) | 19 |
| 2008/C 197/33 | Case T-442/03: Judgment of the Court of First Instance of 26 June 2008 — SIC v Commission (State aid — Measures taken by the Portuguese Republic for the public service broadcaster RTP in order to finance its public service remit — Decision declaring that certain measures do not constitute State aid and that the others are compatible with the common market — Classification as State aid — Compatibility with the common market — Obligation to undertake a diligent and impartial investigation) | 20 |
| 2008/C 197/34 | Case T-93/06: Judgment of the Court of First Instance of 19 June 2008 — Mülhens v OHIM — Spa Monopole (MINERAL SPA) (Community trade mark — Opposition proceedings — Application for Community word mark MINERAL SPA — Earlier national word mark SPA — Relative ground for refusal — Reputation — Unfair advantage taken of the repute of the earlier mark — Article 8(5) of Regulation (EC) No 40/94) | 20 |
| 2008/C 197/35 | Case T-175/06: Judgment of the Court of First Instance of 18 June 2008 — Coca-Cola v OHIM — San Polo (MEZZOPANE) (Community trade mark — Opposition proceedings — Application for Community figurative trade mark MEZZOPANE — Earlier national word marks MEZZO and MEZZOMIX — Article 8(1)(b) of Regulation (EC) No 40/94 — No likelihood of confusion) | 21 |
| 2008/C 197/36 | Case T-224/06: Judgment of the Court of First Instance of 25 June 2008 — Otto v OHIM (Community trade mark — Opposition proceedings — Application for the Community figurative mark l'Altra Moda — Earlier national figurative mark Alba Moda — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Article 73 and Article 74(1) and (2) of Regulation No 40/94) | 21 |
| 2008/C 197/37 | Case T-268/06: Judgment of the Court of First Instance of 25 June 2008 — Olympiaki Aeroporia Ypiresies v Commission (State aid — Aid for airlines on account of losses caused by the terrorist attacks of 11 September 2001 — Decision declaring the aid scheme incompatible, in part, with the common market and ordering recovery of aid paid — Article 87(2)(b) EC — Communication from the Commission of 10 October 2001 on the repercussions of the terrorist attacks of 11 September — Causal connection between the exceptional occurrence and the damage — Obligation to state the reasons on which the decision is based) | 22 |
| 2008/C 197/38 | Case T-36/07: Judgment of the Court of First Instance of 25 June 2008 — Zipcar, Inc. v OHIM — Canary Islands Car (ZIPCAR) (Community trade mark — Opposition proceedings — Application for the Community word mark ZIPCAR — Earlier national word mark CICAR — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 22 |
| 2008/C 197/39 | Case T-79/07: Judgment of the Court of First Instance of 26 June 2008 — SHS Polar Sistemas Informáticos v OHIM — Polaris Software Lab (POLARIS) (Community trade mark — Opposition proceedings — Application for the Community figurative mark POLARIS — Earlier Community word mark POLAR — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 23 |
| 2008/C 197/40 | Case T-164/07 P: Judgment of the Court of First Instance of 18 June 2008 — Sundholm v Commission (Appeal — Staff case — Officials — Career development report — 2003 appraisal procedure — Rights of the defence — Appeal inadmissible — Appeal unfounded) | 23 |
| 2008/C 197/41 | Case T-209/06: Order of the Court of First Instance of 11 June 2008 — European Association of Im- and Exporters of Birds and live Animals and Others v Commission (Action for annulment — Admissibility — Fourth paragraph of Article 230 EC — Natural and legal persons — Associations — Decision 2006/522/EC — Individual concern — Animal health — Protection measures in relation to avian influenza) | 23 |
| 2008/C 197/42 | Joined Cases T-383/06 and T-71/07: Order of the Court of First Instance of 14 May 2008 — Icuna.Com v Parliament (Actions for annulment — Actions for damages — Public service contracts — Community tendering procedure — Rejection of a tender — Decision to annul the tendering procedure — Action manifestly lacking any foundation in law — No need to give a decision) | 24 |
| 2008/C 197/43 | Case T-127/07 P: Order of the Court of First Instance of 10 June 2008 — Bligny v Commission (Appeal — Staff case — Open competition — Conditions governing admission — Not admitted at the stage of correction of the written test — Competition notice — Incomplete application — Proof of citizenship — Appeal manifestly unfounded) | 24 |
| 2008/C 197/44 | Case T-41/08 R: Order of the President of the Court of First Instance of 25 April 2008 — Vakakis v Commission (Community tendering procedure — Interim proceedings — Loss of an opportunity — Locus standi — Admissibility of the main application — Urgency — Measures of inquiry) | 25 |
| 2008/C 197/45 | Case T-190/08: Action brought on 14 May 2008 — CHEMK and Kuznetskie ferrosplavy v Council and Commission | 25 |
| 2008/C 197/46 | Case T-192/08: Action brought on 21 May 2008 — Transnational Company Kazchrome and ENRC Marketing v Council | 26 |
| 2008/C 197/47 | Case T-193/08 P: Appeal brought on 21 May 2008 by Carina Skareby against the judgment of the Civil Service Tribunal delivered on 6 March 2008 in Case F-46/06, Skareby v Commission | 26 |
| 2008/C 197/48 | Case T-194/08: Action brought on 21 May 2008 — Cattin and Cattin v Commission | 27 |
| 2008/C 197/49 | Case T-201/08: Action brought on 26 May 2008 — Market Watch v OHIM — Ares Trading (SEROSLIM) | 27 |
| 2008/C 197/50 | Case T-204/08: Action brought on 4 June 2008 — Team Relocations NV v Commission | 28 |
| 2008/C 197/51 | Case T-206/08: Action brought on 9 June 2008 — Spain v Commission | 29 |
| 2008/C 197/52 | Case T-209/08: Action brought on 4 June 2008 — Stichting Administratiekantoor Portielje v Commission | 30 |
| 2008/C 197/53 | Case T-210/08: Action brought on 4 June 2008 — Verhuizingen Coppens v Commission | 30 |
| 2008/C 197/54 | Case T-211/08: Action brought on 4 June 2008 — Putters International v Commission | 31 |
| 2008/C 197/55 | Case T-212/08: Action brought on 4 June 2008 — Amertranseuro International Holdings and Others v Commission | 32 |
| 2008/C 197/56 | Case T-214/08: Action brought on 9 June 2008 — Paul Alfons Rehbein v OHIM — Hervé Dias Martinho and Manuel Dias Martinho (Outburst) | 32 |
| 2008/C 197/57 | Case T-218/08: Action brought on 11 June 2008 — Lemans v OHIM — Stephen Turner (ICON) | 33 |
| 2008/C 197/58 | Case T-229/08: Action brought on 13 June 2008 — Impala v Commission | 33 |
| 2008/C 197/59 | Case T-246/08: Action brought on 25 June 2008 — Melli Bank v Council | 34 |
| 2008/C 197/60 | Case T-9/94: Order of the Court of First Instance of 26 May 2008 — Ypma v Council and Commission | 35 |
| 2008/C 197/61 | Case T-402/03: Order of the Court of First Instance of 5 June 2008 — Katalagarianakis v Commission | 35 |
| 2008/C 197/62 | Case T-11/04: Order of the Court of First Instance of 5 June 2008 — Martins v Commission | 35 |
| 2008/C 197/63 | Case T-101/04: Order of the Court of First Instance of 5 June 2008 — Martinez-Mongay v Commission | 35 |
| 2008/C 197/64 | Case T-128/04: Order of the Court of First Instance of 5 June 2008 — Piccinni-Leopardi v Commission | 35 |
| 2008/C 197/65 | Case T-390/04: Order of the Court of First Instance of 11 June 2008 — Piccinni-Leopardi and Others v Commission | 36 |
| 2008/C 197/66 | Case T-31/05: Order of the Court of First Instance of 17 June 2008 — Rossi v OHIM — K & L Ruppert Stiftung (Rossi) | 36 |
| 2008/C 197/67 | Case T-104/05: Order of the Court of First Instance of 5 June 2008 — Cegelec v Parliament | 36 |
| 2008/C 197/68 | Case T-342/06: Order of the Court of First Instance of 17 June 2008 — Angiotech Pharmaceuticals v OHIM (VASCULAR WRAP) | 36 |
| 2008/C 197/69 | Case T-331/07: Order of the Court of First Instance of 6 June 2008 — Chupa Chups v Commission | 36 |
| 2008/C 197/70 | Case T-22/08: Order of the Court of First Instance of 16 June 2008 — Quest Diagnostics v OHIM — ALK-Abelló (DIAQUEST) | 36 |
| | European Union Civil Service Tribunal |
| 2008/C 197/71 | Case F-97/07: Judgment of the Civil Service Tribunal (First Chamber) of 17 June 2008 — De Fays v Commission (Staff cases — Officials — Sick leave — Unauthorised absence) | 37 |
| 2008/C 197/72 | Case F-57/08: Action brought on 9 June 2008 — Palazzo v Commission | 37 |
| 2008/C 197/73 | Case F-2/05: Order of the Civil Service Tribunal (First Chamber) of 18 June 2008 — Kröppelin v Council | 37 |
| 2008/C 197/74 | Case F-4/05: Order of the Civil Service Tribunal (First Chamber) of 18 June 2008 — Huober v Council | 38 |
| 2008/C 197/75 | Case F-6/05: Order of the Civil Service Tribunal (First Chamber) of 18 June 2008 — Kröppelin v Council | 38 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2008/C 197/02

Case C-120/08: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 20 March 2008 — Bayerischer Brauerbund e.V. v Bavaria N.V.

2

2008/C 197/03

Case C-170/08: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) lodged on 23 April 2008 — H.J. Nijemeisland v Minister van Landbouw, Natuur en Voedselkwaliteit

2

2008/C 197/04

Case C-175/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Aydin Salahadin Abdulla v Federal Republic of Germany

3

2008/C 197/05

Case C-176/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Kamil Hasan v Federal Republic of Germany

3

2008/C 197/06

Case C-177/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Khoshnaw Abdullah v Federal Republic of Germany

4

2008/C 197/07

Case C-178/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Ahmed Adem and Hamrin Mosa Rashi v Federal Republic of Germany

5

2008/C 197/08

Case C-179/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Dler Jamal v Federal Republic of Germany

5

2008/C 197/09

Case C-182/08: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 30 April 2008 — Glaxco Wellcome GmbH & Co v Finanzamt München II

6

2008/C 197/10

Case C-185/08: Reference for a preliminary ruling from the Rechtbank 's-Gravenhage lodged on 29 April 2008 — Latchways plc and Eurosafe Solutions BV v Kedge Safety Systems BV and Consolidated Nederland BV

6

2008/C 197/11

Case C-188/08: Action brought on 6 May 2008 — Commission of the European Communities v Ireland

7

2008/C 197/12

Case C-192/08: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 8 May 2008 — TeliaSonera Finland Oyj

8

2008/C 197/13

Case C-194/08: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 9 May 2005 — Dr. Susanne Gassmayr v Bundesministerin für Wissenschaft und Forschung

9

2008/C 197/14

Case C-196/08: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale della Sicilia (Italy) lodged on 14 May 2008 — Acoset SpA v Conferenza Sindaci e Presidenza Prov.Reg.ATO Idrico Ragusa and Others

9

2008/C 197/15

Case C-198/08: Action brought on 14 May 2008 — Commission of the European Communities v Republic of Austria

10

2008/C 197/16

Case C-199/08: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 15 May 2008 — Dr. Erhard Eschig v UNIQA Sachversicherung AG

10

2008/C 197/17

Case C-203/08: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 16 May 2008 — The Sporting Exchange Ltd, trading under the name Betfair; other parties: Minister for Justice, Stichting de Nationale Sporttotalisator and Scientific Games Racing

11

2008/C 197/18

Case C-204/08: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 19 May 2008 — Peter Rehder v Air Baltic Corporation

11

2008/C 197/19

Case C-211/08: Action brought on 20 May 2008 — Commission of the European Communities v Kingdom of Spain

12

2008/C 197/20

Case C-212/08: Reference for a preliminary ruling from the Conseil d'État (France) lodged on 21 May 2008 — Société Zeturf Limited v Premier ministre, Ministre de l'Agriculture et de la Pêche, Ministre de l'Intérieur, de l'Outre-mer et des Collectivités territoriales, Ministre de l'Économie, de l'Industrie et de l'Emploi — Intervening party: G.I.E. Pari Mutuel Urbain (PMU)

12

2008/C 197/21

Case C-213/08: Action brought on 21 May 2008 — Commission of the European Communities v Kingdom of Spain

13

2008/C 197/22

Case C-217/08: Reference for a preliminary ruling from the Tribunale Ordinario di Milano (Italy) lodged on 22 May 2008 — Rita Mariano v Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro (INAIL)

13

2008/C 197/23

Case C-218/08: Action brought on 22 May 2008 — Commission of the European Communities v Italian Republic

13

2008/C 197/24

Case C-230/08: Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 May 2008 — Dansk Transport og Logistik v Skatteministeriet

14

2008/C 197/25

Case C-241/08: Action brought on 2 June 2008 — Commission of the European Communities v French Republic

15

2008/C 197/26

Case C-252/08: Action brought on 12 June 2008 — Commission of the European Communities v Republic of Malta

15

2008/C 197/27

Case C-256/08: Action brought on 16 June 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

16

2008/C 197/28

Case C-269/08: Action brought on 20 June 2008 — Commission of the European Communities v Republic of Malta

16

Court of First Instance

2008/C 197/29

Assigning of Judges to Chambers

17

2008/C 197/30

Case T-94/98: Judgment of the Court of First Instance of 26 June 2008 — Alferink and Others v Commission (Actions for damages — Non-contractual liability — Milk — Additional levy — Reference quantity — Producers who entered into non-marketing undertakings — Requirement that production be on the initial SLOM holding — Article 3a of Regulation (EEC) No 1546/88, as amended by Regulation (EEC) No 1033/89 — Allegedly ambiguous wording of the applicable provision — Principle of legal certainty)

18

2008/C 197/31

Case T-410/03: Judgment of the Court of First Instance of 18 June 2008 — Hoechst v Commission (Competition — Agreements, decisions and concerted practices — Market in sorbates — Decision finding an infringement of Article 81 EC — Calculation of the amount of the fines — Obligation to state the reasons on which the decision is based — Gravity and duration of the infringement — Aggravating circumstances — Principle non bis in idem — Cooperation during the administrative procedure — Access to the file — Duration of the procedure)

non bis in idem

19

2008/C 197/32

Case T-420/03: Judgment of the Court of First Instance of 17 June 2008 — El Corte Inglés v OHIM — Abril Sánchez and Ricote Saugar (BoomerangTV) (Community trade mark — Opposition proceedings — Application for registration of the Community figurative mark BoomerangTV — Earlier national and Community word and figurative marks BOOMERANG and Boomerang — Relative grounds for refusal — No likelihood of confusion — No well-known trade mark within the meaning of Article 6bis of the Paris Convention — No damage to reputation — Failure to produce evidence before the Opposition Division of the existence of certain earlier trade marks or translations thereof — Production of evidence for the first time before the Board of Appeal — Article 8(1)(b) and (2)(c), Article 8(5) and Article 74(2) of Regulation EC No 40/94 — Rule 16(2) and (3), Rule 17(2) and Rule 20(2) of Regulation (EC) No 2868/95)

TV

TV

19

2008/C 197/33

Case T-442/03: Judgment of the Court of First Instance of 26 June 2008 — SIC v Commission (State aid — Measures taken by the Portuguese Republic for the public service broadcaster RTP in order to finance its public service remit — Decision declaring that certain measures do not constitute State aid and that the others are compatible with the common market — Classification as State aid — Compatibility with the common market — Obligation to undertake a diligent and impartial investigation)

20

2008/C 197/34

Case T-93/06: Judgment of the Court of First Instance of 19 June 2008 — Mülhens v OHIM — Spa Monopole (MINERAL SPA) (Community trade mark — Opposition proceedings — Application for Community word mark MINERAL SPA — Earlier national word mark SPA — Relative ground for refusal — Reputation — Unfair advantage taken of the repute of the earlier mark — Article 8(5) of Regulation (EC) No 40/94)

20

2008/C 197/35

Case T-175/06: Judgment of the Court of First Instance of 18 June 2008 — Coca-Cola v OHIM — San Polo (MEZZOPANE) (Community trade mark — Opposition proceedings — Application for Community figurative trade mark MEZZOPANE — Earlier national word marks MEZZO and MEZZOMIX — Article 8(1)(b) of Regulation (EC) No 40/94 — No likelihood of confusion)

21

2008/C 197/36

Case T-224/06: Judgment of the Court of First Instance of 25 June 2008 — Otto v OHIM (Community trade mark — Opposition proceedings — Application for the Community figurative mark l'Altra Moda — Earlier national figurative mark Alba Moda — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Article 73 and Article 74(1) and (2) of Regulation No 40/94)

21

2008/C 197/37

Case T-268/06: Judgment of the Court of First Instance of 25 June 2008 — Olympiaki Aeroporia Ypiresies v Commission (State aid — Aid for airlines on account of losses caused by the terrorist attacks of 11 September 2001 — Decision declaring the aid scheme incompatible, in part, with the common market and ordering recovery of aid paid — Article 87(2)(b) EC — Communication from the Commission of 10 October 2001 on the repercussions of the terrorist attacks of 11 September — Causal connection between the exceptional occurrence and the damage — Obligation to state the reasons on which the decision is based)

22

2008/C 197/38

Case T-36/07: Judgment of the Court of First Instance of 25 June 2008 — Zipcar, Inc. v OHIM — Canary Islands Car (ZIPCAR) (Community trade mark — Opposition proceedings — Application for the Community word mark ZIPCAR — Earlier national word mark CICAR — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

22

2008/C 197/39

Case T-79/07: Judgment of the Court of First Instance of 26 June 2008 — SHS Polar Sistemas Informáticos v OHIM — Polaris Software Lab (POLARIS) (Community trade mark — Opposition proceedings — Application for the Community figurative mark POLARIS — Earlier Community word mark POLAR — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

23

2008/C 197/40

Case T-164/07 P: Judgment of the Court of First Instance of 18 June 2008 — Sundholm v Commission (Appeal — Staff case — Officials — Career development report — 2003 appraisal procedure — Rights of the defence — Appeal inadmissible — Appeal unfounded)

23

2008/C 197/41

Case T-209/06: Order of the Court of First Instance of 11 June 2008 — European Association of Im- and Exporters of Birds and live Animals and Others v Commission (Action for annulment — Admissibility — Fourth paragraph of Article 230 EC — Natural and legal persons — Associations — Decision 2006/522/EC — Individual concern — Animal health — Protection measures in relation to avian influenza)

23

2008/C 197/42

Joined Cases T-383/06 and T-71/07: Order of the Court of First Instance of 14 May 2008 — Icuna.Com v Parliament (Actions for annulment — Actions for damages — Public service contracts — Community tendering procedure — Rejection of a tender — Decision to annul the tendering procedure — Action manifestly lacking any foundation in law — No need to give a decision)

24

2008/C 197/43

Case T-127/07 P: Order of the Court of First Instance of 10 June 2008 — Bligny v Commission (Appeal — Staff case — Open competition — Conditions governing admission — Not admitted at the stage of correction of the written test — Competition notice — Incomplete application — Proof of citizenship — Appeal manifestly unfounded)

24

2008/C 197/44

Case T-41/08 R: Order of the President of the Court of First Instance of 25 April 2008 — Vakakis v Commission (Community tendering procedure — Interim proceedings — Loss of an opportunity — Locus standi — Admissibility of the main application — Urgency — Measures of inquiry)

Locus standi

25

2008/C 197/45

Case T-190/08: Action brought on 14 May 2008 — CHEMK and Kuznetskie ferrosplavy v Council and Commission

25

2008/C 197/46

Case T-192/08: Action brought on 21 May 2008 — Transnational Company Kazchrome and ENRC Marketing v Council

26

2008/C 197/47

Case T-193/08 P: Appeal brought on 21 May 2008 by Carina Skareby against the judgment of the Civil Service Tribunal delivered on 6 March 2008 in Case F-46/06, Skareby v Commission

26

2008/C 197/48

Case T-194/08: Action brought on 21 May 2008 — Cattin and Cattin v Commission

27

2008/C 197/49

Case T-201/08: Action brought on 26 May 2008 — Market Watch v OHIM — Ares Trading (SEROSLIM)

27

2008/C 197/50

Case T-204/08: Action brought on 4 June 2008 — Team Relocations NV v Commission

28

2008/C 197/51

Case T-206/08: Action brought on 9 June 2008 — Spain v Commission

29

2008/C 197/52

Case T-209/08: Action brought on 4 June 2008 — Stichting Administratiekantoor Portielje v Commission

30

2008/C 197/53

Case T-210/08: Action brought on 4 June 2008 — Verhuizingen Coppens v Commission

30

2008/C 197/54

Case T-211/08: Action brought on 4 June 2008 — Putters International v Commission

31

2008/C 197/55

Case T-212/08: Action brought on 4 June 2008 — Amertranseuro International Holdings and Others v Commission

32

2008/C 197/56

Case T-214/08: Action brought on 9 June 2008 — Paul Alfons Rehbein v OHIM — Hervé Dias Martinho and Manuel Dias Martinho (Outburst)

32

2008/C 197/57

Case T-218/08: Action brought on 11 June 2008 — Lemans v OHIM — Stephen Turner (ICON)

33

2008/C 197/58

Case T-229/08: Action brought on 13 June 2008 — Impala v Commission

33

2008/C 197/59

Case T-246/08: Action brought on 25 June 2008 — Melli Bank v Council

34

2008/C 197/60

Case T-9/94: Order of the Court of First Instance of 26 May 2008 — Ypma v Council and Commission

35

2008/C 197/61

Case T-402/03: Order of the Court of First Instance of 5 June 2008 — Katalagarianakis v Commission

35

2008/C 197/62

Case T-11/04: Order of the Court of First Instance of 5 June 2008 — Martins v Commission

35

2008/C 197/63

Case T-101/04: Order of the Court of First Instance of 5 June 2008 — Martinez-Mongay v Commission

35

2008/C 197/64

Case T-128/04: Order of the Court of First Instance of 5 June 2008 — Piccinni-Leopardi v Commission

35

2008/C 197/65

Case T-390/04: Order of the Court of First Instance of 11 June 2008 — Piccinni-Leopardi and Others v Commission

36

2008/C 197/66

Case T-31/05: Order of the Court of First Instance of 17 June 2008 — Rossi v OHIM — K & L Ruppert Stiftung (Rossi)

36

2008/C 197/67

Case T-104/05: Order of the Court of First Instance of 5 June 2008 — Cegelec v Parliament

36

2008/C 197/68

Case T-342/06: Order of the Court of First Instance of 17 June 2008 — Angiotech Pharmaceuticals v OHIM (VASCULAR WRAP)

36

2008/C 197/69

Case T-331/07: Order of the Court of First Instance of 6 June 2008 — Chupa Chups v Commission

36

2008/C 197/70

Case T-22/08: Order of the Court of First Instance of 16 June 2008 — Quest Diagnostics v OHIM — ALK-Abelló (DIAQUEST)

36

European Union Civil Service Tribunal

2008/C 197/71

Case F-97/07: Judgment of the Civil Service Tribunal (First Chamber) of 17 June 2008 — De Fays v Commission (Staff cases — Officials — Sick leave — Unauthorised absence)

37

2008/C 197/72

Case F-57/08: Action brought on 9 June 2008 — Palazzo v Commission

37

2008/C 197/73

Case F-2/05: Order of the Civil Service Tribunal (First Chamber) of 18 June 2008 — Kröppelin v Council

37

2008/C 197/74

Case F-4/05: Order of the Civil Service Tribunal (First Chamber) of 18 June 2008 — Huober v Council

38

2008/C 197/75

Case F-6/05: Order of the Civil Service Tribunal (First Chamber) of 18 June 2008 — Kröppelin v Council

38

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 2.8.2008 | EN | Official Journal of the European Union | C 197/1 |
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2.8.2008

EN

Official Journal of the European Union

C 197/1

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(2008/C 197/01)

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

OJ C 183, 19.7.2008

Past publications

OJ C 171, 5.7.2008

OJ C 158, 21.6.2008

OJ C 142, 7.6.2008

OJ C 128, 24.5.2008

OJ C 116, 9.5.2008

OJ C 107, 26.4.2008

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

| 2.8.2008 | EN | Official Journal of the European Union | C 197/2 |
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2.8.2008

EN

Official Journal of the European Union

C 197/2

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 20 March 2008 — Bayerischer Brauerbund e.V. v Bavaria N.V.

(Case C-120/08)

(2008/C 197/02)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Bayerischer Brauerbund e.V.

Defendant: Bavaria N.V.

Questions referred

| 1. | The following questions are referred to the Court of Justice of the European Communities for a preliminary ruling on the interpretation of Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (1). Does Article 14(1) of Regulation (EC) No 510/2006 apply in the case where the protected indication has been validly registered in accordance with the simplified procedure under Article 17 of Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (2)? |
| --- | --- |

1.

The following questions are referred to the Court of Justice of the European Communities for a preliminary ruling on the interpretation of Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (1). Does Article 14(1) of Regulation (EC) No 510/2006 apply in the case where the protected indication has been validly registered in accordance with the simplified procedure under Article 17 of Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (2)?

| 2. | (a) | If the answer to Question 1 is in the affirmative, what date should be taken as the basis for determining the classification in time of the protected geographical indication within the meaning of Article 14(1) of Regulation (EC) No 510/2006? |
| --- | --- | --- |

2.

(a)

If the answer to Question 1 is in the affirmative, what date should be taken as the basis for determining the classification in time of the protected geographical indication within the meaning of Article 14(1) of Regulation (EC) No 510/2006?

| (b) | If the answer to Question 1 is in the negative, what provision governs the conflict between a geographical indication validly registered in accordance with the simplified procedure under Article 17 of Regulation (EEC) No 2081/92 and a trade mark, and what determines the classification in time of the protected geographical indication? |
| --- | --- |

(b)

If the answer to Question 1 is in the negative, what provision governs the conflict between a geographical indication validly registered in accordance with the simplified procedure under Article 17 of Regulation (EEC) No 2081/92 and a trade mark, and what determines the classification in time of the protected geographical indication?

| 3. | May the national provisions on the protection of geographical designations be applied in the case where the indication ‘Bayerisches Bier’ fulfils the conditions for registration (3) under Regulation (EEC) No 2081/92 and Regulation (EC) No 510/2006, but Regulation (EC) No 1347/2001 is invalid? |
| --- | --- |

3.

May the national provisions on the protection of geographical designations be applied in the case where the indication ‘Bayerisches Bier’ fulfils the conditions for registration (3) under Regulation (EEC) No 2081/92 and Regulation (EC) No 510/2006, but Regulation (EC) No 1347/2001 is invalid?

---

(1)  OJ 2006 L 93, p. 12.

(2)  OJ 1992 L 208, p. 1.

(3)  OJ 1992 L 182, p. 3.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/2 |
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2.8.2008

EN

Official Journal of the European Union

C 197/2

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Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) lodged on 23 April 2008 — H.J. Nijemeisland v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-170/08)

(2008/C 197/03)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicant: H.J. Nijemeisland

Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit

Question referred

Must Article 3a of Regulation (EC) No 795/2004 (1), read in conjunction with Article 2(r) and (s) of Regulation (EC) No 2419/2001 (2), be interpreted as preventing only the perpetuation of a reduction or exclusion applied under Regulation (EC) No 2419/2001, or is that provision also applicable to reductions or exclusions applied on the basis of other regulations?

---

(1)  Commission Regulation (EC) No 795/2004 of 21 April 2004 laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 41, p. 1).

(2)  Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 (OJ 2001 L 327, p. 11).

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/3 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/3

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Aydin Salahadin Abdulla v Federal Republic of Germany

(Case C-175/08)

(2008/C 197/04)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Aydin Salahadin Abdulla

Defendant: Federal Republic of Germany

Questions referred

| 1. | Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 (1) to be interpreted as meaning that — apart from the second clause of Article 1(C)(5) of the Convention of 28 July 1951 relating to the Status of Refugees (Geneva Convention on Refugees) — refugee status ceases to exist if the refugee's well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83? |
| --- | --- |

1.

Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 (1) to be interpreted as meaning that — apart from the second clause of Article 1(C)(5) of the Convention of 28 July 1951 relating to the Status of Refugees (Geneva Convention on Refugees) — refugee status ceases to exist if the refugee's well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83?

| 2. | If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of Directive 2004/83 also require that, in the country of the refugee's nationality,






  (a) | an actor of protection within the meaning of Article 7(1) of Directive 2004/83 be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops, |
| --- | --- | --- |

2.

If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of Directive 2004/83 also require that, in the country of the refugee's nationality,

(a)

an actor of protection within the meaning of Article 7(1) of Directive 2004/83 be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops,

| (b) | the refugee should not be threatened with serious harm, within the meaning of Article 15 of Directive 2004/83, which leads to the granting of subsidiary protection under Article 18 of that directive, and/or |
| --- | --- |

(b)

the refugee should not be threatened with serious harm, within the meaning of Article 15 of Directive 2004/83, which leads to the granting of subsidiary protection under Article 18 of that directive, and/or

| (c) | the security situation be stable and the general living conditions ensure a minimum standard of living? |
| --- | --- |

(c)

the security situation be stable and the general living conditions ensure a minimum standard of living?

| 3. | In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be






  (a) | measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or |
| --- | --- | --- |

3.

In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be

(a)

measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or

| (b) | assessed having regard to the relaxation of the burden of proof under Article 4(4) of Directive 2004/83? |
| --- | --- |

(b)

assessed having regard to the relaxation of the burden of proof under Article 4(4) of Directive 2004/83?

---

(1)  OJ 2004 L 304, p. 12.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/3 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/3

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Kamil Hasan v Federal Republic of Germany

(Case C-176/08)

(2008/C 197/05)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Kamil Hasan

Defendant: Federal Republic of Germany

Questions referred

| 1. | Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 (1) to be interpreted as meaning that — apart from the second clause of Article 1(C)(5) of the Convention of 28 July 1951 relating to the Status of Refugees (Geneva Convention on Refugees) — refugee status ceases to exist if the refugee's well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83? |
| --- | --- |

1.

Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 (1) to be interpreted as meaning that — apart from the second clause of Article 1(C)(5) of the Convention of 28 July 1951 relating to the Status of Refugees (Geneva Convention on Refugees) — refugee status ceases to exist if the refugee's well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83?

| 2. | If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of Directive 2004/83 also require that, in the country of the refugee's nationality,






  (a) | an actor of protection within the meaning of Article 7(1) of Directive 2004/83 be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops, |
| --- | --- | --- |

2.

If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of Directive 2004/83 also require that, in the country of the refugee's nationality,

(a)

an actor of protection within the meaning of Article 7(1) of Directive 2004/83 be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops,

| (b) | the refugee should not be threatened with serious harm, within the meaning of Article 15 of Directive 2004/83, which leads to the granting of subsidiary protection under Article 18 of that directive, and/or |
| --- | --- |

(b)

the refugee should not be threatened with serious harm, within the meaning of Article 15 of Directive 2004/83, which leads to the granting of subsidiary protection under Article 18 of that directive, and/or

| (c) | the security situation be stable and the general living conditions ensure a minimum standard of living? |
| --- | --- |

(c)

the security situation be stable and the general living conditions ensure a minimum standard of living?

| 3. | In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be






  (a) | measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or |
| --- | --- | --- |

3.

In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be

(a)

measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or

| (b) | assessed having regard to the relaxation of the burden of proof under Article 4(4) of Directive 2004/83? |
| --- | --- |

(b)

assessed having regard to the relaxation of the burden of proof under Article 4(4) of Directive 2004/83?

---

(1)  OJ 2004 L 304, p. 12.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/4 |
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2.8.2008

EN

Official Journal of the European Union

C 197/4

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Khoshnaw Abdullah v Federal Republic of Germany

(Case C-177/08)

(2008/C 197/06)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Khoshnaw Abdullah

Defendant: Federal Republic of Germany

Questions referred

| 1. | Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 (1) to be interpreted as meaning that — apart from the second clause of Article 1(C)(5) of the Convention of 28 July 1951 relating to the Status of Refugees (Geneva Convention on Refugees) — refugee status ceases to exist if the refugee's well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83? |
| --- | --- |

1.

Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 (1) to be interpreted as meaning that — apart from the second clause of Article 1(C)(5) of the Convention of 28 July 1951 relating to the Status of Refugees (Geneva Convention on Refugees) — refugee status ceases to exist if the refugee's well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83?

| 2. | If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of Directive 2004/83 also require that, in the country of the refugee's nationality,






  (a) | an actor of protection within the meaning of Article 7(1) of Directive 2004/83 be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops, |
| --- | --- | --- |

2.

If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of Directive 2004/83 also require that, in the country of the refugee's nationality,

(a)

an actor of protection within the meaning of Article 7(1) of Directive 2004/83 be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops,

| (b) | the refugee should not be threatened with serious harm, within the meaning of Article 15 of Directive 2004/83, which leads to the granting of subsidiary protection under Article 18 of that directive, and/or |
| --- | --- |

(b)

the refugee should not be threatened with serious harm, within the meaning of Article 15 of Directive 2004/83, which leads to the granting of subsidiary protection under Article 18 of that directive, and/or

| (c) | the security situation be stable and the general living conditions ensure a minimum standard of living? |
| --- | --- |

(c)

the security situation be stable and the general living conditions ensure a minimum standard of living?

| 3. | In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be






  (a) | measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or |
| --- | --- | --- |

3.

In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be

(a)

measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or

| (b) | assessed having regard to the relaxation of the burden of proof under Article 4(4) of Directive 2004/83? |
| --- | --- |

(b)

assessed having regard to the relaxation of the burden of proof under Article 4(4) of Directive 2004/83?

---

(1)  OJ 2004 L 304, p. 12.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/5 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/5

---

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Ahmed Adem and Hamrin Mosa Rashi v Federal Republic of Germany

(Case C-178/08)

(2008/C 197/07)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicants: Ahmed Adem and Hamrin Mosa Rashi

Defendant: Federal Republic of Germany

Questions referred

| 1. | Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 (1) to be interpreted as meaning that — apart from the second clause of Article 1(C)(5) of the Convention of 28 July 1951 relating to the Status of Refugees (Geneva Convention on Refugees) — refugee status ceases to exist if the refugee's well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83? |
| --- | --- |

1.

Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 (1) to be interpreted as meaning that — apart from the second clause of Article 1(C)(5) of the Convention of 28 July 1951 relating to the Status of Refugees (Geneva Convention on Refugees) — refugee status ceases to exist if the refugee's well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83?

| 2. | If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of Directive 2004/83 also require that, in the country of the refugee's nationality,






  (a) | an actor of protection within the meaning of Article 7(1) of Directive 2004/83 be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops, |
| --- | --- | --- |

2.

If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of Directive 2004/83 also require that, in the country of the refugee's nationality,

(a)

an actor of protection within the meaning of Article 7(1) of Directive 2004/83 be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops,

| (b) | the refugee should not be threatened with serious harm, within the meaning of Article 15 of Directive 2004/83, which leads to the granting of subsidiary protection under Article 18 of that directive, and/or |
| --- | --- |

(b)

the refugee should not be threatened with serious harm, within the meaning of Article 15 of Directive 2004/83, which leads to the granting of subsidiary protection under Article 18 of that directive, and/or

| (c) | the security situation be stable and the general living conditions ensure a minimum standard of living? |
| --- | --- |

(c)

the security situation be stable and the general living conditions ensure a minimum standard of living?

| 3. | In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be






  (a) | measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or |
| --- | --- | --- |

3.

In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be

(a)

measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or

| (b) | assessed having regard to the relaxation of the burden of proof under Article 4(4) of Directive 2004/83? |
| --- | --- |

(b)

assessed having regard to the relaxation of the burden of proof under Article 4(4) of Directive 2004/83?

---

(1)  OJ 2004 L 304, p. 12.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/5 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/5

---

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Dler Jamal v Federal Republic of Germany

(Case C-179/08)

(2008/C 197/08)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Dler Jamal

Defendant: Federal Republic of Germany

Questions referred

| 1. | Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 (1) to be interpreted as meaning that — apart from the second clause of Article 1(C)(5) of the Convention of 28 July 1951 relating to the Status of Refugees (Geneva Convention on Refugees) — refugee status ceases to exist if the refugee's well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83? |
| --- | --- |

1.

Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 (1) to be interpreted as meaning that — apart from the second clause of Article 1(C)(5) of the Convention of 28 July 1951 relating to the Status of Refugees (Geneva Convention on Refugees) — refugee status ceases to exist if the refugee's well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83?

| 2. | If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of Directive 2004/83 also require that, in the country of the refugee's nationality,






  (a) | an actor of protection within the meaning of Article 7(1) of Directive 2004/83 be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops, |
| --- | --- | --- |

2.

If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of Directive 2004/83 also require that, in the country of the refugee's nationality,

(a)

an actor of protection within the meaning of Article 7(1) of Directive 2004/83 be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops,

| (b) | the refugee should not be threatened with serious harm, within the meaning of Article 15 of Directive 2004/83, which leads to the granting of subsidiary protection under Article 18 of that directive, and/or |
| --- | --- |

(b)

the refugee should not be threatened with serious harm, within the meaning of Article 15 of Directive 2004/83, which leads to the granting of subsidiary protection under Article 18 of that directive, and/or

| (c) | the security situation be stable and the general living conditions ensure a minimum standard of living? |
| --- | --- |

(c)

the security situation be stable and the general living conditions ensure a minimum standard of living?

| 3. | In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be






  (a) | measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or |
| --- | --- | --- |

3.

In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be

(a)

measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or

| (b) | assessed having regard to the relaxation of the burden of proof under Article 4(4) of Directive 2004/83? |
| --- | --- |

(b)

assessed having regard to the relaxation of the burden of proof under Article 4(4) of Directive 2004/83?

---

(1)  OJ 2004 L 304, p. 12.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/6 |
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2.8.2008

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Official Journal of the European Union

C 197/6

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 30 April 2008 — Glaxco Wellcome GmbH & Co v Finanzamt München II

(Case C-182/08)

(2008/C 197/09)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Glaxco Wellcome GmbH & Co.

Defendant: Finanzamt München II

Question referred

Do Article 52 of the EC Treaty (now Article 43 EC) or Article 73b of the EC Treaty (now Article 56 EC) preclude legislation of a Member State which, in the framework of a national system of corporation tax credits, excludes the reduction in the value of shares as a result of a profits distribution from the basis of assessment for that tax when a taxpayer who is entitled to a corporation tax credit has acquired shares in a company which is fully taxable from a shareholder who is not entitled to a tax credit, whereas had the acquisition taken place from a shareholder who was entitled to a tax credit such a reduction in value would have reduced the basis of assessment for the tax of the purchaser?

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/6 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/6

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Reference for a preliminary ruling from the Rechtbank 's-Gravenhage lodged on 29 April 2008 — Latchways plc and Eurosafe Solutions BV v Kedge Safety Systems BV and Consolidated Nederland BV

(Case C-185/08)

(2008/C 197/10)

Language of the case: Dutch

Referring court

Rechtbank 's-Gravenhage

Parties to the main proceedings

Applicants: Latchways plc and Eurosafe Solutions BV

Defendants: Kedge Safety Systems BV and Consolidated Nederland BV

Questions referred

| 1. | Do Class A 1 anchor devices within the meaning of European standard EN 795 (which are intended to remain in position permanently) fall exclusively within the scope of Directive 89/106/EEC (1)? |
| --- | --- |

1.

Do Class A 1 anchor devices within the meaning of European standard EN 795 (which are intended to remain in position permanently) fall exclusively within the scope of Directive 89/106/EEC (1)?

| 2. | If the answer to Question 1 is in the negative, do these anchor devices — possibly, in that case, as an item of personal protective equipment — fall within the scope of Directive 89/686/EEC (2)? |
| --- | --- |

2.

If the answer to Question 1 is in the negative, do these anchor devices — possibly, in that case, as an item of personal protective equipment — fall within the scope of Directive 89/686/EEC (2)?

| 3. | If the answers to Questions 1 and 2 are in the negative, is it necessary, in the light of Annex II to Directive 89/686/EEC, in particular point 3.1.2.2 thereof, to assess whether personal protective equipment that is covered by that directive by itself fulfils the basic requirements of that directive, or is it necessary also to consider whether the anchor device to which the protective equipment concerned is connected is safe in the foreseeable conditions of use, as defined in Annex II? |
| --- | --- |

3.

If the answers to Questions 1 and 2 are in the negative, is it necessary, in the light of Annex II to Directive 89/686/EEC, in particular point 3.1.2.2 thereof, to assess whether personal protective equipment that is covered by that directive by itself fulfils the basic requirements of that directive, or is it necessary also to consider whether the anchor device to which the protective equipment concerned is connected is safe in the foreseeable conditions of use, as defined in Annex II?

| 4. | Does Community law and, in particular, [Decision] 93/465/EEC (3) allow for the option of applying a CE marking to an anchor device as referred to in Question 1 as evidence of compliance with Directive 89/686/EEC and/or Directive 89/106/EEC? |
| --- | --- |

4.

Does Community law and, in particular, [Decision] 93/465/EEC (3) allow for the option of applying a CE marking to an anchor device as referred to in Question 1 as evidence of compliance with Directive 89/686/EEC and/or Directive 89/106/EEC?

| 5. | If the answer to Question 4 is either wholly or partly in the affirmative, what procedure(s) should be followed in determining compliance in respect of Directive 89/686/EEC and/or Directive 89/106/EEC? |
| --- | --- |

5.

If the answer to Question 4 is either wholly or partly in the affirmative, what procedure(s) should be followed in determining compliance in respect of Directive 89/686/EEC and/or Directive 89/106/EEC?

| 6. | Is European standard EN 795 to be regarded — in respect of anchor devices as referred to in Question 1 — as Community law to be interpreted by the Court of Justice of the European Communities? |
| --- | --- |

6.

Is European standard EN 795 to be regarded — in respect of anchor devices as referred to in Question 1 — as Community law to be interpreted by the Court of Justice of the European Communities?

| 7. | If the answer to Question 6 is in the affirmative, is European standard EN 795 to be interpreted as meaning that the anchor device referred to in Question 1 must be tested (by a Notified Body) under foreseeable conditions of use (such as external temperatures, weather conditions, ageing of the anchor device itself and/or of the materials by which it is attached, or the roof construction)? |
| --- | --- |

7.

If the answer to Question 6 is in the affirmative, is European standard EN 795 to be interpreted as meaning that the anchor device referred to in Question 1 must be tested (by a Notified Body) under foreseeable conditions of use (such as external temperatures, weather conditions, ageing of the anchor device itself and/or of the materials by which it is attached, or the roof construction)?

| 8. | If the answer to Question 7 is in the affirmative, must the tests be carried out in accordance with user restrictions (referred to in the instructions for use)? |
| --- | --- |

8.

If the answer to Question 7 is in the affirmative, must the tests be carried out in accordance with user restrictions (referred to in the instructions for use)?

---

(1)  Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (OJ 1989 L 40, p. 12).

(2)  Council Directive 89/686/EEC of 21 December 1989 on the approximation of the laws of the Member States relating to personal protective equipment (OJ 1989 L 399, p. 18).

(3)  Council Decision 93/465/EEC of 22 July 1993 concerning the modules for the various phases of the conformity assessment procedures and the rules for the affixing and use of the CE conformity marking, which are intended to be used in the technical harmonisation directives (OJ 1993 L 220, p. 23).

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/7 |
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C 197/7

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Action brought on 6 May 2008 — Commission of the European Communities v Ireland

(Case C-188/08)

(2008/C 197/11)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and D. Lawunmi, Agents)

Defendant: Ireland

The applicant claims that the Court should:

| — | Declare that in so far as domestic waste waters disposed of through septic tanks and other individual treatment systems in the countryside are not, for purposes of Article 2(1)(b) of Council Directive 75/442/EEC of 15 July 1975 on waste (1) as amended by Council Directive 91/156/EEC of 18 March 1991 (2), covered by other Community or Irish legislation, Ireland has, by failing in respect of the said domestic waste waters to fully and correctly transpose into its domestic legislation the requirements of Articles 4, 7, 8, 9, 10, 11, 12, 13 and 14 of the said Directive and under the Treaty establishing the European Community. |
| --- | --- |

—

Declare that in so far as domestic waste waters disposed of through septic tanks and other individual treatment systems in the countryside are not, for purposes of Article 2(1)(b) of Council Directive 75/442/EEC of 15 July 1975 on waste (1) as amended by Council Directive 91/156/EEC of 18 March 1991 (2), covered by other Community or Irish legislation, Ireland has, by failing in respect of the said domestic waste waters to fully and correctly transpose into its domestic legislation the requirements of Articles 4, 7, 8, 9, 10, 11, 12, 13 and 14 of the said Directive and under the Treaty establishing the European Community.

| — | order Ireland to pay the costs of this action. |
| --- | --- |

—

order Ireland to pay the costs of this action.

Pleas in law and main arguments

The Commission maintains that in Ireland there is neither domestic legislation nor Community legislation which provides for the management in accordance with the Directive, of domestic waste waters disposed of through septic tanks and other individual treatment systems outside of larger agglomerations.

In the absence of other legislation, Ireland is obliged to transpose and apply the requirements of the Directive to such waste waters. However, Ireland has not transposed nor claimed to have translposed these requirements. Furthermore, it has not complied with those requirements in practice. More particularly, Ireland has not, for the waste waters in question:

| — | transposed the provisions of Article 4 of the Directive. Transposition of Article 4 is important because it sets out environmental objectives that should be pursued and respected in relation to other duties of the Directive. The Commission submits that there is also a failure to comply with Article 4 in practice in the Lough Leane catchment, this is borne out by the evidence it has adduced of the environmental harm resulting from a failure to control adequately septic tanks. |
| --- | --- |

—

transposed the provisions of Article 4 of the Directive. Transposition of Article 4 is important because it sets out environmental objectives that should be pursued and respected in relation to other duties of the Directive. The Commission submits that there is also a failure to comply with Article 4 in practice in the Lough Leane catchment, this is borne out by the evidence it has adduced of the environmental harm resulting from a failure to control adequately septic tanks.

| — | transposed the provisions of Article 7 of the Directive. Article 7 is important because it inter alia provides for territory-wide forward planning of arrangements for disposal of waste at suitable sites in order to avoid environmental harm. Apart from failing to transpose Article 7 of the Directive, Ireland has in practice failed to put in place plans that satisfy the requirements of Article 7 in relation to septic tanks and other individual treatment systems. |
| --- | --- |

—

transposed the provisions of Article 7 of the Directive. Article 7 is important because it inter alia provides for territory-wide forward planning of arrangements for disposal of waste at suitable sites in order to avoid environmental harm. Apart from failing to transpose Article 7 of the Directive, Ireland has in practice failed to put in place plans that satisfy the requirements of Article 7 in relation to septic tanks and other individual treatment systems.

| — | transposed the provisions of Article 8 of the Directive. Article 8 is important because it stipulates that waste is disposed of in accordance with the Directive. There is also a failure to comply with Article 8 in practice in Ireland, since Ireland does not ensure that domestic waste waters are disposed of in accordance with the Directive. |
| --- | --- |

—

transposed the provisions of Article 8 of the Directive. Article 8 is important because it stipulates that waste is disposed of in accordance with the Directive. There is also a failure to comply with Article 8 in practice in Ireland, since Ireland does not ensure that domestic waste waters are disposed of in accordance with the Directive.

| — | transposed the provisions of Article 9 of the Directive. Article 9 is important since it provides for a formal prior approval with environmental safeguards of a waste disposal operation. Such controls as Ireland applies in practice to septic tanks and other individual treatment systems are not equivalent and there is therefore a failure in practice to comply with Article 9. |
| --- | --- |

—

transposed the provisions of Article 9 of the Directive. Article 9 is important since it provides for a formal prior approval with environmental safeguards of a waste disposal operation. Such controls as Ireland applies in practice to septic tanks and other individual treatment systems are not equivalent and there is therefore a failure in practice to comply with Article 9.

| — | transposed the provisions of Article 10 of the Directive. The Commission considers that the disposal of waste waters through septic tanks or other individual systems will almost always in practice amount to a disposal operation for purposes of the Directive. However, it is conceivable that, in some circumstances, an argument might be made for considering the treatment method to be a recovery operation. This might be the case, for example, for dry composting of domestic waste waters with a view to their subsequent use as a fertilizer. Accordingly, the Commission has included Article 10 in the present Application. |
| --- | --- |

—

transposed the provisions of Article 10 of the Directive. The Commission considers that the disposal of waste waters through septic tanks or other individual systems will almost always in practice amount to a disposal operation for purposes of the Directive. However, it is conceivable that, in some circumstances, an argument might be made for considering the treatment method to be a recovery operation. This might be the case, for example, for dry composting of domestic waste waters with a view to their subsequent use as a fertilizer. Accordingly, the Commission has included Article 10 in the present Application.

| — | transposed the provisions of Article 11 of the Directive. Ireland does not claim, for purposes of Article 11(3) or otherwise, to have transposed the provisions of Article 11 of the Directive, but in so far as it may purport to do so, the Commission would contend that such rules as it has put in place for septic tanks and other individual treatment systems do not amount to a transposition of Article 11(1) and (2) of the Directive. In particular, the rules applicable in Ireland do not ensure that the conditions imposed in Article 4 of the Directive are respected. Moreover, there is no system of registration of septic tanks and other individual treatment systems. |
| --- | --- |

—

transposed the provisions of Article 11 of the Directive. Ireland does not claim, for purposes of Article 11(3) or otherwise, to have transposed the provisions of Article 11 of the Directive, but in so far as it may purport to do so, the Commission would contend that such rules as it has put in place for septic tanks and other individual treatment systems do not amount to a transposition of Article 11(1) and (2) of the Directive. In particular, the rules applicable in Ireland do not ensure that the conditions imposed in Article 4 of the Directive are respected. Moreover, there is no system of registration of septic tanks and other individual treatment systems.

| — | transposed the provisions of Article 12 of the Directive. Article 12 is important in relation to septic tanks and other individual treatment systems in as much as, to operate effectively; such systems require periodic removal and disposal of sludges. To the extent that there are professional services involved in such removal and disposal, they are not addressed in Irish law and practice in accordance with the Directive. |
| --- | --- |

—

transposed the provisions of Article 12 of the Directive. Article 12 is important in relation to septic tanks and other individual treatment systems in as much as, to operate effectively; such systems require periodic removal and disposal of sludges. To the extent that there are professional services involved in such removal and disposal, they are not addressed in Irish law and practice in accordance with the Directive.

| — | transposed the provisions of Article 13 of the Directive. Article 13 is important since, without proper maintenance, even well-sited and well-installed septic tanks and other individual treatment systems can malfunction and cause environmental harm. A system of inspections is therefore crucial. The evidence of the Lough Leane study shows that, apart from failing to transpose the requirements of Article 13 of the Directive, Ireland fails to respect those requirements in practice in relation to septic tanks and other individual treatment systems. |
| --- | --- |

—

transposed the provisions of Article 13 of the Directive. Article 13 is important since, without proper maintenance, even well-sited and well-installed septic tanks and other individual treatment systems can malfunction and cause environmental harm. A system of inspections is therefore crucial. The evidence of the Lough Leane study shows that, apart from failing to transpose the requirements of Article 13 of the Directive, Ireland fails to respect those requirements in practice in relation to septic tanks and other individual treatment systems.

| — | transposed the provisions of Article 14 of the Directive. Article 14 of the Directive is important in terms of record-keeping that helps ensure that septic tanks and other individual treatment systems do not become overloaded and are properly maintained. The evidence of the Lough Leane study shows that, apart from failing to transpose the requirements of Article 14 of the Directive, Ireland fails to respect those requirements in practice in relation to septic tanks and other individual treatment systems. |
| --- | --- |

—

transposed the provisions of Article 14 of the Directive. Article 14 of the Directive is important in terms of record-keeping that helps ensure that septic tanks and other individual treatment systems do not become overloaded and are properly maintained. The evidence of the Lough Leane study shows that, apart from failing to transpose the requirements of Article 14 of the Directive, Ireland fails to respect those requirements in practice in relation to septic tanks and other individual treatment systems.

---

(1)  OJ L 194, p. 39.

(2)  OJ L 78, p. 32.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/8 |
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Official Journal of the European Union

C 197/8

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Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 8 May 2008 — TeliaSonera Finland Oyj

(Case C-192/08)

(2008/C 197/12)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: TeliaSonera Finland Oyj

Defendants: Viestintävirasto, iMEZ Ab

Questions referred

| 1. | Is Article 4(1) of Directive 2002/19/EC (1) of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), when read in conjunction with recitals 5, 6 and 8 in the preamble to that directive and with Article 8 and Article 5 thereof, to be interpreted as meaning that:






  1 (a) | national legislation may provide, as in Paragraph 39(1) of the Finnish Communications Market Law, that any telecommunications operator has an obligation to negotiate on interconnection with another telecommunications operator and, if so, |
| --- | --- | --- |

1.

Is Article 4(1) of Directive 2002/19/EC (1) of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), when read in conjunction with recitals 5, 6 and 8 in the preamble to that directive and with Article 8 and Article 5 thereof, to be interpreted as meaning that:

1 (a)

national legislation may provide, as in Paragraph 39(1) of the Finnish Communications Market Law, that any telecommunications operator has an obligation to negotiate on interconnection with another telecommunications operator and, if so,

| 1 (b) | a national regulatory authority can take the view that the obligation to negotiate has not been complied with where a telecommunications operator which does not have significant market power has offered another operator interconnection under conditions which the authority regards as wholly unilateral and likely to hinder the emergence of a competitive market at the retail level, where they have hindered in practice the second operator from offering its customers the opportunity to transmit multimedia messages to end-users subscribed to the telecommunications operator's network and, if so, |
| --- | --- |

1 (b)

a national regulatory authority can take the view that the obligation to negotiate has not been complied with where a telecommunications operator which does not have significant market power has offered another operator interconnection under conditions which the authority regards as wholly unilateral and likely to hinder the emergence of a competitive market at the retail level, where they have hindered in practice the second operator from offering its customers the opportunity to transmit multimedia messages to end-users subscribed to the telecommunications operator's network and, if so,

| 1 (c) | the national regulatory authority can in its decision require the aforementioned telecommunications operator, which therefore does not have significant market power, to negotiate in good faith on the interconnection of text and multi-media communications services between operators' systems in such a way that, in commercial negotiations, regard must be had to the objectives which interconnection seeks to achieve and negotiations must be based on the premiss that the operation of SMS and MMS services between operators' systems can be made subject to reasonable conditions so that users have the possibility of using telecommunications operators' communications services? |
| --- | --- |

1 (c)

the national regulatory authority can in its decision require the aforementioned telecommunications operator, which therefore does not have significant market power, to negotiate in good faith on the interconnection of text and multi-media communications services between operators' systems in such a way that, in commercial negotiations, regard must be had to the objectives which interconnection seeks to achieve and negotiations must be based on the premiss that the operation of SMS and MMS services between operators' systems can be made subject to reasonable conditions so that users have the possibility of using telecommunications operators' communications services?

| 2. | Do the nature of iMEZ Ab's network and whether iMEZ Ab should be regarded as a public electronic communications networks operator have any bearing on the assessment of the questions set out above? |
| --- | --- |

2.

Do the nature of iMEZ Ab's network and whether iMEZ Ab should be regarded as a public electronic communications networks operator have any bearing on the assessment of the questions set out above?

---

(1)  OJ 2002 L 108, p. 7.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/9 |
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Official Journal of the European Union

C 197/9

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Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 9 May 2005 — Dr. Susanne Gassmayr v Bundesministerin für Wissenschaft und Forschung

(Case C-194/08)

(2008/C 197/13)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Dr Susanne Gassmayr

Defendant: Bundesministerin für Wissenschaft und Forschung

Questions referred

| 1. | 1. | Does Article 11(1), (2) and (3) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (1) (OJ 1992 L 348, p. 1) have direct effect? |
| --- | --- | --- |

1.

1.

Does Article 11(1), (2) and (3) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (1) (OJ 1992 L 348, p. 1) have direct effect?

| 2. | If those provisions do have direct effect are they to be construed as meaning that there is a continued entitlement to payment of an allowance for on-call duty during periods in which expectant mothers are prohibited from working and/or during maternity leave? |
| --- | --- |

2.

If those provisions do have direct effect are they to be construed as meaning that there is a continued entitlement to payment of an allowance for on-call duty during periods in which expectant mothers are prohibited from working and/or during maternity leave?

| 3. | Does this apply, in any event, where a Member State decides on a system of continuation of ‘pay’ which in principle encompasses total income, with the exception, however, of so-called ‘extra emoluments’ based on tasks performed (contingent on performance of those tasks) (as listed in Paragraph 15 of the [Austrian] Law on salaries (Gehaltsgesetz, ‘GehG’) 1956), such as the allowance for on-call duty at issue here? |
| --- | --- |

3.

Does this apply, in any event, where a Member State decides on a system of continuation of ‘pay’ which in principle encompasses total income, with the exception, however, of so-called ‘extra emoluments’ based on tasks performed (contingent on performance of those tasks) (as listed in Paragraph 15 of the [Austrian] Law on salaries (Gehaltsgesetz, ‘GehG’) 1956), such as the allowance for on-call duty at issue here?

| 2. | If the aforementioned provisions do not have direct effect, are they to be transposed by the Member States in such a way that a woman worker who is not permitted to render on-call duties during periods in which expectant mothers are prohibited from working and/or during maternity leave is entitled to continue to be paid an allowance for such services? |
| --- | --- |

2.

If the aforementioned provisions do not have direct effect, are they to be transposed by the Member States in such a way that a woman worker who is not permitted to render on-call duties during periods in which expectant mothers are prohibited from working and/or during maternity leave is entitled to continue to be paid an allowance for such services?

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(1)  OJ L 348, p. 1.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/9 |
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C 197/9

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale della Sicilia (Italy) lodged on 14 May 2008 — Acoset SpA v Conferenza Sindaci e Presidenza Prov.Reg.ATO Idrico Ragusa and Others

(Case C-196/08)

(2008/C 197/14)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale della Sicilia

Parties to the main proceedings

Applicant: Acoset SpA

Defendants: Conferenza Sindaci e Presidenza Prov.Reg.ATO Idrico Ragusa and Others

Question referred

Is the model of a semi-public company formed specifically to provide a particular public service of industrial importance and possessing a single corporate purpose, to which that service is awarded directly, the private ‘industrial’ and ‘operational’ participant in the company being selected by means of a public and open procedure, after verification of the financial and technical requirements and of the operating and managerial requirements specific to the service to be performed and the specific services to be provided, consistent with Community law and in particular with the obligations of transparency and free competition referred to in Articles 43, 49 and 86 of the Treaty?

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/10 |
| --- | --- | --- | --- |

2.8.2008

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Official Journal of the European Union

C 197/10

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Action brought on 14 May 2008 — Commission of the European Communities v Republic of Austria

(Case C-198/08)

(2008/C 197/15)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: W. Mölls, Agent)

Defendant: Republic of Austria

Form of order sought

| — | Declare that the Republic of Austria has infringed its obligations under Article 9(1) of Council Directive 95/59/EC of 27 November 1995 (1) by adopting and maintaining legal provisions according to which minimum selling prices for cigarettes and fine-cut tobacco for the rolling of cigarettes are fixed by the State; |
| --- | --- |

—

Declare that the Republic of Austria has infringed its obligations under Article 9(1) of Council Directive 95/59/EC of 27 November 1995 (1) by adopting and maintaining legal provisions according to which minimum selling prices for cigarettes and fine-cut tobacco for the rolling of cigarettes are fixed by the State;

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

—

Order the Republic of Austria to bear the costs.

Pleas in law and main arguments

Manufactured tobacco products are one of the three groups of products which are subject to harmonised Community rules on excise duties. Directive 95/59/EC contains a number of general provisions applicable to all manufactured tobacco products and also regulates the structure of excise duty on cigarettes. Article 9(1) enshrines the principle that both the manufacturer and the importer are free to determine the maximum prices for manufactured tobacco products. That provision guarantees not only that the tax base is subject in all Member States to the same principles; it also prevents the achievement of the goals of the directive from being frustrated by State price rules which harm competition and the internal market.

The rule introduced in Austria in 2006, according to which minimum prices for cigarettes and fine-cut tobacco for the rolling of cigarettes are laid down by State bodies, infringes the abovementioned provision of Directive 95/59/EC. The fixing of minimum prices eliminates the price differences between various products which can exist owing to the different factors influencing price formation, by immediately raising the retail prices in the lower price range to a minimum level. Such a mechanism leads unquestionably to distortions in the flow of goods between the Member States, even if the minimum price, as in Austria, is derived from the average market prices.

Among the interests which the Member States can pursue by means of their trade and taxation policies is of course also the protection of public health. That also includes the aim of keeping the price of tobacco products at a high level. As the Member States can however use taxation mechanisms in order take this objective fully into account, it is not possible for them to rely on such interests in order to depart from the provision of the directive in question, since they would thereby harm the functioning of the internal market.

According to the Commission, taxation is an effective and sufficient mechanism of price regulation. Examples from other Member States also show that the price of manufactured tobacco products can be raised by the pressure of taxation alone, since the tax level can be increased as much as desired in order to push up the final price, regardless of the exact profit margin of the manufacturers concerned and/or the extent to which they are prepared to sell without making a profit or even at a loss. That approach, according to which taxation functions as an objective cost factor, not only avoids the negative consequences of minimum prices on competition and the internal market but also a further disadvantage associated with minimum prices, namely the protection of the margins of the manufacturers of tobacco products. That is a result which makes no contribution whatsoever to health protection but is in fact counter-productive. The Commission is therefore convinced that the desired protection of public health can be guaranteed by means of a dynamic and successful State taxation policy, without it being necessary to resort to minimum prices which are incompatible with Article 9 of Directive 95/59/EC.

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(1)  OJ 1995 L 291, p. 40.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/10 |
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C 197/10

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Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 15 May 2008 — Dr. Erhard Eschig v UNIQA Sachversicherung AG

(Case C-199/08)

(2008/C 197/16)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Dr. Erhard Eschig

Defendant: UNIQA Sachversicherung AG

Questions referred

| 1. | Is Article 4(1) of Council Directive 87/344/EC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance (1) to be interpreted to the effect that it precludes a clause, contained in the standard terms and conditions of insurance of a legal expenses insurer, which entitles the insurer, in respect of insurance claims concerning losses suffered by a large number of insured persons as a result of the same event (for example the insolvency of an investment services undertaking), to select a legal representative and which thereby restricts the right of the individual insured person to choose his own lawyer (so-called ‘mass torts clause’)? |
| --- | --- |

1.

Is Article 4(1) of Council Directive 87/344/EC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance (1) to be interpreted to the effect that it precludes a clause, contained in the standard terms and conditions of insurance of a legal expenses insurer, which entitles the insurer, in respect of insurance claims concerning losses suffered by a large number of insured persons as a result of the same event (for example the insolvency of an investment services undertaking), to select a legal representative and which thereby restricts the right of the individual insured person to choose his own lawyer (so-called ‘mass torts clause’)?

| 2. | If the first question is answered in the negative:
  What are the requirements for the existence of a ‘mass tort’ which, in accordance with (or as a complement to) Directive 87/344/EEC, confers on the insurer instead of the insured person the right to select the legal representative? |
| --- | --- |

2.

If the first question is answered in the negative:

What are the requirements for the existence of a ‘mass tort’ which, in accordance with (or as a complement to) Directive 87/344/EEC, confers on the insurer instead of the insured person the right to select the legal representative?

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(1)  OJ 1987 L 185, p. 77.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/11 |
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2.8.2008

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Official Journal of the European Union

C 197/11

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Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 16 May 2008 — The Sporting Exchange Ltd, trading under the name ‘Betfair’; other parties: Minister for Justice, Stichting de Nationale Sporttotalisator and Scientific Games Racing

(Case C-203/08)

(2008/C 197/17)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: The Sporting Exchange Ltd, trading under the name ‘Betfair’

Other parties: Minister for Justice, Stichting de Nationale Sporttotalisator and Scientific Games Racing

Questions referred

| 1. | Should Article 49 EC be interpreted as meaning that, where a closed licensing system is applied in a Member State to the provision of services relating to games of chance, the application of that article precludes the competent authority of that Member State from prohibiting a service provider to whom a licence has already been granted in another Member State to provide those services via the internet from also offering those services via the internet in the first Member State? |
| --- | --- |

1.

Should Article 49 EC be interpreted as meaning that, where a closed licensing system is applied in a Member State to the provision of services relating to games of chance, the application of that article precludes the competent authority of that Member State from prohibiting a service provider to whom a licence has already been granted in another Member State to provide those services via the internet from also offering those services via the internet in the first Member State?

| 2. | Is the interpretation which the Court of Justice has given to Article 49 EC, and in particular to the principle of equality and the duty of transparency arising therefrom, in a number of individual cases concerning concessions applicable to the procedure for the granting of a licence to offer services relating to games of chance under a statutorily established single-licence system? |
| --- | --- |

2.

Is the interpretation which the Court of Justice has given to Article 49 EC, and in particular to the principle of equality and the duty of transparency arising therefrom, in a number of individual cases concerning concessions applicable to the procedure for the granting of a licence to offer services relating to games of chance under a statutorily established single-licence system?

| 3. | (a). | Under a statutorily established single-licence system, can the extension of the licence of the existing licence-holder, without potential applicants being given an opportunity to compete for that licence, be a suitable and proportionate means of meeting the imperative requirements in the general interest which the Court of Justice has recognised as justifying restriction of the freedom to provide services in respect of games of chance? If so, under what conditions? |
| --- | --- | --- |

3.

(a).

Under a statutorily established single-licence system, can the extension of the licence of the existing licence-holder, without potential applicants being given an opportunity to compete for that licence, be a suitable and proportionate means of meeting the imperative requirements in the general interest which the Court of Justice has recognised as justifying restriction of the freedom to provide services in respect of games of chance? If so, under what conditions?

| (b). | Does it make a difference to the answer to Question 3(a) whether Question 2 is answered in the affirmative or the negative? |
| --- | --- |

(b).

Does it make a difference to the answer to Question 3(a) whether Question 2 is answered in the affirmative or the negative?

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/11 |
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2.8.2008

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Official Journal of the European Union

C 197/11

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 19 May 2008 — Peter Rehder v Air Baltic Corporation

(Case C-204/08)

(2008/C 197/18)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Peter Rehder

Defendant: Air Baltic Corporation

Questions referred

| 1. | Is the second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted as meaning that in the case of journeys by air from one Member State to another the single place of performance for all contractual obligations must be taken to be the place of the main provision of services, determined according to economic criteria? |
| --- | --- |

1.

Is the second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted as meaning that in the case of journeys by air from one Member State to another the single place of performance for all contractual obligations must be taken to be the place of the main provision of services, determined according to economic criteria?

| 2. | Where a single place of performance is to be determined: What criteria are relevant for its determination; is the single place of performance determined, in particular, by the place of departure or the place of arrival? |
| --- | --- |

2.

Where a single place of performance is to be determined: What criteria are relevant for its determination; is the single place of performance determined, in particular, by the place of departure or the place of arrival?

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

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/12 |
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2.8.2008

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Official Journal of the European Union

C 197/12

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Action brought on 20 May 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-211/08)

(2008/C 197/19)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and R. Vidal Puig, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by refusing persons entitled under the Spanish Sistema Nacional de Salud (National health system) reimbursement of medical costs incurred by them in another Member State in the event of hospital treatment received in accordance with Article 22(1)(a)(i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) (‘Regulation 1408/71’), in so far as the level of cover applicable in the Member State in which that treatment is given is lower than that provided for in Spanish legislation, the Kingdom of Spain has failed to fulfil its obligations under Article 49 of the Treaty; |
| --- | --- |

—

declare that, by refusing persons entitled under the Spanish Sistema Nacional de Salud (National health system) reimbursement of medical costs incurred by them in another Member State in the event of hospital treatment received in accordance with Article 22(1)(a)(i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) (‘Regulation 1408/71’), in so far as the level of cover applicable in the Member State in which that treatment is given is lower than that provided for in Spanish legislation, the Kingdom of Spain has failed to fulfil its obligations under Article 49 of the Treaty;

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

—

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

| 1. | Spanish legislation on social security matters provides that hospital benefits covered by the Sistema Nacional de Salud must be provided by its own system, except in very exceptional cases of ‘urgent, immediate health assistance which is essential’. As a result, when a person entitled under the Spanish Sistema Nacional de Salud moves temporarily to another Member State and, during that stay, receives assistance in hospital which is necessary from the medical point of view in accordance with Article 22(1)(a)(i) of Regulation 1408/71, the costs incurred by him are not reimbursed by the Spanish authorities. |
| --- | --- |

1.

Spanish legislation on social security matters provides that hospital benefits covered by the Sistema Nacional de Salud must be provided by its own system, except in very exceptional cases of ‘urgent, immediate health assistance which is essential’. As a result, when a person entitled under the Spanish Sistema Nacional de Salud moves temporarily to another Member State and, during that stay, receives assistance in hospital which is necessary from the medical point of view in accordance with Article 22(1)(a)(i) of Regulation 1408/71, the costs incurred by him are not reimbursed by the Spanish authorities.

| 2. | When the level of cover of hospital costs applicable under the rules of another Member State is less favourable than that provided under Spanish legislation, the refusal of the Spanish authorities to reimburse the difference may dissuade persons entitled under the Sistema Nacional de Salud to move to that Member State in order to receive non-medical services (for example, educational or tourist services) or, in the case of persons entitled who have already moved, induce them to return sooner in order to receive free hospital treatment in Spain. The Spanish provision at issue may therefore restrict both the provision of those various medical services which initially motivate the temporary move of a person entitled to another Member State, and the subsequent provision of medical services in that Member State in accordance with Article 22(1)(a)(i) of Regulation 1408/71. |
| --- | --- |

2.

When the level of cover of hospital costs applicable under the rules of another Member State is less favourable than that provided under Spanish legislation, the refusal of the Spanish authorities to reimburse the difference may dissuade persons entitled under the Sistema Nacional de Salud to move to that Member State in order to receive non-medical services (for example, educational or tourist services) or, in the case of persons entitled who have already moved, induce them to return sooner in order to receive free hospital treatment in Spain. The Spanish provision at issue may therefore restrict both the provision of those various medical services which initially motivate the temporary move of a person entitled to another Member State, and the subsequent provision of medical services in that Member State in accordance with Article 22(1)(a)(i) of Regulation 1408/71.

| 3. | Those restrictions on the freedom to provide services are not justified under the Treaty. In particular, the Spanish authorities have not proved that those restrictions are necessary to avoid seriously undermining the financial balance of the Spanish Sistema Nacional de Salud. Accordingly, the provision at issue infringes Article 49 EC. |
| --- | --- |

3.

Those restrictions on the freedom to provide services are not justified under the Treaty. In particular, the Spanish authorities have not proved that those restrictions are necessary to avoid seriously undermining the financial balance of the Spanish Sistema Nacional de Salud. Accordingly, the provision at issue infringes Article 49 EC.

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(1)  OJ L 149, 5.7.1971, p. 2.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/12 |
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Official Journal of the European Union

C 197/12

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Reference for a preliminary ruling from the Conseil d'État (France) lodged on 21 May 2008 — Société Zeturf Limited v Premier ministre, Ministre de l'Agriculture et de la Pêche, Ministre de l'Intérieur, de l'Outre-mer et des Collectivités territoriales, Ministre de l'Économie, de l'Industrie et de l'Emploi — Intervening party: G.I.E. Pari Mutuel Urbain (PMU)

(Case C-212/08)

(2008/C 197/20)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicant: Société Zeturf Limited

Defendants: Premier ministre, Ministre de l'Agriculture et de la Pêche, Ministre de l'Intérieur, de l'Outre-mer et des Collectivités territoriales, Ministre de l'Économie, de l'Industrie et de l'Emploi — intervening party: G.I.E. Pari Mutuel Urbain (PMU)

Questions referred

| 1. | Are Articles 49 and 50 of the Treaty establishing the European Community to be interpreted as precluding national legislation which has established a system whereby off-course horserace betting is managed exclusively by a single, non-profit-making operator where, although that system appears to fit the purpose of combating criminality and thus of protecting public order more effectively than would less restrictive measures, it is accompanied by a dynamic commercial policy on the part of the operator, in order to neutralise the risk of unauthorised gambling networks emerging and to channel bettors towards the lawful offer, that does not, in consequence, fully achieve the objective of reducing gambling opportunities? |
| --- | --- |

1.

Are Articles 49 and 50 of the Treaty establishing the European Community to be interpreted as precluding national legislation which has established a system whereby off-course horserace betting is managed exclusively by a single, non-profit-making operator where, although that system appears to fit the purpose of combating criminality and thus of protecting public order more effectively than would less restrictive measures, it is accompanied by a dynamic commercial policy on the part of the operator, in order to neutralise the risk of unauthorised gambling networks emerging and to channel bettors towards the lawful offer, that does not, in consequence, fully achieve the objective of reducing gambling opportunities?

| 2. | Is it appropriate, in order to determine whether national legislation such as that in force in France, which has established a system whereby off-course horserace betting is managed exclusively by a single, non-profit-making operator, is contrary to Articles 49 and 50 of the Treaty establishing the European Community, to assess the impairment of freedom to provide services solely from the point of view of the restrictions placed on offering on-line horserace betting, or is it appropriate to take into consideration the entire horserace betting sector in whatever form it is offered and is accessible to bettors? |
| --- | --- |

2.

Is it appropriate, in order to determine whether national legislation such as that in force in France, which has established a system whereby off-course horserace betting is managed exclusively by a single, non-profit-making operator, is contrary to Articles 49 and 50 of the Treaty establishing the European Community, to assess the impairment of freedom to provide services solely from the point of view of the restrictions placed on offering on-line horserace betting, or is it appropriate to take into consideration the entire horserace betting sector in whatever form it is offered and is accessible to bettors?

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/13 |
| --- | --- | --- | --- |

2.8.2008

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Official Journal of the European Union

C 197/13

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Action brought on 21 May 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-213/08)

(2008/C 197/21)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk, acting as Agent)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania (1), and, in any event, by failing to communicate them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania (1), and, in any event, by failing to communicate them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2006/100/EC into national law expired on 1 January 2007.

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(1)  OJ L 363, 20.12.2006, p. 141.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/13 |
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2.8.2008

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Official Journal of the European Union

C 197/13

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Reference for a preliminary ruling from the Tribunale Ordinario di Milano (Italy) lodged on 22 May 2008 — Rita Mariano v Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro (INAIL)

(Case C-217/08)

(2008/C 197/22)

Language of the case: Italian

Referring court

Tribunale Ordinario di Milano

Parties to the main proceedings

Applicant: Rita Mariano

Defendant: Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro (INAIL)

Question referred

Whether Articles 12 and 13 of the EC Treaty preclude the application of Article 85 of DPR No 1124/1965 in so far as it provides that, in the event of death as a result of an accident, only a spouse is entitled to an INAIL annuity at the rate of 50 % and a child [of a non-spouse] is entitled only to an annuity at the rate of 20 %.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/13 |
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2.8.2008

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Official Journal of the European Union

C 197/13

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Action brought on 22 May 2008 — Commission of the European Communities v Italian Republic

(Case C-218/08)

(2008/C 197/23)

Language of the case: Italian

Parties

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

Defendant: Commission of the European Communities

Form of order sought

| — | declare that, by failing to draw up external emergency plans for all the establishments for which those plans are required, the Italian Republic has failed to fulfil its obligations under Article 11(1)(c) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (1), as amended by Directive 2003/105/EC (2); |
| --- | --- |

—

declare that, by failing to draw up external emergency plans for all the establishments for which those plans are required, the Italian Republic has failed to fulfil its obligations under Article 11(1)(c) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (1), as amended by Directive 2003/105/EC (2);

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Seveso II directive pursues the objective of preventing major-accident hazards involving dangerous substances and limiting their consequences for man and the environment. It is clear that the drawing up of external emergency plans is a fundamental provision of that directive: it ensures that in the case of accidents urgent measures are adopted to limit their consequences.

Article 11 applies, by virtue of the references made in Article 9 and Article 2 of the directive, to all establishments where dangerous substances are present in quantities equal to or in excess of the quantities listed in Annex I, Parts 1 and 2, column 3.

The Italian authorities confirm with data from their own sources that not all the establishments which ought to have external emergency plans have actually been provided with such plans.

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(1)  OJ L 10 of 14.1.1997, p. 13.

(2)  OJ L 345 of 31.12.2003, p. 97.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/14 |
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2.8.2008

EN

Official Journal of the European Union

C 197/14

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Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 May 2008 — Dansk Transport og Logistik v Skatteministeriet

(Case C-230/08)

(2008/C 197/24)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Dansk Transport og Logistik

Defendant: Skatteministeriet (Danish Ministry of Taxation)

Questions referred

| 1. | Is the expression ‘seized ... and simultaneously or subsequently confiscated’ contained in Article 233d of the Customs Code (1) to be interpreted as meaning that the provision covers situations where goods detained under the first sentence of Paragraph 83(1) of the Customs Law on unlawful importation are simultaneously or subsequently destroyed by the customs authorities without their having left the authorities' possession? |
| --- | --- |

1.

Is the expression ‘seized ... and simultaneously or subsequently confiscated’ contained in Article 233d of the Customs Code (1) to be interpreted as meaning that the provision covers situations where goods detained under the first sentence of Paragraph 83(1) of the Customs Law on unlawful importation are simultaneously or subsequently destroyed by the customs authorities without their having left the authorities' possession?

| 2. | Is the System Directive (2) to be interpreted as meaning that unlawfully imported goods which are seized on importation or simultaneously or subsequently destroyed are to be deemed to have been placed under ‘a suspension arrangement’ with the effect that the excise duty is not incurred or is extinguished (see the first subparagraph of Article 5(2) and Article 6(1)(c) of the System Directive, read in conjunction with Articles 84(1)(a) and 98 of the Customs Code, and Article 876a of the implementing provisions (3))? Is the answer affected by whether or not a customs debt incurred on such unlawful importation is extinguished under Article 233d of the Customs Code? |
| --- | --- |

2.

Is the System Directive (2) to be interpreted as meaning that unlawfully imported goods which are seized on importation or simultaneously or subsequently destroyed are to be deemed to have been placed under ‘a suspension arrangement’ with the effect that the excise duty is not incurred or is extinguished (see the first subparagraph of Article 5(2) and Article 6(1)(c) of the System Directive, read in conjunction with Articles 84(1)(a) and 98 of the Customs Code, and Article 876a of the implementing provisions (3))? Is the answer affected by whether or not a customs debt incurred on such unlawful importation is extinguished under Article 233d of the Customs Code?

| 3. | Is the Sixth Directive (4) to be interpreted as meaning that unlawfully imported goods seized on importation and simultaneously or subsequently destroyed by the authorities are to be deemed to have been placed under a ‘customs warehousing procedure’ with the effect that the VAT debt is not incurred or is extinguished (See Articles 7(3), 10(3) and 16(1)(B)(c) of the Sixth Directive and Article 876a of the implementing provisions)? Is the answer affected by whether or not a customs debt incurred on such unlawful importation is extinguished under Article 233d of the Customs Code? |
| --- | --- |

3.

Is the Sixth Directive (4) to be interpreted as meaning that unlawfully imported goods seized on importation and simultaneously or subsequently destroyed by the authorities are to be deemed to have been placed under a ‘customs warehousing procedure’ with the effect that the VAT debt is not incurred or is extinguished (See Articles 7(3), 10(3) and 16(1)(B)(c) of the Sixth Directive and Article 876a of the implementing provisions)? Is the answer affected by whether or not a customs debt incurred on such unlawful importation is extinguished under Article 233d of the Customs Code?

| 4. | Are the Customs Code, the implementing provisions and the Sixth Directive to be interpreted as meaning that the customs authorities in the Member State where unlawful importation of goods during a TIR operation is detected are competent to charge customs duty, excise duty and VAT on the operation where the authorities in another Member State, where the unlawful importation into the Community occurred, did not detect the irregularity and consequently did not charge customs duty, excise duty and VAT (see Article 215 of the Customs Code, read in conjunction with Article 217 thereof, Articles 454(2) and (3) of the implementing provisions then in force, and Article 7 of the Sixth Directive)? |
| --- | --- |

4.

Are the Customs Code, the implementing provisions and the Sixth Directive to be interpreted as meaning that the customs authorities in the Member State where unlawful importation of goods during a TIR operation is detected are competent to charge customs duty, excise duty and VAT on the operation where the authorities in another Member State, where the unlawful importation into the Community occurred, did not detect the irregularity and consequently did not charge customs duty, excise duty and VAT (see Article 215 of the Customs Code, read in conjunction with Article 217 thereof, Articles 454(2) and (3) of the implementing provisions then in force, and Article 7 of the Sixth Directive)?

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(1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1).

(2)  Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ L 76, 23.3.1992, p. 1).

(3)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ L 253, 11.10.1993, p. 1).

(4)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145, 13.6.1977, p. 1).

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/15 |
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Official Journal of the European Union

C 197/15

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Action brought on 2 June 2008 — Commission of the European Communities v French Republic

(Case C-241/08)

(2008/C 197/25)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: D. Recchia and J.-B. Laignelot, Agents)

Defendant: French Republic

Form of order sought

| — | Declare that, by not adopting the laws or regulations necessary to transpose correctly Article 6(2) and (3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (1), the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by not adopting the laws or regulations necessary to transpose correctly Article 6(2) and (3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (1), the French Republic has failed to fulfil its obligations under that directive;

| — | Order the French Republic to bear the costs. |
| --- | --- |

—

Order the French Republic to bear the costs.

Pleas in law and main arguments

The Commission refers to two grounds for complaint in support of its action, alleging the infringement of Article 6(2) and 6(3) of Directive 92/43/EEC (‘the Habitats Directive’), respectively.

By its first ground for complaint, the applicant insists on the clarity of Article 6(2) of the Habitats Directive, which prohibits any deterioration of protected habitats. The introduction into national law of the concept of ‘significant effects’ in order to limit the application of the abovementioned provision to certain human activities, is therefore not justified. Equally, the national legislature may not assert in a peremptory fashion that certain activities such as hunting or fishing ‘do not cause a disturbance’ to ‘Natura 2000’ sites, even if they are carried out for a temporary period or under the national legislation in force.

By its second ground for complaint, the Commission points out first that Article 6(3) of the Habitats Directive requires that any plan or project not directly connected with or necessary to the management of the site is to be subject to appropriate assessment, except in strictly defined cases. The defendant's legislation is problematic in the light of Community law since it systematically exempts from the procedure for assessment of the environmental implications the works, projects or schemes provided for under ‘Natura 2000’ contracts.

The Commission points out second that, under French law, there are projects which do not require authorisation or administrative approval and which therefore avoid the assessment procedure. Yet some of these projects have significant effects on the ‘Natura 2000’ sites, having regard to the objectives of conservation of species.

According to the Commission, national legislation should finally impose on applicants a clear obligation to provide for alternative solutions where there are negative assessments of the implications of a project or management plan for a site.

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(1)  OJ 1992 L 206, p. 7.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/15 |
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Action brought on 12 June 2008 — Commission of the European Communities v Republic of Malta

(Case C-252/08)

(2008/C 197/26)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: L. Flynn and A. Alcover San Pedro, Agents)

Defendant: Republic of Malta

The applicant claims that the Court should:

| — | declare that, by failing to correctly apply Directive 2001/80/EC (1) of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants (OJ 2001 L 309, p. 1) (hereinafter ‘the Directive’) in relation to the operation of the Phase One steam plant of the Delimara power station and the power station at Marsa, the Republic of Malta has failed to fulfil its obligations under Article 4(1) in conjunction with Annex IV A, Annex VI A and Annex VII A, and under Article 12 in conjunction with Annex VIII A.2 of that directive; |
| --- | --- |

—

declare that, by failing to correctly apply Directive 2001/80/EC (1) of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants (OJ 2001 L 309, p. 1) (hereinafter ‘the Directive’) in relation to the operation of the Phase One steam plant of the Delimara power station and the power station at Marsa, the Republic of Malta has failed to fulfil its obligations under Article 4(1) in conjunction with Annex IV A, Annex VI A and Annex VII A, and under Article 12 in conjunction with Annex VIII A.2 of that directive;

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

—

order the Republic of Malta to pay the costs.

Pleas in law and main arguments

The Commission submits that the Phase One steam plant of the Delimara power station does not respect the emission limit values fixed by the directive for emissions of sulphur dioxide, nitrogen oxides and dust.

It is further submitted that, with regard to both the Phase One steam plant of the Delimara power station and the power station at Marsa, Malta has failed to comply with the requirement for continuous measurement of concentrations of sulphur dioxide, nitrogen oxides and dust pursuant to Art. 12 and paragraph 2 of Part A of Annex VIII of the directive.

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(1)  OJ 2001 L 309, p. 1.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/16 |
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Official Journal of the European Union

C 197/16

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Action brought on 16 June 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-256/08)

(2008/C 197/27)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: C. O'Reilly and M. Condou-Durande, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

| — | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/83/EC (1) of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted or, in any event, by failing to notify those provisions to it, the United Kingdom of Great Britain and Northern Ireland 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 Council Directive 2004/83/EC (1) of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted or, in any event, by failing to notify those provisions to it, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive;

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

—

order the 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 10 October 2006

---

(1)  OJ L 304, p. 12.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/16 |
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2.8.2008

EN

Official Journal of the European Union

C 197/16

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Action brought on 20 June 2008 — Commission of the European Communities v Republic of Malta

(Case C-269/08)

(2008/C 197/28)

Language of the case: Maltese

Parties

Applicant: Commission of the European Communities (represented by: M. Condou-Durande and K. Xuereb, Agents)

Defendant: Republic of Malta

The applicant claims that the Court should:

| — | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/83/EC (1) of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted or, in any event, by failing to notify those provisions to it, the Republic of Malta 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 Council Directive 2004/83/EC (1) of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted or, in any event, by failing to notify those provisions to it, the Republic of Malta has failed to fulfil its obligations under the Directive;

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

—

order the Republic of Malta to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 10 October 2006

---

(1)  OJ L 304, p. 12.

---

Court of First Instance

| 2.8.2008 | EN | Official Journal of the European Union | C 197/17 |
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2.8.2008

EN

Official Journal of the European Union

C 197/17

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Assigning of Judges to Chambers

(2008/C 197/29)

On 19 and 25 September 2007 the Court of First Instance decided to establish eight Chambers of five Judges and eight Chambers of three Judges for the period from 25 September 2007 to 31 August 2010.

On 8 July 2008 the Court of First Instance decided to change the assignment of the Judges for the period from 1 October 2008 to 31 August 2010 as follows:

First Chamber (Extended Composition), sitting with five Judges:

Ms Tiili, President of the Chamber, Mr Dehousse, Ms Wiszniewska-Białecka, Ms Jürimäe and Mr Soldevila Fragoso, Judges.

First Chamber, sitting with three Judges:

Ms Tiili, President of the Chamber;

Mr Dehousse, Judge;

Ms Wiszniewska-Białecka, Judge.

Second Chamber (Extended Composition), sitting with five Judges:

Ms Pelikánová, President of the Chamber, Mr Dehousse, Ms Wiszniewska-Białecka, Ms Jürimäe and Mr Soldevila Fragoso, Judges.

Second Chamber, sitting with three Judges:

Ms Pelikánová, President of the Chamber;

Ms Jürimäe, Judge;

Mr Soldevila Fragoso, Judge.

Third Chamber (Extended Composition), sitting with five Judges:

Mr Azizi, President of the Chamber, Mr Cooke, Ms Cremona, Ms Labucka and Mr Frimodt Nielsen, Judges.

Third Chamber, sitting with three Judges:

Mr Azizi, President of the Chamber;

Ms Cremona, Judge;

Mr Frimodt Nielsen, Judge.

Fourth Chamber (Extended Composition), sitting with five Judges:

Mr Czúcz, President of the Chamber, Mr Cooke, Ms Cremona, Ms Labucka and Mr Frimodt Nielsen, Judges.

Fourth Chamber, sitting with three Judges:

Mr Czúcz, President of the Chamber;

Mr Cooke, Judge;

Ms Labucka, Judge.

Fifth Chamber (Extended Composition), sitting with five Judges:

Mr Vilaras, President of the Chamber, Mr Šváby, Mr Prek, Mr Moavero Milanesi and Mr Ciucă, Judges.

Fifth Chamber, sitting with three Judges:

Mr Vilaras, President of the Chamber;

Mr Prek, Judge;

Mr Ciucă, Judge.

Sixth Chamber (Extended Composition), sitting with five Judges:

Mr Meij, President of the Chamber, Mr Vadapalas, Mr Papasavvas, Mr Wahl, Mr Tchipev, Mr Dittrich and Mr Truchot, Judges.

Sixth Chamber, sitting with three Judges:

Mr Meij, President of the Chamber;

| (a) | Mr Vadapalas and Mr Tchipev, Judges; |
| --- | --- |

(a)

Mr Vadapalas and Mr Tchipev, Judges;

| (b) | Mr Vadapalas and Mr Truchot, Judges; |
| --- | --- |

(b)

Mr Vadapalas and Mr Truchot, Judges;

| (c) | Mr Tchipev and Mr Truchot, Judges. |
| --- | --- |

(c)

Mr Tchipev and Mr Truchot, Judges.

Seventh Chamber (Extended Composition), sitting with five Judges:

Mr Forwood, President of the Chamber, Mr Šváby, Mr Moavero Milanesi, Mr Prek and Mr Ciucă, Judges.

Seventh Chamber, sitting with three Judges:

Mr Forwood, President of the Chamber;

Mr Šváby, Judge;

Mr Moavero Milanesi, Judge.

Eighth Chamber (Extended Composition), sitting with five Judges:

Ms Martins Ribeiro, President of the Chamber, Mr Vadapalas, Mr Papasavvas, Mr Wahl, Mr Tchipev, Mr Dittrich and Mr Truchot, Judges.

Eighth Chamber, sitting with three Judges:

Ms Martins Ribeiro, President of the Chamber;

| (a) | Mr Papasavvas and Mr Wahl, Judges. |
| --- | --- |

(a)

Mr Papasavvas and Mr Wahl, Judges.

| (b) | Mr Papasavvas and Mr Dittrich, Judges. |
| --- | --- |

(b)

Mr Papasavvas and Mr Dittrich, Judges.

| (c) | Mr Wahl and Mr Dittrich, Judges |
| --- | --- |

(c)

Mr Wahl and Mr Dittrich, Judges

In the Sixth and Eighth Chambers (Extended Composition), sitting with five Judges, the Judges who will sit with the President of the Chamber to make up the formation of five Judges will be the three Judges of the Chamber initially hearing the case, the fourth Judge of that Chamber and one Judge of the other Chamber composed of four Judges. The latter, who will not be the President of the Chamber, will be designated for one year in turn in the order provided for by Article 6 of the Rules of Procedure of the Court of First Instance.

In the Sixth and Eighth Chambers sitting with three Judges, the President of the Chamber will sit with the Judges referred to at (a), (b) or (c) above in turn, depending on the formation to which the Judge-Rapporteur belongs. For cases in which the President of the Chamber is the Judge-Rapporteur, the President of the Chamber will sit with the Judges of each of those formations alternately in accordance with the order in which the cases are registered, subject to the existence of connected cases

Appeal Chamber

On 8 July 2008 the Court of First Instance decided that, for the period from 1 October 2008 to 30 September 2009, the Appeal Chamber will be composed of the President of the Court and, in rotation, two Presidents of Chambers.

The Judges who will sit with the President of the Appeal Chamber to make up the extended formation of five Judges will be the three Judges of the formation initially hearing the case and, in rotation, two Presidents of Chambers.

Criteria for the assigning of cases to the Chambers

On 8 July 2008 the Court of First Instance laid down the following criteria for the assignment of cases to the Chambers for the period from 1 October 2008 to 30 September 2009, in accordance with Article 12 of the Rules of Procedure:

| 1. | Appeals against the decisions of the Civil Service Tribunal shall be assigned, as soon as the application has been lodged and without prejudice to any subsequent application of Articles 14 and 51 of the Rules of Procedure, to the Appeal Chamber. |
| --- | --- |

1.

Appeals against the decisions of the Civil Service Tribunal shall be assigned, as soon as the application has been lodged and without prejudice to any subsequent application of Articles 14 and 51 of the Rules of Procedure, to the Appeal Chamber.

| 2. | Cases other than those referred to in paragraph 1 above shall be assigned, as soon as the application has been lodged and without prejudice to any subsequent application of Articles 14 and 51 of the Rules of Procedure, to Chambers of three Judges.
  Cases referred to in this paragraph shall be allocated to the Chambers in turn, in step with the date on which they are registered at the Registry, following three separate rotas:






  — | for cases concerning application of the competition rules applicable to undertakings, the rules on State aid and the rules on trade protection measures; |
| --- | --- | --- |

2.

Cases other than those referred to in paragraph 1 above shall be assigned, as soon as the application has been lodged and without prejudice to any subsequent application of Articles 14 and 51 of the Rules of Procedure, to Chambers of three Judges.

Cases referred to in this paragraph shall be allocated to the Chambers in turn, in step with the date on which they are registered at the Registry, following three separate rotas:

—

for cases concerning application of the competition rules applicable to undertakings, the rules on State aid and the rules on trade protection measures;

| — | for cases concerning the intellectual property rights referred to in Article 130(1) of the Rules of Procedure; |
| --- | --- |

—

for cases concerning the intellectual property rights referred to in Article 130(1) of the Rules of Procedure;

| — | for all other cases. |
| --- | --- |

—

for all other cases.

In applying those rotas, the two Chambers sitting with three Judges which are composed of four Judges shall be taken into consideration twice at each third turn.

The President of the Court of First Instance may derogate from the rotas on the ground that cases are related or with a view to ensuring an even spread of the workload.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/18 |
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2.8.2008

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Official Journal of the European Union

C 197/18

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Judgment of the Court of First Instance of 26 June 2008 — Alferink and Others v Commission

(Case T-94/98) (1)

(Actions for damages - Non-contractual liability - Milk - Additional levy - Reference quantity - Producers who entered into non-marketing undertakings - Requirement that production be on the initial SLOM holding - Article 3a of Regulation (EEC) No 1546/88, as amended by Regulation (EEC) No 1033/89 - Allegedly ambiguous wording of the applicable provision - Principle of legal certainty)

(2008/C 197/30)

Language of the case: Dutch

Parties

Applicants: Alfonsius Alferink, (Heeten, Netherlands), and the other 67 applicants whose names are set out in the annex to the judgment (represented initially by H. Bronkhorst and E. Pijnacker Hordijk, subsequently by H. Bronkhorst, E. Pijnacker Hordijk and J. Sluysmans, and finally by E. Pijnacker Hordijk, lawyers)

Defendant: Commission of the European Communities (represented by: T. van Rijn, Agent)

Re:

Claims for damages under Article 178 of the EC Treaty (now Article 235 EC) and the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) seeking compensation for the damage allegedly suffered by the applicants by reason of the fact that the Commission infringed the principle of legal certainty when it adopted Regulation (EEC) No 1033/89 of 20 April 1989 amending Regulation (EEC) No 1546/88 laying down detailed rules for the application of the additional levy referred to in Article 5c of Council Regulation (EEC) No 804/68 (OJ 1989 L 110, p. 27), which did not provide clearly and precisely that milk production had to be resumed from the initial SLOM holding.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mr Alfonsius Alferink and the other 67 applicants whose names are listed in the annex to pay the costs. |
| --- | --- |

2.

Orders Mr Alfonsius Alferink and the other 67 applicants whose names are listed in the annex to pay the costs.

---

(1)  OJ C 358, 21.11.1998.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/19 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/19

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Judgment of the Court of First Instance of 18 June 2008 — Hoechst v Commission

(Case T-410/03) (1)

(Competition - Agreements, decisions and concerted practices - Market in sorbates - Decision finding an infringement of Article 81 EC - Calculation of the amount of the fines - Obligation to state the reasons on which the decision is based - Gravity and duration of the infringement - Aggravating circumstances - Principle non bis in idem - Cooperation during the administrative procedure - Access to the file - Duration of the procedure)

(2008/C 197/31)

Language of the case: German

Parties

Applicant: Hoechst GmbH, formerly Hoechst AG (Frankfurt am Main, Germany) (represented initially by M. Klusmann and V. Turner, then by M. Klusmann, V. Turner and M. Rüba, and finally by M. Klusmann and V. Turner, lawyers)

Defendant: Commission of the European Communities (represented initially by W. Mölls, O. Beynet and K. Mojzesowicz, and subsequently by W. Mölls and K. Mojzesowicz, Agents, assisted by A. Böhlke, lawyer)

Re:

Application for annulment, so far as the applicant is concerned, of Commission Decision 2005/493/EC of 1 October 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Chisso Corporation, Daicel Chemical Industries Ltd, Hoechst AG, The Nippon Synthetic Chemical Industry Co. Ltd and Ueno Fine Chemicals Industry Ltd (Case No COMP/E 1/37.370 — Sorbates) (Summary in OJ 2005 L 182, p. 20), or, in the alternative, a reduction to an appropriate level of the amount of the fine imposed on the applicant.

Operative part of the judgment

The Court:

| 1. | Sets the amount of the fine imposed on Hoechst GmbH at EUR 74.25 million. |
| --- | --- |

1.

Sets the amount of the fine imposed on Hoechst GmbH at EUR 74.25 million.

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

2.

Dismisses the remainder of the action.

| 3. | Orders the parties to bear their own costs. |
| --- | --- |

3.

Orders the parties to bear their own costs.

---

(1)  OJ C 59, 6.3.2004.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/19 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/19

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Judgment of the Court of First Instance of 17 June 2008 — El Corte Inglés v OHIM — Abril Sánchez and Ricote Saugar (BoomerangTV)

(Case T-420/03) (1)

(Community trade mark - Opposition proceedings - Application for registration of the Community figurative mark BoomerangTV - Earlier national and Community word and figurative marks BOOMERANG and Boomerang - Relative grounds for refusal - No likelihood of confusion - No well-known trade mark within the meaning of Article 6bis of the Paris Convention - No damage to reputation - Failure to produce evidence before the Opposition Division of the existence of certain earlier trade marks or translations thereof - Production of evidence for the first time before the Board of Appeal - Article 8(1)(b) and (2)(c), Article 8(5) and Article 74(2) of Regulation EC No 40/94 - Rule 16(2) and (3), Rule 17(2) and Rule 20(2) of Regulation (EC) No 2868/95)

(2008/C 197/32)

Language of the case: Spanish

Parties

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

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. de Medrano Caballero, Agent)

Other parties to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: José Matías Abril Sánchez and Pedro Ricote Saugar (Madrid) (represented by: J.M. Iglesias Monravá, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 1 October 2003 (Case R 88/2003-2), relating to opposition proceedings between El Corte Inglés SA, and J.M. Abril Sánchez and P. Ricote Saugar.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders El Corte Inglés SA to pay the costs.

---

(1)  OJ C 47, 21.2.2004.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/20 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/20

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Judgment of the Court of First Instance of 26 June 2008 — SIC v Commission

(Case T-442/03) (1)

(State aid - Measures taken by the Portuguese Republic for the public service broadcaster RTP in order to finance its public service remit - Decision declaring that certain measures do not constitute State aid and that the others are compatible with the common market - Classification as State aid - Compatibility with the common market - Obligation to undertake a diligent and impartial investigation)

(2008/C 197/33)

Language of the case: Portuguese

Parties

Applicant: SIC — Sociedade Independente de Comunicação, SA (Carnaxide, Portugal) (represented by C. Botelho Moniz, E. Maia Cadete and M. Rosado da Fonseca, lawyers)

Defendant: Commission of the European Communities (represented initially by M. Balta and F. Florindo Gijón, subsequently by M. Niejahr, J. Buendía Sierra and G. Braga da Cruz, and latterly by B. Martenczuk and G. Braga da Cruz, Agents)

Re:

Application for annulment of Commission Decision 2005/406/EC of 15 October 2003 on ad hoc measures implemented by Portugal for RTP (OJ 2005 L 142, p. 1) inasmuch as that decision declares that certain of those measures do not constitute State aid and that the others are compatible with the common market.

Operative part of the judgment

The Court:

| 1. | Annuls Article 1 of Commission Decision 2005/406/EC of 15 October 2003 on ad hoc measures implemented by Portugal for RTP; |
| --- | --- |

1.

Annuls Article 1 of Commission Decision 2005/406/EC of 15 October 2003 on ad hoc measures implemented by Portugal for RTP;

| 2. | Annuls Article 2 of Decision 2005/406 in so far as it found that the exemption from registration charges does not constitute State aid; |
| --- | --- |

2.

Annuls Article 2 of Decision 2005/406 in so far as it found that the exemption from registration charges does not constitute State aid;

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

3.

Dismisses the action as to the remainder;

| 4. | Orders the Commission to bear its own costs and to pay four fifths of the costs of SIC — Sociedade Independente de Comunicação, SA; |
| --- | --- |

4.

Orders the Commission to bear its own costs and to pay four fifths of the costs of SIC — Sociedade Independente de Comunicação, SA;

| 5. | Orders SIC to bear one fifth of its own costs. |
| --- | --- |

5.

Orders SIC to bear one fifth of its own costs.

---

(1)  OJ C 71, 20.3.2004.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/20 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/20

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Judgment of the Court of First Instance of 19 June 2008 — Mülhens v OHIM — Spa Monopole (MINERAL SPA)

(Case T-93/06) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark MINERAL SPA - Earlier national word mark SPA - Relative ground for refusal - Reputation - Unfair advantage taken of the repute of the earlier mark - Article 8(5) of Regulation (EC) No 40/94)

(2008/C 197/34)

Language of the case: English

Parties

Applicant: Mülhens GmbH & Co. KG (Cologne, Germany) (represented by: T. Schulte-Beckhausen and S. Maaßen, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. de Brouwer, É. Cornu, E. de Gryse and D. Moreau, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 11 January 2006 (Case R 825/2004-2) concerning opposition proceedings between Spa Monopole, compagnie fermière de Spa SA/NV, and Mülhens GmbH & Co. KG.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders Mülhens GmbH & Co. KG to pay the costs.

---

(1)  OJ C 131, 3.6.2006.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/21 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/21

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Judgment of the Court of First Instance of 18 June 2008 — Coca-Cola v OHIM — San Polo (MEZZOPANE)

(Case T-175/06) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative trade mark MEZZOPANE - Earlier national word marks MEZZO and MEZZOMIX - Article 8(1)(b) of Regulation (EC) No 40/94 - No likelihood of confusion)

(2008/C 197/35)

Language of the case: Italian

Parties

Applicant: The Coca-Cola Company (Atlanta, Georgia, United States) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto and L. Rampini, Agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: San Polo Srl (Montalcino, Italy) (represented by: G. Casucci and F. Luciani, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 5 April 2006 (Case R 99/2005-1) concerning opposition proceedings between The Coca-Cola Company and San Polo Srl.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders The Coca-Cola Company to pay the costs. |
| --- | --- |

2.

Orders The Coca-Cola Company to pay the costs.

---

(1)  OJ C 212 of 2.9.2006.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/21 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/21

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Judgment of the Court of First Instance of 25 June 2008 — Otto v OHIM

(Case T-224/06) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark l'Altra Moda - Earlier national figurative mark Alba Moda - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Article 73 and Article 74(1) and (2) of Regulation No 40/94)

(2008/C 197/36)

Language of the case: Italian

Parties

Applicant: Otto GmbH & Co. KG (Hamburg, Germany) (represented by: C. Rohnke and M. Munz, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto and P. Bullock, Agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: L'Altra Moda SpA (Rome, Italy) (represented by: A. Masetti Zannini de Concina and M. Bucarelli, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 16 June 2006 (Case R 793/2005-2) relating to opposition proceedings between Otto GmbH & Co. KG and l'Altra Moda SpA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Otto GmbH & Co. KG to bear its own costs and those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and of l'Altra Moda SpA. |
| --- | --- |

2.

Orders Otto GmbH & Co. KG to bear its own costs and those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and of l'Altra Moda SpA.

---

(1)  OJ C 281, 18.11.2006.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/22 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/22

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Judgment of the Court of First Instance of 25 June 2008 — Olympiaki Aeroporia Ypiresies v Commission

(Case T-268/06) (1)

(State aid - Aid for airlines on account of losses caused by the terrorist attacks of 11 September 2001 - Decision declaring the aid scheme incompatible, in part, with the common market and ordering recovery of aid paid - Article 87(2)(b) EC - Communication from the Commission of 10 October 2001 on the repercussions of the terrorist attacks of 11 September - Causal connection between the exceptional occurrence and the damage - Obligation to state the reasons on which the decision is based)

(2008/C 197/37)

Language of the case: Greek

Parties

Applicant: Olympiaki Aeroporia Ypiresies AE (Athens, Greece) (represented by: P. Anestis, lawyer, T. Soames and G. Goeteyn, Solicitors, S. Mavrogenis and M. Pinto de Lemos Fermiano Rato, lawyers)

Defendant: Commission of the European Communities (represented by: E. Righini and I. Chatzigiannis, Agents)

Re:

Application for annulment of Commission Decision C(2006) 1580 final of 26 April 2006 concerning a State aid scheme C 39/2003 (ex NN 119/2002) which the Hellenic Republic implemented in favour of airlines following losses suffered between 11 and 14 September 2001.

Operative part of the judgment

The Court:

| 1. | Annuls Articles 1 and 2 of Commission Decision C(2006) 1580 final of 26 April 2006 concerning a State aid scheme C 39/2003 (ex NN 119/2002) which the Hellenic Republic implemented in favour of airlines following losses suffered between 11 and 14 September 2001, in so far as they declare incompatible with the common market aid granted to Olympiaki Aeroporia Ypiresies AE, first, for losses due to the cancellation of the flight to Canada on 15 September 2001, secondly, for losses in respect of its network apart from the North Atlantic and Israel and, thirdly, for revenue lost in respect of carriage of goods, the costs of destruction of sensitive goods, the costs of additional security checks on goods, the costs connected with additional hours worked by staff and the costs connected with additional emergency security measures; |
| --- | --- |

1.

Annuls Articles 1 and 2 of Commission Decision C(2006) 1580 final of 26 April 2006 concerning a State aid scheme C 39/2003 (ex NN 119/2002) which the Hellenic Republic implemented in favour of airlines following losses suffered between 11 and 14 September 2001, in so far as they declare incompatible with the common market aid granted to Olympiaki Aeroporia Ypiresies AE, first, for losses due to the cancellation of the flight to Canada on 15 September 2001, secondly, for losses in respect of its network apart from the North Atlantic and Israel and, thirdly, for revenue lost in respect of carriage of goods, the costs of destruction of sensitive goods, the costs of additional security checks on goods, the costs connected with additional hours worked by staff and the costs connected with additional emergency security measures;

| 2. | Annuls Article 4 of Decision C(2006) 1580 final in so far as it orders the aid mentioned in the preceding paragraph to be recovered; |
| --- | --- |

2.

Annuls Article 4 of Decision C(2006) 1580 final in so far as it orders the aid mentioned in the preceding paragraph to be recovered;

| 3. | Dismisses the remainder of the action; |
| --- | --- |

3.

Dismisses the remainder of the action;

| 4. | Orders each party to bear its own costs. |
| --- | --- |

4.

Orders each party to bear its own costs.

---

(1)  OJ C 294, 2.12.2006.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/22 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/22

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Judgment of the Court of First Instance of 25 June 2008 — Zipcar, Inc. v OHIM — Canary Islands Car (ZIPCAR)

(Case T-36/07) (1)

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

(2008/C 197/38)

Language of the case: English

Parties

Applicant: Zipcar, Inc. (Cambridge, Massachusetts, United States) (represented by: M. Elmslie, Solicitor, and N. Saunders, Barrister,)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Canary Islands Car, SL (San Bartolome, Spain)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 30 November 2006 (case R 122/2006-2) relating to opposition proceedings between Canary Islands Car, SL and Zipcar, Inc.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders Zipcar, Inc. to pay the costs. |
| --- | --- |

2.

Orders Zipcar, Inc. to pay the costs.

---

(1)  OJ C 82, 14.4.2007.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/23 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/23

---

Judgment of the Court of First Instance of 26 June 2008 — SHS Polar Sistemas Informáticos v OHIM — Polaris Software Lab (POLARIS)

(Case T-79/07) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark POLARIS - Earlier Community word mark POLAR - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 197/39)

Language of the case: English

Parties

Applicant: SHS Polar Sistemas Informáticos SL (Madrid, Spain) (represented by: C. Hernández Hernández, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Polaris Software Lab Ltd (Chennai, India)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 8 January 2007 (Case R 658/2006-2) relating to opposition proceedings between SHS Polar Sistemas Informáticos SL and Polaris Software Lab Ltd.

Operative part of the judgment

The Court:

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

1.

Dismisses the application;

| 2. | Orders SHS Polar Sistemas Informáticos SL to pay the costs. |
| --- | --- |

2.

Orders SHS Polar Sistemas Informáticos SL to pay the costs.

---

(1)  OJ C 95, 28.4.2007.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/23 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/23

---

Judgment of the Court of First Instance of 18 June 2008 — Sundholm v Commission

(Case T-164/07 P) (1)

(Appeal - Staff case - Officials - Career development report - 2003 appraisal procedure - Rights of the defence - Appeal inadmissible - Appeal unfounded)

(2008/C 197/40)

Language of the case: French

Parties

Appellant: Asa Sundholm (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Other party to the proceedings: Commission of the European Communities (represented by: C. Berardis-Kayser and D. Martin, Agents, assisted by B. Wägenbauer, lawyer)

Re:

Appeal against the judgment of the European Union Civil Service Tribunal (Second Chamber) in Case F-30/05 Sundholm v Commission, not yet published in the ECR, seeking to have that judgment set aside.

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Asa Sundholm to bear her own costs and those incurred by the Commission in the present proceedings. |
| --- | --- |

2.

Orders Asa Sundholm to bear her own costs and those incurred by the Commission in the present proceedings.

---

(1)  OJ C 155, 7.7.2007.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/23 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/23

---

Order of the Court of First Instance of 11 June 2008 — European Association of Im- and Exporters of Birds and live Animals and Others v Commission

(Case T-209/06) (1)

(Action for annulment - Admissibility - Fourth paragraph of Article 230 EC - Natural and legal persons - Associations - Decision 2006/522/EC - Individual concern - Animal health - Protection measures in relation to avian influenza)

(2008/C 197/41)

Language of the case: Dutch

Parties

Applicants: European Association of Im- and Exporters of Birds and live Animals (West Maas en Waal, Netherlands); Vereniging van Im- en Exporteurs van Vogels en Hobbydieren (West Maas en Waal, Netherlands); Willem Plomp, trading as Plomps Vogelhandel (Woerden, Netherlands); and Marinus Borgstein, trading as Borgstein Birds & Zoofood Trading (West Maas en Waal, Netherlands) (represented by: J. Wouters, lawyer)

Defendant: Commission of the European Communities (represented by: F. Erlbacher and M. van Heezik, Agents)

Re:

Application for annulment of Commission Decision 2006/522/EC of 25 July 2006 amending Decisions 2005/759/EC and 2005/760/EC as regards certain protection measures in relation to highly pathogenic avian influenza and movements of certain live birds into the Community (OJ 2006 L 205, p. 28).

Operative part of the order

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

1.

The action is dismissed.

| 2. | The applicants shall pay the costs, including those relating to the application for interim measures. |
| --- | --- |

2.

The applicants shall pay the costs, including those relating to the application for interim measures.

---

(1)  OJ C 249, 14.10.2006.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/24 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/24

---

Order of the Court of First Instance of 14 May 2008 — Icuna.Com v Parliament

(Joined Cases T-383/06 and T-71/07) (1)

(Actions for annulment - Actions for damages - Public service contracts - Community tendering procedure - Rejection of a tender - Decision to annul the tendering procedure - Action manifestly lacking any foundation in law - No need to give a decision)

(2008/C 197/42)

Language of the case: French

Parties

Applicant: Icuna.Com SCRL (Braine-le-Château, Belgium) (represented by: J. Windey and P. De Bandt, lawyers)

Defendant: European Parliament (represented by: O. Caissou-Rousseau and M. Ecker, Agents)

Re:

In Case T-383/06, (i) an application for annulment of the decision of the European Parliament of 1 December 2006 rejecting the tender submitted by the applicant in the framework of lot 2 (programme contents) of the tender procedure EP/DGINFO/WEBTV/2006/0003 relating to the creation and establishment of the European Parliament web television channel and (ii) an application for damages to compensate for the loss allegedly suffered by the applicant following the adoption of the decision of 1 December 2006 and, in Case T-71/07, (i) an application for annulment of the decision of the European Parliament of 31 January 2007 annulling the tender procedure EP/DGINFO/WEBTV/2006/0003 relating to the creation and establishment of the European Parliament web television channel, in so far as concerns lot 2 (programme contents), and (ii) an application for damages to compensate for the loss allegedly suffered by the applicant following the adoption of the decision of 31 January 2007.

Operative part of the order

| 1. | Cases T-383/06 and T-71/07 shall be joined for the purposes of the order. |
| --- | --- |

1.

Cases T-383/06 and T-71/07 shall be joined for the purposes of the order.

| 2. | In Case T-71/07, the objection of inadmissibility shall be considered together with the substance of the case. |
| --- | --- |

2.

In Case T-71/07, the objection of inadmissibility shall be considered together with the substance of the case.

| 3. | The action in Case T-71/07 is dismissed as manifestly lacking any foundation in law. |
| --- | --- |

3.

The action in Case T-71/07 is dismissed as manifestly lacking any foundation in law.

| 4. | There is no longer any need to give a decision on the application for annulment in Case T-383/06. |
| --- | --- |

4.

There is no longer any need to give a decision on the application for annulment in Case T-383/06.

| 5. | The application for damages in Case T-383/06 is dismissed as manifestly lacking any foundation in law. |
| --- | --- |

5.

The application for damages in Case T-383/06 is dismissed as manifestly lacking any foundation in law.

| 6. | In Case T-383/06, the Parliament shall bear its own costs and pay half of the costs of Icuna.Com SCRL, including those relating to the proceedings for interim relief. Icuna.Com shall bear half of its own costs. |
| --- | --- |

6.

In Case T-383/06, the Parliament shall bear its own costs and pay half of the costs of Icuna.Com SCRL, including those relating to the proceedings for interim relief. Icuna.Com shall bear half of its own costs.

| 7. | In Case T-71/07, Icuna.Com shall bear its own costs and pay those incurred by the Parliament, including those relating to the proceedings for interim relief and to the objection of inadmissibility. |
| --- | --- |

7.

In Case T-71/07, Icuna.Com shall bear its own costs and pay those incurred by the Parliament, including those relating to the proceedings for interim relief and to the objection of inadmissibility.

---

(1)  OJ C 20, 27.1.2007.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/24 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/24

---

Order of the Court of First Instance of 10 June 2008 — Bligny v Commission

(Case T-127/07 P) (1)

(Appeal - Staff case - Open competition - Conditions governing admission - Not admitted at the stage of correction of the written test - Competition notice - Incomplete application - Proof of citizenship - Appeal manifestly unfounded)

(2008/C 197/43)

Language of the case: French

Parties

Appellant: Francesco Bligny (Tassin-la-Demi-Lune, France) (represented by: P. Lebel-Nourissat, lawyer)

Other party to the proceedings: Commission of the European Communities (represented by: J. Currall and K. Herrmann, Agents)

Re:

Appeal against the order of the European Union Civil Service Tribunal (Second Chamber) of 15 February 2007 in Joined Cases F-142/06 and F-142/06 AJ Bligny v Commission, not yet published in the ECR, seeking to have that order set aside.

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Francesco Bligny shall bear his own costs and those incurred by the Commission. |
| --- | --- |

2.

Francesco Bligny shall bear his own costs and those incurred by the Commission.

---

(1)  OJ C 140, 23.6.2007.

---

| 2.8.2008 | EN | Official Journal of the European Union | C 197/25 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/25

---

Order of the President of the Court of First Instance of 25 April 2008 — Vakakis v Commission

(Case T-41/08 R)

(Community tendering procedure - Interim proceedings - Loss of an opportunity - Locus standi - Admissibility of the main application - Urgency - Measures of inquiry)

(2008/C 197/44)

Language of the case: English

Parties

Applicant: Vakakis International — Symvouli gia Agrotiki Anaptixi AE (Athens, Greece) (represented by: B. O'Connor, Solicitor)

Defendant: Commission of the European Communities (represented by: M. Wilderspin and G. Boudot, Agents)

Re:

Application for an order granting interim measures in the context of the service tender procedure EuropeAid/125241/C/SER/CY for the supply of ‘Technical Assistance to Support Rural Development Policy’ in the Northern Part of Cyprus.

Operative part of the order

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

1.

The application for interim measures is dismissed.

| 2. | The application for measures of inquiry or organisation of procedure is dismissed. |
| --- | --- |

2.

The application for measures of inquiry or organisation of procedure is dismissed.

| 3. | There is no need for a decision on the application for leave to intervene. |
| --- | --- |

3.

There is no need for a decision on the application for leave to intervene.

| 4. | Costs are reserved, except that Agriconsulting shall bear the costs incurred by it in connection with the submission of its application for leave to intervene. |
| --- | --- |

4.

Costs are reserved, except that Agriconsulting shall bear the costs incurred by it in connection with the submission of its application for leave to intervene.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/25 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/25

---

Action brought on 14 May 2008 — CHEMK and Kuznetskie ferrosplavy v Council and Commission

(Case T-190/08)

(2008/C 197/45)

Language of the case: English

Parties

Applicants: Chelyabinsk elektrometallurgical integrated plant OAO (CHEMK) (Chelyabinsk, Russia) and Kuznetskie ferrosplavy OAO (Novokuznetsk, Russia) (represented by: P. Vander Schueren, lawyer)

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

Form of order sought

| — | Annul the contested regulation in so far as it affects the applicants; |
| --- | --- |

—

Annul the contested regulation in so far as it affects the applicants;

| — | order the Council to pay the costs incurred by the applicants in relation to these proceedings; or |
| --- | --- |

—

order the Council to pay the costs incurred by the applicants in relation to these proceedings; or

| — | in the alternative, annul the contested decision; and |
| --- | --- |

—

in the alternative, annul the contested decision; and

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

—

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

Pleas in law and main arguments

The applicants put forward five grounds in support of their application for annulment of Council Regulation (EC) No 172/2008 (1) of 25 February 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People's Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (‘the contested regulation’) in so far as it affects the applicants. In the alternative, the applicants seek annulment of the Commission decision dated 28 February 2008, notified to them on 3 March 2008, by which the Commission rejected their request for a suspension of the anti-dumping measures that were introduced by the contested regulation (‘the contested decision’).

First, the applicants claim that the Council acted contrary to Article 2(9) of the Basic Regulation (2) (‘the Basic Regulation’) and failed to fulfil the obligation to provide an adequate statement of reasons when it refused to use the actual profit margin of the applicants' related importer for the construction of their export price.

Second, the applicants submit that the Council infringed the principle of non-discrimination as well as Articles 6(7), 8(4) and 20(1) of the Basic Regulation by granting advanced disclosure to the Macedonian producer SILMAK.

Third, the applicants contend that the Council acted contrary to Article 3(6) of the Basic Regulation by committing an error of law and a manifest error of assessment in concluding that the Community industry suffered material injury.

Fourth, the applicants claim that the contested regulation is contrary to Articles 3(6) and 3(7) of the Basic Regulation and is vitiated by an error of law, multiple manifest errors of assessment, the lack of due care and inadequate reasoning inasmuch as the Council allegedly disregarded the effect of other factors on the situation of the Community industry that break the link between the targeted imports and the alleged material injury to the Community industry.

Fifth, the applicants submit that the Council violated their rights of defence by refusing to provide data on the complaint that justified the initiation of the anti-dumping investigation.

In the alternative, the applicants put forward one ground of annulment of the contested decision, namely that the Commission committed an error of law, a manifest error of assessment and violated the principle of equal treatment and sound administration by rejecting the applicants' request for the suspension of the measures.

---

(1)  OJ 2008 L 55, p. 6.

(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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| 2.8.2008 | EN | Official Journal of the European Union | C 197/26 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/26

---

Action brought on 21 May 2008 — Transnational Company ‘Kazchrome’ and ENRC Marketing v Council

(Case T-192/08)

(2008/C 197/46)

Language of the case: English

Parties

Applicants: Transnational Company ‘Kazchrome’ (TNK Kazchrome) (Aktobe, Kazakhstan) and ENRC Marketing AG (Kloten, Switzerland) (represented by: L. Ruessmann and A. Willems, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | To declare the application admissible; |
| --- | --- |

—

To declare the application admissible;

| — | to annul Council Regulation (EC) No 172/2008 imposing a definitive anti-dumping duty on imports of ferro-silicon originating in the People's Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia as far as it applies to the applicants; |
| --- | --- |

—

to annul Council Regulation (EC) No 172/2008 imposing a definitive anti-dumping duty on imports of ferro-silicon originating in the People's Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia as far as it applies to the applicants;

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

—

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

Pleas in law and main arguments

The applicants, who produce and sell ferro-silicon to the market of the European Union, seek partial annulment of Council Regulation (EC) No 172/2008 (1) of 25 February 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People's Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia.

In support of their application, the applicants submit that they are directly and individually concerned by the contested regulation and that the anti-dumping duty imposed by the said regulation is the result of several manifest errors of assessment, manifest errors of fact and breaches of the Basic Regulation (2) (‘the Basic Regulation’) as well as of the WTO Anti-Dumping Agreement. The applicants further argue that the defendant failed to state reasons as required by Article 253 EC.

On the basis of the first plea, the applicants submit that the Council failed to properly distinguish between effects caused by other known factors from any injury caused by the targeted imports and, thus, the Council's findings violate Articles 3(2), 3(6) and 3(7) of the Basic Regulation.

On the basis of their second plea, the applicants advance that the anti-dumping duty was adopted on the basis of an erroneous assessment of Community interest and in violation of Articles 9(4) and 21 of the Basic Regulation.

On the basis of their third plea, it is submitted that although the applicants provided verifiable information to the institutions, they were allegedly treated as non-cooperating, the Council failed to check the facts used against available information which was brought to their attention and failed to carry out a proper market economy treatment within the time-limits imposed by the Basic Regulation.

On the basis of the fourth plea, the applicants contend that their rights of defence have been violated in the course of the investigation.

---

(1)  OJ 2008 L 55, p. 6.

(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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| 2.8.2008 | EN | Official Journal of the European Union | C 197/26 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/26

---

Appeal brought on 21 May 2008 by Carina Skareby against the judgment of the Civil Service Tribunal delivered on 6 March 2008 in Case F-46/06, Skareby v Commission

(Case T-193/08 P)

(2008/C 197/47)

Language of the case: French

Parties

Appellant: Carina Skareby (Leuven, Belgium) (represented by S. Rodrigues and C. Bernard-Glanz, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

| — | set aside the judgment delivered on 6 March 2008 by the European Union Civil Service Tribunal in Case F-46/06; |
| --- | --- |

—

set aside the judgment delivered on 6 March 2008 by the European Union Civil Service Tribunal in Case F-46/06;

| — | uphold the claims seeking annulment and damages put forward by the appellant before the Civil Service Tribunal; |
| --- | --- |

—

uphold the claims seeking annulment and damages put forward by the appellant before the Civil Service Tribunal;

| — | order the Commission to pay the costs of both cases. |
| --- | --- |

—

order the Commission to pay the costs of both cases.

Pleas in law and main arguments

By this appeal, the appellant requests the Court to set aside the judgment delivered by the Civil Service Tribunal on 6 March 2008 in Case F-46/06 Skareby v Commission, which dismissed her action for, first, annulment of her career development report for 2004 and, second, damages.

In support of her appeal, the appellant puts forward two pleas, alleging manifest errors of assessment (paragraphs 66, 98 and 113 of the contested judgment) and distortion of the clear sense of evidence (paragraph 68).

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/27 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/27

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Action brought on 21 May 2008 — Cattin and Cattin v Commission

(Case T-194/08)

(2008/C 197/48)

Language of the case: French

Parties

Applicants: R. Cattin & Cie (Bimbo, Central African Republic) and Yves Cattin (Cadiz, Spain) (represented by: B. Wägenbaur, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Order the defendant to pay the applicant company a total of EUR 18 946 139 for material loss suffered; |
| --- | --- |

—

Order the defendant to pay the applicant company a total of EUR 18 946 139 for material loss suffered;

| — | Order the defendant to pay the applicant company the sum of EUR 100 000 for non-material loss suffered; |
| --- | --- |

—

Order the defendant to pay the applicant company the sum of EUR 100 000 for non-material loss suffered;

| — | Order the defendant to pay Mr Cattin the sum of EUR 150 000 for non-material loss suffered; |
| --- | --- |

—

Order the defendant to pay Mr Cattin the sum of EUR 150 000 for non-material loss suffered;

| — | Add default interest to those amounts to run from the date of delivery of the judgment in the present case until effective payment, at an annual rate equal to the rate fixed by the European Central Bank for main refinancing operations plus 2 points, such rate not to exceed 6 %; |
| --- | --- |

—

Add default interest to those amounts to run from the date of delivery of the judgment in the present case until effective payment, at an annual rate equal to the rate fixed by the European Central Bank for main refinancing operations plus 2 points, such rate not to exceed 6 %;

| — | Order the defendant to pay the costs of the case, those incurred both by the applicant company and by Mr Cattin. |
| --- | --- |

—

Order the defendant to pay the costs of the case, those incurred both by the applicant company and by Mr Cattin.

Pleas in law and main arguments

The applicant company, specialising in production, processing and exportation of coffee in the Central African Republic, has been refused reimbursement via funds of the European Development Fund (EDF) of debts which it held from the State body ‘Soutien Café’, a body created to support the price of coffee at the time of large reductions in prices at the end of the 1980's. The applicant company was refused reimbursement on the ground that, according to an audit report established at the request of the national authorities, it had probably embezzled certain sums for the benefit of its associates. Following that refusal, the applicant company has had to suspend all its activities and dismiss the 800 permanent employees working in its plantations.

In support of their action, the applicants allege, firstly, a breach of (i) their rights of the defence, since the applicant company did not present evidence at the time the audit report which found that there had been embezzlement was established and (ii) of the presumption of innocence, since no evidence was put forward to support that finding.

Next, the applicants raise a plea alleging breach of the principles of effective judicial protection, legal certainty and the duty to give reasons, since the applicant company was refused reimbursement without the Commission having sent it any decision and without the company having been informed formally of the recommendations of the audit report on which that refusal was based.

Finally, the applicants submit that the Commission infringed the principles of due care and sound administration, since applications sent to the Commission by the national authorities concerning the applicant company's case went unanswered and the audit report was based on incorrect figures, which meant that a second expert opinion was required, which the Commission accepted without, however, obtaining such an opinion.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/27 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/27

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Action brought on 26 May 2008 — Market Watch v OHIM — Ares Trading (SEROSLIM)

(Case T-201/08)

(2008/C 197/49)

Language in which the application was lodged: English

Parties

Applicant: Market Watch Franchise & Consulting, Inc. (Freeport, Bahamas) (represented by: J. E. Korab, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ares Trading, SA (Aubonne, Switzerland)

Form of order sought

| — | The complaint filed by the applicant be admitted; |
| --- | --- |

—

The complaint filed by the applicant be admitted;

| — | annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 March 2008 in case R 0805/2007-2 and the application filed by the other party to the proceedings before the Board of Appeal requesting a declaration of invalidity of the Community trade mark concerned be dismissed; and |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 March 2008 in case R 0805/2007-2 and the application filed by the other party to the proceedings before the Board of Appeal requesting a declaration of invalidity of the Community trade mark concerned be dismissed; and

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

—

order OHIM 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 ‘SEROSLIM’ for goods and services in classes 3, 5 and 35 — application No 4 113 321

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

Mark or sign cited: The word mark ‘SEROSTIM’ for goods in class 5 — Community trade mark 2 405 694

Decision of the Opposition Division: Upheld the opposition with respect to all the goods in class 5 and in respect of ‘soaps, hair lotions and dentifrices’ in class 3

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8 of Council Regulation No 40/94 as the most important aspect in assessing the existence of any likelihood of confusion is the overall impression created by the two trade marks in question on the public concerned. Furthermore, the existence of a likelihood of confusion that would be relevant from the point of view of trade mark law, depends, in this connection, on a large number of circumstances, including, but not limited to, the recognition of the trade mark in question, the associations that the used or registered sign appears to be able to create, as well as the degree of similarity between the mark and the sign or between the goods and services identified.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/28 |
| --- | --- | --- | --- |

2.8.2008

EN

Official Journal of the European Union

C 197/28

---

Action brought on 4 June 2008 — Team Relocations NV v Commission

(Case T-204/08)

(2008/C 197/50)

Language of the case: English

Parties

Applicant(s): Team Relocations NV (Zaventem, Belgium) (represented by: H. Gilliams, J. Bocken, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Article 1 of the Commission Decision of 11 March 2008 in Case COMP/38.543 — International removal services, insofar as it declares that the applicant infringed Article 81 EC and Article 53(1) EEA in the period January 1997 — September 2003 by directly and indirectly fixing prices for International Removal Services in Belgium, sharing part of the market and manipulating the procedure of submission of tenders; |
| --- | --- |

—

Annul Article 1 of the Commission Decision of 11 March 2008 in Case COMP/38.543 — International removal services, insofar as it declares that the applicant infringed Article 81 EC and Article 53(1) EEA in the period January 1997 — September 2003 by directly and indirectly fixing prices for International Removal Services in Belgium, sharing part of the market and manipulating the procedure of submission of tenders;

| — | annul Article 2 of the Commission Decision of 11 March 2008 in Case COMP/38.543 — International Removal Services, in so far as it imposes on the applicant a fine of EUR 3,49 million; |
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annul Article 2 of the Commission Decision of 11 March 2008 in Case COMP/38.543 — International Removal Services, in so far as it imposes on the applicant a fine of EUR 3,49 million;

| — | in the alternative, substantially reduce the fine imposed by the aforementioned decision; |
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in the alternative, substantially reduce the fine imposed by the aforementioned decision;

| — | in any event, order the costs of the proceedings to be borne by the Commission. |
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in any event, order the costs of the proceedings to be borne by the Commission.

Pleas in law and main arguments

By means of this application the applicant seeks annulment pursuant to Article 230 EC of Articles 1 and 2 of Commission Decision C(2008)926 final of 11 March 2008 (Case COMP/38.543 — International Removal Services) relating to a proceeding under Article 81(1) EC and Article 53(1) EEA in so far as it imposes a fine on the applicant.

The applicant puts forward eight pleas in law in support of its claims:

First, the applicant claims that the Commission violated Article 81 EC and Article 53 EEA as well as the duty to state reasons by asserting in Article 1 of its decision that the applicant participated from January 1997 to September 2003 in a single, continuous infringement of Article 81 EC.

Second, the applicant submits that the Commission violated the principle of equal treatment as well as the 2006 Fining Guidelines (1) by taking into account, for purposes of calculating the basic amount of the fine, the applicant's aggregate sales on the Belgian market for international removals, including turnover derived from moves for private individuals.

Third, the applicant contends that the percentage of 17 % of the value of sales applied by the Commission for the purposes of calculating the basic amount of the applicant's fine is excessively high. In doing so, the Commission allegedly violates the principles of equal treatment and proportionality, the 2006 Fining Guidelines and the duty to state reasons.

Fourth, the applicant submits that there is no basis for multiplying the applicant's value of sales by the number of years during which the practices in which it engaged occurred. Further, it claims that the automatic multiplication of the amount determined on the basis of the value of sales by the number of years of an undertaking's participation in the infringement confers on the alleged duration of the infringement an importance disproportionate in relation to other factors and in particular to the gravity of the infringement.

Fifth, the applicant advances that there is no basis for imposing on the applicant an additional amount of EUR 436 850,53, equal to 17 % of the value of its sales.

Sixth, the applicant claims that the Commission should have taken into consideration several mitigating circumstances that warrant a substantial reduction of the applicant's fine.

Seventh, the applicant argues that there was no basis for imposing a fine that exceeds 10 % of its turnover. In doing so, the Commission violated Article 23 of Regulation (EC) 1/2003 (2) and the principle of proportionality.

Eighth and in the alternative, the applicant submits that its fine should be substantially reduced in order to take into account its inability to pay.

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(1)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).

(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules of competition laid down in Articles 81 and 82 EC (OJ 2003 L 1, p. 1).

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/29 |
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Action brought on 9 June 2008 — Spain v Commission

(Case T-206/08)

(2008/C 197/51)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: Sr. F. Díez Moreno)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Commission Decision 2008/321/EC of 8 April 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF), in so far as it includes corrections which affect the Kingdom of Spain, deriving from two investigations concerning potential for vine production (VT/VI/2002/14 and VT/VI/2006/09), totalling EUR 54 949 195,80, as a result of the application of a correction at a flat rate of 10 % of all the expenditure declared earlier by way of related assistance; and |
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annul Commission Decision 2008/321/EC of 8 April 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF), in so far as it includes corrections which affect the Kingdom of Spain, deriving from two investigations concerning potential for vine production (VT/VI/2002/14 and VT/VI/2006/09), totalling EUR 54 949 195,80, as a result of the application of a correction at a flat rate of 10 % of all the expenditure declared earlier by way of related assistance; and

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

Pleas in law and main arguments

The exclusions from Community financing which affect Spain in the present proceedings derive from two investigations concerning potential for vine production (VT/VI/2002/14 and VT/VI/2006/09), taking as a basis for the calculation of the financial correction the expenditure declared by Spain for all the assistance measures for which the products resulting from illegal plots of vineyard plantations in the budgetary years 2003 and 2004 could compete, for a total of EUR 54 949 195,80 (correction at a flat rate of 10 % of all the expenditure declared by way of such assistance, in respect of defects in controls of the prohibition on any plantation of vines).

The Kingdom of Spain challenges the proposed financial correction, considering it unjustified and disproportionate, on the basis of the following arguments:

| — | failure to state the reasons on which the proposed correction is based; |
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failure to state the reasons on which the proposed correction is based;

| — | correct implementation by Spanish organisations of controls for the detection of illegal plantations in 2003 and 2004; |
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correct implementation by Spanish organisations of controls for the detection of illegal plantations in 2003 and 2004;

| — | failure by the Commission to carry out the procedures provided for in connection with the clearance of accounts, |
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failure by the Commission to carry out the procedures provided for in connection with the clearance of accounts,

| — | inappropriateness of using the results of the investigation carried out in 2002; |
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inappropriateness of using the results of the investigation carried out in 2002;

| — | rejection of the extrapolation of the proposed correction to the Autonomous Regions not visited; and |
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rejection of the extrapolation of the proposed correction to the Autonomous Regions not visited; and

| — | absence of technical arguments to support the proposed percentage of charge: discriminatory aspects of the various regulatory measures. |
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absence of technical arguments to support the proposed percentage of charge: discriminatory aspects of the various regulatory measures.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/30 |
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Action brought on 4 June 2008 — Stichting Administratiekantoor Portielje v Commission

(Case T-209/08)

(2008/C 197/52)

Language of the case: Dutch

Parties

Applicant: Stichting Administratiekantoor Portielje (Rotterdam, Netherlands) (represented by: D. Van hove, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 EC (Case COMP/38.543 — International removal services), notified to the applicant on 25 March 2008, in so far as it is addressed to the applicant; |
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Annul Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 EC (Case COMP/38.543 — International removal services), notified to the applicant on 25 March 2008, in so far as it is addressed to the applicant;

| — | in the alternative, annul Article 2(e) of the Decision, in so far as it is addressed to the applicant, in accordance with the fourth and/or fifth plea in law, and reduce the fine imposed under Article 2 accordingly, in so far as it concerns the applicant; |
| --- | --- |

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in the alternative, annul Article 2(e) of the Decision, in so far as it is addressed to the applicant, in accordance with the fourth and/or fifth plea in law, and reduce the fine imposed under Article 2 accordingly, in so far as it concerns the applicant;

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

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order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

By its first plea in law, the applicant submits that the Decision infringes Article 81 EC and Article 23(2) of Regulation No 1/2003 (1), as the Commission failed properly to establish that the applicant is an undertaking within the meaning of those provisions.

By its second plea in law, the applicant submits that the decision infringes Article 81(1) EC and Article 23(2) of Regulation No 1/2003, as the Commission wrongly, in light of the facts, attributed Gosselin's conduct to the applicant.

By its third plea in law, the applicant submits that the decision infringes Article 81 EC. In the first branch of this plea, the applicant charges the Commission with having failed properly to establish that the conduct of which Gosselin could be accused is to be regarded as a significant restriction of competition for the purposes of Article 81 EC. In the second branch, the applicant charges the Commission with having failed properly to establish that the agreement to which Gosselin was a party could have an appreciable effect on trade between the Member States.

By its fourth plea in law, the applicant submits that the decision infringes Article 23 of Regulation No 1/2003, Article 15(2) of Regulation No 17/62 (2) and the Guidelines on the method of setting fines (3). Those provisions were contravened by the finding as to the gravity of the infringement, the finding as to the value of sales with regard to the calculation of the basic amount of the fine imposed on Gosselin and, finally, by the refusal to take account of mitigating circumstances with respect to Gosselin in the calculation of the fine.

Finally, by its fifth plea in law, the applicant submits that there was a breach of the principle of equal treatment, in particular, in the determination of the gravity of the infringement and the value of sales, factors which were taken into account in the calculation of the fine.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ 2003 L 1, p. 1).

(2)  Council Regulation No 17 of 6 February 1962; First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-62, p. 87).

(3)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (Text with EEA relevance) (OJ 2006 C 210, p. 2).

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/30 |
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Action brought on 4 June 2008 — Verhuizingen Coppens v Commission

(Case T-210/08)

(2008/C 197/53)

Language of the case: Dutch

Parties

Applicant: Verhuizingen Coppens NV (Bierbeek, Belgium) (represented by: J. Stuyck and I. Buelens, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Article 1 of the Commission Decision of 11 March 2008 in Case COMP/38.543 so far as concerns the applicant; |
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Annul Article 1 of the Commission Decision of 11 March 2008 in Case COMP/38.543 so far as concerns the applicant;

| — | annul Article 2 of the Commission Decision of 11 March 2008 in Case COMP/38.543 so far as concerns the applicant; |
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annul Article 2 of the Commission Decision of 11 March 2008 in Case COMP/38.543 so far as concerns the applicant;

| — | in the alternative, reduce the fine and set it at an amount not exceeding 10 % of the applicant's turnover on the relevant market for international removal services; |
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—

in the alternative, reduce the fine and set it at an amount not exceeding 10 % of the applicant's turnover on the relevant market for international removal services;

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

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in any event, order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant's first two pleas in law seek the annulment of the Commission decision of 11 March 2008 relating to a proceeding under Article 81 EC (Case COMP/38.543 — International removal services).

The applicant submits, first, that there is an infringement of Article 81(1) EC. The applicant was sanctioned for participation in a complex cartel even though, according to the Commission's file, the applicant differed from the other participants in that it was found only to have participated in a small part of the alleged cartel. Furthermore, the applicant's alleged participation in the cartel was shorter than was found by the Commission, and the Commission failed to take into account the relative weight of the applicant's participation in the cartel.

Second, the applicant submits that there is an infringement of Article 23(2) and (3) of Regulation 1/2003 (1), since the Commission incorrectly established both the duration and the continuing nature of the infringement.

In the alternative, the applicant seeks an exemption from the fine imposed or at least a drastic reduction in its amount on the ground that the basic amount of the fine was wrongly established and calculated and there was a manifest breach of the principle of proportionality when setting the fine.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ 2003 L 1, p. 1).

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/31 |
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Action brought on 4 June 2008 — Putters International v Commission

(Case T-211/08)

(2008/C 197/54)

Language of the case: Dutch

Parties

Applicant: Putters International NV (Cargovil, Belgium) (represented by: K. Platteau, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Article 1 of the Decision to the extent to which that provision states that the applicant breached Article 81(1) EC in that it and other undertakings directly and indirectly fixed the prices for international removal services in Belgium, shared part of the market and manipulated the procedure for the submission of tenders; |
| --- | --- |

—

annul Article 1 of the Decision to the extent to which that provision states that the applicant breached Article 81(1) EC in that it and other undertakings directly and indirectly fixed the prices for international removal services in Belgium, shared part of the market and manipulated the procedure for the submission of tenders;

| — | annul Article 2 of the Decision in so far as a fine of EUR 395 000 is thereby imposed on the applicant; |
| --- | --- |

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annul Article 2 of the Decision in so far as a fine of EUR 395 000 is thereby imposed on the applicant;

| — | should the Court take the view that it is appropriate that a fine be imposed on the applicant, in the exercise of its unlimited jurisdiction under Article 229 EC and Article 31 of Regulation No 1/2003, fix a fine which is significantly lower than that determined by the Commission; |
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should the Court take the view that it is appropriate that a fine be imposed on the applicant, in the exercise of its unlimited jurisdiction under Article 229 EC and Article 31 of Regulation No 1/2003, fix a fine which is significantly lower than that determined by the Commission;

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

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order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 EC (Case COMP/38.543 — International removal services).

First, the applicant submits that the Commission committed a manifest error of appraisal in finding that the applicant had participated in a complex and systematic cartel designed, directly and indirectly, to fix the prices of international removal services in Belgium, to share part of the market and to manipulate the procedure for the submission of tenders, even though the applicant was merely a party to practices relating to commissions and cover quotes, and even that on a very sporadic basis.

Second, the applicant argues that there has been an infringement of the principles of proportionality and equal treatment by reason of the fact that the Commission, in its calculation of the basic amount of the fine, took into account the total turnover for international removal services, without regard for the number and nature of the breaches committed by the applicant and the impact which these had on the relevant market.

Third, the applicant alleges an infringement of the principles of proportionality and equal treatment by reason of the fact that, in calculating the fine, the Commission, without regard for the parties' respective roles in the cartel and the nature of the practices in which they engaged, did not differentiate between the parties but applied the same percentage to all the parties in respect of the gravity of the breach and the extra amount intended to serve as a deterrent.

Fourth, the applicant alleges an infringement of the principles of proportionality and equal treatment by reason of the fact that the Commission imposed the maximum authorised fine on a participant with such a limited role as the applicant.

Fifth, and finally, the applicant submits that there has been an infringement by the Commission of the principles of the protection of legitimate expectations and equal treatment, together with misappraisal, inasmuch as it failed to establish any mitigating circumstances in the applicant's case.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/32 |
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Action brought on 4 June 2008 — Amertranseuro International Holdings and Others v Commission

(Case T-212/08)

(2008/C 197/55)

Language of the case: English

Parties

Applicants: Amertranseuro International Holdings Ltd (London, United Kingdom), Trans Euro Ltd (London, United Kingdom) and Team Relocations Ltd (London, United Kingdom) (represented by: L. Gyselen, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Article 2(i) of the Commission Decision of 11 March in Case COMP/38.543 — International removal services, in so far as it holds the applicants jointly and severally liable for Team Relocations NV's alleged infringement of Article 81 EC and Article 53 EEA in the period of January 1997 to September 2003; |
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Annul Article 2(i) of the Commission Decision of 11 March in Case COMP/38.543 — International removal services, in so far as it holds the applicants jointly and severally liable for Team Relocations NV's alleged infringement of Article 81 EC and Article 53 EEA in the period of January 1997 to September 2003;

| — | in the alternative, annul Article 2(i) of this Commission decision in so far as it does not effectively limit the joint and several liability of Amertranseuro Ltd to the amount of EUR 1,3 million; |
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in the alternative, annul Article 2(i) of this Commission decision in so far as it does not effectively limit the joint and several liability of Amertranseuro Ltd to the amount of EUR 1,3 million;

| — | order the costs of the proceedings to be borne by the Commission. |
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—

order the costs of the proceedings to be borne by the Commission.

Pleas in law and main arguments

The applicants seek partial annulment, pursuant to Article 230 EC, of Commission Decision C(2008) 926 final of 11 March (Case COMP/38.543 — International removal services) (‘the contested decision’), relating to a proceeding under Article 81(1) EC and Article 53(1) EEA. More specifically, the applicants seek the annulment of Article 2(i) of the contested decision in so far as it holds them jointly and severally liable for the alleged participation of Team Relocations NV (‘TRNV’) in the infringement described in Article 1 of the contested decision.

The applicants put forward two pleas in law in support of their claims:

First, they submit that the Commission erred by holding all three of them liable in spite of the fact that they were neither aware, nor could have been aware of TRNV's involvement in the alleged infringement. Second, the applicants claim that the Commission misused its powers by imposing a fine which they are unable to pay.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/32 |
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Action brought on 9 June 2008 — Paul Alfons Rehbein v OHIM — Hervé Dias Martinho and Manuel Dias Martinho (Outburst)

(Case T-214/08)

(2008/C 197/56)

Language in which the application was lodged: English

Parties

Applicant: Paul Alfons Rehbein (GmbH & Co.) KG (Glinde, Germany) (represented by: T. E. Lampel, lawyer)

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

Other parties to the proceedings before the Board of Appeal: Hervé Dias Martinho and Manuel Carlos Dias Martinho (Le Plessis Trévise, France)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 March 2008 in case R 1261/2007-2; and |
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Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 March 2008 in case R 1261/2007-2; and

| — | order OHIM to pay the costs incurred by the applicant. |
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order OHIM to pay the costs incurred by the applicant.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘Outburst’ for goods in classes 16, 18 and 25 — application No 4 318 333

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

Mark or sign cited: The national word mark ‘Outburst’ for goods in class 25 — German trade mark registration No 399 40 713

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 43(2) and (3) of Council Regulation No 40/94 as the earlier national trade mark has been put to genuine use in connection with the goods and services in respect of which it is registered; infringement of Article 76(1)(f) of the said regulation as the Board of Appeal erred in not taking into account the affidavit of the applicant's managing director; infringement of Article 74(2) of the said regulation and of Rul 22(1) and (2) of Commission Regulation No 2868/95 (1) as the further evidence submitted at the appeal's stage of the opposition proceedings is admissible and has to be taken into account when assessing the genuine use of the opposition mark; infringement of applicant's right to be heard as the Board of Appeal should have taken into account evidence of use submitted after the time limit.

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(1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/33 |
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Action brought on 11 June 2008 — Lemans v OHIM — Stephen Turner (ICON)

(Case T-218/08)

(2008/C 197/57)

Language in which the application was lodged: English

Parties

Applicant: Lemans Corporation (Janesville, United States) (represented by: M. Cover, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Stephen Turner (Luddington, United Kingdom)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 March 2008 in case R 589/2007-2; |
| --- | --- |

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Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 March 2008 in case R 589/2007-2;

| — | declare that the opposition be dismissed and that Community trade mark concerned may proceed to registration; and |
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declare that the opposition be dismissed and that Community trade mark concerned may proceed to registration; and

| — | order the other party to the proceedings before the Board of Appeal to pay the costs, including the appeals before the Board of Appeal and the Court of First Instance. |
| --- | --- |

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order the other party to the proceedings before the Board of Appeal to pay the costs, including the appeals before the Board of Appeal and the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘ICON’ for goods and services in classes 9, 18 and 25 — application No 2 197 366

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

Mark or sign cited: The national word mark ‘IKON’ for goods in class 9 — UK trade mark registration No 2 243 676

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its finding that the other party to the proceedings before it had locus standi to file the opposition.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/33 |
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Action brought on 13 June 2008 — Impala v Commission

(Case T-229/08)

(2008/C 197/58)

Language of the case: English

Parties

Applicant: Independent Music Publishers and Labels Association (Impala, international association) (Brussels, Belgium) (represented by: S. Crosby, J. Golding, Solicitors, and I. Wekstein, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the Commission's Decision of 3 October 2007 in Case No COMP/M.3333-Sony/BMG declaring a concentration compatible with the common market and the functioning of the EEA Agreement, in accordance with Article 8(2) of Council Regulation (EEC) No 4064/89 (1); |
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annul the Commission's Decision of 3 October 2007 in Case No COMP/M.3333-Sony/BMG declaring a concentration compatible with the common market and the functioning of the EEA Agreement, in accordance with Article 8(2) of Council Regulation (EEC) No 4064/89 (1);

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

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order the Commission to pay the costs.

Pleas in law and main arguments

By Decision C(2004) 2815 of 19 July 2004, the Commission declared compatible with the common market the concentration by which Bertelsmann AG and Sony Corporation of America acquired joint control of the joint venture company Sony BMG combining their recorded music businesses (Case No. COMP/M.3333-Sony/BMG). By the judgment of 13 July 2006, the Court of First Instance annulled the Commission's decision (2). Following this annulment, the case was re-notified to the Commission who reassessed the concentration under the current market circumstances and by contested Decision C(2007) 4507 of 3 October 2007 authorised the merger as compatible with the common market and functioning of the EEA Agreement.

The applicant who is an international association representing independent music companies — competitors to the parties to the merger seeks the annulment of that decision. It claims that in authorising the merger the Commission committed a manifest error of assessment, and/or misapplied the law on collective dominance and/or infringed Article 253 EC by:

| — | failing to apply the correct test and to properly assess the existence, strengthening or creation of a collective dominant position in the physical recorded music market and market for recorded music in digital formats; |
| --- | --- |

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failing to apply the correct test and to properly assess the existence, strengthening or creation of a collective dominant position in the physical recorded music market and market for recorded music in digital formats;

| — | failing to conduct a prospective analysis as to whether or not the concentration might strengthen or create a collective dominant position on the market for physical recorded music and/or the market for recorded music in digital formats, and failing to give reasons or sufficient reasons for dispensing with a prospective analysis; |
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—

failing to conduct a prospective analysis as to whether or not the concentration might strengthen or create a collective dominant position on the market for physical recorded music and/or the market for recorded music in digital formats, and failing to give reasons or sufficient reasons for dispensing with a prospective analysis;

| — | failing to conduct a proper analysis concerning the possible effects of the merger on consumer choice or cultural diversity, or to make a prospective analysis thereof; and |
| --- | --- |

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failing to conduct a proper analysis concerning the possible effects of the merger on consumer choice or cultural diversity, or to make a prospective analysis thereof; and

| — | in conclusion, failing to find that the merger strengthened or created a collective dominant position in the physical recorded music market and market for recorded music in digital formats. |
| --- | --- |

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in conclusion, failing to find that the merger strengthened or created a collective dominant position in the physical recorded music market and market for recorded music in digital formats.

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(1)  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1, corrigendum OJ 1990 L 257, p. 13).

(2)  Case T-464/04, Impala v. Commission, [2006] ECR II-2289, judgment on appeal, Case C-413/06 P, Bertelsmann and Sony Corporation of America v Impala.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/34 |
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Action brought on 25 June 2008 — Melli Bank v Council

(Case T-246/08)

(2008/C 197/59)

Language of the case: English

Parties

Applicant: Melli Bank plc (London, United Kingdom) (represented by: R. Gordon, QC, J. Stratford, Barrister, R. Gwynne and T. Din, Solicitors)

Defendant: Council of the European Union

Form of order sought

| — | Annul paragraph 4, section B, of the annex to Council Decision 2008/475/EC concerning restrictive measures against Iran, in so far as it relates to Melli Bank plc; |
| --- | --- |

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Annul paragraph 4, section B, of the annex to Council Decision 2008/475/EC concerning restrictive measures against Iran, in so far as it relates to Melli Bank plc;

| — | Grant such further or other relief as may seem just and appropriate in the circumstances; |
| --- | --- |

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Grant such further or other relief as may seem just and appropriate in the circumstances;

| — | Order that the Council pay the Bank's costs of this application. |
| --- | --- |

—

Order that the Council pay the Bank's costs of this application.

Pleas in law and main arguments

In the present case the applicant seeks the partial annulment of Council Decision 2008/475/EC of 23 June 2008 (1) implementing Article 7(2) of Council Regulation No 423/2007 concerning restrictive measures against Iran (2) in so far as the applicant is included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision.

The applicant seeks the annulment of paragraph 4, section B, of the Annexe, in so far as it relates to the applicant, on the grounds that it is unlawful in two respects.

First, the applicant claims that the contested decision is disproportionate in that freezing the funds and economic assets of the applicant (i) has no rational relationship with the aim of preventing nuclear proliferation or its funding and (ii) it is not the least restrictive mean of exercising vigilance against the applicant or of pursuing the aim of preventing the funding of nuclear proliferation.

Second, the applicant claims that the contested decision violates the principle of non-discrimination in that, on one hand, the applicant is in the same position to other UK subsidiaries of the Iranian banks, and is in materially comparable position to other UK banks including UK banks trading with Iran, but has been treated in a different manner and, on the other hand, is in a significantly different position to another bank designated by the United Nations Security Council but has been treated in the same manner.

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(1)  OJ 2008 L 163, p. 29.

(2)  Council Regulation (EC) No 423/2007 of 19 April 2007 (OJ 2007 L 103, p. 1).

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/35 |
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Order of the Court of First Instance of 26 May 2008 — Ypma v Council and Commission

(Case T-9/94) (1)

(2008/C 197/60)

Language of the case: Dutch

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

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(1)  OJ C 59, 26.2.1994.

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2.8.2008

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Order of the Court of First Instance of 5 June 2008 — Katalagarianakis v Commission

(Case T-402/03) (1)

(2008/C 197/61)

Language of the case: French

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

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(1)  OJ C 35, 7.2.2004.

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Order of the Court of First Instance of 5 June 2008 — Martins v Commission

(Case T-11/04) (1)

(2008/C 197/62)

Language of the case: French

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

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(1)  OJ C 59, 6.3.2004.

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Official Journal of the European Union

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Order of the Court of First Instance of 5 June 2008 — Martinez-Mongay v Commission

(Case T-101/04) (1)

(2008/C 197/63)

Language of the case: French

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

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(1)  OJ C 106, 30.4.2004.

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Order of the Court of First Instance of 5 June 2008 — Piccinni-Leopardi v Commission

(Case T-128/04) (1)

(2008/C 197/64)

Language of the case: French

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

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(1)  OJ C 118, 30.4.2004.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/36 |
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Order of the Court of First Instance of 11 June 2008 — Piccinni-Leopardi and Others v Commission

(Case T-390/04) (1)

(2008/C 197/65)

Language of the case: French

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

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(1)  OJ C 300, 4.12.2004.

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Order of the Court of First Instance of 17 June 2008 — Rossi v OHIM — K & L Ruppert Stiftung (Rossi)

(Case T-31/05) (1)

(2008/C 197/66)

Language of the case: English

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

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(1)  OJ C 93, 16.4.2005.

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Order of the Court of First Instance of 5 June 2008 — Cegelec v Parliament

(Case T-104/05) (1)

(2008/C 197/67)

Language of the case: French

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

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(1)  OJ C 106, 30.4.2005.

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Order of the Court of First Instance of 17 June 2008 — Angiotech Pharmaceuticals v OHIM (VASCULAR WRAP)

(Case T-342/06) (1)

(2008/C 197/68)

Language of the case: English

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

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(1)  OJ C 326, 30.12.2006.

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Official Journal of the European Union

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Order of the Court of First Instance of 6 June 2008 — Chupa Chups v Commission

(Case T-331/07) (1)

(2008/C 197/69)

Language of the case: Spanish

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

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(1)  OJ C 247, 20.10.2007.

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Official Journal of the European Union

C 197/36

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Order of the Court of First Instance of 16 June 2008 — Quest Diagnostics v OHIM — ALK-Abelló (DIAQUEST)

(Case T-22/08) (1)

(2008/C 197/70)

Language of the case: English

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

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(1)  OJ C 92, 12.4.2008.

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European Union Civil Service Tribunal

| 2.8.2008 | EN | Official Journal of the European Union | C 197/37 |
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Judgment of the Civil Service Tribunal (First Chamber) of 17 June 2008 — De Fays v Commission

(Case F-97/07) (1)

(Staff cases - Officials - Sick leave - Unauthorised absence)

(2008/C 197/71)

Language of the case: French

Parties

Applicant: Chantal De Fays (Bereldange, Luxembourg) (represented by: P.-P. Van Gehuchten and P. Reyniers, lawyers)

Defendant: Commission of the European Communities (represented by: D. Martin and K. Herrmann, agents)

Re:

Application for, first, annulment of the Commission's decisions applying with regard to the applicant Article 60 of the Staff Regulations of Officials of the European Communities and, secondly, an application for damages.

Operative part of the judgment

The Tribunal:

| 1. | The application is dismissed; |
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1.

The application is dismissed;

| 2. | The parties are to bear their own costs. |
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2.

The parties are to bear their own costs.

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(1)  OJ C 283, 24.11.2007, p. 45.

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Action brought on 9 June 2008 — Palazzo v Commission

(Case F-57/08)

(2008/C 197/72)

Language of the case: French

Parties

Applicant: Armida Palazzo (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Application for, first, a declaration that Article 4 of Annex VIII to the Staff Regulations of Officials of the European Communities is illegal and, secondly, for annulment of the Appointing Authority's decision concerning the calculation of the credited contribution years of pension rights acquired by the applicant as a member of the local staff.

Form of order sought

The applicant claims that the Tribunal should:

| — | Declare that Article 4 of Annex VIII to the Staff Regulations of Officials of the European Communities is illegal; |
| --- | --- |

—

Declare that Article 4 of Annex VIII to the Staff Regulations of Officials of the European Communities is illegal;

| — | Annul the Appointing Authority's decision 24 October 2007 concerning the calculation of the credited contribution years of the pension rights acquired by the applicant as a member of the local staff; |
| --- | --- |

—

Annul the Appointing Authority's decision 24 October 2007 concerning the calculation of the credited contribution years of the pension rights acquired by the applicant as a member of the local staff;

| — | 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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Order of the Civil Service Tribunal (First Chamber) of 18 June 2008 — Kröppelin v Council

(Case F-2/05)

(2008/C 197/73)

Language of the case: French

The President of the First Chamber has ordered that the case be removed from the register, following amicable settlement.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/38 |
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Official Journal of the European Union

C 197/38

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Order of the Civil Service Tribunal (First Chamber) of 18 June 2008 — Huober v Council

(Case F-4/05)

(2008/C 197/74)

Language of the case: French

The President of the First Chamber has ordered that the case be removed from the register, following amicable settlement.

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/38 |
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2.8.2008

EN

Official Journal of the European Union

C 197/38

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Order of the Civil Service Tribunal (First Chamber) of 18 June 2008 — Kröppelin v Council

(Case F-6/05)

(2008/C 197/75)

Language of the case: French

The President of the First Chamber has ordered that the case be removed from the register, following amicable settlement.

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